                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                       2008-3253

                                  LOGAN JOHNSON,

                                                        Petitioner,

                                            v.

                         UNITED STATES POSTAL SERVICE,

                                                        Respondent.


      Arthur R. Ehrlich, Goldman & Ehrlich, of Chicago, Illinois, for petitioner.

       Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director.

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                          NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

                                          2008-3253


                                     LOGAN JOHNSON,

                                                              Petitioner,

                                                  v.

                           UNITED STATES POSTAL SERVICE,

                                                              Respondent.



               Petition for review of the Merit Systems Protection Board in
               CH0752060177-B-1.

                             ____________________________

                                DECIDED : March 9, 2009
                             ____________________________


Before LOURIE, SCHALL, and GAJARSA, Circuit Judges.

PER CURIAM.
                                          DECISION

       Logan Johnson appeals from the final order of the Merit Systems Protection

Board (“Board”) dismissing his appeal for lack of jurisdiction. Johnson v. U.S. Postal

Serv., CH-0752-06-0177-B-1 (M.S.P.B. Apr. 7, 2008). Because the Board did not err in

finding that it lacked jurisdiction, we affirm.
                                    BACKGROUND

        On April 18, 1995, Johnson suffered a back injury while working as a mail

handler at the United States Postal Service’s (“USPS’s”) Processing & Distribution

Center in Detroit, Michigan. He filed a claim at the Office of Worker’s Compensation

(“OWCP”), which OWCP accepted. The next month, Johnson returned to work and

suffered a recurrence of his injury. He filed a Notice of Recurrence with OWCP. This

time, OWCP disallowed Johnson’s claim.

        Johnson, unable to return to work, was charged with being on unscheduled leave

without pay from June 8, 1998 through July 31, 1998. After that, USPS charged him

with being absent without leave (“AWOL”) from August 1, 1998 through October 20,

1998.    On the last day of his AWOL period, USPS issued a Notice of Proposed

Removal based on “excessive absenteeism.”           Johnson filed a grievance of the

proposed removal through the National Postal Mail Handlers Union (“NPMHU”) on

November 3, 1998.

        On June 14, 1999, prior to arbitration, USPS and NPMHU executed a settlement

agreement regarding Johnson’s grievance. That agreement, which is at the heart of the

present appeal, stipulated that Johnson would be “allowed” ten days to obtain medical

clearance to return to his duties as a mail handler. If he did so, he would be reinstated

with “no restrictions.” If, however, he failed to obtain such clearance, “the grievance

would be considered closed.”     The agreement stated both that it was “a final and

complete settlement of the subject grievance” and that it constituted “a full and final

settlement of the subject grievance and resolves all issues pertaining thereto.” The

agreement reserved Johnson’s rights to apply for disability retirement in the event that



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                                       -2-
he was unable to obtain medical clearance to return to his position, but was silent as to

the existence of any further appeal rights.

       A few days after the settlement agreement was reached, Johnson was informed

of the settlement decision and instructed to report to the medical unit to obtain a

clearance. Shortly thereafter (the exact time is disputed by the parties) Johnson met

with a physician at the medical unit. The physician’s report of that meeting does not

indicate that any medical examination took place. Rather, the report indicates that the

USPS physician contacted Johnson’s private physician and confirmed that Johnson was

unable to return to work. Furthermore, the report stated that “Johnson has stated that

he does not know why the Union and Labor want him to come back to work. Please

take administrative action as this employee does not want this job.”

       Over a year passed with no official action on Johnson’s case. Then, on October

24, 2000, Johnson was again summoned to the medical unit. Johnson was given a

Fitness for Duty Examination, which he failed.       USPS then issued an SF-50 on

December 12, 2000, removing Johnson from his position effective December 26, 2000.

       Johnson appealed his removal to the Board on December 20, 2005, nearly five

years after being removed. In an initial decision, the AJ issued dismissed Johnson’s

appeal as untimely. On appeal, the Board vacated the initial decision and remanded to

the regional office for further adjudication. On review from the regional office, the AJ

found that there was good cause for Johnson’s untimely filing.         The timeliness of

Johnson’s appeal is not at issue before us.

       Once the timeliness issue had been resolved in Johnson’s favor, the AJ found

that the Board possessed jurisdiction over Johnson’s appeal. Johnson v. U.S. Postal



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                                        -3-
Serv., CH-0752-06-0177-B-1 at 7 (M.S.P.B. Nov. 2, 2007). As a preliminary matter, the

AJ found that Johnson had entered into the settlement agreement voluntarily, in spite of

Johnson’s arguments to the contrary. The AJ also found that Johnson had overcome

the presumption of waived appeal rights that accompanies a settlement agreement.

The AJ based this finding on numerous facts, including that USPS did not remove

Johnson for over a year after entering into the settlement agreement, that USPS

removed Johnson for reasons other than those stated in its Notice of Proposed

Removal, and that Johnson had no appeal right to waive at the time of the settlement.

Finally, the AJ found that Johnson had been denied minimum due process rights

regarding his removal.

       On appeal to the Board for a second time, the Board again reversed the AJ’s

decision. The Board found that it lacked jurisdiction over Johnson’s appeal. According

to the Board, Johnson failed to overcome the presumption of waived appeal rights

because he had voluntarily entered into the settlement agreement, and the agreement

did not expressly reserve the right to appeal to the Board. Thus, according to the

Board, because the settlement permitted Johnson’s removal and was “final,” the Board

lacked jurisdiction to hear the appeal.

       Johnson timely appealed the Board’s dismissal. We have jurisdiction pursuant to

28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

       The scope of our review of an appeal from a Board decision is limited. We can

only set aside Board decisions that are “(1) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law; (2) obtained without procedures required by



2008-3253
                                          -4-
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). Interpretation of a settlement agreement is a question of

law that we review de novo. King v. Dep’t of the Navy, 130 F.3d 1031, 1033 (Fed. Cir.

1997).

         On appeal, Johnson argues that the Board abused its discretion in finding that

the settlement agreement was binding on him. In support of his position, he points to

the fact that he did not sign the agreement, opposed the terms of the agreement, and

expressly told the medical examiner that he did not want to return to work. Alternatively,

Johnson argues that the agreement does not call for his immediate removal in the case

of a failed medical examination.       The proper reading of the settlement’s terms,

according to Johnson, is one that permits an appeal to the Board.

         In response, the government contends that substantial evidence establishes the

Board’s finding that the settlement was valid and voluntary.        The government also

agrees with the Board’s interpretation of the settlement agreement as divesting Johnson

of the right to appeal to the Board.

         We agree with the government that the Board lacked jurisdiction to hear

Johnson’s appeal. As a preliminary matter, we agree with the Board that Johnson is

bound by NPMHU’s settlement agreement, which was entered into on Johnson’s behalf.

Proving invalidity of a settlement agreement places a “heavy burden” on a petitioner.

Ashberry v. U.S. Postal Serv., 692 F.2d 1378, 1380 (Fed. Cir. 1982). Johnson’s primary

argument supporting invalidity of the agreement is that his failure to sign the settlement

renders the agreement invalid. That argument was squarely rejected in Mays v. United



2008-3253
                                        -5-
States Postal Service. 995 F.2d 1056, 1059 (Fed. Cir. 1993) (upholding the finding of

voluntariness of a settlement agreement that was not signed). Johnson also claims

that, regardless of the need for a signed agreement, he should not be bound by an

agreement of which he did not approve.          However, Johnson does not argue that

NPMHU lacked authority to settle his grievance nor that he did anything to disavow the

agreement, other than telling the USPS examining physician that he did not want to

return to his prior position. With such a paucity of evidence regarding the invalidity of

the agreement at the time it was entered, or any subsequent official repudiation by

Johnson, we find that Johnson has not met the “heavy burden” of demonstrating that

the settlement agreement is invalid. Johnson is therefore bound by the actions of his

chosen representative, NPMHU.

       After affirming the validity of the settlement agreement, the remaining question is

whether the existence of that settlement agreement divests the Board of jurisdiction in

this case. We conclude that it does. It is undisputed that the settlement agreement

does not expressly reserve Johnson’s appeal rights. That fact is fatal to Johnson’s

case, because “[t]he burden is on the employee to expressly reserve the [right of

appeal] if he chooses to settle a grievance.” Mays, 995 F.2d at 1060. Indeed, the

agreement appears to waive such rights by declaring that it is “a full and final settlement

of the subject grievance.”     Thus, the settlement agreement divests the Board of

jurisdiction in this case.

       Accordingly, because the Board properly dismissed Johnson’s appeal for lack of

jurisdiction, we affirm the Board’s decision.




2008-3253
                                         -6-
                       COSTS

     No costs.




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                 -7-
