                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARK STEVEN COOK,                               DOCKET NUMBER
                  Appellant,                         PH-0752-14-0492-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: August 15, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL ∗

           Mark Steven Cook, Columbus, Ohio, pro se.

           Cliff Lockett, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his 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


     ∗
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
     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. See 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, and based on the following points and authorities, 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).
¶2         The agency employed the appellant as a Food Inspector. Initial Appeal File
     (IAF), Tab 6 at 18.      Effective December 6, 2013, the agency removed the
     appellant based on the charges of (1) absence without leave; and (2) failure to
     report for duty as directed. Id. at 18, 20.
¶3         The appellant appealed his removal to the Board. IAF, Tab 1. However, in
     lieu of further adjudication, the parties executed a settlement agreement on
     March 18, 2014. IAF, Tab 16 at 4-8. In pertinent part, the agreement provided
     that the agency would rescind its removal and pay the appellant a lump sum of
     $5,000.00, while the appellant would submit a voluntary resignation. Id. at 5.
     The settlement agreement provided 7 days for the appellant to rescind. Id. at 7.
¶4         The administrative judge determined that the Board had jurisdiction over
     the appeal, the parties reached a settlement, the parties understood the terms, the
     parties entered into the agreement freely, and the settlement was lawful on its
     face. IAF, Tab 17, Initial Decision (ID).      Therefore, the judge dismissed the
     appeal as settled. ID.
¶5         The appellant did not rescind the settlement within the 7 days provided for
     in the agreement. See IAF, Tab 16 at 7. However, a month after he executed the
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     settlement agreement and the administrative judge dismissed his appeal, the
     appellant filed a petition for review. Petition for Review (PFR) File, Tab 1. The
     agency has not filed a response.
¶6         A party may challenge the validity of a settlement agreement if he believes
     that it is unlawful, involuntary, or the result of fraud or mutual mistake. Hinton
     v. Department of Veterans Affairs, 119 M.S.P.R. 129, ¶ 4 (2013). To establish
     that a settlement was fraudulent as a result of coercion or duress, a party must
     prove that he involuntarily accepted the other party’s terms, that circumstances
     permitted no other alternative, and that such circumstances were the result of the
     other party’s coercive acts.       Id.   The party challenging the validity of the
     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. Id.
¶7         In his petition for review, the appellant alleges that he decided to settle with
     the agency because he was anxious to begin a new career opportunity, and the
     $5,000.00 lump sum provided with the settlement was to help facilitate that
     transition. PFR File, Tab 1 at 3. However, according to the appellant, “student
     loans took [his] entire settlement.” Id. The appellant alleges that he would have
     “held out” and tried to get his “old job back” had he realized that would happen.
     Id. He alleges that his agreement to settle was a “rushed decision” and that he
     was “left in this situation to struggle for no reason of [his] own.” Id.
¶8         Although the appellant’s petition alleges that he was anxious to settle, it
     also indicates that the “rushed decision” was of his own accord. See id. The
     appellant has not alleged that the settlement agreement was unlawful, involuntary,
     or the result of fraud or mutual mistake. Nor has the appellant alleged any error
     in the administrative judge’s dismissal of his appeal as settled.          Instead, the
     appellant’s petition reflects a change of heart due to financial difficulties. Id.
     This is not a basis for granting his petition for review or setting aside the
     settlement agreement. See Hinton, 119 M.S.P.R. 129, ¶ 4.
                                                                                       4

¶9         The appellant’s petition for review is denied. The initial decision to dismiss
     is affirmed.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
     States Court of Appeals for the Federal Circuit. You must submit your request to
     the court at the following address:
                               United States Court of Appeals
                                   for the Federal Circuit
                                 717 Madison Place, N.W.
                                  Washington, DC 20439

           The court must receive your request for review no later than 60 calendar
     days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
     27, 2012). If you choose to file, be very careful to file on time. The court has
     held that normally it does not have the authority to waive this statutory deadline
     and that filings that do not comply with the deadline must be dismissed. See
     Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
           If you need further information about your right to appeal this decision to
     court, you should refer to the federal law that gives you this right. It is found in
     Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
     Dec. 27, 2012). You may read this law as well as other sections of the United
     States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
     Additional information is available at the court's website, www.cafc.uscourts.gov.
     Of particular relevance is the court's "Guide for Pro Se Petitioners and
     Appellants," which is contained within the court's Rules of Practice, and Forms 5,
     6, and 11.
           If you are interested in securing pro bono representation for your court
     appeal, you may visit our website at http://www.mspb.gov/probono for a list of
     attorneys who have expressed interest in providing pro bono representation for
                                                                           5

Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




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