              NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
              not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit


                                      04-3215


                               WILLIE J. HAMILTON,

                                                    Petitioner,

                                          v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                    Respondent.

                         __________________________

                         DECIDED: March 10, 2005
                         __________________________


Before MAYER, LOURIE, and BRYSON, Circuit Judges.

PER CURIAM.


      Willie J. Hamilton appeals the final decision of the Merit Systems Protection

Board upholding a settlement agreement between him and the Department of Veterans

Affairs (“agency”). Hamilton v. Dep’t of Veterans Affairs, DE-1221-99-0359-B-1 (MSPB

Mar. 12, 2004). We affirm.

      We must affirm the board’s decision unless we determine that it is arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law, or if not

supported by substantial evidence. See 5 U.S.C. § 7703(c) (2000); Cheeseman v.

Office of Pers. Mgmt., 791 F.2d 138, 140 (Fed. Cir. 1986). The settlement agreement
may be set aside if Hamilton proves the agreement invalid on the basis of fraud,

coercion or mutual mistake. Asberry v. United States Postal Serv., 692 F.2d 1378 (Fed.

Cir. 1982). To establish a mutual mistake of fact, Hamilton must show that: (1) the

parties to the contract were mistaken in their belief regarding a fact; (2) that mistaken

belief constituted a basic assumption underlying the contract; (3) the mistake had a

material effect on the bargain; and (4) the contract did not put the risk of the mistake on

the party seeking reformation. See Atlas Corp. v. United States, 895 F.2d 745, 750

(Fed. Cir. 1990) (citations omitted).

       The board examined whether Hamilton was fraudulently led to believe, or shared

a mutually mistaken belief, that he could not receive a Federal Employees Retirement

System (“FERS”) disability retirement after he had withdrawn his retirement

contributions, thus making the settlement agreement invalid.        Substantial evidence

supports the administrative judge’s finding that because Office of Personnel

Management policy at the time of the settlement agreement allowed a former employee

to receive a FERS disability retirement even though he had withdrawn his retirement

contributions, Hamilton was never prohibited from applying for and possibly receiving a

FERS disability retirement.       Therefore, Hamilton’s withdrawal of his retirement

contributions could not ground a finding of mutual mistake. Because Hamilton failed to

prove mutual mistake or fraud, the board did not abuse its discretion dismissing the

appeal as settled.




04-3215                                     2
