                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMIE LITTLEFIELD,                              DOCKET NUMBER
                   Appellant,                        AT-0752-15-0408-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: February 17, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jamie Littlefield, Leesburg, Georgia, pro se.

           Grant Jensen, Esquire, Albany, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal as settled. 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 regulation or
     the erroneous application of the law to the facts of the case; the administrative

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, 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        Effective February 21, 2015, the agency removed the appellant from his
     GS-10 Supervisory Police Officer position.       Initial Appeal File (IAF), Tab 4
     at 18. The appellant timely filed an appeal with the Board regarding his removal.
     IAF, Tab 1.
¶3        During the processing of the appeal, the parties jointly requested to
     participate in the Board’s Mediation Appeals Program.          IAF, Tab 9.    They
     subsequently entered into a settlement agreement, which was fully executed on
     August 25, 2015. Id.; IAF, Tab 10. In relevant part, the settlement agreement
     provided that the agency would: (1) rescind the removal action; and (2) restore
     the appellant to the position of GS-8, Step 9, Field Training Officer.         IAF,
     Tab 10. The parties agreed that the Board would retain jurisdiction to enforce the
     agreement. Id. at 2.
¶4        The administrative judge issued an initial decision dismissing the appeal, in
     light of the appellant’s request to withdraw it pursuant to the settlement
     agreement. IAF, Tab 11, Initial Decision (ID). She found that the Board had
     jurisdiction over the appellant’s removal appeal and that the settlement agreement
     was lawful on its face. ID at 1. Further, she noted that the appellant represented
     that he understood the agreement and entered into it voluntarily. ID at 1. She
     entered the agreement into the Board’s record for enforcement purposes. ID at 2.
                                                                                          3

¶5         The appellant has filed a petition for review, claiming that he entered into
     the settlement agreement based upon the agency’s false statements. Petition for
     Review (PFR) File, Tab 1.       The agency filed a response in opposition to the
     petition for review, to which the appellant did not reply. 2 PFR File, Tab 3.
¶6         A party may challenge the validity of a settlement agreement by showing,
     inter alia, that it was the result of fraud or misrepresentation.           Henson v.
     Department of the Treasury, 86 M.S.P.R. 221, ¶¶ 5, 7 (2000). Even if invalidity
     is not apparent at the time of settlement, the settlement agreement must be set
     aside if it is subsequently shown, by new evidence, that the agreement is tainted
     with invalidity by fraud or misrepresentation. Id., ¶ 7. For the reasons set forth
     below, we find that the appellant’s arguments do not warrant setting aside the
     settlement agreement on the basis of fraud or misrepresentation.
¶7         The appellant states that, during mediation, the agency represented that it
     could immediately place him into a GS-8 position. PFR File, Tab 1 at 4. He
     claims that, to the contrary, there was no GS-8 position into which he could be
     immediately placed when the agreement was fully executed.             Id.   He further
     asserts that a GS-8 position did not become available until September 20, 2015,
     and that, as of September 22, 2015, the date he filed his petition for review, the
     agency had yet to reinstate him. 3 Id.
¶8         In construing a settlement agreement, the Board will first consider the terms
     of the agreement itself, and will only examine extrinsic evidence if the terms of

     2
      The agency states that its response was untimely filed by 2 days and “requests that an
     extension of time be granted after the fact.” PFR File, Tab 3 at 4. However, the filing
     deadline of October 17, 2015, fell on a Saturday. Thus, the agency’s response,
     submitted on Monday, October 19, 2015, was timely filed. See 5 C.F.R. § 1201.23.
     3
       The agency concedes that it did not return the appellant to work until October 13,
     2015, 49 days after the settlement agreement was fully executed. PFR File, Tab 3 at 7,
     10. It is unclear whether the appellant is alleging that the agency breached the
     settlement agreement. To the extent he is attempting to raise this argument, we cannot
     decide that issue now. Rather, he must raise such a claim in a petition for enforcement
     to be decided in the first instance at the regional level. See Secrist v. U.S. Postal
     Service, 115 M.S.P.R. 199, ¶ 8 (2010).
                                                                                      4

     the agreement are ambiguous, meaning they are susceptible to more than one
     reasonable    interpretation.       Harris     v.     Department    of     Veterans
     Affairs, 99 M.S.P.R. 609, ¶ 4 (2005). The settlement agreement did not state that
     the appellant would be “immediately” placed into a GS-8 position. Rather, it
     stated that the agency would “act in good faith” to reinstate the appellant “as
     quickly as possible.” IAF, Tab 10 at 2. Thus, regardless of whether the agency
     told the appellant during settlement negotiations that it would reinstate him
     immediately, we cannot find that he was misled when he voluntarily signed a
     settlement agreement that plainly stated otherwise.
¶9        The appellant also suggests that he only agreed to accept a GS-8 position
     because, during mediation, the agency falsely advised him that no GS-9 positions
     were available at that time. PFR File, Tab 1 at 4. However, in paragraph 2 of the
     settlement agreement, the parties agreed that neither party would be “bound by
     any representation, promise, nor inducement not set forth” therein. IAF, Tab 10
     at 1. Thus, the appellant cannot now rely upon the agency’s alleged assertion that
     no GS-9 positions were available, which is not set forth in the settlement
     agreement, to support his claim of misrepresentation. See Hopkins v. Department
     of the Navy, 83 M.S.P.R. 266, ¶¶ 7-8 (1999) (finding that the administrative judge
     erred in determining that a settlement agreement included an implied promise
     because the promise was not explicitly set forth in the agreement, which stated
     that neither party would be “bound by any representation, promise, or inducement
     not set forth” therein); Colonel v. Department of the Air Force, 38 M.S.P.R. 285,
     290-91 (1988) (affirming the administrative judge’s finding that a settlement
     agreement was not tainted by invalidity based on the appellant’s assertion that an
     agency employee had violated an assurance upon which he relied in entering into
     the settlement because the assurance was not included in the agreement and the
     agreement stated that no promises or agreements not included therein would be
     binding upon the parties), aff’d, 980 F.2d 743 (Fed. Cir. 1992) (Table).
                                                                                        5

¶10         Based on the foregoing, we find no basis to set aside the settlement
      agreement.   We therefore affirm the initial decision dismissing this appeal as
      settled.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
             You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. You must submit your request to the
      court at the following address:
                                   U.S. 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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
      2012). You may read this law as well as other sections of the U.S. 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 an appeal to
      the U.S. Court of Appeals for the Federal Circuit, you may visit our website
      at   http://www.mspb.gov/probono       for   information    regarding   pro    bono
                                                                                6

representation for Merit Systems Protection Board appellants before the Federal
Circuit.   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.
