Fenlon v. Department of the Navy , 601 F. App'x 947 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
YONG I. FENLON,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
_____________________
2014-3145
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0432-04-0076-X-1.
______________________
Decided: February 5, 2015
______________________
YONG I. FENLON, Carlsbad, California, pro se.
LAUREN S. MOORE, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
STUART F. DELERY, ROBERT E. KIRSCHMAN, JR., REGINALD
T. BLADES, JR.
______________________
Before NEWMAN, LOURIE, and DYK, Circuit Judges.
2 FENLON v. NAVY
PER CURIAM.
Yong I. Fenlon (“Fenlon”) appeals from the decision of
the Merit Systems Protection Board (“the Board”) dis-
missing the Department of the Navy’s (“the Navy”) peti-
tion for enforcement (“PFE”) as settled. Fenlon v. Navy,
No. SF-0432-04-0076-X-1, 2014 WL 5320065 (M.S.P.B.
June 12, 2014) (“Opinion”). Because the Board did not
err, we affirm.
BACKGROUND
Fenlon worked as a financial management analyst for
the Navy when she was removed from her position. She
appealed her removal to the Board, but in 2004, Fenlon
and the Navy entered into a settlement agreement (“the
2004 agreement”). The 2004 agreement resolved “any and
all other matters related to Ms. Fenlon’s employment
with the Navy.” Resp’t’s App. (“App.”) 18–19. Notably, it
stated that Fenlon would “resign her position with the
Navy effective 8 February 2003” and “w[ould] not apply
for nor accept a position with the Department of the Navy
any time in the future.” Id. at 21. As part of the settle-
ment, the Navy paid Fenlon $40,000, among other consid-
eration.
In 2008, Fenlon applied for and accepted a budget an-
alyst position with the Navy aboard the Marine Corps
Installation West, Camp Pendleton, California. The Navy
became aware of Fenlon’s appointment and, in 2011, filed
a PFE at the Board to enforce the 2004 agreement.
In 2012, the Board’s administrative judge (“AJ”) is-
sued a recommendation in which he granted the Navy’s
PFE. See id. at 1–10. The AJ found that Fenlon breached
the 2004 agreement when she applied for and accepted a
position with the Navy in 2008. Id. at 7. The AJ dis-
missed as unsupported Fenlon’s argument that the 2004
agreement was void and violated Department of Defense
regulations. Id. at 8. In addition, the AJ found that
FENLON v. NAVY 3
Fenlon did not act in good faith because she failed to
notify the Navy when she accepted her new position and
she failed to request a job that excluded Navy activities
pursuant to the terms of the 2004 agreement. Id. “Be-
cause the essence of the agreement for the Navy was
[Fenlon’s] resignation and her agreement never to apply
for or accept future employment with the Navy, [the AJ]
recommend[ed] that the Navy be granted its requested
relief to enforce the agreement” and referred the matter to
the Board’s Office of General Counsel. Id. at 10.
On May 16, 2013, Fenlon and the Navy submitted a
second settlement agreement to the Board (“the 2013
agreement”). In the 2013 agreement, Fenlon agreed to
resign from her budget analyst position, and the Navy
agreed to withdraw its PFE. By final order dated June
12, 2014, the Board dismissed the Navy’s PFE as settled.
Opinion at *1. In its decision, the Board found that the
“[2013] agreement is lawful on its face; that the parties
freely entered into it; and that the subject matter of the
case . . . is within the Board’s jurisdiction.” Id.
Fenlon timely appealed. We have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board
decision is limited. We can only set aside the Board’s
decision if it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c).
On appeal, Fenlon asks us to vacate the 2013 agree-
ment, ostensibly arguing that she lacked capacity when
she entered into the agreement: “Please Cancelled Con-
siderations for Settlement Agreement between April 30,
2013 and dated May 16, 2013. Because discriminated
4 FENLON v. NAVY
against when it I have been diagnosed by doctors with a
diseases problem. . . . I got forced to signed and I did not
read has been settled because of dangerous symptoms of
Thyroid Cancer Stage of my disease.” Pet’r’s Br. 5 (em-
phases removed). The Navy responds that Fenlon has
neither challenged the terms of the 2013 agreement nor
challenged the Board’s determination that the 2013
agreement was valid and binding, and thus does not
formally address Fenlon’s incapacity argument. See, e.g.,
Resp’t’s Br. 10–12.
Nonetheless, we conclude that Fenlon’s argument
fails, and that the Board did not err in determining that
the 2013 agreement “is lawful on its face” and that “the
parties freely entered into it.” Opinion at *1. “One who
attacks a settlement must bear the burden of showing
that the contract he has made is tainted with invalidity . .
. .” Asberry v. USPS, 692 F.2d 1378, 1380 (Fed. Cir. 1982)
(quoting Callen v. Pa. R.R. Co., 332 U.S. 625, 630 (1948)).
Fenlon claims that her medical condition prevented
her from entering into the 2013 agreement, but Fenlon
failed to make any such argument before the Board. As
we said in connection with another effort to challenge a
settlement agreement on appeal from the Board’s approv-
al of the agreement, “[o]ur precedent clearly establishes
the impropriety of seeking a reversal of the [B]oard’s
decision on the basis of assertions never presented to the
presiding official or to the [B]oard.” Sargent v. Dep’t of
Health & Human Servs., 229 F.3d 1088, 1091 (Fed. Cir.
2000). Moreover, and most important, Fenlon had ade-
quate representation throughout the Board proceedings
and settlement negotiations. App. 1, 13. The Board’s
determination was therefore not incorrect, and the 2013
agreement was therefore lawful.
Fenlon also argues that the Board erroneously failed
to conduct a hearing, citing various statutes and regula-
tions, including 29 C.F.R. Part 1614, the Equal Pay Act,
FENLON v. NAVY 5
and the Rehabilitation Act of 1973, among others, arguing
that she was entitled to a hearing. Pet’r’s Br. 7. But
those statutes and regulations are inapposite, as MSPB
rules and procedures are prescribed in 5 C.F.R. §§ 1201 et
seq. Those rules do grant an employee the right to a
hearing, id.; 5 U.S.C. § 7701(a)(1), but if the appellant
waives her right to a hearing, then the Board need not
provide one, see Callahan v. Navy, 748 F.2d 1556, 1559
(Fed. Cir. 1984) (“All indications, therefore, lead to the
conclusion that Congress intended the hearing to be for
the employee’s benefit. Nonetheless, if the employee
forfeits the right which Congress conferred, he must
forego the benefits.”). Here, Fenlon neither requested a
hearing nor challenged the lack of a hearing before the
full Board. Resp’t’s Br. 7. Instead, Fenlon voluntarily
entered into a settlement agreement with the Navy, and
the Navy’s PFE was dismissed as settled. Opinion at *1–
2. Accordingly, the Board did not err.
CONCLUSION
We have considered Fenlon’s remaining arguments
and find them unpersuasive. For the foregoing reasons,
the decision of the Board is affirmed.
AFFIRMED