                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                       2016 MSPB 4

                            Docket Nos. AT-0752-15-0504-I-1
                                       AT-531D-14-0638-I-2

                                     Marie Jackson,
                                        Appellant,
                                             v.
                               Department of the Army,
                                         Agency.
                                     January 19, 2016

           Kevin C. Crayon, II, Esquire, Kennesaw, Georgia, for the appellant.

           William J. Dobosh, Jr., Fort Belvoir, Virginia, for the agency.

                                         BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision that
     dismissed her appeal as settled. For the reasons discussed below, we GRANT the
     petition for review, VACATE the initial decision, and REMAND the case to the
     regional office for further adjudication in accordance with this Opinion
     and Order.

                                       BACKGROUND
¶2         On April 28, 2014, the appellant, a GS-12 Auditor, filed a Board appeal of
     a within-grade increase denial.    Jackson v. Department of the Army, MSPB
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     Docket No. AT-531D-14-0638-I-1, Initial Appeal File, Tab 1.              The agency
     subsequently removed the appellant for performance-based reasons, and the
     appellant filed a second Board appeal.      Jackson v. Department of the Army,
     MSPB        Docket   No. AT-0752-15-0504-I-1,   IAF,    Tab 1   at 3,   6-9. 1   The
     administrative judge joined the two appeals for processing. IAF, Tab 10.
¶3          During the pendency of the appeals, on August 7, 2015, the parties reached
     a settlement agreement. IAF, Tab 11. The agreement provided that the agency
     would take several actions in the appellant’s favor, including expunging the
     Standard Form 50 reflecting a removal for unacceptable performance, replacing it
     with one reflecting a removal for failure to accept a directed reassignment, and
     providing her a neutral reference.    Id. at 3-5.   In return, the appellant would,
     among other things, withdraw her Board appeal. Id. at 5-6. The agreement also
     provided as follows:
            [I]n accordance with the Older Workers’ Benefit Protection Act
            (OWBPA), Appellant acknowledges . . . she has seven (7) days from
            the execution date (date of her signing this Agreement) to revoke this
            Agreement, this Agreement will not become effective or enforceable
            until that revocation period has expired, and the 7-day period for
            revocation is a reasonable time for the appellant to consider whether
            to allow this Agreement to become effective and binding on both
            parties or to notify the Agency representative in writing of
            any revocation.
     Id. at 2.
¶4          The administrative judge dismissed the appeal as settled on August 13,
     2015—1 day before the close of the revocation period. IAF, Tab 11 at 8, Tab 13,
     Initial Decision. Later that day, however, the appellant informed the agency’s
     representative via email that she was revoking the settlement agreement. Petition
     for Review (PFR) File, Tab 3 at 54.


     1
      Unless otherwise indicated, all record citations are to the lead case, Jackson v.
     Department of the Army, MSPB Docket No. AT-0752-15-0504-I-1.
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¶5            The appellant has filed a petition for review, requesting that, in light of her
     revocation, the Board should remand the appeal for further adjudication. PFR
     File, Tab 1 at 3. The agency has filed a response in opposition, arguing that the
     appellant should not be permitted to revoke the agreement in its entirety. PFR
     File, Tab 3. The appellant has filed a reply to the agency’s response. PFR File,
     Tab 5.

                                           ANALYSIS
¶6            A settlement agreement is a contract, the interpretation of which is a matter
     of law. Greco v. Department of the Army, 852 F.2d 558, 560 (Fed. Cir. 1988). In
     construing a settlement agreement, the Board “assign[s] to words their ordinary
     and commonly accepted meaning unless it is shown that the parties intended
     otherwise.” Perry v. Department of the Army, 992 F.2d 1575, 1579 (Fed. Cir.
     1993). In this case, it appears to us that the provision of the agreement allowing
     for revocation within 7 days is quite plain. The agency, however, argues that the
     provision does not allow the appellant to revoke the agreement, or at least not the
     entire agreement.
¶7            Specifically, the agency argues that the appellant did not raise any claim
     under the Age Discrimination in Employment Act (ADEA) and, in any event, the
     OWBPA does not require the 7-day revocation period in a settlement of a Board
     appeal even if age discrimination is raised. PFR File, Tab 3 at 7-9; see Lange v.
     Department of the Interior, 94 M.S.P.R. 371, ¶¶ 6-8, 11 (2003) (holding that the
     OWPBA requirement for a 7-day revocation period does not apply to Board
     appeals). Thus, the agency argues that the provisions pertaining to the OWBPA
     were not material to the settlement agreement, and therefore were severable from
     the rest of the agreement. PFR File, Tab 3 at 9-10. The agency further argues
     that the revocation clause should be interpreted narrowly to apply only to any
     ADEA claims that were encompassed in the agreement. Id. at 10-14.
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¶8          In support of its argument regarding the narrow scope of the revocation
      clause, the agency cites to Hinton v. Department of Veterans Affairs,
      119 M.S.P.R. 129, ¶ 9 (2013), and Schwartz v. Department of Education,
      113 M.S.P.R. 601, ¶¶ 12-14 (2010), in which the Board only remanded the
      appellants’ age discrimination claims when the settlement agreements in those
      appeals failed to comply with the OWBPA and the appellants sought to set aside
      the agreements on review. PFR File, Tab 3 at 12-14. The Board found that the
      appellants’ waiver of their other claims remained in effect. Hinton, 119 M.S.P.R.
      129, ¶¶ 9-10; Schwartz, 113 M.S.P.R. 601, ¶ 13.
¶9          We find that the Board’s decisions in Schwartz and Hinton are not
      instructive in this situation. Unlike the present appeal, it does not appear that the
      settlement agreements at issue in those decisions included a 7-day revocation
      period, and there was, therefore, no attempt to invoke a revocation provision. See
      generally Hinton, 119 M.S.P.R. 129, ¶¶ 5, 7-10 (rejecting the appellant’s
      challenge to the validity of the settlement agreement, but remanding the
      appellant’s age discrimination claim because the agreement failed to comply with
      OWBPA requirements applicable to Board appeals); Schwartz, 113 M.S.P.R. 601,
      ¶¶ 10-14 (same). The settlement agreement in this appeal, however, includes a
      revocation provision to which both parties agreed, and it is this provision that is
      dispositive to the outcome of this petition for review.
¶10         We also find that it is irrelevant whether the OWBPA requires a 7-day
      revocation period, because the settlement agreement provides for one.           IAF,
      Tab 11 at 2. In addition, the fact that the OWBPA did not require the inclusion of
      a revocation provision does not mean that the provision was immaterial. Rather,
      the appellant chose to invoke the revocation period, suggesting that it was
      material to her decision to sign the settlement agreement. PFR File, Tab 3 at 54.
¶11         Further, we find unpersuasive the agency’s argument that the settlement
      agreement here contains a severability clause that permits the revocation
      provision to be severed, thus furthering the public policy goal of enforcing the
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      settlement agreement against all of the appellant’s non-ADEA claims. 2                 Id.
      at 10-14. We find that the severability of this provision is not supported by the
      plain language of the settlement agreement. The revocation provision does not
      specify that the appellant had 7 days to revoke her settlement of any ADEA
      claims; it instead provides, without qualification, that she had 7 days “to revoke
      this Agreement.” IAF, Tab 11 at 2. Furthermore, the severability clause provides
      that any nonmaterial term or condition of the agreement may be severed “[i]n the
      event that [it] is determined by a court or administrative entity . . . to be
      unenforceable as a matter of law.” Id. at 6. The revocation provision is not
      unenforceable,    and   therefore    does not    fall   under   the   coverage   of   the
      severability clause.
¶12         Finally, although we agree with the agency that public policy favors
      settlement agreements, McKenzie v. Department of the Interior, 23 M.S.P.R. 195,
      197-98 (1984), the law does not permit the Board to rewrite unilaterally the clear,
      unambiguous, and lawful terms of a settlement agreement against the wishes of a
      party. See Greco, 852 F.2d at 560 (finding that the Board erred in interpreting a
      settlement agreement contrary to its clear and unambiguous terms).




      2
        The agency also argues that the U.S. Supreme Court explained in Oubre v. Entergy
      Operations, Inc., 522 U.S. 422 (1998), that ADEA and non-ADEA claims may be
      severable in the context of a settlement agreement. PFR File, Tab 3 at 12. The Court
      found in Oubre that a release of claims that did not comply with the OWBPA was not
      enforceable as to age claims. 522 U.S. at 427-28. The Court recognized that instances
      may arise where such a release was effective as to other types of claims; however, it
      declined to explore the issue further. Id. at 428. In any event, because the release at
      issue in Oubre did not contain a revocation provision, we find that it is not analogous to
      the situation presented here. See id. at 424-25 (observing that the release did not
      provide the employee with 7 days “to change her mind”). Here, the agreement provided
      for revocation and the appellant timely revoked.
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                                          ORDER
¶13         For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Opinion and Order.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.
