Damon Brown v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAMON V. BROWN, DOCKET NUMBER

Appellant, SF-0752-17-0611-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: January 23, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Damon V. Brown, Inglewood, California, pro se.

Catherine V. Meek, Esquire, Long Beach, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such

as this one only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial decision is based on an erroneous

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

interpretation of statute or 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. Except as expressly

MODIFIED to dismiss this appeal for lack of jurisdiction based on a settlement

agreement between the parties in which the appellant waived his right to appeal to

the Board, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant, who was employed at the agency as a Mail Processing Clerk,

suffered an on-the-job injury on March 25, 2012. Initial Appeal File (IAF), Tab 1

at 77-78. After returning to work, the appellant had numerous absences , and the

agency subsequently issued him a Letter of Warning regarding his absences in

November and December 2013. IAF, Tab 5 at 26-27. The agency removed the

appellant effective August 15, 2015. IAF, Tab 5 at 36-37, 41-44. In November

2015, the appellant, who was represented at the time, entered into a settlement

agreement with the agency. Id. at 27-35. In that agreement, the agency agreed to

remove the August 2015 disciplinary removal from his personnel file and instead

separate him, effective January 1, 2016, with a nondisciplinary removal for

medical inability to perform the duties of his position, and the appellant agreed to

subsequently apply for disability retirement. Id. The appellant also agreed to

waive any and all appeal rights to the Board for “causes of action of any kind,

nature, and character, known and unknown, which Complainant may now have or

3

has ever had against Postal Service, or any of its officers, agents, and employees,

which arose in whole or in part from Complainant’s employment relationship

with Postal Service, and which are based upon incidents, oc currences, or actions

taking place prior to the execution of this agreement.” Id. at 28. On January 25,

2017, the appellant filed this appeal in which he alleged that he was challenging

the following actions: his removal, the failure to restore, involuntary resignation,

involuntary retirement, a reduction in force, and violations of the Uniformed

Services Employment and Reemployment Rights Act of 1994 (codified as

amended at 38 U.S.C. §§ 4301-4335) and the Veterans Employment Opportunities

Act of 1998. 2 IAF, Tab 3.

¶3 The administrative judge issued a jurisdictional order that advised the

appellant that his appeal may not be within the Board’s jurisdiction , provided him

with the law and burdens of proof applicable to the Board’s jurisdiction over each

of the claims that the appellant indicated he was attempting to appeal, and set

deadlines for the parties to respond to the order. IAF, Tab 3. Although the

agency filed a response, the appellant did not respond. IAF, Tab 5. Without

holding a hearing, the administrative judge issued an initial decision that

addressed each of the appellant’s allegations and dismissed the appeal for lack of

jurisdiction. IAF, Tab 7, Initial Decision (ID).

¶4 The appellant has filed a petition for review. Petition for Review (PFR)

File, PFR File, Tab 1. The agency has filed a response to the petition. PFR File,

Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 Before considering the appellant’s petition for review, we find that we must

address the applicability of the settlement agreement between the parties , which

2

There may be a question as to timeliness. However, because the Board lacks

jurisdiction over the appeal, it need not address the issue of the timeliness of the

appellant’s initial appeal. Fletcher v. Office of Personnel Management, 118 M.S.P.R.

632, 635 n.2 (2012).

4

was submitted into the record below. IAF, Tab 5 at 27-35. In considering the

impact of a prior settlement agreement on a pending appeal, the Board will

consider the agreement to determine the effect on the Board appeal and any

waiver of Board appeal rights, even when, as here, the agreement was reached

outside of a Board proceeding. 3 Swidecki v. U.S. Postal Service, 101 M.S.P.R.

110, ¶ 7 (2006). The appellant may challenge the validity of the settlement

agreement if he believes it was unlawful, involuntary, or resulted from fraud or

mutual mistake. Id., ¶ 13. An appellant has the burden of showing that he

involuntarily entered into a settlement agreement. Id. An appellant’s mere

post-settlement remorse or change of heart cannot serve as a basis for setting

aside a valid settlement agreement. Hinton v. Department of Veterans Affairs,

119 M.S.P.R. 129, ¶ 4 (2013).

¶6 The appellant also may challenge the enforceability of any waiver of Board

appeal rights. Such a waiver is enforceable if its terms are comprehensive, freely

made, and fair, and execution of the waiver did not result from agency duress or

bad faith. Swidecki, 101 M.S.P.R. 110, ¶ 17. In deciding whether the appellant

freely and voluntarily entered into the settlement agreement, the Board will

consider whether he was represented, whether he has demonstrated that he was

mentally impaired when the agreement was reached, and whether he has

3

Although the administrative judge did not provide the appellant with jurisdictional

burdens of proof concerning the settlement agreement, we find it unnecessary to remand

this appeal for a proper jurisdictional notice. See Burgess v. Merit Systems Protection

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an appellant must receive

explicit information on what is required to establish an appealable jurisdictional issue).

The Board has found that an administrative judge’s defective notice can be cured if the

agency’s pleadings contain the notice that was lacking in the jurisdictional order. Scott

v. Department of Justice, 105 M.S.P.R. 482, ¶ 6 (2007). Here, the agency adequately

informed the appellant in its narrative response that the appellant has provided no

showing that the settlement agreement was obtained under coercion or

misrepresentation. IAF, Tab 5 at 12. On review, the appellant does not challenge the

validity of the settlement agreement or the enforceability of the waiver clause. PFR

File, Tab 1.

5

otherwise shown that he was unable to understand the nature of the settlement

agreement fully. Id.

¶7 Here, the appellant was represented by a union representative during

settlement negotiations, and both the appellant and his representative signed the

settlement agreement. IAF, Tab 5 at 35. Such representation is significant in

determining the validity of an appeal-rights waiver. Clede v. Department of the

Air Force, 72 M.S.P.R. 279, 285 (1996), aff’d, 113 F.3d 1257 (Fed. Cir. 1997)

(Table). The agreement specifically provided that the appellant and the agency

entered into it voluntarily, without coercion or duress. IAF, Tab 5 at 34. The

appellant has provided no arguments that he was mentally impaired when the

agreement was reached, or that he entered into the agreement under duress or

coercion.

¶8 Furthermore, we find that the November 24, 2015 settlement agreement

includes an explicit waiver of the appellant’s Board appeal rights over any action

“which arose in whole or in part from [the appellant’s] employment relationship

with Postal Service, and which are based upon incidents, occurrences, or actions

taking place prior to the execution of this agreement.” IAF, Tab 5 at 27-29. We

further find that, in this appeal, the appellant is contesting his removal and

matters that preceded his removal. All of these matters thus arose prior to, or as a

result of the terms of, the settlement agreement entered into by the parties. By

the explicit terms of the settlement agreement, which we fin d that the appellant

knowingly and voluntarily signed, he waived further Board appeal rights

concerning his removal. 4 We find the waiver enforceable.

4

To the extent the appellant is claiming that he left the agency as a result of an

involuntary resignation or involuntary retirement, the record shows he was removed

from his position based on a charge of inability to perform. Because the appellant was

removed by the agency from his position as a Mail Processing Clerk, it is not necessary

to analyze this matter as a constructive adverse action. To the extent the administrative

judge did so, we vacate those findings in the initial decision.

6

¶9 On review, the appellant reasserts the numerous allegations he raised below

concerning his on-the-job injury, his resulting medical treatment, the failure of

the agency to provide him with a modified assignment, his removal, and various

laws he claims were violated by the agency during his employment and removal . 5

PFR File, Tab 1 at 4. However, because this appeal is properly dismissed for lack

of jurisdiction based on the terms of the settlement agreement, we need not reach

the other issues raised by the appellant 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).

¶10 Accordingly, we find that the Board lacks jurisdiction over the matters

raised in this appeal based on the terms in the settlement agreement.

NOTICE OF APPEAL RIGHTS 6

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

5

The appellant has attached letters of reference and various medical and financial

documents to his petition for review without a showing that they were unavailable

before the record closed despite his due diligence. PFR File, Tab 1 at 5-81. Thus,

under 5 C.F.R. § 1201.115, the Board need not consider them. To the extent that some

of the documents were submitted for a first time on review, we find that they are not

material to the appellant’s voluntariness of entering into the settlement agreement and

do not warrant a different outcome. See Russo v. Veterans Administration, 3 M.S.P.R.

345, 349 (1980); PFR File, Tab 1 at 6-15, 37-39, 57-81.

6

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

7

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U .S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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 representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

8

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. I f so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, 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.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

9

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 7 The court of appeals must receive your petition for

7

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

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review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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 websit e at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.