Keith Burrowes v. United States Postal Service ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEITH BURROWES, DOCKET NUMBER
Appellant, DA-0752-14-0349-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 2, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Michael Caine, Esquire, Dallas, Texas, for the appellant.
Paul C. Wolf, Esquire, Dallas, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his constructive suspension appeal as settled. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant filed the appeal alleging that the agency subjected him to a
constructive suspension. Initial Appeal File (IAF), Tab 2 at 7-10. The
administrative judge scheduled a jurisdictional hearing. IAF, Tab 15 at 5. On the
day the hearing was to proceed, the parties entered into an oral settlement
agreement on the record. Hearing Compact Disc (HCD). Per the terms of the
agreement, the appellant withdrew his appeal. Id. The appellant stated that he
had no objections to the dismissal of the appeal based on the agreement. Id. The
administrative judge issued an initial decision dismissing the appeal as settled
without entering the settlement agreement into the record for enforcement, and
she did not make a finding of Board jurisdiction. IAF, Tab 21, Initial Decision
(ID) at 1-2 & n.*.
¶3 The appellant has submitted a timely petition for review, seeking to vacate
the agreement. Petition for Review (PFR) File, Tab 1. The agency has responded
to the petition for review. PFR File, Tab 3.
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The administrative judge correctly dismissed the appeal.
¶4 The administrative judge found that, because the parties reached a
settlement agreement, the appeal must be dismissed as settled. ID at 2. We
agree.
¶5 Before dismissing an appeal as settled, an administrative judge must
document for the record that the parties reached a settlement agreement,
understood its terms, and agreed whether it was to be enforceable by the Board.
Cason v. Department of the Army, 118 M.S.P.R. 58, ¶ 7 (2012). If the
administrative judge finds that the parties intended that the agreement be enforced
by the Board, the administrative judge must determine that the Board has
jurisdiction over the appeal and that the agreement is lawful on its face and was
freely reached and understood by the parties. Id. Oral settlement agreements are
valid before the Board. Futrell-Rawls v. Department of Veterans
Affairs, 115 M.S.P.R. 322, ¶ 8 (2010).
¶6 At the hearing, the administrative judge documented for the record that the
parties reached a settlement agreement and that the terms of the agreement were
stated on the record. HCD. Further, the appellant indicated that he understood
the terms of the agreement and that the Board does not have jurisdiction to
enforce it. Id. The appellant has not shown that the administrative judge erred in
dismissing the appeal per the agreement. 2 See Harris v. U.S. Postal
Service, 44 M.S.P.R. 547, 550 (1990) (the appellant failed to establish that the
Board had jurisdiction to consider the merits of his petition because he did not
show that the administrative judge erred in dismissing the appeal pursuant to the
settlement agreement).
2
In the initial decision, the administrative judge did not document that the parties
understood the terms of the agreement. See ID at 1-2. However, this adjudicatory error
is harmless because the hearing recording reflects that the parties understood its terms.
HCD; see Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an
adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis
for reversal of an initial decision).
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¶7 In the instant case, the appellant unequivocally withdrew his appeal at the
hearing pursuant to the settlement agreement. HCD. Further, the appellant stated
that he understood the administrative judge would use the agreement to dismiss
his appeal, that the dismissal was a final decision, and that he could not refile.
Id.
The appellant has not shown that the settlement agreement is invalid.
¶8 On petition for review, the appellant argues that he rejects the settlement
agreement as “arbitrary and capricious.” PFR File, Tab 1 at 3. Further, he
alleges that the agreement is not in his best interest and requests that it be
vacated. Id. We find that the settlement agreement is valid, and thus we uphold
the dismissal pursuant to the agreement.
¶9 Where an appellant withdraws an appeal pursuant to a settlement
agreement, he may challenge the validity of the settlement agreement, regardless
of whether it has been entered into the record for enforcement, if he believes that
the agreement is unlawful, involuntary, or the result of fraud or mutual mistake.
Gerdts v. Department of Labor, 111 M.S.P.R. 412, ¶ 10 (2009). The party
challenging the validity of a settlement agreement bears a heavy burden of
showing a basis for invalidating it. Bynum v. Department of Veterans
Affairs, 77 M.S.P.R. 662, 665 (1998). An appellant’s mere post-settlement
remorse or change of heart cannot serve as a basis for setting aside a valid
settlement agreement. Hinton v. Department of Veterans Affairs, 119 M.S.P.R.
129, ¶ 4 (2013).
¶10 We find that the appellant has failed to show that the settlement agreement
was unlawful, involuntary, or was the result of fraud or mutual mistake. The
appellant’s mere allegation that the settlement agreement is “arbitrary and
capricious” does not show that the agreement was tainted with invalidity. Cf.
Jardine v. U.S. Postal Service, 68 M.S.P.R. 544, 546 (1995) (the appellant’s mere
allegation that the settlement agreement was fraudulent and unlawful was
insufficient to meet his burden of establishing that the agreement was invalid),
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aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). He has not asserted any facts or
submitted any evidence to show that the agency acted fraudulently in negotiating
or entering into the agreement and thus has not made the showing of fraud
necessary to invalidate the agreement. See Hoffman v. Department of the
Navy, 71 M.S.P.R. 484, 486 (1996). Further, the appellant has submitted no
evidence showing that he was unable to understand the nature of the settlement
agreement or that his decision was not an informed one. See Wade v. Department
of Veterans Affairs, 61 M.S.P.R. 580, 584 (1994). At the hearing, the appellant
stated that he understood the terms of the settlement agreement. HCD.
¶11 To the extent that the appellant is arguing that the settlement agreement was
obtained through coercion, we find that he has failed to show that he was coerced
by the agency. In order to establish that a settlement agreement was obtained
through coercion, a party must prove that: (1) one side involuntarily accepted the
terms of another; (2) the circumstances permitted no other alternative; and (3) the
circumstances were the result of the coercive acts of the opposite party. Koury v.
Small Business Administration, 40 M.S.P.R. 172, 177, aff’d, 891 F.2d 298 (Fed.
Cir. 1989) (Table).
¶12 At the hearing, the appellant stated: “I’m voluntarily entering into [the
agreement]. I don’t quite know if I’m freely doing it. I feel I’m being coerced
into doing it but I am accepting it.” HCD. After the appellant made this
statement, the administrative judge went off the record. Id. Upon returning to
the record, the administrative judge stated that off the record the appellant
indicated that he had negative feelings towards the agency and that he was not
happy with the nature of his employment relationship with the agency. Id.
However, the administrative judge indicated that the appellant clarified to her that
he did not believe the agency was coercing him into entering the agreement. Id.
The appellant stated that the administrative judge’s summary of the off-the-record
conversation was accurate. Id. Further, he indicated that he was voluntarily and
freely entering into the agreement. Id. The appellant also retracted the statement
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that he felt coerced. Id. Therefore, we find that the appellant has not proven that
he involuntarily accepted the terms of the agency.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
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Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.