The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWIN VARGAS, DOCKET NUMBER
Appellant, DC-0752-14-0126-I-1
v.
DEPARTMENT OF THE NAVY, DATE: October 7, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Edwin Vargas, New Bern, North Carolina, pro se.
Anthony P. Alfano, Esquire, Camp Lejeune, North Carolina, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as settled. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
*
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. See Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The administrative judge issued an initial decision on December 5, 2013,
dismissing as settled an appeal filed by the appellant. Initial Appeal File (IAF),
Tab 26, Initial Decision (ID). In the initial decision dismissing the appeal, the
administrative judge found that the settlement agreement was lawful on its face
and that the parties freely entered into the agreement and understood its terms.
ID at 2. The administrative judge further found that the Board had jurisdiction
over the appeal, that the settlement agreement fully resolved the issues raised by
the parties on appeal, and that the parties intended to enter the agreement into the
record for enforcement by the Board. ID at 1-2. The initial decision dismissing
the appeal as settled became the final order of the Board on January 9, 2014, after
neither party filed a petition for review by that date. ID at 2.
¶3 When an administrative judge dismisses an appeal as settled, a party who
believes that the agreement is invalid because it was obtained by fraud or
coercion, or because it was based on mutual mistake, may file a petition for
review of the initial decision and seek to have the settlement agreement set aside.
McKinney v. Department of Agriculture, 70 M.S.P.R. 165, 166-67 (1996). On
May 23, 2015, the appellant filed a petition for review asking the Board to modify
the terms of the parties’ settlement agreement. Petition for Review (PFR) File,
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Tabs 1-3. Specifically, the appellant requests that the Board change the language
in paragraph 3.b of the settlement agreement “from not seek and/or accept
employment with Navy Bureau of Medicine and Surgery to not seek and/or accept
employment as Inventory Management Specialist, Equipment Manager.” PFR
File, Tab 3 at 3. In support of his request, the appellant states that he is
dissatisfied with the terms of the settlement because it prevents him from
applying for jobs in his field of experience. Id.
¶4 Based upon our review, we find that the appellant has not shown or
specifically alleged that the settlement agreement is invalid because of fraud,
coercion, or mutual mistake. Instead, he asks the Board to modify the agreement.
The Board lacks the unilateral authority to modify a material term in a settlement
agreement. See Rhoda v. Department of the Navy, 34 M.S.P.R. 576, 578 (1987).
We therefore find that the appellant has failed to establish a basis on which to
grant his petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.