The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN H. HALL, DOCKET NUMBER
Appellant, DC-0752-14-0243-I-1
v.
DEPARTMENT OF HOMELAND DATE: June 23, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven H. Hall, Chesapeake Beach, Maryland, pro se.
Letitia Byers, Washington, D.C., 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 the removal 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
regulation or 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. 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant appealed his removal from the position of Administrative
Specialist for misconduct. Initial Appeal File (IAF), Tab 1. The administrative
judge issued an initial decision dismissing the appeal as settled. IAF, Tab 30,
Initial Decision (ID). The initial decision notes that the appellant timely
requested to revoke the settlement agreement and subsequently rescinded the
revocation. ID at 1 n.1.
¶3 The appellant has filed a petition for review raising issues concerning the
merits of his appeal and alleging, among other things, that the settlement
agreement is invalid because both parties’ representatives misled him to believe
he could revoke it within 7 days of its execution and that the administrative judge
was biased. Petition for Review (PFR) File, Tab 1. The agency has filed a
response arguing that the petition for review should be dismissed pursuant to the
settlement agreement. PFR File, Tab 3.
¶4 A settlement agreement is a contract between the parties and, as such, may
be set aside or voided only on the basis of certain limited grounds, including
fraud, coercion, or mutual mistake. Woodjones v. Department of the Army,
3
89 M.S.P.R. 196, ¶ 11 (2001). The party challenging the validity of a settlement
agreement bears a heavy burden. Id. An appellant’s mere post-settlement
remorse or change of heart cannot serve as a basis for setting aside a valid
settlement agreement. Thompson v. Department of Veterans Affairs, 52 M.S.P.R.
233, 237 (1992).
¶5 Under the Older Workers Benefit Protection Act (OWBPA), the waiver of
an Age Discrimination in Employment (ADEA) claim is not considered knowing
and voluntary unless it meets certain criteria, including allowing the employee
7 days to revoke the agreement. 29 U.S.C. § 626(f). It is undisputed that the
appellant did not raise an age discrimination claim in the Board appeals or equal
employment opportunity complaints settled by the agreement. PFR File,
Tab 1 at 3, 6-7, Tab 3 at 14. The parties’ agreement states, in relevant part,
“[a]ppellant acknowledges that he was further advised that he may revoke this
Agreement at any time within seven (7) days after signing it.” IAF, Tab 26 at 6.
¶6 The agency argues that the 7-day revocation period provision was
“inapplicable” to the appellant and of no consequence. PFR File, Tab 3 at 14.
We do not agree. In construing a contract, we look first to the terms of the
agreement itself. Greco v. Department of the Army, 852 F.2d 558, 560 (Fed. Cir.
1988). The agency may have intended for the revocation period to only apply if
the appellant claimed that he had been discriminated against based on age, but the
settlement agreement does not set any such limit, and the Board cannot add it
after the fact. Only if there is some ambiguity should parol evidence be
considered. Id. There is no ambiguity in the terms of this agreement. The fact
that the OWBPA only requires a 7-day revocation period in agreements settling
claims brought under the ADEA is irrelevant because the settlement agreement at
issue includes a 7-day revocation period. See Jackson v. Department of the Army,
123 M.S.P.R. 178, ¶¶ 7-12 (2016). The appellant states, “I had signed the
settlement agreement based on the understanding that I could revoke the
agreement seven days after signing it according to the Older Workers’ Benefit
4
Act.” PFR File, Tab 1 at 6. Thus, the revocation provision was material to the
appellant’s decision to sign the settlement agreement. Jackson, 123 M.S.P.R.
178, ¶ 10. Based on the plain language of the agreement, the appellant could
have revoked the settlement agreement within 7 days of signing it.
¶7 The appellant alleges that he signed the settlement agreement because he
was misled by the administrative judge, his representative, and the agency’s
representative. PFR File, Tab 1 at 7. A settlement agreement may be invalid if
the appellant shows that the agreement was based on misrepresentation by the
agency. Hamilton v. Department of Veterans Affairs, 92 M.S.P.R. 467,
¶ 19 (2002). On the issue of misrepresentation, it is sufficient to show that a
reasonable person would have been misled by the statements. Id.
¶8 The appellant was not misled. As discussed above, the appellant must have
understood that he could revoke the settlement agreement within 7 days because
he requested to revoke the agreement. ID at 1 n.1; IAF, Tab 28. That revocation
would have cancelled the settlement agreement. However, after a conference call
with the administrative judge and the agency’s representative, the appellant
rescinded his revocation stating, “I wish to go forward with the agreement after
carefully considering my options.” IAF, Tab 29. Therefore, the appellant’s
revocation is no longer in effect, and the parties are bound by the terms of the
settlement agreement. Although the appellant may believe that his
representatives failed to act in his best interest in negotiating the settlement
agreement, he is bound by his chosen representatives’ actions and consequently
bound by the terms of the settlement agreement. Merriweather v. Department of
Transportation, 64 M.S.P.R. 365, 372-73 (1994), aff’d, 56 F.3d 83 (Fed. Cir.
1995) (Table).
¶9 The appellant alleges that the administrative judge was biased and
conspired with the representatives to pressure him into settling. PFR File,
Tab 1 at 2-3. In making a claim of bias or prejudice against an administrative
judge, a party must overcome the presumption of honesty and integrity that
5
accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). To support his bias claim, the
appellant alleges that the administrative judge and his representative discussed
the weakness of his appeal prior to the prehearing conference. PFR File,
Tab 1 at 2. In settlement negotiations, administrative judges are permitted to
inform the parties of the relative strengths and weaknesses of their cases.
Forston v. Department of the Navy, 60 M.S.P.R. 154, 160 (1983). Such
statements do not indicate bias or coercion. Id.
¶10 We find that, by the terms of the settlement agreement, the appellant
withdrew his appeal with prejudice, he knowingly and voluntarily signed the
settlement agreement, he waived further Board appeal rights concerning his
removal, and the waiver is enforceable. Accordingly, we deny the petition for
review of the initial decision dismissing this appeal as settled. Because this
appeal has been settled, we need not reach the other issues raised by the appellant
2
on review. See Lee v. U.S. Postal Service, 111 M.S.P.R. 551, ¶ 10 (2009), aff’d,
367 F. App’x 137 (Fed. Cir. 2010).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 3
You have the right to request further review of this final decision.
2
The appellant’s arguments challenging the merits of his removal and the conduct of
both parties’ representatives do not present a reason to disturb the initial decision
dismissing his appeal as settled. See Hinton v. Department of Veterans Affairs,
119 M.S.P.R. 129, ¶ 4 (2013); see also Thompson, 52 M.S.P.R. at 236-37 (explaining
that an appellant is responsible for the actions or inactions of his chosen representative
and the alleged inadequacy of his representation is not grounds to set aside a settlement
agreement).
3
The administrative judge did not provide the appellant with notice of his mixed-case
rights to appeal from the initial decision on his discrimination claims to the Equal
Employment Opportunity Commission and/or an appropriate U.S. district court. This
was error, but it does not constitute reversible error because we notify the appellant of
his mixed‑case appeal rights in this Final Order. See Grimes v. U.S. Postal Service,
39 M.S.P.R. 183, 186-87 (1988).
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Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. If the action involves a claim of discrimination based on race, color,
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religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.