                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RAYMOND V. MERCEDES,                            DOCKET NUMBER
                  Appellant,                         PH-0752-15-0117-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: February 22, 2016
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Norma T. Mercedes, Esquire, Ayer, Massachusetts, for the appellant.

           John T. LeMaster, Esquire, Washington, D.C., 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 the 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

                                      BACKGROUND
¶2        The appellant filed the instant Board appeal challenging his removal and
     requested a hearing. Initial Appeal File (IAF), Tab 1. The administrative judge
     began to hold the requested hearing, but, in the middle of the hearing, the parties
     announced that they had settled the appeal.          IAF, Tab 26.      The parties
     subsequently submitted an executed settlement agreement. IAF, Tab 28. The
     agreement provided, inter alia, that the agency would generate an executed
     Standard Form (SF) 52 indicating that the appellant was removed for his medical
     inability to perform the duties of his position. 2 Id. at 4. The agency would use
     this form to replace the previously issued SF-50 that indicated that the appellant
     had been removed for disciplinary reasons. Id. at 4. The agreement also stated,
     “The Appellant agrees to withdraw and/or dismiss with prejudice any current
     action before any forum . . . including . . . the Equal Employment Opportunity
     Commission (EEOC) whether related to the above-referenced appeal or not, prior
     to the date on which the parties execute this Agreement.” Id. The administrative


     2
       The settlement agreement stated that an SF-52 is a “‘Request for Personnel Action’
     and is used to generate the final agency action, which is known as an SF-50,
     ‘Notification of Personnel Action.’” IAF, Tab 28 at 4.
                                                                                         3

     judge issued an initial decision in June 2015, finding that: (1) the parties reached
     a settlement; (2) they understood the terms of the settlement; (3) they agreed that
     the settlement would be enforced by the Board; (4) the agreement was lawful on
     its face; (5) the parties entered into the agreement freely and voluntarily; and
     (6) the subject matter of the appeal was within the Board’s jurisdiction. IAF,
     Tab 30, Initial Decision (ID) at 2. He therefore dismissed the appeal as settled
     and accepted the settlement agreement into the record for Board enforcement
     purposes. Id.
¶3         In September 2015, the EEOC, Office of Federal Operations (OFO),
     dismissed the appellant’s equal employment opportunity (EEO) complaints
     because the agency notified OFO that the parties had settled the matters in
     dispute. Petition for Review (PFR) File, Tab 1, Exhibits (Exs.) B, G-J. The
     appellant filed a petition for review in October 2015. PFR File, Tab 1. He argues
     that the settlement agreement was based upon “fraud, misrepresentation,
     insufficient compensation, and bad faith by the agency” to the extent that the
     agreement resulted in the dismissal of his EEO complaints.         Id. at 2-10.    He
     therefore requests that the Board either invalidate the agreement or make clear
     that the settlement applies only to his Board appeal. Id. at 11. He argues that his
     petition    is   timely filed because   he   discovered   the   agency’s   fraud   in
     September 2015, when he discovered his EEO complaints were being dismissed.
     Id. at 6.
¶4         In response to the appellant’s petition, the Clerk of the Board informed him
     that his petition appeared to be untimely filed and that he must submit a motion to
     either accept the filing as timely or waive the time limit for good cause shown.
     PFR File, Tab 2. The agency responded in opposition to the appellant’s petition
     for review. PFR File, Tab 3. The appellant filed a motion to accept his petition
     as timely filed. PFR File, Tab 4.
                                                                                         4

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant established good cause for the untimely filing of his petition for
     review.
¶5        A petition for review must be filed within 35 days after the initial decision
     was issued, or, if the petitioner shows that he received the initial decision more
     than 5 days after its date of issuance, within 30 days of his receipt of the initial
     decision.   5 C.F.R. § 1201.114(e).     The appellant seeks review of an initial
     decision issued on June 3, 2015, and he has not shown that he received the
     decision more than 5 days after its issuance.      Thus, the deadline for filing a
     petition for review in this case was July 8, 2015. The appellant filed his petition
     for review on October 19, 2015, more than 3 months late. PFR File, Tab 1.
¶6        The appellant argues that his petition for review was timely filed because he
     discovered new evidence after the filing deadline. Id. at 6. The Board will waive
     its filing deadline only upon a showing of good cause for the delay in filing.
     5 C.F.R. § 1201.114(f). To establish good cause for the untimely filing of an
     appeal, a party must show that he exercised due diligence or ordinary prudence
     under the particular circumstances of the case. Alonzo v. Department of the Air
     Force, 4 M.S.P.R. 180, 184 (1980).        To determine whether an appellant has
     shown good cause for the untimely filing of a petition for review, the Board will
     consider the length of the delay, the reasonableness of his excuse and his showing
     of due diligence, whether he is proceeding pro se, and whether he has presented
     evidence of the existence of circumstances beyond his control that affected his
     ability to comply with the time limits or of unavoidable casualty or misfortune
     that similarly shows a causal relationship to his inability to timely file his
     petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995),
     aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶7        Here, the appellant asserts that he first received notice of the possibility that
     his EEO complaints would be dismissed on September 14, 2015, and that he
     received the first dismissal of one of his EEO complaints on September 22, 2015.
                                                                                        5

     PFR File, Tab 1 at 6, Exs. B, G. After the initial notice from OFO, the appellant
     sent a variety of communications to OFO and the agency in September 2015 and
     October 2015, inquiring about the possible dismissal of the EEO complaints.
     PFR File, Tab 1, Exs. C-F. He filed his petition for review on October 19, 2015.
     We find that the appellant’s communications with OFO and the agency and
     subsequent petition for review constitute a prompt reaction to evidence tending to
     show that the settlement agreement may have been procured through fraud. See
     Armstrong v. Department of the Treasury, 591 F.3d 1358, 1362-63 (2010)
     (finding good cause for the appellant’s delay in filing a petition for review
     because he promptly reacted to evidence tending to show that the settlement
     agreement may have been procured through fraud). Thus, we find that the
     appellant has established good cause for the delay in filing his petition for review.
     The appellant failed to establish that the settlement agreement is invalid.
¶8         A party may challenge the validity of a settlement agreement on the basis
     that the agreement is unlawful, involuntary, or the result of fraud or mutual
     mistake. Brown v. Department of the Interior, 86 M.S.P.R. 546, ¶ 11 (2000).
     The party seeking to set aside a settlement agreement bears a heavy burden.
     Owen v. U.S. Postal Service, 87 M.S.P.R. 449, ¶ 7 (2000). Here, the appellant
     does not challenge the validity of the agreement on the basis that it is unlawful or
     that he involuntarily entered into the agreement. Therefore, we must determine
     only whether he established that the settlement agreement is the result of fraud or
     mutual mistake. For the reasons discussed below, we find that he has failed to do
     so.
¶9         The appellant argues that he reasonably believed that the settlement
     agreement applied solely to his Board appeal and that the consideration of
     changing his SF-50 was provided in exchange for dismissing only his Board
     appeal. PFR File, Tab 1 at 2, 6. In construing the terms of a written settlement
     agreement, the words of the agreement itself are of paramount importance in
     determining the intent of the parties when they contracted, and the Board will not
                                                                                       6

      imply a term into an agreement that is unambiguous. Dunn v. Department of the
      Army, 100 M.S.P.R. 89, ¶ 9 (2005). The appellant’s unilateral mistake as to the
      scope of a particular provision of a settlement agreement does not provide a basis
      for setting aside the agreement.      Washington v. Department of the Navy,
      101 M.S.P.R. 258, ¶ 18 (2006).
¶10        The EEO complaints that OFO dismissed were pending in June 2015, when
      the agreement was executed and the complaints were not dismissed until
      September 2015. PFR File, Tab 1, Exs. B, D, G-J. The agreement plainly states
      that the appellant agreed to withdraw his EEO complaints that were pending at
      the time of the agreement.    The agreement’s statement that it constituted the
      entirety of the agreement between the parties and that there was adequate
      consideration further supports our finding that the appellant agreed to withdraw
      his EEO complaints.       See Turner v. Department of Homeland Security,
      95 M.S.P.R. 688, ¶ 11 (2004) (finding that, because of the existence of a merger
      clause in the settlement agreement, the appellant’s claim regarding additional
      terms did not provide a basis to invalidate the agreement), aff’d, 121 F. App’x
      852 (Fed. Cir. 2005). Moreover, we find that the appellant’s confusion does not
      provide a basis for setting aside the agreement, particularly considering the fact
      that he was represented by counsel.     See Harman v. Department of Defense,
      76 M.S.P.R. 438, 440-41 (finding that the appellant’s allegations regarding, inter
      alia, the Board’s jurisdiction over his EEO complaints, did not provide a basis for
      invalidating a settlement agreement where the appellant was represented by
      counsel and did not show that he did not fully understand the nature of the
      agreement).
¶11        The appellant argues that the agency fraudulently induced him into signing
      the agreement because, inter alia, the agency representative stated that the
      settlement agreement would apply only to his Board appeal even though the
      agency knew that he had pending EEO complaints that could be affected by the
      agreement. PFR File, Tab 1 at 2. He also asserts that the agency attempted to
                                                                                           7

      conceal the fact that his EEO complaints were dismissed because it sent him a
      letter on June 29, 2015, regarding one of his EEO complaints and did not mention
      that the complaint had been settled. Id. at 9.
¶12         We find that the appellant has failed to establish that the agency
      fraudulently induced him to sign the agreement. To establish that a settlement
      agreement resulted from fraud in the inducement, the appellant must show that
      the agency knowingly concealed a material fact or intentionally misled him.
      Wofford v. Department of Justice, 115 M.S.P.R. 468, ¶ 7 (2010).              First, the
      June 29, 2015 letter came after the settlement agreement was in effect, so it
      cannot constitute fraud in the inducement.        Further, even assuming that the
      agency attempted to conceal facts or mislead the appellant regarding the effect of
      the agreement, the agreement plainly states that it would result in the dismissal of
      the appellant’s pending EEO complaints. IAF, Tab 28 at 4. Thus, we find that a
      reasonable person would not have been misled by any misrepresentation or
      omission by the agency. As a result, we affirm the initial decision.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS 3
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See title 5
      of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
      request by regular U.S. mail, the address of the EEOC is:

      3
        The administrative judge failed to inform the appellant of his mixed-case right to
      appeal from the initial decision on his discrimination claims to the Equal Employment
      Opportunity Commission and/or the U.S. District Court. This was error, but it does not
      constitute reversible error, because we notify the appellant of his mixed-case appeal
      rights in this Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183, 186-87
      (1988).
                                                                                 8

                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

        You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
        If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time.    If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
                                                                            9

representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                         ______________________________
                                       William D. Spencer
                                       Clerk of the Board
Washington, D.C.
