Torain v. Smithsonian Institution , 465 F. App'x 945 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
TERRI L. TORAIN,
Petitioner,
v.
SMITHSONIAN INSTITUTION,
Respondent.
__________________________
2011-3135
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. DC0752100533-I-1.
____________________________
Decided: February 13, 2012
____________________________
TERRI L. TORAIN, of Silver Spring, Maryland, pro se.
SHERYL L. FLOYD, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and TODD M.
HUGHES, Deputy Director.
__________________________
TORAIN v. SMITHSONIAN 2
Before LOURIE, LINN, and WALLACH, Circuit Judges.
PER CURIAM.
Terri L. Torain appeals from the final order of the
Merit Systems Protection Board (“the Board”) denying her
petition for review of a previously settled Board appeal.
Torain v. Smithsonian Inst., DC-0752-100-533-I-1
(M.S.P.B. May 2, 2011). Because the Board correctly held
that the settlement was valid, we affirm.
BACKGROUND
Torain was removed from her position as a Manage-
ment Support Assistant by the Smithsonian Institution in
January 2010 for misconduct. She appealed that removal
action to the Board. On July 28, 2010, the Smithsonian
and Torain signed a settlement agreement. Torain re-
viewed the agreement with a private attorney shortly
before signing. The agreement provided that Torain
would resign and not seek further employment with the
Smithsonian, that the Smithsonian would cancel her prior
suspensions and remove all related documentation from
her personnel file, and that the Smithsonian would pay
back pay for the days she would have been scheduled to
work during those suspensions. The agreement also
noted that Torain knowingly and voluntarily entered into
the agreement and that Torain had read and understood
its terms. The administrative judge (“AJ”), after review-
ing the agreement, determined that the settlement was
lawful, freely and voluntarily entered into, and under-
stood by the parties. The AJ then dismissed Torain’s
appeal on July 30, 2010.
Shortly thereafter, Torain filed a petition for review
by the full Board, a petition for enforcement, and a motion
for attorney’s fees. The petition for enforcement and the
motion for attorney’s fees were dismissed by the AJ
3 TORAIN v. SMITHSONIAN
because the petition for review was still pending. The full
Board denied the petition for review on May 2, 2011,
holding that Torain failed to show the settlement was
invalid. Torain appealed the denial of the petition for
review to this court.
Separately, many of the allegations in the petition for
review were forwarded to the regional office as a second
petition for enforcement because they were directed
toward the Smithsonian’s alleged noncompliance with the
settlement agreement. On the same day, Torain states
that she was contacted by the Smithsonian and provided
with a proposed second settlement agreement. This
second draft agreement appears to be an attempt to settle
both the second petition for enforcement, the possible
appeal to this court of the denial of her petition for review,
and discrimination claims against the Smithsonian.
There is no evidence that this agreement has been signed
or entered into the record for enforcement purposes by the
Board. Her second petition for enforcement was denied
on August 19, 2011 for lack of evidence of noncompliance
with the first settlement agreement. This denial is not
before us.
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can set aside the Board’s decision
only if it was “(1) arbitrary, capricious, an abuse of discre-
tion, 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); see Briggs v. Merit Sys. Prot.
Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). In order to set
aside a settlement, an appellant must show that the
agreement is unlawful, was involuntary, or was the result
of fraud or mutual mistake. Sargent v. Dep’t of Health &
TORAIN v. SMITHSONIAN 4
Human Servs., 229 F.3d 1088, 1091 (Fed. Cir. 2000); see
Asberry v. U.S. Postal Serv., 692 F.2d 1378, 1380 (Fed.
Cir. 1982). A party challenging the validity of a settle-
ment agreement bears a heavy burden. Tiburzi v. Dep’t of
Justice, 269 F.3d 1346, 1355 (Fed. Cir. 2001); Asberry, 692
F.2d at 1380.
Torain argues that the July 2010 settlement agree-
ment is invalid, involuntary, and unlawful. In support of
this argument, she relies on the alleged failure of her
union representative to be present during pre-settlement
disciplinary proceedings and to provide a clear explana-
tion of the settlement. In addition, Torain points to post-
settlement interactions with the Smithsonian, including
conversations regarding the May 2011 settlement offer
which she describes as “egregious and oppressive.” As a
result, Torain argues that she was denied a right to
counsel under the Sixth Amendment, deprived of her
Fifth Amendment privilege against self-incrimination,
and that she was subject to cruel and unusual punish-
ment in violation of the Eighth Amendment.
The government argues that Torain’s challenges fo-
cusing on her union representative are not an adequate
basis for setting aside the July 2010 settlement agree-
ment. The government notes that Torain consulted a
private attorney before signing that agreement to ensure
her rights were protected and, in addition, the settlement
contains a clear provision stating that she had read and
knowingly and voluntarily entered into the agreement.
The government also argues that the facts surrounding
the prior disciplinary proceedings, the post-settlement
allegations concerning Torain’s removal and the May
2011 settlement offer, and alleged discriminatory treat-
ment are irrelevant to the validity of the July 2010 set-
tlement agreement. The government also notes that
Torain was not subject to a criminal proceeding so her
5 TORAIN v. SMITHSONIAN
rights against self-incrimination, right to counsel, and
freedom from cruel and unusual punishment are not
implicated.
We agree with the government that the Board did not
err in concluding that the July 2010 settlement agree-
ment is valid and that no constitutional violation oc-
curred. We also agree with the government that the
allegations raised by Torain do not support a conclusion
that the settlement was somehow unlawful, involuntary,
or the result of fraud or mutual mistake. Torain’s com-
plaints directed to the Smithsonian’s actions post-
settlement, her now-settled disciplinary proceedings, and
alleged discriminatory treatment are immaterial to the
validity of the July 2010 settlement agreement.
First, the post-settlement allegations regarding the
circumstances of her removal and the May 2011 settle-
ment offer are more accurately characterized as involving
the Smithsonian’s compliance with the settlement, and
thus properly dealt with on a petition for enforcement, not
a petition for review. Trotta v. U.S. Postal Serv., 73
M.S.P.R. 6, 9 (1997) (noting that determinations whether
a party breached the settlement agreement are properly
matters to be addressed in a petition for enforcement).
Indeed, the Board correctly forwarded the compliance-
related claims back to the regional office as a second
petition for enforcement. Although that claim was later
denied, that decision is not before us.
Second, her prior disciplinary actions involve the mer-
its of the underlying claim disposed of by the July 2010
settlement agreement and are likewise not relevant to the
validity of that agreement. E.g., Smith v. U.S. Postal
Serv., 10 M.S.P.R. 320, 321 (1982) (settling waives right
to challenge merits).
TORAIN v. SMITHSONIAN 6
Third, Torain’s remaining challenges focus on her un-
ion representative’s role in the disciplinary proceedings
leading up to the settlement. But, as the Board noted,
dissatisfaction with a union representative is not gener-
ally a basis for disturbing a settlement or for Board
review. See, e.g., Wadley v. Dep’t of the Army, 90 M.S.P.R.
148 (2001). On the contrary, the facts suggest that Torain
was well aware of the terms of the settlement. Torain
consulted with an attorney to review the terms prior to
signing and in signing acknowledged that she was freely
and voluntarily entering into that agreement. There is no
evidence in the record that the July 2010 agreement was
in any way unlawful, involuntary, or the result of fraud or
mutual mistake. As a result, the Board did not err in
denying her petition for review.
With regard to Torain’s constitutional allegations un-
der the Fifth, Sixth, and Eighth Amendments, we note
that Torain is not implicated in any crime or subject to
any criminal investigation or proceeding. As a conse-
quence, the right to counsel, the right against self-
incrimination, and the prohibition of cruel and unusual
punishment are not at issue. Ingraham v. Wright, 430
U.S. 651, 664 (1977) (cruel and unusual punishment);
Modrowski v. Dep’t of Veterans Affairs, 252 F.3d 1344,
1350 (Fed. Cir. 2011) (self-incrimination); Arnesen v.
Principi, 300 F.3d 1353, 1360 (Fed. Cir. 2002) (citing
Lassiter v. Dep’t of Social Servs., 452 U.S. 18 (1981))
(right to counsel).
We have considered Torain’s remaining arguments
and do not find them persuasive. We therefore conclude
that the Board did not err in dismissing her petition.
Accordingly, we affirm.
AFFIRMED
7 TORAIN v. SMITHSONIAN
COSTS
No costs.