       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                  RODNEY HAITH,
                     Petitioner

                           v.

     DEPARTMENT OF VETERANS AFFAIRS,
                  Respondent
            ______________________

                      2014-3219
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. NY-0752-13-0239-C-1.
                ______________________

                 Decided: May 6, 2015
                ______________________

   RODNEY HAITH, Poughkeepsie, NY, pro se.

   VERONICA NICOLE ONYEMA, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR.,
DEBORAH A. BYNUM.
                ______________________

     Before DYK, MOORE, and WALLACH, Circuit Judges.
2                                                HAITH   v. DVA



PER CURIAM.
    Rodney Haith appeals from a decision of the Merit
Systems Protection Board (the “Board”) denying his
petition for review. We affirm.
                        BACKGROUND
    On July 8, 2013, Mr. Haith was removed by the U.S.
Department of Veterans Affairs (“VA”) from his position
as a File Clerk. Mr. Haith appealed his removal to the
Board. During the pendency of the appeal, the parties
entered into a settlement agreement resolving the appeal.
The agreement provided that the VA was required to,
inter alia, (1) “amend [Mr. Haith]’s removal . . . to reflect a
separation for medical disability”; (2) “rescind and ex-
punge [Mr. Haith]’s prior disciplinary record in its entire-
ty”; and (3) “provide [Mr. Haith] with an application for
disability retirement benefits and . . . assist him with the
application process.” App. 47.
     The VA subsequently sent two different versions of
Standard Form 50 (“SF-50”) to the Office of Personnel
Management (“OPM”) (which was determining whether
Mr. Haith was entitled to disability retirement). The SF-
50 form is entitled “Notification of Personnel Action.” On
the first form it submitted to OPM, the VA filled in two
fields on the form (the “Code” and “Nature of Action”
fields) to indicate that Mr. Haith had resigned. App. 25.
In the field labeled “Remarks,” the VA included the
phrase: “SEPARATED FOR MEDICAL DISABILITY.” Id.
The VA subsequently sent a second SF-50 to OPM, remov-
ing the reference to resignation and indicating that Mr.
Haith had been terminated. The second form also includ-
ed in the box labeled “Remarks” the text “Separated for
medical disability.” App. 26.
    On October 21, 2013, Mr. Haith filed a petition for en-
forcement of the agreement, arguing that, inter alia, the
VA had breached the agreement when on the first form it
HAITH   v. DVA                                             3



informed OPM that he had resigned and when on the
second form it indicated his separation was a termination.
On December 11, 2013, the Administrative Judge (“AJ”)
issued its initial decision, granting Mr. Haith’s petition in
part. The AJ found that the VA had partially breached
the settlement agreement when it originally sent the SF-
50 to OPM indicating that Mr. Haith had resigned. The
AJ ordered the VA to inform OPM in writing that Mr.
Haith’s separation was not the result of a resignation. 1
But the AJ held that, with regard to the second SF-50, the
VA had not breached the agreement when it indicated in
the boxes on the form that Mr. Haith had been terminat-
ed with the notation “Separated for medical disability.”
Mr. Haith argued that the SF-50 should have shown Mr.
Haith’s separation was a result of “Retirement-Disability”
and included the corresponding code. But the AJ noted
that such an entry would be improper since no such
retirement had yet occurred.
    Mr. Haith filed a petition for review to the full Board,
arguing again that the VA breached the agreement when
it said he was terminated on the second SF-50 form. The
Board found that the VA had complied with the settle-
ment agreement because the form included “Separated for
medical disability,” App. 26, in the remarks section, which
was consistent with the intent of the parties to create a
presumption that Mr. Haith was entitled to an award of
disability retirement benefits. See Bruner v. Office of Pers.
Mgmt., 996 F.2d 290, 294 (Fed. Cir. 1993) (holding that
the government’s termination of an employee for disable-
ment produces a presumption of disability). The Board
therefore denied review. Mr. Haith appealed the decision




    1  The issue of the VA’s compliance with this order
was the subject of a separate appeal to the Board and was
not addressed in the decision presently being reviewed.
4                                               HAITH   v. DVA



of the full Board. We have jurisdiction pursuant to 5
U.S.C. § 7703(b).
                        DISCUSSION
    Our review of the Board’s decision is limited in scope.
We may only set aside an agency’s “action, findings, or
conclusions” if they are “(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). “A settlement
agreement is a contract, and its construction is a question
of law which this court reviews de novo.” Lutz v. U.S.
Postal Serv., 485 F.3d 1377, 1381 (Fed. Cir. 2007) (quoting
Lary v. U.S. Postal Serv., 472 F.3d 1363, 1367 (Fed. Cir.
2006)).
    Here, Mr. Haith first argues that the settlement
agreement is unlawful because the VA made misrepresen-
tations during its negotiation. Mr. Haith did not argue at
the Board that the agreement should be set aside. “Our
precedent clearly establishes the impropriety of seeking a
reversal of the board’s decision on the basis of assertions
never presented to the presiding official or to the board.”
Sargent v. Dep’t of Health & Human Servs., 229 F.3d
1088, 1091 (Fed. Cir. 2000).
    Second, Mr. Haith argues that, because the AJ found
the VA to have partially breached the contract, the con-
tract is no longer binding on Mr. Haith and his employ-
ment should be reinstated. Here, Mr. Haith did not elect
to terminate the agreement but rather filed a petition for
enforcement of the settlement agreement. The AJ granted
this petition in part, ordering the VA to remedy its partial
breach. Enforcement of the contract was an appropriate
remedy in this case.
   Third, Mr. Haith appears to argue, as he did at the
Board, that the VA breached the agreement by stating on
HAITH   v. DVA                                          5



the second SF-50 that Mr. Haith was terminated rather
than separated for medical disability. The Board did not
err in holding that the VA satisfied the settlement agree-
ment because the VA included a note in the remarks
section of the SF-50 which stated, “Separated for medical
disability.” App. 26.
                      AFFIRMED
                         COSTS
   No costs.
