                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBERT ROSS,                                    DOCKET NUMBER
                         Appellant,                  DA-0752-15-0521-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: June 24, 2016
       SECURITY,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Robert Ross, Crossroads, Texas, pro se.

           Melissa Pleasant, Baton Rouge, Louisiana, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                      REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed as settled his appeal of a 30-day suspension. For the reasons discussed
     below, we GRANT the appellant’s petition for review and REMAND the case to
     the regional office for further adjudication in accordance with this Order.


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The agency issued a July 7, 2015 decision to suspend the appellant for
     30 days based on a charge of willful misuse of a Government vehicle for
     nonofficial purposes in violation of 31 U.S.C. § 1349(b), and the appellant filed
     an appeal with the Board. Initial Appeal File (IAF), Tab 1, Tab 8 at 21. During
     the proceedings before the Board, the parties executed a settlement agreement.
     IAF, Tab 24. Under the terms of the parties’ settlement agreement, the agency
     agreed to rescind the 30-day suspension imposed in the July 7, 2015 decision
     letter and replace it with a 5-day suspension. IAF, Tab 8 at 21, Tab 24 at 4-5.
     The appellant, in turn, agreed to withdraw his Board appeal and his equal
     employment opportunity complaints against the agency and to “resolve all
     employment disputes, whether filed or not, through the effective date of the
     settlement agreement.” IAF, Tab 24 at 4-5.
¶3         The administrative judge found that the agreement was lawful on its face,
     that the parties freely entered into it, and that they understood the terms. IAF,
     Tab 25, Initial Decision at 1.        Having approved the parties’ agreement, the
     administrative judge dismissed the appeal as settled and entered the agreement
     into the record for enforcement purposes. Id.
¶4         The appellant has filed a petition for review arguing that the settlement
     agreement should be set aside because of mutual mistake or deception based on
     his   disagreement     with     the   agency’s   interpretation   and   application   of
     Paragraph III.C of the agreement. Petition for Review (PFR) File, Tab 1 at 4. 2
     The agency has responded in opposition. PFR File, Tab 4.
¶5         We find it unnecessary to consider the appellant’s contention, however,
     because, as discussed below, the settlement agreement must be set aside because
     it is not lawful on its face.

     2
       Paragraph III.C of the agreement provides that the appellant could either take leave
     without pay or use accrued annual leave from July 20 to August 7, 2015. IAF, Tab 24
     at 6.
                                                                                           3

¶6            Under 31 U.S.C. § 1349(b), the agency is required to impose a penalty of no
     less than a 1-month suspension for the appellant’s offense of willfully using a
     Government vehicle for other than official purposes. 3                  Social Security
     Administration v. Givens, 27 M.S.P.R. 360, 362 n.2. (1985). The settlement
     agreement does not rescind the charge of willful misuse of a Government vehicle
     for nonofficial purposes in violation of 31 U.S.C. § 1349(b). Because the statute
     imposes a mandatory minimum penalty for the appellant’s offense, the agency
     could not lawfully agree to reduce the penalty for the charged offense below a
     30-day suspension.          Fields v. Veterans Administration, 21 M.S.P.R. 176, 177
     (1984); see Farrell v. Department of the Interior, 86 M.S.P.R. 384, ¶ 8 (2000)
     (holding that an agency may not lawfully undertake in a settlement agreement to
     provide an appellant with benefits that the agency lacks authority to provide).
     Thus, the settlement agreement was not lawful on its face.
¶7            A settlement agreement must be set aside if it is tainted with invalidity
     either by fraud practiced upon a party or by a mutual mistake under which both
     parties acted. Fields, 86 M.S.P.R. 384, ¶ 8. Under the circumstances, we find
     that both parties acted under a mutual mistake as to the lawfulness of agency’s
     agreement to suspend the appellant for less than 1 month for the sustained
     offense, that the mistake concerned a material provision of the agreement, and
     that the agreement must be set aside.              Id., ¶ 12; Stipp v. Department of the
     Army, 61 M.S.P.R. 415, 419-20 (1994) (setting aside a settlement agreement due
     to mutual mistake as to the lawfulness of a material provision).

     3
         The statute states, in pertinent part, that:
              An officer or employee who willfully uses or authorizes the use of a passenger
              motor vehicle or aircraft owned or leased by the United States Government
              (except for an official purpose authorized by section 1344 of this title) or
              otherwise violates section 1344 shall be suspended without pay by the head of
              the agency. The officer or employee shall be suspended for at least one month,
              and when circumstances warrant, for a longer period or summarily removed from
              office.
     31 U.S.C. § 1349(b).
                                                                                                4

¶8           Accordingly, we vacate the initial decision dismissing this appeal as settled,
     and we remand the case to the Dallas Regional Office for reinstatement of
     the appeal. 4

                                               ORDER
¶9           For the reasons discussed above, we remand this case to the regional office
     for further adjudication in accordance with this Remand Order.




     FOR THE BOARD:                                 ______________________________
                                                    William D. Spencer
                                                    Clerk of the Board
     Washington, D.C.




     4
         On remand, the parties are not precluded from further attempting to settle this appeal.
