                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARLO C. BROWN,                                 DOCKET NUMBER
                  Appellant,                         CH-0752-14-0352-I-1

                  v.

     DEPARTMENT OF COMMERCE,                         DATE: December 9, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jeremy Lannan, Louisville, Kentucky, for the appellant.

           Henry Young, Esquire, 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 as settled the appeal of her removal. 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
     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 appellant, a GS-4 Statistical Clerk, was removed from her position,
     effective August 28, 2013, based on 25 specifications of absence without leave.
     Initial Appeal File (IAF), Tab 1. She had filed an equal employment opportunity
     (EEO) complaint on April 18, 2013, alleging that various actions taken by the
     agency were based on disability discrimination, and on September 2, 2013, she
     amended her EEO complaint to include her removal.          IAF, Tab 14 at 5.     On
     January 31, 2014, the agency issued a final agency decision finding no
     discrimination. 2 Id. at 30-56. On March 7, 2014, the appellant filed a timely
     appeal challenging the removal. IAF, Tab 1. The agency moved for dismissal of
     the appeal on the basis that, on December 4, 2013, 3 the parties reached a
     settlement of the appellant’s EEO complaint pursuant to which she waived the
     right to appeal her removal. IAF, Tab 10. The administrative judge ordered the

     2
       The parties acknowledge that the appellant received the final agency decision on
     February 5, 2014. IAF, Tabs 7, 9.
     3
       Although the parties signed the agreement on November 27, 2013, IAF, Tab 10
     at 14-15, paragraph 8 provided that the appellant had 7 days in which to revoke the
     agreement and that it would not become effective or enforceable until the revocation
     period had expired, id. at 12.
                                                                                       3

     appellant to show cause why her appeal should not be dismissed based on the
     settlement agreement. IAF, Tab 12. In response, she argued that the agreement
     only specifically referenced her first EEO complaint, not her amended complaint
     which included her removal, and therefore she did not knowingly waive her right
     to appeal that action.    IAF, Tab 14.      She further argued that the agency
     fraudulently misled her into signing the settlement agreement, resulting in her
     making a “mutual mistake.” Id.
¶3        The administrative judge issued an initial decision dismissing the appeal as
     settled. IAF, Tab 16, Initial Decision (ID) at 2, 8. She found that the appellant
     knowingly and voluntarily signed the settlement agreement that was reached in
     the EEO process and that, because it provided a clear waiver of her right to file an
     appeal of her removal, the appeal must be dismissed as settled. ID at 3-8.
¶4        The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3.
¶5        In the appellant’s petition, she reiterates verbatim the arguments she made
     below in her response to the administrative judge’s show cause order. Compare
     PFR File, Tab 1, with IAF, Tab 14. In that regard, her petition lacks sufficient
     specificity to enable the Board to ascertain whether there is a serious evidentiary
     challenge to the initial decision, justifying a complete review of the record. See
     Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92 (1992).
¶6        Nonetheless, we agree with the administrative judge’s disposition in this
     case. It is well established that the Board will consider a settlement agreement,
     even if it is reached outside of a Board proceeding, to determine its effect on the
                                                                                          4

     Board appeal and any waiver of Board appeal rights. 4 Swidecki v. U.S. Postal
     Service, 101 M.S.P.R. 110, ¶ 7 (2006). The appellant may challenge the validity
     of the settlement agreement if she believes that it was unlawful, involuntary, or
     resulted from fraud or mutual mistake, id., ¶ 13, and she may also challenge the
     enforceability of any waiver of Board appeal rights. Such a waiver is enforceable
     if its terms are comprehensive, freely made, and fair, and if the execution of the
     waiver did not result from agency duress or bad faith. Id., ¶ 17.
¶7         The waiver provision at issue provided in pertinent part that the appellant
     agreed to waive, release, and discharge the agency from any claims, demands, or
     causes of action which she has or may have arising from her employment with the
     agency including, but not limited to, her first EEO complaint.            The release
     includes, but is not limited to, a release of any right to administrative relief or of
     any claim to back pay, reinstatement, damages or compensation, except for the
     agency’s agreement to pay the appellant a lump sum of $8000 in consideration.
     The agreement provided that the appellant did not waive any rights or claims that
     may arise subsequent to the effective date of the agreement.            IAF, Tab 14
     at 13-14.
¶8         The administrative judge considered the appellant’s claim that because the
     settlement agreement did not specifically refer to her amended complaint, the one
     dealing with her removal, the agency has engaged in fraud and misrepresentation
     by now arguing that an appeal of her removal is precluded under the terms of the
     agreement. The administrative judge found, and we agree, that the language of


     4
       We note the administrative judge’s statement that “[t]he Board will enforce a
     settlement agreement, even if it is reached outside of a Board proceeding.” ID at 3. In
     fact, the Board has no authority to enforce a settlement agreement reached in another
     forum. See, e.g., Johnson v. U.S. Postal Service, 108 M.S.P.R. 502, ¶ 8 n.5 (2008),
     aff’d, 315 F. App’x 274 (Fed. Cir. 2009); Goodwin v. Department of the Treasury,
     52 M.S.P.R. 136, 139 n.2 (1991), aff’d, 983 F.2d 226 (Fed. Cir. 1992). The Board may,
     however, under certain circumstances as described in this decision, enforce a waiver of
     Board appeal rights. See Lee v. U.S. Postal Service, 111 M.S.P.R. 551, ¶¶ 4, 8 (2009),
     aff’d, 367 F. App’x 137 (Fed. Cir. 2010).
                                                                                     5

     the agreement is clear that the settlement extends beyond the issues involved in
     the appellant’s first EEO complaint and encompasses her removal since it is a
     matter that arose out of her employment with the agency prior to the effective
     date of the agreement, ID at 5-6. To the extent that the appellant argues that the
     provision in question is ambiguous, she has not shown that the terms are
     susceptible to more than one interpretation. See Johnson, 108 M.S.P.R. 502, ¶ 8.
     Contrary to her claim that there was mutual mistake regarding the scope of the
     agreement, she has alleged at best only a unilateral mistake, and such a claim
     does not provide a basis for setting aside the agreement. See, e.g., Washington v.
     Department of the Navy, 101 M.S.P.R. 258, ¶ 18 (2006).
¶9        We further agree with the administrative judge that the waiver of Board
     appeal rights is enforceable, even though the agreement does not specifically
     refer to a Board appeal.      See Landers v. Department of the Air Force,
     117 M.S.P.R. 109, ¶ 15 (2011); see also Lee, 111 M.S.P.R. 551, ¶ 7.           The
     appellant has failed to show that the settlement agreement was not freely made,
     was unfair, or resulted from agency duress or bad faith.           See Swidecki,
     101 M.S.P.R. 110, ¶ 17. She has not alleged that she was mentally impaired or
     otherwise lacked the capacity to enter into a contract. For a waiver of Board
     appeal rights to be enforceable, the agency must provide some consideration to
     the appellant in exchange for the waiver.           Hughes v. Social Security
     Administration, 99 M.S.P.R. 67, ¶ 7 (2005).      Here, as noted, the agreement
     provided that the agency would pay the appellant a lump sum of $8000, IAF,
     Tab 14 at 11, and she has not argued that the agency failed to pay her this amount
     of money. It is also significant that the agreement was signed by the appellant
     and two representatives.     Id. at 14. While it does not appear that those
     representatives were attorneys, the agreement specifically provided that the
     appellant was aware of her right to representation by an attorney and was
     encouraged to have an attorney review the agreement prior to signing. And, as
     noted, the agreement also afforded the appellant 7 days in which to revoke the
                                                                                         6

      agreement prior to its becoming effective. Id. Under these circumstances, there
      is sufficient evidence in the record to find that the appellant signed the settlement
      agreement with the belief that the consideration provided by the agreement was
      more beneficial than the preservation of her rights to bring additional claims
      against the agency. See Landers, 117 M.S.P.R. 109, ¶ 15.
¶10         In sum, we find that the appellant has not shown error in the administrative
      judge’s findings that the settlement agreement reached in the EEO proceeding is
      valid, that the appellant knowingly and voluntarily signed it, that it encompassed
      the matters raised in this removal appeal, that the provision in which she waived
      her Board appeal rights concerning the removal is enforceable, and that therefore
      this appeal must be dismissed as settled. See Swidecki, 101 M.S.P.R. 110, ¶ 26.

                      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.
                                                                                7

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
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.
