Opinion

Marilyn Ryan v. Department of the Army

Court: Merit Systems Protection Board
Filed: May 8, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.2%

finding that the appellant’s unsubstantiated allegations of coercion were not sufficient to invalidate the oral settlement agreement

How later courts described this case

finding that the appellant’s unsubstantiated allegations of coercion were not sufficient to invalidate the oral settlement agreement

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARILYN J. RYAN, DOCKET NUMBER

Appellant, CH-0752-16-0485-I-1

DEPARTMENT OF THE ARMY, DATE: May 8, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Stephen T. Fieweger, Esquire, Davenport, Iowa, for the appellant.

Emily L. Macey, Rock Island, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed her 30-day suspension appeal as settled. 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

interpretation of statute or regulation or the erroneous application of the law to

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 grantin g 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).

BACKGROUND

¶2 As properly described in the initial decision, the appellant filed a Board

appeal of her 30-day suspension, effective June 22, 2016. Initial Appeal File

(IAF), Tab 21, Initial Decision (ID) at 1.

¶3 Immediately prior to the start of a hearing held on February 6, 2017, the

parties reached an oral settlement agreement. IAF, Tab 18, Hearing Compact

Disc (HCD), Tab 22, Hearing Transcript (HT). During the hearing, the

administrative judge described the following terms of the agreement: the length

of the appellant’s 30-day suspension would be reduced to 14 calendar days; the

remaining 16 days of her suspension would be held in abeyance for 2 years; if she

engaged in misconduct during the 2-year period, the 30-day suspension would be

reactivated and she waived her right to appeal that action; she would receive back

pay and benefits for the remaining 16 days of her suspension and a refund of

health and dental insurance premiums paid during that time period, provided she

submitted payment records; and she would receive up to $1,500 in attorney fees

upon the submission of a bill showing that the fees were reasonable . HCD; HT

at 3-4. The administrative judge clarified that the agreement was not a global

settlement of the appellant’s equal employment opportunity complaint and that

she agreed to withdraw her Board appeal. HCD; HT at 4. The administrative

judge further represented that the agreement was voluntary, the parties

understood its terms, and it would be accepted into the record. HCD; HT at 4.

The administrative judge asked the parties if she accurately covered the terms of

the agreement and if they had anything to add or correct . HCD; HT at 4. The

representatives of the appellant and the agency agreed that the administrative

judge described the terms, and they did not offer an addition or correction. HCD;

HT at 4. The appellant was present at the hearing. HCD; HT at 4.

¶4 The administrative judge thereafter issued an initial decision dismissing the

appeal as settled. ID at 1-2. She found that the Board has jurisdiction over the

appellant’s timely appeal. ID at 1. She further found that the parties voluntarily

and freely entered into a settlement agreement, they understood its terms, and it

was lawful on its face. ID at 1-2. She accepted the agreement into the record for

enforcement purposes and acknowledged that one of its terms was the appellant’s

withdrawal of her Board appeal. ID at 2.

¶5 The appellant has filed a petition for review requesting the Board to

reinstate her appeal and alleging that the settlement agreement was not entered

into voluntarily nor signed, and that she disagrees with its terms. Petition for

Review (PFR) File, Tab 1 at 1. The agency has filed a response asserting that,

after the hearing, the parties corresponded regarding a written settlement

agreement but that the appellant has not executed it. PFR File, Tab 3 at 6.

However, the agency argues that the oral settlement agreement is valid and that

reinstatement of the appeal is not warranted. Id. at 7-8. The agency has

submitted, among other things, evidence of the parties’ correspondence and

unsigned drafts of the written agreement. 2 Id. at 18-49.

Even assuming these documents are “new” for purposes of 5 C.F.R. § 1201.115, we

find that they do not contain information material to the outcome of this appeal. PFR

File, Tab 3 at 10-49.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 Generally, an oral settlement agreement is valid and binding on the part ies

even though the appellant has subsequently declined to sign a written document

memorializing the terms of the agreement. Schwartz v. Department of Education,

113 M.S.P.R. 601, ¶ 7 (2010). Even if there is language suggesting that the oral

agreement subsequently will be reduced to writing, the agreement is still binding

absent a showing that the parties did not intend to be bou nd until a written

agreement was signed. Id.

¶7 Here, the administrative judge dismissed the appeal based on the parties’

oral settlement agreement, ID at 1-2, and the recording of that agreement makes

clear that they reached a binding settlement agreement, HCD; HT at 3-4; see

Tiburzi v. Department of Justice, 269 F.3d 1346, 1353 (Fed. Cir. 2001) (finding

that the hearing transcript showed that the parties understood that a complete and

binding agreement had been reached when the administrative judge asked them

whether the terms entered into the record constituted all the terms of the

settlement agreement, and the parties answered in the affirmative and agreed that

the agreement would be enforceable by the Board). The recording contains no

statement that only a written and signed agreement would be binding on the

parties. HCD; HT; see Schwartz, 113 M.S.P.R. 601, ¶ 7. Thus, we find that the

oral settlement agreement was the operative agreement in this case , and therefore,

the appellant’s dispute on review regarding specific terms of the written

agreement is immaterial. PFR File, Tab 1 at 1; see Schwartz, 113 M.S.P.R. 601,

¶ 7.

¶8 A party may challenge the validity of a settlement agreement if the party

believes that the agreement is unlawful, involuntary, or the result of fraud or

mutual mistake. Schwartz, 113 M.S.P.R. 601, ¶ 8. The party challenging the

validity of the settlement agreement bears a “heavy burden.” Id. (quoting Asberry

v. U.S. Postal Service, 692 F.2d 1378, 1380 (Fed. Cir. 1982)).

¶9 In her petition for review, the appellant alleges that she did not voluntaril y

enter into the settlement agreement and that she was not in agreement with its

terms on the date of the hearing. PFR File, Tab 1 at 1. We find that these

allegations fail to satisfy her heavy burden of establishing that the settlement

agreement is invalid. See Tiburzi, 269 F.3d at 1355 (finding that the appellant’s

unsubstantiated allegations of coercion were not sufficient to invalidate the oral

settlement agreement). The record shows that, during the hearing, the appellant’s

representative agreed with the administrative judge’s description of the terms of

the agreement and did not offer an addition or correction when provided an

opportunity to do so. HCD; HT at 4; see Pacilli v. Department of Veterans

Affairs, 113 M.S.P.R. 526, ¶ 13 (stating that an appellant generally is responsible

for the errors of her chosen representative), aff’d, 404 F. App’x 466 (Fed. Cir.

2010). Moreover, the appellant, who was present at the hearing, did not voice her

objection to the terms of the agreement. HCD; HT at 4.

¶10 To the extent the appellant believes that the agency has breached the terms

of the oral settlement agreement, she may file a petition for enforcement with the

Board’s regional office. 5 C.F.R. § 1201.182(a). Accordingly, we find that the

administrative judge properly dismissed this appeal as settled.

NOTICE OF APPEAL RIGHTS 3

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

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.

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of 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

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. If 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. 420 (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

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 B oard’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. 4 The court of appeals must receive your

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.

petition for 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