                     NOTE: This disposition is nonprecedential.


     United States Court of Appeals for the Federal Circuit

                                       2006-3398



                               ELVIRA M. METCALFE,

                                                            Petitioner,

                                           v.


                      MERIT SYSTEMS PROTECTION BOARD,

                                                            Respondent.



      Elvira M. Metcalfe, of Oakland, California, pro se.

      Sara B. Rearden, Attorney, Office of General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With her on the brief
was Thomas N. Auble, Attorney.

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                       NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                       2006-3398




                                ELVIRA M. METCALFE,

                                                              Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                              Respondent.



                           __________________________

                           DECIDED: January 19, 2007
                           __________________________




Before NEWMAN, SCHALL, and MOORE, Circuit Judges.

NEWMAN, Circuit Judge.




             Elvira M. Metcalfe petitions for review of the decision of the Merit Systems

Protection Board, Docket No. SF0752060352-I-1, dismissing her appeal for lack of

jurisdiction and as untimely filed. We affirm the decision of the Board.
                                      BACKGROUND

       Ms. Metcalf resigned from her position as a Human Resource Assistant in the Forest

Service, U.S. Department of Agriculture, effective Feb. 8, 2002, in lieu of removal. She

subsequently signed a settlement agreement waiving any rights she might have against the

agency or its employees, agreeing to withdraw her appeal to the Board and a pending EEO

complaint, and agreeing to refrain from further litigation relating to her employment with the

agency. The settlement agreement was entered into the Board record and her case

dismissed as settled on April 24, 2002.

       On May 10, 2002, Ms. Metcalf filed a petition for enforcement with the Board alleging

that the written agreement was not in compliance with the oral agreement she had reached

with the agency. She and the agency then negotiated and agreed to certain changes in the

language of the agreement, and the Board dismissed the petition for enforcement as

settled.

       On Jan. 19, 2006, Ms. Metcalf filed another appeal with the Board claiming she had

been forced to resign from the Human Resource Assistant position and seeking

reinstatement so that she could transfer to another agency with continuity of service. She

also requested punitive damages. The Board observed that the appeal appeared to have

been settled and ordered Ms. Metcalfe to file evidence and argument to establish that the

Board had jurisdiction over her appeal. The Board also noted that the appeal was untimely,

having been filed more than three years after the effective date of the action challenged,

rather than within the statutory period of 30 days. Finding Ms. Metcalfe's response

inadequate to establish either involuntariness of her resignation or grounds for waiver of the

untimeliness of her filing, the Board dismissed the appeal and this petition followed.


2006-3398                                     2
                                       DISCUSSION

       A settlement agreement between an agency and an appellant before the Board is

the final and binding resolution of the appeal. See 5 C.F.R. §1201.41(c)(2)("Agreement. If

the parties agree to settle their dispute, the settlement agreement is the final and binding

resolution of the appeal, and the judge will dismiss the appeal with prejudice."). This court

will set aside a settlement agreement only if the petitioner shows that it was unlawful,

involuntary, or the result of fraud or mutual mistake. See Sargent v. Dept. of Health and

Human Services, 229 F.3d 1088, 1091 (Fed. Cir. 2000) ("It is well-established that in order

to set aside a settlement, an appellant must show that the agreement is unlawful, was

involuntary, or was the result of fraud or mutual mistake.") (citing Wade v. Dep't of Veteran

Affairs, 61 M.S.P.R. 580, 583 (1994)).

       In its Initial Decision, the Board found the settlement agreement was lawful on its

face, freely entered into, and that the parties understood the terms of the agreement. The

fact that Ms. Metcalfe faced the unpleasant choices of accepting the settlement agreement

or challenging a removal action does not render the choice coerced. See Schultz v. United

States Navy, 810 F.2d 1133, 2236 (Fed. Cir. 1987) ("[W]here an employee is faced merely

with the unpleasant alternatives of resigning or being subject to removal for cause, such

limited choices do not make the resulting resignation an involuntary act."). Ms. Metcalf has

not shown that her settlement agreement was coerced, and the Board properly dismissed

her appeal as settled.

       Nor did the Board err in granting the agency's motion to dismiss the appeal as

untimely filed. Ms. Metcalfe's appeal was filed more than three years late. In her attempt

to justify the late filing, Ms. Metcalfe mentioned "long term indefinite and/or permanent


2006-3398                                    3
medical injuries." However, she does not identify those medical injuries and why they

precluded earlier filing. The record shows that she prosecuted other litigation during the

same time frame, such as appeal of the denial of state unemployment compensation

claims.

      The Board correctly concluded that Ms. Metcalfe had not demonstrated that her late

filing should be excused.




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