                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                     2009-3117

                               JOYCE E. KWARTLER,

                                                    Petitioner,

                                          v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                    Respondent.


      Joyce E. Kwartler, of Chester, New York, pro se.

       Arlene Pianko Groner, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
her on the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, and Donald E. Kinner, Assistant Director.

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                        NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

                                       2009-3117


                                JOYCE E. KWARTLER,

                                                              Petitioner,

                                            v.

                       DEPARTMENT OF VETERAN AFFAIRS,

                                                              Respondent.



             Petition for review of the Merit Systems Protection Board in
             NY0752070048-P-3.

                           ____________________________

                              DECIDED: August 5, 2009
                           ____________________________


Before LOURIE, and RADER, Circuit Judges, and CLARK, District Judge. *

PER CURIAM.
                                       DECISION

      Joyce Kwartler appeals from the decision of the United States Merit Systems

Protection Board (“Board”) denying her petition for review. Kwartler v. Dep’t of Veterans

Affairs, NY-0752-07-0048-P-3 (M.S.P.B. Dec. 17, 2008). The Board dismissed




      *
              Honorable Ron Clark, District Judge, United States District Court for the
Eastern District of Texas, sitting by designation.
Kwartler’s claim for consequential damages relating to her removal because there was

no finding of unlawful retaliation and because she had waived the right to bring such

claims in the settlement agreement she entered into with the Veterans Administration

(“VA”). Kwartler v. Dep’t of Veterans Affairs, NY-0752-07-0048-P-3 (M.S.P.B. Oct. 28,

2008). Because the Board’s decision was in accordance with law and supported by

substantial evidence, we affirm.

                                    BACKGROUND

      Kwartler was employed by the VA as a Veterans Claims Examiner, a position

from which she was removed on September 29, 2006.               Kwartler challenged the

agency’s removal action by filing an appeal to the Board, and the parties subsequently

entered into a settlement agreement. The settlement agreement provided that Kwartler

would waive all claims against the VA “with the exception of any claims that may arise

by reason of breach of any term of [the] Settlement Agreement.”           The settlement

agreement further stated that Kwartler would be responsible for her attorney fees. In

exchange for Kwartler’s agreement to waive her claims against the VA, the VA agreed

to retroactively promote her to the GS-12, Step 4 pay scale, effective September 21,

2003, and the GS-12, Step 5 pay scale, effective September 18, 2005. The VA would

then issue her a lump sum payment after making payroll withholdings and change its

official records to indicate that she voluntarily retired from the agency. Kwartler, along

with her counsel during her settlement negotiations, Joseph Carbonaro, signed the

settlement agreement on March 27, 2007.

      Shortly after the settlement agreement was signed, the Board’s administrative

judge assigned to Kwartler’s case dismissed her appeal as settled. Kwartler v. Dep’t of



2009-3117
                                        -2-
Veterans Affairs, NY-0752-07-0048-I-1 (M.S.P.B. Apr. 3, 2007). Kwartler did not appeal

that decision to the full Board and it thus became final on May 8, 2007.

      Kwartler then filed numerous documents with the MSPB in which she alleged,

among other things, that the VA had failed to issue her the payments contemplated in

the settlement agreement and that the VA had discriminated against her when it

removed her from her position. Kwartler was not represented by counsel at this point

and the administrative judge treated her submissions as petitions for enforcement of the

settlement agreement. After various submissions from the VA and Kwartler, the VA

changed the title of Kwartler’s position that appeared on her SF 50-B form to reflect the

job title agreed upon in the settlement agreement and issued checks to Kwartler in the

amount of $7,701.59.     Subsequently, the administrative judge dismissed Kwartler’s

remaining complaints as “not credible.” Kwartler v. Dep’t of Veterans Affairs, NY-0752-

07-0048-C-1, slip op. at 5 (M.S.P.B. Aug. 9, 2007). Because Kwartler did not appeal

that decision to the full Board, it became final on September 13, 2007.

      Kwartler also submitted, but then attempted to cancel, a request for attorney

fees. The administrative judge denied her motion because she had waived the right to

pursue such fees from the VA in the settlement agreement.           Kwartler v. Dep’t of

Veterans Affairs, NY-0752-07-0048-A-1 (M.S.P.B. July 13, 2007). That decision was

not appealed and became final on August 17, 2007.

      On September 17, 2007, Kwartler filed a request for compensatory damages

based upon defamation of character, forced retirement, and a hostile work environment.

The administrative judge again dismissed her complaint because she had waived the

right to pursue such claims in the settlement agreement. Kwartler v. Dep’t of Veterans



2009-3117
                                        -3-
Affairs, NY-0752-07-0048-P-1 (M.S.P.B. Nov. 8, 2007).      The administrative judge’s

decision became final on December 13, 2007.

      On November 13, 2007, Kwartler petitioned the Board to reopen her appeal. The

Board denied her request, but, on its own motion, chose to reopen other final decisions

in Kwartler’s case. The Board then affirmed the administrative judge’s dismissals of

Kwartler’s appeals regarding attorney fees, enforcement of the settlement agreement,

and compensatory damages. Kwartler v. Dep’t of Veterans Affairs, 2008 MSPB 58

(Mar. 13, 2008). The day after the Board’s decision, Kwartler filed another motion for

compensatory damages with the MSPB, which was dismissed by the administrative

judge on collateral estoppel grounds. Kwartler v. Dep’t of Veterans Affairs, NY-0752-

07-0048-P-2 (M.S.P.B. May 28, 2008). That decision became final on July 2, 2008.

      In late August, 2008, Kwartler filed motions seeking consequential damages.

The administrative judge dismissed that motion because no finding of retaliation had

been made in Kwartler’s case and because the settlement agreement waived all such

claims. Kwartler, NY-0752-07-0048-P-3, slip op. at 5. Kwartler appealed that decision

to the Board. The Board denied Kwartler’s petition for review and the administrative

judge’s decision became final. Kwartler v. Dep’t of Veterans Affairs, NY-0752-07-0048-

P-3 (M.S.P.B. Dec. 17, 2008).

      Kwartler timely appealed the Board’s denial. We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).




                                    DISCUSSION



2009-3117
                                      -4-
         The scope of our review in an appeal from a Board decision is limited. We can

only set aside the Board’s decision if it was “(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) (2000); see Briggs v. Merit Sys. Prot. Bd.,

331 F.3d 1307, 1311 (Fed. Cir. 2003).          We construe the terms of a settlement

agreement de novo. Conant v. Office of Pers. Mgmt., 255 F.3d 1371, 1376 (Fed. Cir.

2001).

         On appeal, Kwartler resumes her claims that the Board failed to take into account

allegations of the VA’s denial of accommodations for her disabilities, specifically her

chronic obstructive asthma and post-traumatic stress disorder. She further alleges that

the Board failed to award her damages for defamation of character, discrimination, and

reprisal and termination.

         We agree with the Board that Kwartler is not entitled to an award of

consequential damages. Kwartler waived any claim to such an award when she signed

the settlement agreement. In that agreement Kwartler “waive[d] any and all actions,

claims, complaints, EEO Complaints, grievances, appeals and proceedings of whatever

nature against VA, its past and present officers and employees, in their personal as well

as their official capacities, including attorney fees, which are now or hereafter may be

asserted by her or on her behalf on any action taken as of the date of Appellant’s

execution of this Agreement, with the exception of any claims that may arise by reason

of breach of any term of this Settlement Agreement.” None of the allegations made by

Kwartler on appeal are alleged to have arisen from a breach of the agreement; Kwartler



2009-3117
                                         -5-
has therefore waived any such claims.        Having voluntarily accepted the settlement

agreement and its benefits, Kwartler cannot now bring a claim that she explicitly waived.

      Accordingly, we affirm the Board’s decision.




2009-3117
                                       -6-
