The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMIE LITTLEFIELD, DOCKET NUMBER
Appellant, AT-0752-15-0408-I-1
v.
DEPARTMENT OF THE NAVY, DATE: February 17, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jamie Littlefield, Leesburg, Georgia, pro se.
Grant Jensen, Esquire, Albany, Georgia, 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
the erroneous application of the law to the facts of the case; the administrative
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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 Effective February 21, 2015, the agency removed the appellant from his
GS-10 Supervisory Police Officer position. Initial Appeal File (IAF), Tab 4
at 18. The appellant timely filed an appeal with the Board regarding his removal.
IAF, Tab 1.
¶3 During the processing of the appeal, the parties jointly requested to
participate in the Board’s Mediation Appeals Program. IAF, Tab 9. They
subsequently entered into a settlement agreement, which was fully executed on
August 25, 2015. Id.; IAF, Tab 10. In relevant part, the settlement agreement
provided that the agency would: (1) rescind the removal action; and (2) restore
the appellant to the position of GS-8, Step 9, Field Training Officer. IAF,
Tab 10. The parties agreed that the Board would retain jurisdiction to enforce the
agreement. Id. at 2.
¶4 The administrative judge issued an initial decision dismissing the appeal, in
light of the appellant’s request to withdraw it pursuant to the settlement
agreement. IAF, Tab 11, Initial Decision (ID). She found that the Board had
jurisdiction over the appellant’s removal appeal and that the settlement agreement
was lawful on its face. ID at 1. Further, she noted that the appellant represented
that he understood the agreement and entered into it voluntarily. ID at 1. She
entered the agreement into the Board’s record for enforcement purposes. ID at 2.
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¶5 The appellant has filed a petition for review, claiming that he entered into
the settlement agreement based upon the agency’s false statements. Petition for
Review (PFR) File, Tab 1. The agency filed a response in opposition to the
petition for review, to which the appellant did not reply. 2 PFR File, Tab 3.
¶6 A party may challenge the validity of a settlement agreement by showing,
inter alia, that it was the result of fraud or misrepresentation. Henson v.
Department of the Treasury, 86 M.S.P.R. 221, ¶¶ 5, 7 (2000). Even if invalidity
is not apparent at the time of settlement, the settlement agreement must be set
aside if it is subsequently shown, by new evidence, that the agreement is tainted
with invalidity by fraud or misrepresentation. Id., ¶ 7. For the reasons set forth
below, we find that the appellant’s arguments do not warrant setting aside the
settlement agreement on the basis of fraud or misrepresentation.
¶7 The appellant states that, during mediation, the agency represented that it
could immediately place him into a GS-8 position. PFR File, Tab 1 at 4. He
claims that, to the contrary, there was no GS-8 position into which he could be
immediately placed when the agreement was fully executed. Id. He further
asserts that a GS-8 position did not become available until September 20, 2015,
and that, as of September 22, 2015, the date he filed his petition for review, the
agency had yet to reinstate him. 3 Id.
¶8 In construing a settlement agreement, the Board will first consider the terms
of the agreement itself, and will only examine extrinsic evidence if the terms of
2
The agency states that its response was untimely filed by 2 days and “requests that an
extension of time be granted after the fact.” PFR File, Tab 3 at 4. However, the filing
deadline of October 17, 2015, fell on a Saturday. Thus, the agency’s response,
submitted on Monday, October 19, 2015, was timely filed. See 5 C.F.R. § 1201.23.
3
The agency concedes that it did not return the appellant to work until October 13,
2015, 49 days after the settlement agreement was fully executed. PFR File, Tab 3 at 7,
10. It is unclear whether the appellant is alleging that the agency breached the
settlement agreement. To the extent he is attempting to raise this argument, we cannot
decide that issue now. Rather, he must raise such a claim in a petition for enforcement
to be decided in the first instance at the regional level. See Secrist v. U.S. Postal
Service, 115 M.S.P.R. 199, ¶ 8 (2010).
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the agreement are ambiguous, meaning they are susceptible to more than one
reasonable interpretation. Harris v. Department of Veterans
Affairs, 99 M.S.P.R. 609, ¶ 4 (2005). The settlement agreement did not state that
the appellant would be “immediately” placed into a GS-8 position. Rather, it
stated that the agency would “act in good faith” to reinstate the appellant “as
quickly as possible.” IAF, Tab 10 at 2. Thus, regardless of whether the agency
told the appellant during settlement negotiations that it would reinstate him
immediately, we cannot find that he was misled when he voluntarily signed a
settlement agreement that plainly stated otherwise.
¶9 The appellant also suggests that he only agreed to accept a GS-8 position
because, during mediation, the agency falsely advised him that no GS-9 positions
were available at that time. PFR File, Tab 1 at 4. However, in paragraph 2 of the
settlement agreement, the parties agreed that neither party would be “bound by
any representation, promise, nor inducement not set forth” therein. IAF, Tab 10
at 1. Thus, the appellant cannot now rely upon the agency’s alleged assertion that
no GS-9 positions were available, which is not set forth in the settlement
agreement, to support his claim of misrepresentation. See Hopkins v. Department
of the Navy, 83 M.S.P.R. 266, ¶¶ 7-8 (1999) (finding that the administrative judge
erred in determining that a settlement agreement included an implied promise
because the promise was not explicitly set forth in the agreement, which stated
that neither party would be “bound by any representation, promise, or inducement
not set forth” therein); Colonel v. Department of the Air Force, 38 M.S.P.R. 285,
290-91 (1988) (affirming the administrative judge’s finding that a settlement
agreement was not tainted by invalidity based on the appellant’s assertion that an
agency employee had violated an assurance upon which he relied in entering into
the settlement because the assurance was not included in the agreement and the
agreement stated that no promises or agreements not included therein would be
binding upon the parties), aff’d, 980 F.2d 743 (Fed. Cir. 1992) (Table).
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¶10 Based on the foregoing, we find no basis to set aside the settlement
agreement. We therefore affirm the initial decision dismissing this appeal as
settled.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. 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).
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 U.S. 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 U.S. 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 U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
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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.