Brown, Jr. v. Dept. Of the Army , 157 F. App'x 295 ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record. The disposition
will appear in tables published periodically.
United States Court of Appeals for the Federal Circuit
05-3177
FLETCHER C. BROWN, JR.,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent.
___________________________
DECIDED: December 9, 2005
___________________________
Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and DYK, Circuit
Judge.
PER CURIAM.
The petitioner, Fletcher C. Brown, a former federal employee, challenges the
decision of the Merit Systems Protection Board (“Board”) that dismissed his appeal
based upon a settlement agreement that was entered into the Board’s administrative
record. The sole ground on which Brown challenges that decision is that the settlement
agreement was ineffective because it was not signed by the parties. We affirm the
Board’s decision.
I
The facts are undisputed. After the Department of the Army (“Army”) removed its
employee Brown, he appealed that action to the Board. At the opening of the hearing
on October 13, 2004 before the Board’s administrative judge, that official announced
that the parties had reached a settlement, which the government’s attorney read into the
record. The settlement agreement contained sixteen paragraphs. It included provisions
in which the Army agreed to change the action it had taken against Brown “from
removal to resignation for personal reasons”, and Brown to “withdraw with prejudice” his
appeal to the Board and other litigation he had instituted.
After government counsel stated that he had “agree[d] to” the terms of the
agreement read into the record, Brown (who is represented by counsel) stated, in
response to questions by the administrative judge, that he had had an opportunity to
discuss the terms with his counsel and that he “agree[d] to these terms.” Brown’s
lawyer stated that he also “agree[d] to the terms of the agreement as read.”
The administrative judge then stated:
I will accept this settlement agreement into the record, and I will dismiss
the appeal based on that settlement. However, if the parties choose to
supplement the record with a written settlement agreement, I will keep the
record open through October 22, 2004.”
At the close of the hearing, the administrative judge stated:
I’m making clear that I don’t need a supplemental written agreement to
settle the appeal.
I have accepted that the settlement as you’ve just agreed to as the
settlement agreement, and I’m just allowing the parties the opportunity
through the 22nd. If they want to supplement it with a written agreement
that’s consistent with those terms, that’s fine.
05-3177 2
But the case is settled based on the written agreement – I mean, based on
the settlement agreement the parties just entered into the record. Okay?
At no point during the administrative hearing did Brown contend, or even
suggest, that the agreement would not be effective unless and until the parties signed it.
In his initial decision dismissing the appeal because of the settlement agreement,
the administrative judge stated:
I have reviewed the agreement, and I am satisfied it is lawful on its face, it
was freely reached by the parties, and the parties understand its terms.
Accordingly, the agreement is enforceable by the Board and will be
entered into the record.
Brown, represented by different counsel, filed with the full Board a petition to
review the initial decision. He made various contentions, including the claim that the
settlement agreement was ineffective because it had not been signed by the parties.
The Board denied the petition for review, thus making the administrative judge’s initial
decision the final decision of the Board.
II
Brown contends that the settlement agreement was ineffective because it was
not signed by the parties. Because Brown did not raise that issue before the
administrative judge, it is not properly before us. “Where, as here, the Board denied
review of the administrative judge’s initial decision, this court will not consider issues not
raised before the administrative judge.” Elmore v. Dept. of Transportation, 421 F.3d
1339, 1342 (Fed. Cir. 2005). See Meglio v. Merit Sys. Prot. Bd., 758 F.2d 1576, 1577
(Fed. Cir. 1984).
05-3177 3
In any event, Brown’s challenge to the settlement agreement fails on its merits.
"It is well-established that an oral settlement agreement is binding on the parties,
particularly when the terms are memorialized into the record.” Tiburzi v. Dept of Justice,
269 F.3d 1346, 1351 (Fed. Cir. 2001) (quoting Sargent v. Dep’t of Health & Human
Servs., 229 F.3d 1088, 1090 (Fed. Cir. 2000)). “[W]here the parties intend to enter into
an oral agreement, it is binding on the parties even if its terms are not embodied in a
subsequent written instrument.” Id., 269 F.3d at 1352.
Here the proceedings before the administrative judge leave no doubt that the
parties intended, and the administrative judge understood, the oral settlement to be
binding. Although the administrative judge left the record open for nine days to permit
the parties to sign an agreement (if they elected to do so), he also stated that “the case
is settled based on the settlement agreement the parties just entered into the record,”
and that he was merely “allowing the parties that opportunity . . . to supplement it with a
written agreement that is consistent with those terms.” Although one sentence in the
settlement agreement refers to “the date of his signature on this agreement” as the cut-
off date for Brown’s claims against the Army that the agreement settled, that statement
does not trump the strong evidence in the record that the parties understood and
intended that the unsigned settlement agreement disposed of this litigation. Brown
never contended otherwise before the administrative judge, and he publicly stated (as
did his attorney) that he agreed with the settlement terms read into the record. Brown
has not directly challenged or refuted the Board’s determination that the settlement
agreement was “lawful on its face . . . freely reached by the parties, and the parties
05-3177 4
understand its terms.” The record does not support Brown’s contention that the
settlement was involuntary and thus invalid.
CONCLUSION
The decision of the Merit Systems Protection Board dismissing Brown’s appeal
because of the settlement agreement is
AFFIRMED.
No costs.
05-3177 5