Robbins v. Deparment of the Navy ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CARL E. ROBBINS,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
______________________
2012-3177
______________________
Appeal from the Merit Systems Protection Board in
No. SF0752110788-I-1.
______________________
Decided: January 17, 2013
______________________
CARL E. ROBBINS, of San Diego, California, pro se.
MICHAEL D. AUSTIN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
FRANKLIN W. WHITE, JR., Assistant Director.
______________________
2 CARL ROBBINS v. NAVY
Before PROST, MOORE, and WALLACH, Circuit Judges.
PER CURIAM.
Petitioner, Carl Robbins, seeks review of the June 21,
2012 final decision of the Merit Systems Protection Board
(“Board”), which dismissed Mr. Robbins’s appeal for lack
of jurisdiction on the basis that Mr. Robbins had waived
his right to appeal his retirement in a valid settlement
agreement. Robbins v. Dep’t of Navy, No. SK-0752-11-
0788-I-1 at 5 (M.S.P.B. June 21, 2012) (“Final Decision”).
The Board found that Mr. Robbins had “not met the heavy
burden of showing that the settlement agreement is
invalid due to fraud, duress, coercion, or misrepresenta-
tion by the agency.” Id. at 4-5. We affirm.
BACKGROUND
Mr. Robbins was employed as a Principle Integration
Program Manager in the Department of the Navy’s Pro-
gram Executive Office for Command, Control, Computers,
Communications, and Intelligence (“Agency”) in San
Diego, California. On September 14, 2009, Mr. Robbins
filed a formal discrimination complaint before the Equal
Employment Opportunity Commission (“EEO Complaint”)
challenging the implementation of its National Security
Personnel System (“NSPS”) pay-banding system. Mr.
Robbins claimed that the NSPS pay-banding system as
implemented by the Agency discriminated against em-
ployees based on age.
CARL ROBBINS v. NAVY 3
This dispute was resolved in a written settlement
agreement executed on November 15, 2010 (“Agreement”).
The Agreement provided that Mr. Robbins would retire no
later than January 3, 2011, and that the Agency would
pay him a lump sum of $31,750.00. The Agreement
resolved not only the EEO Complaint he had filed but also
“any other matters arising from or related to [Mr. Rob-
bins’s] employment with the Agency occurring prior to the
effective date of this . . . [A]greement.” Appellee’s Appen-
dix (“A__”) A2. The Agreement thus effectively resolved
all employment disputes between Mr. Robbins and the
Agency. Relevant here, Mr. Robbins agreed that he “shall
refrain from initiating or instituting any other . . . pro-
ceedings against the Agency, the Secretary of the Navy, or
any other Agency officers, officials or employees with
respect to any matter arising from or related to his em-
ployment with the Agency occurring prior to the effective
date of this [A]greement.” A2-3. Mr. Robbins was repre-
sented by an attorney during all relevant times of this
Agreement.
On January 21, 2011, Mr. Robbins acknowledged that
he received the payment of $31,750.00 from the Agency
pursuant to the Agreement. On January 24, 2011, the
Equal Employment Opportunity Commission (“EEOC”)
dismissed the EEO Complaint.
On February 9, 2011, by notice of appeal, Mr. Robbins
requested that the dismissal of his case be set aside and
reopened. On July 26, 2011, the EEOC issued a decision
denying Mr. Robbins’s request. As the EEOC explained:
4 CARL ROBBINS v. NAVY
The [A]greement complies with the require-
ments of the [Older Workers’ Benefit Protec-
tion Act, 29 U.S.C. § 626(f)] for waiver of age
claims, and we conclude that Complainant’s
waiver of his age claim was knowing and
voluntary. Complainant was represented by
an attorney throughout the settlement nego-
tiations, and he and his attorney considered
the [A]greement for a period of two weeks be-
fore it was finally executed. In the
[A]greement itself, Complainant specifically
“certifie[d] that he has discussed all aspects
of this settlement agreement with his coun-
sel and fully understands this [A]greement.”
Accordingly, we conclude that the . . .
[A]greement is valid and Complainant’s Sep-
tember 2009 EEO [C]omplaint was appropri-
ately dismissed.
A22.
On August 7, 2011, Mr. Robbins filed an appeal to the
Board seeking to rescind his retirement on the basis that
it was involuntary. On November 14, 2011, the adminis-
trative judge issued an initial decision dismissing the
appeal for lack of jurisdiction. The administrative judge
found that Mr. Robbins had not made non-frivolous
allegations that his retirement was involuntary and had
not raised an otherwise appealable action upon which the
Board possessed jurisdiction. In addition to arguing
involuntariness, Mr. Robbins also contended that his
retirement was coerced and was in retaliation of his
whistleblowing activities. The administrative judge
determined that Mr. Robbins’s alleged whistleblowing
activities were not properly raised and that he had failed
to exhaust his administrative remedies before the Office
of Special Counsel prior to this appeal.
CARL ROBBINS v. NAVY 5
Mr. Robbins petitioned for review of the initial deci-
sion. On June 21, 2012, the full Board vacated the initial
decision but dismissed the appeal for lack of jurisdiction
upon other grounds. The Board held that “Mr. Robbins
had not met the heavy burden of showing that the . . .
[A]greement is invalid due to fraud, duress, coercion, or
misrepresentation by the agency.” A4-5. As a result of its
finding, the Board dismissed Mr. Robbins’s appeal for lack
of jurisdiction on the basis that he waived his right to
appeal his retirement in a valid settlement agreement.
Mr. Robbins timely appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from the Board is
limited. We must affirm the Board’s decision unless we
find it to be “(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). Under the substantial
evidence standard, this court reverses the Board’s deci-
sion only “if it is not supported by such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.” Haebe v. Dep’t of Justice, 288 F.3d 1288,
1298 (Fed. Cir. 2002) (internal quotation omitted). This
court reviews the Board’s determinations of jurisdiction
de novo while findings of fact are reviewed for substantial
evidence. Parrott v. Merit Sys. Protection Bd., 519 F.3d
1328, 1334 (Fed. Cir. 2008).
6 CARL ROBBINS v. NAVY
A settlement agreement is presumed to be valid, and
“[t]hose who employ the judicial appellate process to
attack a settlement through which controversy has been
sent to rest bear a properly heavy burden” of proving that
the settlement was invalid. Asberry v. U.S. Postal Serv.,
692 F.2d 1378, 1380 (Fed. Cir. 1982). We will set aside a
settlement agreement only if it can be shown that it is
unlawful, entered into involuntarily, or was the result of
fraud or mutual mistake. Sargent v. Dep’t of Health and
Human Servs., 229 F.3d 1088, 1091 (Fed. Cir. 2000) (per
curiam).
The Board found that the types of pressures and
concerns that Mr. Robbins raised to contest the Agree-
ment were no more than pressures and concerns coinci-
dental to the litigation process. In particular, Mr.
Robbins stated: that the dispute caused great stress and
anxiety for himself and his family; that litigation was
expensive and would become more so if he litigated the
matter to a final adjudication; and that the other party
had greater resources. These contentions, according to
the Board, did not constitute fraud, duress, coercion, or
misrepresentation by the Agency to invalidate the
Agreement.
CARL ROBBINS v. NAVY 7
The Board’s decision was not arbitrary, capricious, or
unsupported by substantial evidence. Mr. Robbins on
appeal raises similar arguments made previously before
the Board, but his attempt to re-litigate the same issues
he waived pursuant to the Agreement is unpersuasive.
The record demonstrates that Mr. Robbins waived his age
discrimination claim knowingly and voluntarily. Alt-
hough Mr. Robbins now contends that the Agency’s offer
for settlement requiring retirement was coercive and
therefore, involuntary, that he had an option to refuse the
offer for settlement and continue litigating his case
weighs against this contention. See Whiteman v. Dep’t of
Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012) (“We have
repeatedly held that the choice between two unattractive
options does not render a decision to retire involuntary.”).
Mr. Robbins also takes issue with the Agency’s refusal
to alter the January 3, 2011 retirement date, which was
agreed upon pursuant to the Agreement. In particular, he
avers that he was eligible for an “unused annual leave”
payout which he would have received had his retirement
date been later than January 3. As a result, he argues
that the Agency had knowledge of this fact and “cheated”
him out of receiving the “unused annual leave” payout.
The parties agreed upon the January 3 retirement date.
Such bare allegations of fraud, unsupported by corrobo-
rating evidence, are insufficient to satisfy the heavy
burden that must be met in order to set aside the Agree-
ment. See Tiburzi v. Dep’t of Justice, 269 F.3d 1346, 1355
(Fed. Cir. 2001).
8 CARL ROBBINS v. NAVY
Most significantly, Mr. Robbins was represented by
counsel throughout the settlement negotiations, and he
and his attorney considered the Agreement before it was
finally executed. Pursuant to the Agreement, Mr. Rob-
bins “certifie[d] that he . . . discussed all aspects of this . .
. [A]greement with his counsel and fully underst[ood] this
[A]greement.” A27. The Agreement effectively resolved
all employment disputes between the Agency and Mr.
Robbins. Mr. Robbins cannot now attempt to litigate
these issues. Hence, the Board’s finding that Mr. Robbins
failed to show fraud, duress, coercion, or misrepresenta-
tion was not arbitrary, capricious, or unsupported by
evidence. Accordingly, we affirm the Board’s holding that
jurisdiction was lacking in this case.
AFFIRMED
No costs.