                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ANDREW BELL,                                    DOCKET NUMBERS
                         Appellant,                  AT-0353-14-0525-I-1
                                                     AT-0752-14-0524-I-1
                  v.                                 AT-3443-14-0184-B-1

     DEPARTMENT OF
       TRANSPORTATION,
                 Agency.                             DATE: March 23, 2015



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Richard Taylor, Decatur, Georgia, for the appellant.

           Ryan M. Landers, College Park, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                      REMAND ORDER

¶1        The appellant has filed petitions for review of the initial decisions, which
     dismissed his removal and restoration appeals as settled.            For the reasons
     discussed below, we GRANT the appellant’s petitions for review, JOIN the
     removal and restoration appeals, VACATE the initial decisions, and REMAND


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     the joined cases to the regional office for further adjudication in accordance with
     this Order.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶2           The appellant filed an appeal of the agency’s decision to remove him from
     his position of Airway Transportation Systems Specialist, effective March 1,
     2014. MSPB Docket No. AT-0353-14-0525-I-1, Initial Appeal File (0525 IAF),
     Tab 1.     The appellant also filed an appeal alleging that the agency failed to
     restore him to his position after a compensable injury. 2 MSPB Docket No. AT-
     0752-14-0524-I-1 (0524 IAF), Tab 1. On September 5, 2014, the administrative
     judge issued initial decisions dismissing the appeals because the parties entered
     into a settlement agreement.      0524 IAF, Tab 15, Initial Decision; 0525 IAF,
     Tab 13, Initial Decision (ID).       The agreement provided, inter alia, that the
     appellant agreed to withdraw his appeals in exchange for the agency agreeing to
     cancel his removal and reassign him to a Transportation Assistant Specialist
     position, FV-2102-E, with a stated salary of “$36,868 with locality pay.” MSPB
     Docket No. AT-0353-14-0525-I-1, Petition for Review (0525 PFR) File, Tab 3
     at 9.
¶3           In dismissing the appeals, the administrative judge found that the parties
     understood the terms of the agreement, it was lawful on its face, and the parties
     entered into the agreement voluntarily. ID at 1-2. The administrative judge also
     stated that the settlement agreement removed the matters from the Board’s
     2
       The appellant also appealed the agency’s proposal to remove him from service, wh ich
     the administrative judge dismissed for lack of jurisd iction. See MSPB Docket No. AT-
     3443-14-0184-I-1, Initial Appeal File, Tabs 1, 6, Initial Decision. The appellant filed a
     petition for review of that decision. MSPB Docket No. AT-3443-14-0184-I-1, Petition
     for Review (0184 PFR) File, Tab 1. On July 10, 2014, the Board affirmed the finding
     concerning the Board’s lack of jurisdiction over the appellant’s proposed removal and
     issued a Remand Order finding that it was appropriate to docket a restoration appeal.
     0184 PFR File, Tab 3. Because the appellant already had a pending restoration appeal
     invo lving the same issues, specifically MSPB Docket No. AT-0353-14-0525-I-1, the
     remanded appeal was joined with the pending restoration appeal for administrative
     efficiency. 0525 IAF, Tab 13 at 1, n.1.
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     jurisdiction. ID at 2. The administrative judge made no findings as to whether
     the parties intended to have the agreement entered into the record for enforcement
     purposes or whether the Board had jurisdiction over the underlying removal and
     restoration actions.
¶4         The appellant filed petitions for review of the initial decisions dismissing
     his appeals as settled, arguing that the settlement agreement should be invalidated
     because of a misunderstanding about his pay for the Transportation Assistant
     Specialist position. 0525 PFR File, Tab 1; MSPB Docket No. AT-0752-14-0524-
     I-1, Petition for Review (0524 PFR) File, Tab 1.          Specifically, the appellant
     argues that he signed the agreement believing that the base pay for the position
     was $36,868, and that the total salary would be $43,980, after adding the 19.29%
     locality pay. 0525 PFR File, Tab 1 at 1. He further argues that the agency’s
     attorney knew that he believed the base pay of $36,868 would be increased by the
     locality pay; the attorney continuously used the term “$36,868 with locality pay;”
     and he “used trickery and deceit” to get the appellant to sign the agreement. Id.
     at 2, 4. The appellant also argues that the agency has not complied with all of the
     terms of the settlement agreement. 0525 PFR File, Tab 1 at 4, Tab 4. In support
     of his petition for review, the appellant submits email correspondence from the
     parties’ settlement negotiations, copies of earnings and leave statements, and
     various other documents. 0525 PFR File, Tab 1 at 6-17, Tab 4 at 6-31. The
     agency responded in opposition to the petitions for review, and the appellant
     replied. 3 0525 PFR File, Tabs 3-4; 0524 PFR File, Tabs 3-4.
¶5         A settlement agreement is a contract between the parties and its terms are to
     be interpreted as a question of contract law.            Wofford v. Department of
     Justice, 115 M.S.P.R. 468, ¶ 6 (2010). An appellant may challenge the validity of
     a settlement agreement, regardless of whether it has been entered into the record

     3
       The Board will not consider the appellant’s additional pleading, dated December 15,
     2014, because he did not request leave to submit his additional plead ing as required by
     the Board’s regulations. 0525 PFR File, Tab 5; see 5 C.F.R. § 1201.114(a)(5), (k).
                                                                                       4

     for enforcement, if he believes it was unlawful, involuntary, or the result of fraud
     or mutual mistake. Id.; see Brown v. Department of the Interior, 86 M.S.P.R.
     546, ¶ 11 (2000). Even if invalidity was not apparent at the time of settlement,
     the agreement must be set aside if it is subsequently shown by new evidence that
     the agreement was tainted with invalidity by fraud or misrepresentation.
     Wofford, 115 M.S.P.R. 468, ¶ 6. However, the party challenging the validity of a
     settlement agreement bears a heavy burden of showing a basis for invalidation.
     Id.
¶6         “Fraud   in   the   inducement”    is   defined   as   “occurring   when    a
     misrepresentation leads another to enter into a transaction with a false impression
     of the risks, duties, or obligations involved; an intentional misrepresentation of a
     material risk or duty reasonably relied on, thereby injuring the other party without
     vitiating the contract itself.” Id., ¶ 7 (quoting Black’s Law Dictionary 671 (7th
     ed. 1999)). To establish that a settlement agreement resulted from fraud in the
     inducement, the appellant must show that the agency knowingly concealed a
     material fact or intentionally misled him. Wofford, 115 M.S.P.R. 468, ¶ 7. If the
     settlement is deemed invalid, the Board may set aside the agreement and
     adjudicate the merits of the appellant’s underlying appeal.         Washington v.
     Department of the Navy, 101 M.S.P.R. 258, ¶ 16 (2006).
¶7         Having considered the appellant’s allegations on review, we find that the
     arguments raised by the appellant present no basis for setting aside the parties’
     settlement agreement. We find no evidence that the agency knowingly concealed
     facts or intentionally misled the appellant about the pay he would receive upon
     reassignment to the Transportation Assistant Specialist position. While the
     appellant states that he signed the agreement believing that he would receive an
     annual salary of $43,979.84, consisting of $36,868 and locality pay, he submits
     no evidence establishing that the agency misrepresented the agreement terms. His
     allegation that the agency’s attorney continuously referred to the salary offered as
     “$36,868 with locality pay,” which mirrors the terms stated in the parties’
                                                                                        5

      settlement agreement, does not prove that the agency knowingly concealed a
      material fact or intentionally misled him. 0525 PFR File, Tab 1 at 2, Tab 3 at 9;
      see Wofford, 115 M.S.P.R. 468, ¶ 7.
¶8         Although the appellant argues that the agency knew that he believed that the
      $36,868 salary did not include locality pay, the Board cannot consider the
      appellant’s extrinsic evidence and argument regarding the parties’ pre-settlement
      intentions because the settlement agreement is not ambiguous. 0525 PFR File,
      Tab 1 at 2, 4. The agreement clearly states that the salary for the position will be
      “$36,868 with locality pay.” 0525 PFR File, Tab 3 at 9. A common meaning of
      the word “with” is “inclusive of.” See “With” definition, Merriam-Webster.com,
      available at http://www.merriamwebster.com/dictionary/with.       It is well settled
      that, in construing the terms of a written settlement agreement, the words of the
      agreement itself are of paramount importance in determining the intent of the
      parties at the time of contracting.   See Pawlowski v. Department of Veterans
      Affairs, 96 M.S.P.R. 353, ¶ 16 (2004). The Board will only consider extrinsic
      evidence or argument if the written agreement is ambiguous, unlike in this case.
      See id.
¶9         To the extent that the appellant misunderstood the terms of the salary
      offered by the agency for the Transportation Assistant Specialist position, it
      appears that the mistake was one-sided. Unilateral mistakes are not a basis for
      finding a settlement agreement invalid. See Pawlowski, 96 M.S.P.R. 353, ¶ 15.
      Thus, the Board will not set aside the settlement agreement based on the
      arguments raised by the appellant.
¶10        Although we find that the settlement agreement is not invalid because of
      mutual mistake or fraud, we find that it was error for the administrative judge to
      dismiss the appeals without first determining whether the parties wished to enter
      the agreement into the record for enforcement purposes; and, if so, whether the
                                                                                      6

subject matter of the appeals were within the Board’s jurisdiction. 4 See Adkins v.
U.S. Postal Service, 92 M.S.P.R. 88, ¶ 6 (2002); see also Jimenez v. Department
of Health & Human Services, 70 M.S.P.R. 24, 26 (1996). The inability of the
Board either to find jurisdiction over a matter or to enforce a settlement
agreement regarding it is not necessarily fatal to such an agreement because such
legally-enforceable agreements covering such employment matters can be entered
into   outside   of   the   Board’s    purview.      See    Heath    v.   U.S.   Postal
Service, 107 M.S.P.R. 366, ¶¶ 7-8 (2007); see also Shaw v. Department of the
Navy, 39 M.S.P.R. 586, 594 (1989), overruled on other grounds by Joyce v.
Department of the Air Force, 74 M.S.P.R. 112 (1997), overruled on other
grounds by Sacco v. Department of Justice, 90 M.S.P.R. 37 (2001).                  This
settlement agreement, however, contemplated that it would be enforceable by the
Board. See 0524 IAF, Tab 14; see also 0525 IAF, Tab 12, provision 6 (stating
that the settlement resolves all matters between the parties “except as necessary to
enforce this Agreement”), provision 8 (stating that the appellant would not bring
any related claims against the agency or any of its officers or employees, “with
the exception of any claims that may arise by reason of breach of any term of the
Settlement Agreement”), and provision 14 (stating that if the parties failed to sign
the settlement by a date certain, then it would become “null and void; and thereby
unenforceable by either party”). However, the Board’s jurisdiction has not yet
been established.     The administrative judge must determine the unresolved
matters of jurisdiction and possibly the merits. Accordingly, we are vacating the
initial decisions dismissing the appeals as settled and remanding the appeals to
the regional office to determine these issues and issue new decisions.              See
Adkins, 92 M.S.P.R. 88, ¶ 8; see also Jimenez, 70 M.S.P.R. at 26-27. While the
administrative judge did not formally join the appellant’s removal and restoration
appeals, we do so here under 5 C.F.R. § 1201.36.
4
  Although the initial decision stated that the settlement agreement removed the matters
from the Board’s jurisdiction, that statement was conclusory. ID at 2.
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¶11          If, after remand, the parties resolve the matter and enter the settlement
      agreement into the record, and the Board issues a final decision dismissing the
      appeal as settled, then the appellant may file a petition for enforcement with the
      regional office and adjudicate his allegations that the agency has not complied
      with    the   settlement   agreement.      See   Sharkey    v.   Department      of
      Transportation, 56 M.S.P.R. 156, 158 (1992) (allegations that a party has failed
      to comply with a settlement agreement are properly a matter for initial
      consideration by the administrative judge on petition for enforcement), aff’d, 11
      F.3d 1070 (Fed. Cir. 1993) (Table); see also 5 C.F.R. § 1201.182(a).

                                          ORDER
             For the reasons discussed above, we REMAND the joined appeals to the
      regional office for further adjudication in accordance with this Remand Order.




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