                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2010-3058


                              RICHARD J. PALCZYNSKI,

                                                        Petitioner,

                                            v.

                             DEPARTMENT OF ENERGY,

                                                        Respondent.


      Richard J. Palczynski, of Chicago, Illinois, pro se.

       Corinne A. Niosi, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Kenneth M. Dintzer, Assistant Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2010-3058

                              RICHARD J. PALCZYNSKI,

                                                       Petitioner,

                                           v.

                             DEPARTMENT OF ENERGY,

                                                       Respondent.


Petition for review of the Merit Systems Protection Board in case no.
CH0752090501-I-1.

                            __________________________

                               DECIDED: May 10, 2010
                            __________________________


Before LOURIE, LINN, and DYK, Circuit Judges.

PER CURIAM.

      Richard Palczynski appeals a final decision of the Merit Systems Protection

Board (“Board”) that affirmed the dismissal of his case due to a settlement agreement

that he entered into with the Department of Energy (“DOE”). Palczynski v. Dep’t of

Energy, No. CH-0752-09-0501-I-1 (M.S.P.B. Oct. 16, 2009).            Because the Board’s

decision was supported by substantial evidence and was not arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law, we affirm.

      Palczynski worked as an Information Technology Specialist at the DOE’s Office

of Science in Argonne, Illinois. On February 23, 2009, the DOE sent him a Notice of
Proposed Removal. 1 After the DOE removed him from his position on March 26, 2009,

Palczynski appealed to the Board.       During the appeal, Palczynski sent the DOE a

discovery request for documents related to “Investigation number 2007-IC-CHOO-

01625.” The DOE refused in writing, stating that Palczynski did not justify his request

and that the investigation was “not reasonably calculated to lead to the discovery of

admissible information.” Palczynski did not raise this request again to the DOE or the

Board.

         On June 18, 2009, after “more than five hours” of negotiations at a Board

hearing, the parties entered an oral settlement on the record. Among other things,

Palczynski agreed to withdraw his appeal and refrain from “any further litigation in any

other forum . . . regarding his employment with [DOE].” The presiding administrative

judge read the terms into the record and obtained consent from Palczynski, his attorney,

and the DOE and its counsel. The judge also allowed the parties to submit a substitute

written agreement by July 6, 2009, or else “the oral agreement will become the final,

binding agreement.” The parties submitted no written alternative, and the Board ruled in

its initial decision of July 30, 2009 that “the agreement is a full and complete settlement

of all issues in the appeal,” and dismissed the case.

         Palczynski then petitioned for review, claiming that on July 6, 2009 (the day the

settlement became final), he had filed a Freedom of Information Act request for

documents relating to the investigation that the DOE refused to produce, and that the

file would vindicate him. In its response, the DOE noted that it previously misstated the



         1
                In the parties’ settlement, the DOE agreed to “remove all documents
related to the removal decision . . . from all publicly available files.” To preserve the
spirit of the settlement, we do not refer to the basis for the charges.


2010-3058                                    2
investigation’s file number, which was actually “2008-IC-CHOO-2290,” but refused to

produce the requested documents, stating that the file was “classified.” The Board

denied the petition. Palczynski timely appealed, and we have jurisdiction under 28

U.S.C. § 1295(a)(9).

       We affirm a Board decision unless it is “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c). The Board may grant a petition to review its

initial decision if it finds that “[n]ew and material evidence is available that, despite due

diligence, was not available when the record closed.” 5 C.F.R. § 1201.115(d).

       “[I]t is well-established that an oral settlement agreement is binding on the

parties, particularly when the terms are memorialized into the record,” and that “an

appellant must show that the agreement is unlawful, was involuntary, or was the result

of fraud or mutual mistake.” Sargent v. Dep’t of Health and Human Servs., 229 F.3d

1088, 1090-91 (Fed. Cir. 2000). Palczynski challenges the Board’s approval of his

settlement on the grounds that the DOE investigation file is new and material evidence,

and that faulty procedures excluded it from the record. The DOE claims that it did not

rely on the investigation because it issued its Notice of Proposed Removal before the

investigation was reported.      Even if this is true, the file could contain relevant

information about Palczynski’s activities.    However, Palczynski failed to pursue the

investigation when he had opportunities to do so before settling. He did not respond to

the DOE’s refusal to produce the file, nor ask the Board to compel discovery. Despite

his awareness of the investigation, Palczynski and his attorney voluntarily settled his




2010-3058                                    3
appeal. Moreover, the sole evidence that Palczynski claims to be “new and material” is

not substantive information in or about the investigation—only its identification number.

While the DOE admits that it provided the wrong number, this does not change the fact

that Palczynski knew that the investigation file existed and failed to pursue it when he

had the opportunity. Thus, Palczynski has not shown any basis to overturn the Board’s

decision, and the Board did not clearly err by denying Palczynski’s petition for review.

       Palczynski also argues that his removal was improper because his position had

no relation to “national security.”   He does not explain, however, why this was a

prerequisite to removal, or why it should negate his settlement agreement. Palczynski

also requests “review and determination of a lesser penalty.” Under the settlement

terms, Palczynski’s personnel record reflects a resignation, not removal. Therefore,

there is no “penalty” to review.

       For the foregoing reasons, the Board’s decision is affirmed.

                                         COSTS

       No costs.




2010-3058                                   4
