                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                     2008-3298

                     JACQUELINE L. WASHINGTON-THOMAS,

                                                           Petitioner,

                                          v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                           Respondent.


      Jacqueline L. Washington-Thomas, of Hollywood, Florida, pro se.

       Joseph A. Pixley, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were 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                       NOTE: This disposition is nonprecedential.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

                                       2008-3298

                      JACQUELINE L. WASHINGTON-THOMAS,

                                                                Petitioner,

                                            v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                                Respondent.

   Petition for review of the Merit Systems Protection Board in AT0752010577-M-2.

                           __________________________

                           DECIDED: February 4, 2009
                           __________________________


Before MAYER, LOURIE, and SCHALL, Circuit Judges.

PER CURIAM.

       Jacqueline L. Washington-Thomas appeals the final order of the Merit Systems

Protection Board denying her petition for review of the initial decision that dismissed, as

settled, her appeal of the Department of Veterans Affairs (“agency”) removal action.

Washington-Thomas v. Dept. of Veterans Affairs, No. AT-0752-01-0577-M-2 (M.S.P.B.

Jan. 15, 2008). The board concluded that there was no new, previously unavailable

evidence and that the administrative judge made no error in law or regulation affecting

the outcome. Id.; 5 C.F.R. § 1201.115(d). We affirm.
      On April 21, 2001, Washington-Thomas was removed from her position as a

police officer with the VA Healthcare System on the basis of an annual VA

psychological evaluation finding that she was not psychologically fit for duty. On August

29, 2001, in the course of appealing her removal, she entered into an oral settlement

agreement with the agency in which she agreed to dismiss the appeal and thereupon

apply to the Office of Personnel Management (“OPM”) for disability retirement benefits.

The agency agreed to assist her in completing her disability retirement application, and

stipulated that she could refile her removal appeal if OPM denied her application.

Twelve days later, Washington-Thomas, through new counsel, contacted the board in

an effort to rescind the settlement agreement and continue her initial appeal. The board

ordered her to show cause why the appeal should not be dismissed as settled.

Washington-Thomas did not respond to the show cause order, and the board dismissed

the appeal.

      Washington-Thomas did not apply for OPM disability retirement benefits. Rather,

she petitioned the board for review the initial decision, and appealed its denial to this

court. After remand and further proceedings determining the validity of the settlement

agreement, the board dismissed the appeal again as settled, and that decision became

final on November 12, 2004. Almost a year later, on November 10, 2005, she submitted

a completed application for disability retirement to OPM, which OPM denied as

untimely. After unsuccessfully appealing OPM’s denial, Washington-Thomas sought to

refile her initial removal appeal, per the terms of the settlement agreement. The board

dismissed this refiled appeal, reasoning that her right to refile was contingent upon her

agreement to apply for OPM disability retirement benefits expeditiously upon dismissal




2008-3298                                  2
of the initial appeal. Because she neglected to apply for OPM disability retirement

benefits within a reasonable period of time “upon dismissal” of the appeal, she failed to

comply with her end of the bargain, and therefore could not enforce the agreement’s

provision that would have permitted her to postpone and refile her removal appeal.

       We must affirm the final decision of the board unless we conclude that it is

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5

U.S.C. § 7703(c).     The board correctly determined that the settlement agreement

became effective and binding when formed on August 29, 2001. We agree with the

board that in the settlement agreement the parties intended the language “upon

dismissal of the appeal” to impose a reasonableness requirement regarding the time

frame during which Washington-Thomas agreed to file her OPM disability retirement

application. Her delay in submitting the application to OPM until October 2005—four

years after entering into the agreement and nearly one year after exhausting her

administrative remedies—was unreasonable. Because Washington-Thomas failed to

satisfy this condition precedent to refiling her appeal, the board properly dismissed it as

settled.




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