                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANTHONY PUCEK,                                  DOCKET NUMBER
                 Appellant,                          CH-315H-14-0147-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: October 20, 2014
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Christopher A. Murray, Esquire, Cleveland, Ohio, for the appellant.

           Anne D. Turner, Esquire, and Benjamin B. Hamlow, Indianapolis, Indiana,
             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     dismissed his appeal as withdrawn pursuant to a settlement agreement.
     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

     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                        2

     erroneous interpretation of statute or 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).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant filed a Board appeal of his probationary termination. Initial
     Appeal File (IAF), Tab 1 at 2, 7. He alleged that his termination was the result of
     sex discrimination, disability discrimination, retaliation, mismanagement, and
     “abuse of authority.”    IAF, Tab 1 at 2.     Subsequently, the appellant and the
     agency entered into a global settlement agreement to resolve both the instant
     appeal and an Equal Employment Opportunity (EEO) complaint. IAF, Tab 10 at
     5. Pursuant to the agreement, the appellant withdrew this appeal. Id. The agency
     agreed to cancel the appellant’s termination and pay him back pay. Id. at 6.
¶3         The administrative judge issued an order instructing the appellant to show
     cause why this appeal should not be dismissed pursuant to the settlement
     agreement. IAF, Tab 11 at 1. After the appellant responded, the administrative
     judge issued an initial decision dismissing the appeal as withdrawn. IAF, Tab
     12 at 2-3, Tab 13, Initial Decision (ID) at 1-2. The appellant has submitted a
     timely petition for review. Petition for Review (PFR) File, Tab 1. The agency
                                                                                               3

     has responded to the petition for review, and the appellant has replied. PFR File,
     Tabs 3-4.

     The appellant’s signature on the settlement agreement was sufficient to withdraw
     his Board appeal.
¶4         On review, the appellant argues that, although the settlement agreement
     “contemplates” withdrawal of the appeal, he did not withdraw and the agency
     made a motion for dismissal.          PFR File, Tab 1 at 4.          We agree with the
     administrative judge’s dismissal of the appeal as withdrawn. 2
¶5         An appellant’s withdrawal of an appeal is an act of finality and, absent
     unusual circumstances such as misinformation or new and material evidence, the
     Board will not reinstate the appeal once it has been withdrawn. See Scarboro v.
     Department of the Navy, 55 M.S.P.R. 494, 496 (1992); Wilson v. U.S. Postal
     Service, 45 M.S.P.R. 499, 502 (1990).          The Board will consider a settlement
     agreement, even though it was reached outside of a Board proceeding, to
     determine its effect on the Board appeal and any waiver of Board appeal rights.
     Lee v. U.S. Postal Service, 111 M.S.P.R. 551, ¶ 4 (2009), aff’d, 367 F. App’x
     137 (Fed. Cir. 2010). A waiver of Board appeal rights is enforceable if its terms
     are comprehensive, freely made and fair, and execution of the waiver did not
     result from agency duress or bad faith. Id.


     2
       On review, the appellant alleges that the administrative judge did not consider his
     response to the show cause order. See PFR File, Tab 1 at 5. He alleges that he spoke
     with the administrative judge, who stated that she did not see the appellant’s response
     before issuing the initial decision. PFR File, Tab 1 at 5. Even if true, this does not
     change our analysis. The administrative judge’s alleged omission in the initial decision
     constitutes harmless error because the appellant’s response did not show good cause for
     not dismissing the appeal. Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127
     (1981) (the administrative judge’s procedural error is of no legal consequence unless it
     is shown to have adversely affected a party’s substantive rights); see Jackson v.
     Department of Defense, 28 M.S.P.R. 463, 465 (1985) (the Board found that the
     administrative judge’s error in issuing her initial decision prior to the date specified for
     final receipt of evidence or argument was harmless where the employee’s timely
     additional submission was of insufficient weight to warrant a different outcome than
     that ordered by the administrative judge).
                                                                                     4

¶6        We agree with the administrative judge’s finding that the appellant
     withdrew his Board appeal in the settlement agreement. The agreement explicitly
     states: “[appellant’s] signature on this Agreement constitutes his withdrawal of
     the Complaint, and his MSPB Appeal (Docket No. CH-315H-14-0147-I-1) and the
     full and complete settlement thereof.” IAF, Tab 10 at 5. The appellant has not
     alleged that the settlement agreement was not freely made, was unfair, or resulted
     from agency duress or bad faith when he signed it. Therefore, he has not shown
     that he involuntarily entered into the agreement. See Lee, 111 M.S.P.R. 551, ¶ 9.
     Thus, his withdrawal is enforceable.

     We decline to consider the appellant’s argument, raised for the first time on
     review, that the parties extended the revocation period.
¶7        On review, the appellant alleges that he revoked the settlement agreement.
     PFR File, Tab 1 at 4-5, Tab 4 at 2, 4. The Board generally will not consider an
     argument raised for the first time on review absent a showing that the
     appellant based the argument on new and material evidence not previously
     available despite his due diligence.      See Banks v. Department of the Air
     Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d).
¶8        The appellant did not argue below that he had revoked the agreement or that
     the revocation period was extended. His response to the administrative judge’s
     show cause order indicated that “some issues have developed regarding the
     settlement agreement between [the a]ppellant and [the a]gency, which require
     additional time to resolve.”    IAF, Tab 12 at 2.     In addition, it stated that
     mediation regarding the appellant’s EEO case could be reopened as a result. Id.
     The language suggests that the appellant wanted to renegotiate the terms of the
     agreement, rather than rescind it.     Further, the appellant’s response did not
     indicate that the revocation period was extended. See id. at 2-3. Because the
     appellant was afforded an opportunity to raise his arguments below in response to
     the administrative judge’s order, but did not do so, we decline to consider his
     arguments on review. See Washington v. Department of the Navy, 77 M.S.P.R.
                                                                                       5

      525, 528-29 (1998); Timberlake v. U.S. Postal Service, 76 M.S.P.R. 172, 175
      (1997).
¶9         The appellant signed the settlement agreement on January 24, 2014. IAF,
      Tab 10 at 8. Pursuant to the terms of the agreement, he had 7 days, or until
      January 31, 2014, to revoke. Id. at 7. For the first time on review, he argues that
      he revoked on January 31, 2014, by speaking with an agency official. PFR File,
      Tab 1 at 4. He also claims that, on that date his counsel contacted the agency’s
      representative and left two voicemail messages requesting to extend the
      revocation period. 3 Id. at 4-5. According to the agency, the voicemail messages
      were an ineffective revocation because they were received after January 31, 2014.
      PFR File, Tab 3 at 10-11. The agency does not respond to the appellant’s claims
      that he spoke with an agency official.
¶10        Nevertheless, we find that the appellant should have raised below his
      arguments and evidence regarding revocation or extension of the revocation
      period. We decline to consider them for the first time here. Further, we note
      that, pursuant to the settlement agreement, the appellant retained employment
      with the agency and he received back pay. IAF, Tab 10 at 6; PFR File, Tab 3 at
      4. His failure to show that he is willing to return the back pay and rescind his
      employment agreement with the agency undermines his revocation claim. 4 See
      Thompson v. National Aeronautics and Space Administration, 68 M.S.P.R. 135,
      138 (1995) (noting that an appellant’s claim of coercion was undermined where
      she did not indicate that she was willing to return the back pay and benefits she
      received under the settlement agreement).




      3
       According to the appellant, he again revoked the agreement on February 21, 2014,
      within an extended revocation period agreed to by the agency. PFR File, Tab 4 at 4.
      4
        “The continued acceptance of benefits under the contract is the most common and
      clearest case of election by conduct.” Cities Service Helex, Inc. v. United States,
      543 F.2d 1306, 1314 (Ct. Cl. 1976
                                                                                      6

      The Board does not have jurisdiction over the agency’s alleged breach of the
      settlement agreement.
¶11        On review, in addition to claiming that he revoked the agreement, the
      appellant challenges the agency’s compliance with the settlement agreement.
      PFR File, Tab 4 at 2-9. He argues that it is disputed whether he has been “made
      whole” by his return to duty. Id. at 2. Further, he argues that the back pay he
      received was “not full” because he was “docked for healthcare.”          Id. at 9.
      Moreover, he alleges that he is “still subject to the same [ongoing] hostile
      conditions of which he was subject prior to, and culminating with, his
      termination.” Id.
¶12        Pursuant to the settlement agreement, if the appellant believes that the
      agency failed to comply with the agreement, he may wish to seek enforcement
      with the agency’s EEO Director, as provided in the agreement. IAF, Tab 10 at 7.
      This provision is consistent with 29 C.F.R. § 1614.504(a). Thus, the agreement
      shows that the parties did not intend to have the Board enforce the settlement
      agreement. See Grubb v. Department of the Interior, 76 M.S.P.R. 639, 642-43
      (1997).   We agree with the administrative judge’s decision not to enter the
      settlement agreement into the record for enforcement. See ID at 1-2.
¶13        Although the Board can consider a settlement agreement reached outside of
      a Board proceeding to determine its effect on the Board appeal and any
      waiver    of   appeal    rights,   it    cannot   enforce   such   an   agreement.
      Lee, 111 M.S.P.R. 551, ¶ 4 & n.2. The appellant’s request that we find that the
      agency has breached the terms of the settlement agreement is tantamount to a
      request for enforcement of the agreement.             See Lopez v. U.S. Postal
      Service, 71 M.S.P.R. 461, 463 (1996). Because the agreement was not entered
      into the record for enforcement purposes, the Board does not have the authority
      to act on the appellant’s request. Id.
                                                                                  7

                 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
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           8

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.
