Mark Steven Cook v. Department of Agriculture ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK STEVEN COOK, DOCKET NUMBER
Appellant, PH-0752-14-0492-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: August 15, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Mark Steven Cook, Columbus, Ohio, pro se.
Cliff Lockett, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal 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
∗
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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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regulation or the erroneous application of the law to 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).
¶2 The agency employed the appellant as a Food Inspector. Initial Appeal File
(IAF), Tab 6 at 18. Effective December 6, 2013, the agency removed the
appellant based on the charges of (1) absence without leave; and (2) failure to
report for duty as directed. Id. at 18, 20.
¶3 The appellant appealed his removal to the Board. IAF, Tab 1. However, in
lieu of further adjudication, the parties executed a settlement agreement on
March 18, 2014. IAF, Tab 16 at 4-8. In pertinent part, the agreement provided
that the agency would rescind its removal and pay the appellant a lump sum of
$5,000.00, while the appellant would submit a voluntary resignation. Id. at 5.
The settlement agreement provided 7 days for the appellant to rescind. Id. at 7.
¶4 The administrative judge determined that the Board had jurisdiction over
the appeal, the parties reached a settlement, the parties understood the terms, the
parties entered into the agreement freely, and the settlement was lawful on its
face. IAF, Tab 17, Initial Decision (ID). Therefore, the judge dismissed the
appeal as settled. ID.¶5 The appellant did not rescind the settlement within the 7 days provided for
in the agreement. See IAF, Tab 16 at 7. However, a month after he executed the
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settlement agreement and the administrative judge dismissed his appeal, the
appellant filed a petition for review. Petition for Review (PFR) File, Tab 1. The
agency has not filed a response.
¶6 A party may challenge the validity of a settlement agreement if he believes
that it is unlawful, involuntary, or the result of fraud or mutual mistake. Hinton
v. Department of Veterans Affairs, 119 M.S.P.R. 129, ¶ 4 (2013). To establish
that a settlement was fraudulent as a result of coercion or duress, a party must
prove that he involuntarily accepted the other party’s terms, that circumstances
permitted no other alternative, and that such circumstances were the result of the
other party’s coercive acts. Id. The party challenging the validity of the
settlement agreement bears a “heavy burden.” Id. An appellant’s mere
post-settlement remorse or change of heart cannot serve as a basis for setting
aside a valid settlement agreement. Id.¶7 In his petition for review, the appellant alleges that he decided to settle with
the agency because he was anxious to begin a new career opportunity, and the
$5,000.00 lump sum provided with the settlement was to help facilitate that
transition. PFR File, Tab 1 at 3. However, according to the appellant, “student
loans took [his] entire settlement.” Id. The appellant alleges that he would have
“held out” and tried to get his “old job back” had he realized that would happen.
Id. He alleges that his agreement to settle was a “rushed decision” and that he
was “left in this situation to struggle for no reason of [his] own.” Id.¶8 Although the appellant’s petition alleges that he was anxious to settle, it
also indicates that the “rushed decision” was of his own accord. See id. The
appellant has not alleged that the settlement agreement was unlawful, involuntary,
or the result of fraud or mutual mistake. Nor has the appellant alleged any error
in the administrative judge’s dismissal of his appeal as settled. Instead, the
appellant’s petition reflects a change of heart due to financial difficulties. Id.This is not a basis for granting his petition for review or setting aside the
settlement agreement. See Hinton, 119 M.S.P.R. 129, ¶ 4.
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¶9 The appellant’s petition for review is denied. The initial decision to dismiss
is affirmed.
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.