       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                 ELOISE K. HAHN,
                    Petitioner,

                           v.
   ENVIRONMENTAL PROTECTION AGENCY,
              Respondent.
              __________________________

                      2011-3133
              __________________________

   Petition for review of the Merit Systems Protection
Board in CH0752080671-C-2.
              ___________________________

              Decided: October 13, 2011
             ___________________________

   ELOISE K. HAHN, of Chesterton, Indiana, pro se.

     JOSEPH A. PIXLEY, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and HAROLD D. LESTER,
JR., Assistant Director.
                __________________________
HAHN   v. EPA                                           2


   Before LOURIE, BRYSON, and REYNA, Circuit Judges.
PER CURIAM.

                        DECISION

    Eloise K. Hahn appeals from a decision of the Merit
Systems Protection Board denying her petition for en-
forcement of a settlement agreement with the Environ-
mental Protection Agency (“EPA”). We affirm.

                      BACKGROUND

     Ms. Hahn worked as an environmental engineer with
the EPA until she was removed from her position in 2008.
She appealed her termination to the Board. The Board
dismissed her appeal after Ms. Hahn and the EPA en-
tered into a settlement agreement in December 2008.
Under the agreement, the EPA agreed to pay Ms. Hahn
$18,000, to provide a neutral reference upon request, and
to issue an SF-50 that made no mention of the reasons for
her removal. In February 2009, Ms. Hahn and the EPA
executed an addendum to the settlement agreement in
which Ms. Hahn agreed to submit a retroactive letter of
resignation and the EPA agreed to update her SF-50 to
reflect her resignation.

    In April 2009, Ms. Hahn filed with the Board a peti-
tion for enforcement of the settlement agreement. She
alleged that the EPA had not paid her the $18,000 to
which she was entitled under the agreement. The Board’s
administrative judge noted that in a status conference the
parties had stipulated that Ms. Hahn had received the
$18,000. Based on that finding, the administrative judge
denied the petition for enforcement. Ms. Hahn then
petitioned for review by the full Board. In her petition,
Ms. Hahn argued, among other things, that the EPA had
3                                              HAHN   v. EPA


breached the settlement agreement when it failed to
indicate on her SF-50 that her separation from the agency
was the result of a reduction in force and that she was
therefore eligible for career transition services. Because
Ms. Hahn had not included that contention in her petition
for enforcement, but instead had raised it only in her
petition for review of the administrative judge’s initial
determination, the Board ruled that the issue was not
properly raised and declined to consider it. The Board
explained that Ms. Hahn could raise that issue in a new
petition for enforcement if she chose to do so.

    In the course of the enforcement proceeding, Ms.
Hahn also raised issues relating to her eligibility for
retirement benefits. Ms. Hahn withdrew her contribu-
tions to her Federal Employees Retirement System
(“FERS”) account in 1986, when she left a job with the
U.S. Army, and again in 2008, when she left her position
with the EPA. After she had withdrawn those contribu-
tions, Ms. Hahn requested an annuity from the Office of
Personnel Management (“OPM”).           OPM denied that
request because Ms. Hahn had withdrawn her FERS
contributions and therefore was not entitled to FERS
annuity benefits. See 5 U.S.C. § 8424(a) (“Except as
provided in section 8420a, payment of the lump-sum
credit to an employee or Member voids all annuity rights
under this subchapter . . . .”). OPM also denied Ms.
Hahn’s request to make a lump-sum payment and thus
restore her retirement credits. The administrative judge
in the enforcement proceeding noted that OPM’s decision
as to that issue was not final and that the Board therefore
lacked jurisdiction to consider that claim. The adminis-
trative judge added that Ms. Hahn could file an appeal
with respect to the FERS issue if and when OPM issued a
final decision adverse to her.
HAHN   v. EPA                                           4


     Ms. Hahn appealed to this court from the Board’s de-
cision in the enforcement action. In an opinion issued in
January 2010, we affirmed the Board’s ruling. Hahn v.
Envtl. Prot. Agency, 360 F. App’x 157 (2010). Ms. Hahn
raised two issues in the appeal: (1) that she should be
allowed to make a lump sum payment to the FERS re-
tirement system to restore her retirement annuity rights,
and (2) that her form SF-50 should be revised to reflect
that she had been separated as a result of a reduction in
force and therefore was eligible for career transition
services. We upheld the administrative judge’s determi-
nation that the FERS issue was not ripe because OPM
had not issued a final decision on her request, and we
upheld the Board’s decision not to address Ms. Hahn’s
complaint about the contents of her form SF-50 because
she had not raised that issue before the administrative
judge.

    In July 2010, OPM issued a final decision denying Ms.
Hahn’s request for FERS annuity benefits. OPM ex-
plained that she was not entitled to benefits because she
had withdrawn her retirement contributions after leaving
each of her two federal service positions.

    Ms. Hahn filed a second petition for enforcement of
the settlement agreement in August of 2010, naming both
the EPA and OPM as respondents. The Board divided the
petition for enforcement against the EPA and the petition
for review of OPM’s decision into two separate proceed-
ings. In September 2010, OPM rescinded its final deci-
sion with respect to Ms. Hahn’s FERS annuity request
and stated that it would issue a new decision addressing
that request. In light of OPM’s rescission of its decision
letter, the administrative judge who was assigned to the
OPM case dismissed that appeal, with the proviso that
5                                             HAHN   v. EPA


Ms. Hahn could file a new appeal if OPM issued a new
decision adverse to her.

     In the enforcement proceeding, Ms. Hahn renewed
her allegation that the agency had breached the settle-
ment agreement by not indicating on her form SF-50 that
her separation was the result of a reduction in force and
by not taking steps to enable her to obtain disability
retirement benefits. In the alternative, Ms. Hahn argued
that the December 2008 settlement agreement was inva-
lid.

     Before the administrative judge acted on the petition
for enforcement, Ms. Hahn requested that the adminis-
trative judge dismiss the petition with leave to reinstate
it after OPM ruled on her annuity request. The adminis-
trative judge explained that there was no reason to grant
that relief, because Ms. Hahn would be free to file a new
appeal from a final decision of OPM if that decision were
adverse to her.

    On the merits, the administrative judge denied the
petition for enforcement. With respect to the form SF-50
issue, the administrative judge found that the settlement
agreement required only that the revised form SF-50
make no mention of the reason for Ms. Hahn’s termina-
tion and did not require that the form SF-50 refer to her
removal as part of a reduction in force. With respect to
Ms. Hahn’s annuity claim, the administrative judge noted
that the settlement agreement contained no reference to
annuity rights and added that OPM was still reviewing
the issue of Ms. Hahn’s entitlement to FERS benefits.
Accordingly, the administrative judge concluded that Ms.
Hahn had not met her burden of proving that the EPA
breached the December 2008 settlement agreement. The
administrative judge further noted that the February
HAHN   v. EPA                                            6


2009 addendum to the settlement agreement on which
Ms. Hahn was relying had not been placed in the Board
record and did not provide for Board enforcement. Even
assuming the Board had enforcement authority over that
agreement, however, the administrative judge found that
Ms. Hahn had not shown that the EPA had breached the
agreement, which simply provided that the agency would
cancel the form SF-50 reflecting her removal and replace
it with a new form SF-50 stating that she had resigned
from her position.

     With respect to Ms. Hahn’s argument that the settle-
ment agreement was invalid, the administrative judge
noted that she had advised Ms. Hahn that an appellant
who dismisses a Board appeal based on a settlement
agreement but then seeks to have the settlement agree-
ment set aside on grounds of fraud, coercion, or mutual
mistake is entitled to file a petition for review of the
initial decision dismissing the appeal, requesting that the
agreement be invalidated.

    Ms. Hahn petitioned for review by the full Board. In
her request for relief, she asked that the Board “put
aside” her petition for enforcement pending a final deci-
sion from OPM on her request for annuity benefits and a
final decision in the separate appeal from OPM’s earlier
ruling on her annuity claim. The Board denied the peti-
tion for review, explaining that “an administrative judge
has wide discretion to control the proceedings before her,
and dismissal without prejudice to re-filing is a proce-
dural option committed to her sound discretion.” Because
Ms. Hahn failed to show any prejudice from the adminis-
trative judge’s refusal to dismiss the petition without
prejudice pending the decision on her FERS claims, the
Board held her argument to be without merit.
7                                               HAHN   v. EPA


                       DISCUSSION

    On appeal to this court, Ms. Hahn argues that the
Board abused its discretion by not dismissing her en-
forcement petition without prejudice or otherwise delay-
ing a decision in that proceeding until after OPM reached
a final decision on her FERS claims. She also alleges that
the settlement agreement is invalid because it was the
result of mutual mistake or, in the alternative, because
the agency failed to comply with its terms.

     As to the first issue, it was within the administrative
judge’s discretion to deny Ms. Hahn’s request to delay
adjudication of the enforcement petition. Ms. Hahn’s
appeal in the enforcement case, which is before us, relates
to the EPA’s compliance with the settlement agreement
and the enforceability of that agreement. The appeal
from OPM’s decision on the status of Ms. Hahn’s retire-
ment rights and her right to restore her FERS contribu-
tions, which is not before us, was dismissed when OPM
rescinded its final decision with respect to her claims on
those issues. In this case, the administrative judge de-
cided to rule on Ms. Hahn’s claims against the EPA
rather than awaiting a decision by OPM, and there is no
reason to overturn that decision. See Gingery v. Dep’t of
the Treasury, 111 M.S.P.R. 134, 138 (2009) (“An [adminis-
trative judge] has wide discretion to control the proceed-
ings before her and the dismissal without prejudice to re-
filing is a procedural option committed to her sound
discretion.”); Gidwani v. Dep’t of Veterans Affairs, 74
M.S.P.R. 509, 511 (1997) (“It is well settled that dismissal
of an appeal without prejudice is a procedural option that
is committed to the sound discretion of the administrative
judge.”). While a favorable decision from OPM might
have the effect of granting most of the relief Ms. Hahn is
seeking regarding her FERS annuity rights, the merits of
HAHN   v. EPA                                             8


her petition for enforcement do not turn on whether OPM
decides in her favor as to her FERS claims.

    As to the second issue, the record does not support
Ms. Hahn’s contention that the settlement agreement is
unenforceable for the reasons she states. A settlement
agreement, like any contract, may be invalid if it is predi-
cated on fraud or a mutual mistake of fact. Asberry v.
U.S. Postal Serv., 692 F.2d 1378, 1380 (Fed. Cir. 1982).
Ms. Hahn contends that she would not have entered into
the settlement agreement had she understood that doing
so might later affect her eligibility for annuity benefits.
The government responds that Ms. Hahn could have
asserted the invalidity of the settlement agreement on
grounds of mistake (or any other ground) as part of her
April 2009 enforcement petition. Because she had a full
and fair opportunity to raise the invalidity issue at that
time, the government argues, her present challenge to the
enforceability of the agreement is barred by principles of
res judicata.

    While it may be that Ms. Hahn’s challenge to the set-
tlement agreement on grounds of mutual mistake could
have been raised as part of her first enforcement case, we
do not rest our decision on res judicata; instead, we up-
hold the Board’s decision on the merits. Ms. Hahn has
offered no evidence that the EPA affirmatively misled Ms.
Hahn regarding the consequences of withdrawing her
FERS contributions or entering a settlement agreement
with the agency. Neither the settlement agreement nor
the February 2009 addendum to the agreement discusses
FERS benefits in general or the effect of Ms. Hahn’s
withdrawal of her retirement contributions in particular.
The fact that Ms. Hahn may have been unaware that
withdrawing her retirement contributions might preclude
her from later restoring those contributions or otherwise
9                                                HAHN   v. EPA


being entitled to annuity benefits does not void the set-
tlement agreement.

    Ms. Hahn suggests that the addendum to the settle-
ment agreement led her to believe that she could refund
her FERS contributions and remain eligible for retire-
ment benefits. The addendum, however, makes no refer-
ence to her eligibility for retirement benefits, and the only
reference to annuity rights in any document contempora-
neous with that addendum is in a form SF-50 that is
dated February 2009. That document recites that she
resigned from her position and states in the “Remarks”
section, “You appear to be eligible for early deferred
retirement benefits at age 56. If you have questions,
contact your agency retirement counselor.” Even if that
form SF-50 were treated as being incorporated into the
2009 addendum to the settlement agreement, the quoted
statement in the form SF-50 cannot reasonably be con-
strued as a promise that Ms. Hahn would be entitled to
retirement benefits even after withdrawing her FERS
contributions or that she would be permitted to repay
those withdrawn contributions. We therefore reject Ms.
Hahn’s argument that the administrative judge erred by
not invalidating the settlement agreement based on the
record in the enforcement proceeding.

    Finally, Ms. Hahn suggests that if the settlement
agreement is valid, the EPA breached it. As the Board
recognized, however, the EPA never promised Ms. Hahn
that she could repay her FERS contributions or that she
would receive retirement benefits without regard to
whether she was legally entitled to them. The EPA has
therefore not breached its agreement with Ms. Hahn in
that regard.
HAHN   v. EPA                                          10


    In her brief, Ms. Hahn raises several other procedural
issues as to which she contends the Board erred. We have
examined each of the claimed errors and conclude that
they are either entirely lacking in merit or are not of
sufficient moment to call for a different outcome in the
case.

                      AFFIRMED

   No costs.
