                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     STEVEN H. HALL,                                 DOCKET NUMBER
                   Appellant,                        DC-0752-14-0243-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: June 23, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Steven H. Hall, Chesapeake Beach, Maryland, pro se.

           Letitia Byers, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed the removal appeal as settled. Generally, we grant petitions such as
     this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation or the erroneous application of the law to the facts of the case; the
     administrative judge’s rulings during either the course of the appeal or the initial
     decision were not consistent with required procedures or involved an abuse of
     discretion, and the resulting error affected the outcome of the case; or new and
     material evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed.       Title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).            After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant appealed his removal from the position of Administrative
     Specialist for misconduct. Initial Appeal File (IAF), Tab 1. The administrative
     judge issued an initial decision dismissing the appeal as settled. IAF, Tab 30,
     Initial Decision (ID).     The initial decision notes that the appellant timely
     requested to revoke the settlement agreement and subsequently rescinded the
     revocation. ID at 1 n.1.
¶3        The appellant has filed a petition for review raising issues concerning the
     merits of his appeal and alleging, among other things, that the settlement
     agreement is invalid because both parties’ representatives misled him to believe
     he could revoke it within 7 days of its execution and that the administrative judge
     was biased.   Petition for Review (PFR) File, Tab 1.       The agency has filed a
     response arguing that the petition for review should be dismissed pursuant to the
     settlement agreement. PFR File, Tab 3.
¶4        A settlement agreement is a contract between the parties and, as such, may
     be set aside or voided only on the basis of certain limited grounds, including
     fraud, coercion, or mutual mistake.      Woodjones v. Department of the Army,
                                                                                        3

     89 M.S.P.R. 196, ¶ 11 (2001). The party challenging the validity of a settlement
     agreement bears a heavy burden.       Id.   An appellant’s mere post-settlement
     remorse or change of heart cannot serve as a basis for setting aside a valid
     settlement agreement. Thompson v. Department of Veterans Affairs, 52 M.S.P.R.
     233, 237 (1992).
¶5        Under the Older Workers Benefit Protection Act (OWBPA), the waiver of
     an Age Discrimination in Employment (ADEA) claim is not considered knowing
     and voluntary unless it meets certain criteria, including allowing the employee
     7 days to revoke the agreement. 29 U.S.C. § 626(f). It is undisputed that the
     appellant did not raise an age discrimination claim in the Board appeals or equal
     employment opportunity complaints settled by the agreement.            PFR File,
     Tab 1 at 3, 6-7, Tab 3 at 14.   The parties’ agreement states, in relevant part,
     “[a]ppellant acknowledges that he was further advised that he may revoke this
     Agreement at any time within seven (7) days after signing it.” IAF, Tab 26 at 6.
¶6        The agency argues that the 7-day revocation period provision was
     “inapplicable” to the appellant and of no consequence. PFR File, Tab 3 at 14.
     We do not agree.     In construing a contract, we look first to the terms of the
     agreement itself. Greco v. Department of the Army, 852 F.2d 558, 560 (Fed. Cir.
     1988). The agency may have intended for the revocation period to only apply if
     the appellant claimed that he had been discriminated against based on age, but the
     settlement agreement does not set any such limit, and the Board cannot add it
     after the fact.    Only if there is some ambiguity should parol evidence be
     considered. Id. There is no ambiguity in the terms of this agreement. The fact
     that the OWBPA only requires a 7-day revocation period in agreements settling
     claims brought under the ADEA is irrelevant because the settlement agreement at
     issue includes a 7-day revocation period. See Jackson v. Department of the Army,
     123 M.S.P.R. 178, ¶¶ 7-12 (2016).      The appellant states, “I had signed the
     settlement agreement based on the understanding that I could revoke the
     agreement seven days after signing it according to the Older Workers’ Benefit
                                                                                         4

     Act.” PFR File, Tab 1 at 6. Thus, the revocation provision was material to the
     appellant’s decision to sign the settlement agreement.       Jackson, 123 M.S.P.R.
     178, ¶ 10. Based on the plain language of the agreement, the appellant could
     have revoked the settlement agreement within 7 days of signing it.
¶7        The appellant alleges that he signed the settlement agreement because he
     was misled by the administrative judge, his representative, and the agency’s
     representative. PFR File, Tab 1 at 7. A settlement agreement may be invalid if
     the appellant shows that the agreement was based on misrepresentation by the
     agency.      Hamilton v. Department of Veterans Affairs, 92 M.S.P.R. 467,
     ¶ 19 (2002). On the issue of misrepresentation, it is sufficient to show that a
     reasonable person would have been misled by the statements. Id.
¶8        The appellant was not misled. As discussed above, the appellant must have
     understood that he could revoke the settlement agreement within 7 days because
     he requested to revoke the agreement. ID at 1 n.1; IAF, Tab 28. That revocation
     would have cancelled the settlement agreement. However, after a conference call
     with the administrative judge and the agency’s representative, the appellant
     rescinded his revocation stating, “I wish to go forward with the agreement after
     carefully considering my options.”     IAF, Tab 29.       Therefore, the appellant’s
     revocation is no longer in effect, and the parties are bound by the terms of the
     settlement    agreement.    Although    the   appellant    may    believe   that   his
     representatives failed to act in his best interest in negotiating the settlement
     agreement, he is bound by his chosen representatives’ actions and consequently
     bound by the terms of the settlement agreement. Merriweather v. Department of
     Transportation, 64 M.S.P.R. 365, 372-73 (1994), aff’d, 56 F.3d 83 (Fed. Cir.
     1995) (Table).
¶9        The appellant alleges that the administrative judge was biased and
     conspired with the representatives to pressure him into settling.           PFR File,
     Tab 1 at 2-3. In making a claim of bias or prejudice against an administrative
     judge, a party must overcome the presumption of honesty and integrity that
                                                                                              5

      accompanies         administrative   adjudicators.      Oliver    v.   Department      of
      Transportation, 1 M.S.P.R. 382, 386 (1980).           To support his bias claim, the
      appellant alleges that the administrative judge and his representative discussed
      the weakness of his appeal prior to the prehearing conference.                PFR File,
      Tab 1 at 2.       In settlement negotiations, administrative judges are permitted to
      inform the parties of the relative strengths and weaknesses of their cases.
      Forston v. Department of the Navy, 60 M.S.P.R. 154, 160 (1983).                     Such
      statements do not indicate bias or coercion. Id.
¶10         We find that, by the terms of the settlement agreement, the appellant
      withdrew his appeal with prejudice, he knowingly and voluntarily signed the
      settlement agreement, he waived further Board appeal rights concerning his
      removal, and the waiver is enforceable. Accordingly, we deny the petition for
      review of the initial decision dismissing this appeal as settled.          Because this
      appeal has been settled, we need not reach the other issues raised by the appellant
                    2
      on review.        See Lee v. U.S. Postal Service, 111 M.S.P.R. 551, ¶ 10 (2009), aff’d,
      367 F. App’x 137 (Fed. Cir. 2010).

                          NOTICE TO THE APPELLANT REGARDING
                             YOUR FURTHER REVIEW RIGHTS 3
            You have the right to request further review of this final decision.


      2
        The appellant’s arguments challenging the merits of his removal and the conduct of
      both parties’ representatives do not present a reason to disturb the initial decision
      dismissing his appeal as settled. See Hinton v. Department of Veterans Affairs,
      119 M.S.P.R. 129, ¶ 4 (2013); see also Thompson, 52 M.S.P.R. at 236-37 (explaining
      that an appellant is responsible for the actions or inactions of his chosen representative
      and the alleged inadequacy of his representation is not grounds to set aside a settlement
      agreement).
      3
        The administrative judge did not provide the appellant with notice of his mixed-case
      rights to appeal from the initial decision on his discrimination claims to the Equal
      Employment Opportunity Commission and/or an appropriate U.S. district court. This
      was error, but it does not constitute reversible error because we notify the appellant of
      his mixed‑case appeal rights in this Final Order. See Grimes v. U.S. Postal Service,
      39 M.S.P.R. 183, 186-87 (1988).
                                                                                 6

Discrimination Claims: Administrative Review
        You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

        You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
        If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time.    If the action involves a claim of discrimination based on race, color,
                                                                              7

religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




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