Cecelia Tenoso v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CECELIA TENOSO, DOCKET NUMBER
Appellant, DE-831M-14-0599-I-1
v.
OFFICE OF PERSONNEL DATE: May 18, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL ∗
Cecelia Tenoso, Corrales, New Mexico, pro se.
Christopher H. Ziebarth, Washington, D.C., 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 her 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
∗
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 appellant filed an appeal of an Office of Personnel Management (OPM)
reconsideration decision, which found that she had been overpaid $2,727.92 in
annuity benefits and that she was not entitled to a waiver. Initial Appeal File
(IAF), Tab 1. Prior to the scheduled hearing, the parties entered into a settlement
agreement. IAF, Tab 13. Under the terms of the settlement agreement the agency
agreed to accept repayment in full of the annuity overpayment in installments of
$50.00 a month for 54 months and a final payment of $27.92, to be deducted from
the appellant’s monthly annuity benefit. The agency also agreed that no interest
will be charged during this scheduled collection. Id. In exchange, the appellant
agreed to withdraw her appeal of OPM’s reconsideration decision. Id. After
finding that the appeal was within the Board’s jurisdiction and that the settlement
agreement was lawful on its face and voluntarily entered into, the administrative
judge entered the agreement into the record for enforcement purposes and
dismissed the appeal as settled. IAF, Tab 14, Initial Decision (ID) at 2.
¶3 A party may challenge the validity of a settlement agreement, regardless of
whether it has been entered into the record for enforcement, if the party believes
that the agreement is unlawful, involuntary, or the result of fraud or mutual
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mistake. E.g., Sargent v. Department of Health & Human Services, 229 F.3d
1088, 1091 (Fed. Cir. 2000); Wade v. Department of Veterans Affairs,
61 M.S.P.R. 580, 583 (1994). To establish that a settlement agreement was
fraudulent as a result of coercion or duress, a party must prove that she
involuntarily accepted the other party’s terms, that circumstances permitted no
alternative, and that such circumstances were the result of the other party’s
coercive acts. Potter v. Department of Veterans Affairs, 111 M.S.P.R. 374, ¶ 6
(2009); Candelaria v. U.S. Postal Service, 31 M.S.P.R. 412, 413 (1986). The
party challenging the validity of the settlement agreement bears a “heavy
burden.” Asberry v. U.S. Postal Service, 692 F.2d 1378, 1380 (Fed. Cir. 1982).
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); Potter, 111 M.S.P.R. 374, ¶ 6.
¶4 The appellant’s only assertion on review that appears to challenge the
validity of the settlement agreement is her claim that she “does not understand all
the legal jargon pertaining to the terms that was sent to me to sign. How can such
a thing be considered ‘freely’?” Petition for Review (PFR) File, Tab 1.
However, the appellant has failed to present evidence that the agency
representative engaged in coercive acts or that the circumstances were such that
there was no alternative to accepting the agreement as presented by the agency.
Furthermore, the agreement specifically states that “[t]he parties understand these
terms and freely enter into this Agreement.” IAF, Tab 13. Moreover, while the
appellant appears to assert that she did not understand the settlement process, the
record reflects that OPM had proposed a settlement offer with a $100 a month
repayment plan, see IAF, Tabs 9, 11, but, after a telephonic discussion with the
appellant, OPM accepted the appellant’s counter offer in which she agreed to
repay the overpayment with a $50.00 monthly payment over a longer period of
time. IAF, Tabs 11-12. Thus, we find that the appellant has not, by her
challenges to the validity of the agreement, met her burden of proving that the
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settlement agreement was coerced or that she did not freely enter into the
agreement.
¶5 The appellant’s remaining assertions on review challenge the merits of her
claim for waiver of the overpayment. PFR File, Tabs 1, 3. For example, she
asserts that, with her medical condition of daibetes and having had knee and ankle
surgeries, she still believes that recovery o f the overpayment is unfair and would
be unconscionable under the circumstances. However, the parties resolved any
challenges the appellant may have had to the recovery of the overpayment when
they entered into a settlement agreement and the appellant agreed to withdraw her
appeal of the overpayment action. Thus, we need not address her arguments on
review. While the appellant would like to revoke the settlement agreement
because she still feels that she should not be required to repay the overpayment of
$2,727.92, her post-settlement remorse cannot serve as a basis for setting aside a
valid settlement agreement. Hinton, 119 M.S.P.R. 129, ¶ 4. Accordingly, the
appellant has provided no basis upon which to disturb the initial decision
dismissing this appeal as settled.
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
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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
information regarding pro bono representation for Merit Systems Protection
Board appellants before the Federal Circuit. 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.