Ammons v. Department of Veterans Affairs , 476 F. App'x 270 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DANA ELAINE AMMONS,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2011-3156
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0752090897-I-1.
__________________________
Decided: April 12, 2012
__________________________
DANA ELAINE AMMONS, of Compton, Calfiornia, pro se.
LAUREN S. MOORE, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and PATRICIA M.
MCCARTHY, Assistant Director.
__________________________
AMMONS v. DVA 2
Before BRYSON, PROST, and O’MALLEY, Circuit Judges.
PER CURIAM.
Dana Elaine Ammons appeals from a final order of
the Merit Systems Protection Board (“Board”) dismissing
her petition for review and finding that the Department of
Veterans Affairs (“VA”) had already complied with a valid
settlement agreement. For the reasons set forth below,
we affirm.
I. BACKGROUND
On August 18, 2009, Ms. Ammons filed a petition with
the Board appealing the VA’s termination of her employ-
ment. On November 16, 2009, the day of the scheduled
hearing, the parties submitted a signed settlement
agreement. At the time the settlement agreement was
executed, Ms. Ammons had a pending Equal Employment
Opportunity Commission (“EEOC”) complaint alleging
sexual harassment. For her part, paragraph one of the
agreement required Ms. Ammons to withdraw all of her
pending appeals, complaints, grievances, claims, or causes
of action against the VA. Moreover, paragraph one also
required Ms. Ammons to waive her rights to pursue
future causes of action against the VA “based on, or
arising out of facts in existence as of the date of [her]
execution of” the settlement agreement. In exchange for
Ms. Ammons’s waiver, the VA agreed to modify her
Notification of Personnel Action (“Standard Form 50” or
“SF-50”). For example, paragraph two required the VA to
revise Ms. Ammons’s SF-50 from “Removal” to “Resigna-
tion for personal reasons.” Additionally, paragraphs three
and four required the VA to revise Ms. Ammons’s ab-
sences without leave (“AWOLs”) and suspensions to
“Leave without Pay.” In light of the parties’ settlement
agreement, the Board dismissed Ms. Ammons’s petition in
3 AMMONS v. DVA
an initial decision dated November 25, 2009. Ammons v.
Dep’t of Vet. Affairs, SF0752090897-I-1 (M.S.P.B. Nov. 25,
2009).
The EEOC later dismissed Ms. Ammons’s sexual har-
assment complaint pursuant to the settlement agreement.
On July 14, 2010, however, Ms. Ammons filed a second
petition for review with the Board, this time seeking to
enforce the settlement agreement. Specifically, Ms.
Ammons contended that the parties, off the record, had
agreed to alter the settlement agreement by deleting
paragraph one—the very paragraph that required her to
voluntarily withdraw her pending causes of action, com-
plaints, or appeals against the VA.
In an initial decision dated October 27, 2010, the ad-
ministrative judge determined that the parties had not
modified the settlement agreement to eliminate para-
graph one, and that the VA had complied with its obliga-
tions under the settlement agreement. Ammons v. Dep’t
of Vet. Affairs, SF0752090897-I-1 (M.S.P.B. Oct. 27, 2010)
(“Initial Decision”). The administrative judge also deter-
mined that the terms of the agreement were not ambigu-
ous and therefore, parol evidence was not permissible. Id.
at 4-5.
On May 24, 2011, the Board, in its final order, agreed
with the initial decision that the settlement agreement
was clear and unambiguous, and that parol evidence was
therefore inadmissible. Ammons v. Dep’t of Vet. Affairs,
SF0752090897-I-1 (M.S.P.B. May 24, 2011) (“Final Deci-
sion”). The Board also held that Ms. Ammons’s petition
did not meet its criteria for review “because it does not
show that the administrative judge erred in concluding
that she failed to establish that the agency had not com-
plied with the settlement agreement.” Id. at 2. Specifi-
AMMONS v. DVA 4
cally, the Board found that even though Ms. Ammons
stated that she did not intend to waive her right to pursue
her EEOC complaint, neither Ms. Ammons’s nor “her
representative’s unilateral mistake as to the scope of the
settlement agreement . . . provide[d] a basis for invalidat-
ing it.” Id. at 4 (citing Lee v. U.S. Postal Serv., 111
M.S.P.R. 551 (2009), aff’d, 367 Fed. Appx. 137 (Fed. Cir.
2010)). Additionally, the Board noted that Ms. Ammons
did not provide any “new, previously unavailable, evi-
dence” in support of her claim. Ms. Ammons appealed.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
This court’s review of a decision of the Board is lim-
ited by statute. 5 U.S.C. § 7703(c); O’Neill v. Office of
Pers. Mgm’t, 76 F.3d 363, 364-65 (Fed. Cir. 1996). We
may reverse a decision of the Board only if it is “(1) arbi-
trary, 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). “The interpretation of a settlement agreement
is an issue of law. We review the Board’s determinations
of law for correctness, without deference to the Board’s
decision.” King v. Dep't of the Navy, 130 F.3d 1031, 1033
(Fed. Cir. 1997) (citations omitted). Settlement agree-
ments in which employees voluntarily waive their appeal
rights are generally permissible, as long as the agency
has not breached the agreement or acted in bad faith. See
McCall v. U.S. Postal Serv., 839 F.2d 664, 667 (Fed. Cir.
1988).
On appeal, Ms. Ammons argues that the Board failed
to consider her and her union representative’s statements
that the parties agreed, off the record, to modify or delete
5 AMMONS v. DVA
paragraph one of the settlement agreement. Ms. Ammons
further contends that the Board exceeded the bounds of
reasonableness in concluding that she had agreed to drop
her pending EEOC complaint. The VA responds that the
settlement agreement is unambiguous and therefore, the
consideration of parol evidence is unwarranted.
We have reviewed the settlement agreement and
agree with the Board’s conclusions that it was unambigu-
ous and provided that Ms. Ammons would withdraw all of
her causes of actions, including her EEOC complaint. Ms.
Ammons’s reliance on parol evidence is misplaced. We
have previously held that parol evidence is admissible
only if there is ambiguity in the words of the agreement.
Greco v. Dep’t of the Army, 852 F.2d 558, 560 (Fed. Cir.
1988). Here, paragraph one of the settlement agreement,
in which Ms. Ammons unmistakably withdrew “all ap-
peals and complaints,” and “waive[d] her right to pursue
future causes of action arising out of facts in existence as
of the date of [her] execution of this Agreement[,]” was
unambiguous and does not warrant consideration of parol
evidence. Final Decision at 2-3 (quoting the settlement
agreement). Indeed, paragraph seventeen stated that the
settlement agreement constituted “the entire understand-
ing between the [p]arties” and that “there were no other
terms or commitments, oral or written.” Notably, other
portions of the settlement agreement explicitly rely on the
waiver provisions of paragraph one. For example, para-
graph eight of the settlement agreement provided the VA
permission to submit a copy of the settlement agreement
to the Board, EEOC, Office of Resolution Management,
“or any other third party as evidence of withdrawal or
waiver of any claim to be withdrawn or waived here-
under.” Even more to the point, it makes no sense to
remove paragraph one of the settlement agreement be-
cause Ms. Ammons’s “entire consideration is encompassed
AMMONS v. DVA 6
in that paragraph.” Initial Decision at 5. In other words,
under Ms. Ammons’s asserted modification, her record at
the VA would be wiped clean in exchange for nothing.
Because the terms of the agreement were clear and com-
prehensive, we agree with the Board’s determination that
parol evidence was not permissible.
Ms. Ammons also asserts that the Board committed
harmful error by failing to make notes of off the record
discussions regarding the deletion of paragraph one from
the parties’ settlement agreement and further requests
that the video of the parties’ discussions be made part of
the record. However, as discussed above, the terms of the
settlement agreement were clear and unambiguous.
Accordingly, we conclude that the Board properly deter-
mined that parol evidence, such as the alleged discussion
between the parties in which they agreed to remove
paragraph one, was not permissible.
We have considered Ms. Ammons’s remaining argu-
ments and find them unpersuasive. For example, Ms.
Ammons asserts that the Board failed to take into ac-
count paragraph ten of the settlement agreement, which
stated that the settlement agreement “shall not serve as
precedent for resolving any other complaints, grievances,
appeals or actions . . . .” There is no evidence, however,
that the VA attempted to use the settlement agreement to
resolve any claims or grievances not mentioned or in-
cluded in the settlement agreement. Ms. Ammons also
argues that the Board erred in telling her that it was
appropriate to sign the settlement agreement because
paragraph one would be removed or modified at a later
date. Additionally, Ms. Ammons asserts that the VA
agreed to circulate a modified settlement agreement
thirty days after the original execution. As a result of this
alleged delay, Ms. Ammons claims that she was unable to
7 AMMONS v. DVA
assert her right under paragraph sixteen to revoke the
settlement agreement within seven days of execution.
But contrary to Ms. Ammons’s claim, there is no evidence
in the record to suggest that the Board influenced or
directed her to sign the settlement agreement. Instead,
paragraphs nineteen and twenty of the settlement agree-
ment stated that “[t]he Parties have entered into this
Agreement freely and voluntarily” and that Ms. Ammons
had “thoroughly reviewed the entire Agreement and
understands its provisions.” And as the Board noted, Ms.
Ammons does not assert that she requested a copy of the
settlement agreement to review after she had signed it.
Final Decision at 4.
Because the settlement agreement fully resolved Ms.
Ammons’s Board appeal, “[t]here is therefore no case or
controversy . . . over the merits of which either [the
Board] or this court might exercise jurisdiction.” Asberry
v. U.S. Postal Serv., 692 F.2d 1378, 1380 (Fed. Cir. 1982).
Accordingly, we affirm the Board's decision dismissing
Ms. Ammons’s appeal as settled.
COSTS
Each party shall bear its own costs.
AFFIRMED