Johnson v. United States Postal Service , 315 F. App'x 274 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3253
LOGAN JOHNSON,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Arthur R. Ehrlich, Goldman & Ehrlich, of Chicago, Illinois, for petitioner.
Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3253
LOGAN JOHNSON,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in
CH0752060177-B-1.
____________________________
DECIDED : March 9, 2009
____________________________
Before LOURIE, SCHALL, and GAJARSA, Circuit Judges.
PER CURIAM.
DECISION
Logan Johnson appeals from the final order of the Merit Systems Protection
Board (“Board”) dismissing his appeal for lack of jurisdiction. Johnson v. U.S. Postal
Serv., CH-0752-06-0177-B-1 (M.S.P.B. Apr. 7, 2008). Because the Board did not err in
finding that it lacked jurisdiction, we affirm.
BACKGROUND
On April 18, 1995, Johnson suffered a back injury while working as a mail
handler at the United States Postal Service’s (“USPS’s”) Processing & Distribution
Center in Detroit, Michigan. He filed a claim at the Office of Worker’s Compensation
(“OWCP”), which OWCP accepted. The next month, Johnson returned to work and
suffered a recurrence of his injury. He filed a Notice of Recurrence with OWCP. This
time, OWCP disallowed Johnson’s claim.
Johnson, unable to return to work, was charged with being on unscheduled leave
without pay from June 8, 1998 through July 31, 1998. After that, USPS charged him
with being absent without leave (“AWOL”) from August 1, 1998 through October 20,
1998. On the last day of his AWOL period, USPS issued a Notice of Proposed
Removal based on “excessive absenteeism.” Johnson filed a grievance of the
proposed removal through the National Postal Mail Handlers Union (“NPMHU”) on
November 3, 1998.
On June 14, 1999, prior to arbitration, USPS and NPMHU executed a settlement
agreement regarding Johnson’s grievance. That agreement, which is at the heart of the
present appeal, stipulated that Johnson would be “allowed” ten days to obtain medical
clearance to return to his duties as a mail handler. If he did so, he would be reinstated
with “no restrictions.” If, however, he failed to obtain such clearance, “the grievance
would be considered closed.” The agreement stated both that it was “a final and
complete settlement of the subject grievance” and that it constituted “a full and final
settlement of the subject grievance and resolves all issues pertaining thereto.” The
agreement reserved Johnson’s rights to apply for disability retirement in the event that
2008-3253
-2-
he was unable to obtain medical clearance to return to his position, but was silent as to
the existence of any further appeal rights.
A few days after the settlement agreement was reached, Johnson was informed
of the settlement decision and instructed to report to the medical unit to obtain a
clearance. Shortly thereafter (the exact time is disputed by the parties) Johnson met
with a physician at the medical unit. The physician’s report of that meeting does not
indicate that any medical examination took place. Rather, the report indicates that the
USPS physician contacted Johnson’s private physician and confirmed that Johnson was
unable to return to work. Furthermore, the report stated that “Johnson has stated that
he does not know why the Union and Labor want him to come back to work. Please
take administrative action as this employee does not want this job.”
Over a year passed with no official action on Johnson’s case. Then, on October
24, 2000, Johnson was again summoned to the medical unit. Johnson was given a
Fitness for Duty Examination, which he failed. USPS then issued an SF-50 on
December 12, 2000, removing Johnson from his position effective December 26, 2000.
Johnson appealed his removal to the Board on December 20, 2005, nearly five
years after being removed. In an initial decision, the AJ issued dismissed Johnson’s
appeal as untimely. On appeal, the Board vacated the initial decision and remanded to
the regional office for further adjudication. On review from the regional office, the AJ
found that there was good cause for Johnson’s untimely filing. The timeliness of
Johnson’s appeal is not at issue before us.
Once the timeliness issue had been resolved in Johnson’s favor, the AJ found
that the Board possessed jurisdiction over Johnson’s appeal. Johnson v. U.S. Postal
2008-3253
-3-
Serv., CH-0752-06-0177-B-1 at 7 (M.S.P.B. Nov. 2, 2007). As a preliminary matter, the
AJ found that Johnson had entered into the settlement agreement voluntarily, in spite of
Johnson’s arguments to the contrary. The AJ also found that Johnson had overcome
the presumption of waived appeal rights that accompanies a settlement agreement.
The AJ based this finding on numerous facts, including that USPS did not remove
Johnson for over a year after entering into the settlement agreement, that USPS
removed Johnson for reasons other than those stated in its Notice of Proposed
Removal, and that Johnson had no appeal right to waive at the time of the settlement.
Finally, the AJ found that Johnson had been denied minimum due process rights
regarding his removal.
On appeal to the Board for a second time, the Board again reversed the AJ’s
decision. The Board found that it lacked jurisdiction over Johnson’s appeal. According
to the Board, Johnson failed to overcome the presumption of waived appeal rights
because he had voluntarily entered into the settlement agreement, and the agreement
did not expressly reserve the right to appeal to the Board. Thus, according to the
Board, because the settlement permitted Johnson’s removal and was “final,” the Board
lacked jurisdiction to hear the appeal.
Johnson timely appealed the Board’s dismissal. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review of an appeal from a Board decision is limited. We can
only set aside Board decisions that are “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained without procedures required by
2008-3253
-4-
law, rule, or regulation having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d
1307, 1311 (Fed. Cir. 2003). Interpretation of a settlement agreement is a question of
law that we review de novo. King v. Dep’t of the Navy, 130 F.3d 1031, 1033 (Fed. Cir.
1997).
On appeal, Johnson argues that the Board abused its discretion in finding that
the settlement agreement was binding on him. In support of his position, he points to
the fact that he did not sign the agreement, opposed the terms of the agreement, and
expressly told the medical examiner that he did not want to return to work. Alternatively,
Johnson argues that the agreement does not call for his immediate removal in the case
of a failed medical examination. The proper reading of the settlement’s terms,
according to Johnson, is one that permits an appeal to the Board.
In response, the government contends that substantial evidence establishes the
Board’s finding that the settlement was valid and voluntary. The government also
agrees with the Board’s interpretation of the settlement agreement as divesting Johnson
of the right to appeal to the Board.
We agree with the government that the Board lacked jurisdiction to hear
Johnson’s appeal. As a preliminary matter, we agree with the Board that Johnson is
bound by NPMHU’s settlement agreement, which was entered into on Johnson’s behalf.
Proving invalidity of a settlement agreement places a “heavy burden” on a petitioner.
Ashberry v. U.S. Postal Serv., 692 F.2d 1378, 1380 (Fed. Cir. 1982). Johnson’s primary
argument supporting invalidity of the agreement is that his failure to sign the settlement
renders the agreement invalid. That argument was squarely rejected in Mays v. United
2008-3253
-5-
States Postal Service. 995 F.2d 1056, 1059 (Fed. Cir. 1993) (upholding the finding of
voluntariness of a settlement agreement that was not signed). Johnson also claims
that, regardless of the need for a signed agreement, he should not be bound by an
agreement of which he did not approve. However, Johnson does not argue that
NPMHU lacked authority to settle his grievance nor that he did anything to disavow the
agreement, other than telling the USPS examining physician that he did not want to
return to his prior position. With such a paucity of evidence regarding the invalidity of
the agreement at the time it was entered, or any subsequent official repudiation by
Johnson, we find that Johnson has not met the “heavy burden” of demonstrating that
the settlement agreement is invalid. Johnson is therefore bound by the actions of his
chosen representative, NPMHU.
After affirming the validity of the settlement agreement, the remaining question is
whether the existence of that settlement agreement divests the Board of jurisdiction in
this case. We conclude that it does. It is undisputed that the settlement agreement
does not expressly reserve Johnson’s appeal rights. That fact is fatal to Johnson’s
case, because “[t]he burden is on the employee to expressly reserve the [right of
appeal] if he chooses to settle a grievance.” Mays, 995 F.2d at 1060. Indeed, the
agreement appears to waive such rights by declaring that it is “a full and final settlement
of the subject grievance.” Thus, the settlement agreement divests the Board of
jurisdiction in this case.
Accordingly, because the Board properly dismissed Johnson’s appeal for lack of
jurisdiction, we affirm the Board’s decision.
2008-3253
-6-
COSTS
No costs.
2008-3253
-7-