Gipson v. Department of Treasury , 549 F. App'x 979 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BARBARA L. GIPSON,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
______________________
2013-3157
______________________
Petition for review of the Merit Systems Protection
Board in No. AT0752120418-I-2.
______________________
Decided: December 9, 2013
______________________
BARBARA L. GIPSON, of Morrow, Georgia, pro se.
WILLIAM P. RAYEL, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Assistant Attorney
General, BRYANT G. SNEE, Acting Director, and REGINALD
T. BLADES, JR., Assistant Director.
______________________
2 GIPSON v. TREASURY
Before RADER, Chief Judge, PROST and HUGHES, Circuit
Judges.
PER CURIAM.
Barbara Gipson appeals the final decision of the Merit
Systems Protection Board, concluding that the Adminis-
trative Judge properly dismissed her appeal because she
had voluntarily entered into a settlement agreement with
her employing agency, the Internal Revenue Service.
Because the Board’s conclusion that Ms. Gipson entered
into a valid settlement agreement is in accordance with
law and supported by substantial evidence, we affirm.
I.
Ms. Gipson worked at the IRS as a Contact Repre-
sentative. Effective March 5, 2012, the IRS removed Ms.
Gipson from that position. She appealed her removal
alleging disability discrimination and denial of reasonable
accommodations.
Ms. Gipson’s appeal hearing was scheduled for Sep-
tember 19, 2012. On the morning of the hearing, Ms.
Gipson entered into a settlement agreement with the IRS.
Under the terms of the settlement agreement, the IRS
agreed to convert Ms. Gipson’s removal to a retirement,
pay her compensatory damages of $8,600, and provide her
with a neutral job reference. App. 29–30. In return, she
agreed to withdraw all lawsuits or judicial actions against
the IRS and agreed not to file any additional actions
against the IRS relating to her employment there. App.
30. The settlement agreement further stated:
[Ms. Gipson] acknowledges that she has had suffi-
cient time to consider the conditions and terms of
this Agreement . . . she was afforded the oppor-
tunity to consult with counsel prior to signing this
agreement . . . she has read, understands, and
agrees to each of its provisions and that she vol-
GIPSON v. TREASURY 3
untarily enters into this Agreement without coer-
cion or duress on the part of any party or entity.
App. 31.
At the hearing, the AJ explained each provision of the
settlement agreement to Ms. Gipson. The AJ also gave
her an opportunity to ask questions. After doing so, the
AJ asked Ms. Gipson on two separate occasions if she
understood and agreed to the settlement terms. Ms.
Gipson said “yes” both times. Then the AJ found that the
settlement agreement was lawful, entered into voluntari-
ly, and understood by the parties. Accordingly, the AJ
held that the settlement agreement was dispositive and
dismissed the appeal.
Ms. Gipson appealed to the Board alleging an “inabil-
ity to proper[ly] represent [her]self before the MSPB
without an attorney . . . due to finances.” App. 33. Ms.
Gipson argued that “[w]ithout an attorney, [she] may
have missed out on key information or some key points.”
App. 34. She also asked the Board to “review the initial
decision . . . to see if [the] initial decision was unlawful.”
App. 33.
The Board found that Ms. Gipson’s lack of representa-
tion did not make the settlement agreement invalid. App.
20 (citing Feathers v. Office of Pers. Mgmt., 27 M.S.P.R.
485, 487 (1985)). Further, because the case was settled,
the Board determined that arguments regarding the
underlying merits of the removal were not relevant.
Accordingly, the Board denied Ms. Gipson’s petition for
review and affirmed the AJ’s decision.
Ms. Gipson appeals. This court has jurisdiction under
28 U.S.C. § 1295(a)(9) (2012).
II.
This court “must affirm the Board’s decision unless it
is arbitrary, capricious, an abuse of discretion or other-
4 GIPSON v. TREASURY
wise not in accordance with law, obtained without proce-
dures required by rule, law, or regulation, or unsupported
by substantial evidence.” Addison v. Dep’t of Health &
Human Servs., 945 F.2d 1184, 1186 (Fed. Cir. 1991); see
also 5 U.S.C. § 7703(c) (2012).
A party may challenge the validity of a settlement
agreement if she believes that it is unlawful, involuntary,
or the result of fraud or mutual mistake. See, e.g., Sar-
gent v. Dep’t of Health & Human Servs., 229 F.3d 1088,
1091 (Fed. Cir. 2000); Hinton v. Dep’t of Veterans Affairs,
119 M.S.P.R. 129, 132 (2013). However, “mere post-
settlement remorse or change of heart cannot serve as a
basis for setting aside a valid settlement agreement.”
Hinton, 119 M.S.P.R. at 132. In this case, the Board
reviewed the AJ’s decision that the settlement agreement
was valid and determined that Ms. Gipson “suggested no
basis for invalidating the settlement agreement.” App.
21.
On appeal, Ms. Gipson does not appear to challenge
the validity of her settlement agreement nor does she
allege any facts that suggest the settlement agreement is
invalid. Even if Ms. Gipson had raised the issue of the
validity of her settlement agreement, substantial evidence
supports the Board’s decision. The AJ explained the
settlement agreement to Ms. Gipson at her hearing. She
was given the opportunity to ask questions, and the AJ
clarified the provisions that Ms. Gipson indicated she did
not understand. She then verbally indicated—two sepa-
rate times—that she understood each term of the settle-
ment agreement. By signing the settlement agreement,
she further acknowledged that she had been given suffi-
cient time to consider the settlement terms, that she
understood them, and that she was entering into the
agreement voluntarily. Ms. Gipson has not provided any
evidence or argument that the settlement agreement is
unlawful, was entered into involuntarily, or was the
result of fraud or mistake. Thus, substantial evidence
GIPSON v. TREASURY 5
supports the finding that the settlement agreement is
valid.
Instead of challenging the validity of the settlement
agreement, Ms. Gipson primarily argues that the IRS
erred in removing her. Specifically, she alleges that the
IRS failed to make accommodations for her despite being
informed of her health issues, and that she was not treat-
ed in the same way that other employees were treated.
See Corrected Pet. Br. 29, 31. Because she agreed to a
settlement, though, these arguments and the merits of
the underlying removal were not properly before the
Board and thus, are not properly before this court. See,
e.g., Wallace v. Dep’t of the Air Force, 879 F.2d 829, 832–
33 (Fed. Cir. 1989) (applying the “general principle” that
appellate courts will not consider “an issue that was not
properly raised before or decided by the Board”).
III.
Because Ms. Gipson’s settlement agreement is valid,
the Board correctly denied her petition for review and
properly declined to consider the merits of her removal.
Accordingly, we affirm.
AFFIRMED
COSTS
No costs.