                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                     2008-3051

                                ARTHUR PERKINS,

                                                     Petitioner,

                                          v.

                     DEPARTMENT OF VETERANS AFFAIRS,

                                                     Respondent.

      Arthur Perkins, of Huntington, New York, pro se.

      Ronald G. Morgan, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Kirk T. Manhardt, Assistant Director.

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                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                         2008-3051

                                    ARTHUR PERKINS,

                                                         Petitioner,

                                              v.

                        DEPARTMENT OF VETERANS AFFAIRS,

                                                         Respondent.

Petition for review of the Merit Systems Protection Board in NY1221020407-X-1.
                            __________________________

                               DECIDED: April 11, 2008
                            __________________________

Before LINN, Circuit Judge, ARCHER, Senior Circuit Judge, and PROST, Circuit Judge.

PER CURIAM.

       Arthur Perkins (“Perkins”) seeks review of a final decision of the Merit Systems

Protection Board (“the Board”), which dismissed his petition for enforcement of a

settlement agreement after it found the Department of Veterans Affairs (“the agency”) in

compliance with the agreement. Perkins v. Dep’t of Veterans Affairs, 106 M.S.P.R. 425

(2007). Because the Board’s decision is supported by substantial evidence, we affirm.

       In June 2005, Perkins and the agency entered into a settlement agreement to

resolve Perkins’s individual right of action. Shortly thereafter, Perkins filed a petition for

review, which was forwarded to a field office for processing as a petition for

enforcement.     Finding partial noncompliance, the Board granted the petition for

enforcement in part and ordered the agency to comply with the settlement agreement.
Perkins v. Dep’t of Veterans Affairs, 105 M.S.P.R. 289 (2007). Perkins subsequently

filed another petition for enforcement, subject of the current petition for review, arguing

that the agency remained in breach of the settlement agreement in several respects.

        First, Perkins argued that the agency failed to fully compensate him for overtime

and holiday pay. The Board found that the agency “ha[d] produced relevant, material

evidence showing that it ha[d] paid [Perkins] the applicable overtime and holiday pay

and that [Perkins] ha[d] not met his burden of proving the agency breached the

agreement.” Perkins, 106 M.S.P.R. at 428.

        Second, he argued that the agency failed to pay him a cost-of-living allowance

adjustment as provided in the settlement agreement.             The Board, considering

documentary evidence from the agency to the contrary, including an affidavit from a

Supervisory Program Analyst, concluded that Perkins had not met his burden to

demonstrate breach of this provision. Id.

        Third, Perkins contended that the agency failed to comply with a provision of the

settlement agreement obligating it to submit his position description for “three

classification reviews by three HR classifiers.”    Resp’t App. at 15.    Specifically, he

argued that one of the classification reviews did not qualify because it was conducted by

the agency’s “Lead Human Resources Specialist,” instead of someone entitled a

“classifier.”   The Board disagreed, concluding that the agency had satisfied the

provision. See Perkins, 106 M.S.P.R. at 429 n.4 (“[T]he fact that their job titles do not

include the word ‘classifier’ does not mean that they are unqualified to perform

classification reviews.”).




2008-3051                                2
       Fourth, Perkins argued that another classification review did not qualify because

of numerous errors, including reference to the grade of his position as “WG," rather than

“WS.” The Board determined that, despite the typographical errors, other information in

the review—including two other instances in which the classification review correctly

stated the position title—indicated that “the report [wa]s clearly a classification review of

[Perkins’s] [position description].” Id. at 429.

       Perkins also substantively challenged this classification review, namely, the

classifier’s decision to not award points for “Subfactor C,” which includes the physical

dispersion, work coordination, and the location of subordinate employees. The Board

concluded that the agency did not breach the agreement, because “while the settlement

agreement entitled [Perkins] to three classification reviews by agency classifiers, there

was no guarantee that he would agree with the analysis set forth in the reviews.” Id.

       Finally, Perkins argued that the agency failed to submit his position description to

the Department of the Interior and the Department of Defense for concurrence reviews

as required by the settlement agreement. Before the Board, the agency submitted

evidence that it made such requests and the responses it received in response to those

requests. Accordingly, the Board found the agency in compliance with this portion of

settlement agreement. Id. at 430.

       Having determined that the agency was in compliance with all provisions of the

settlement agreement, the Board dismissed Perkins’s petition for enforcement. Id. The

current petition for review followed.

       Our scope of review of Board decisions is defined and limited by statute. See 5

U.S.C. § 7703(c). “The agency’s action in this case must be affirmed unless it is found




2008-3051                                  3
to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law; (2) obtained without procedures required by law, rule or regulation having

been followed; or (3) unsupported by substantial evidence.” Hayes v. Dep’t of the Navy,

727 F.2d 1535, 1537 (Fed. Cir. 1984).        The petitioner carries the burden to prove

breach of the settlement agreement, see Tech. Assistance Int’l , Inc. v. United States,

150 F.3d 1369, 1373 (Fed. Cir. 1993), and in order to prevail, “must show material non-

compliance by the agency with the terms of the settlement agreement,” Lutz v. U.S.

Postal Serv., 485 F.3d 1377, 1381 (Fed. Cir. 2007).

       On appeal, Perkins essentially presents the same arguments he made before the

Board and asks us to reweigh the Board’s various factual determinations in his favor.

“[T]he evaluation of and weight to be given to . . . [the] evidence in the record are

judgment calls that rest primarily within the discretion of the Board.” Hall v. Dep’t of the

Treasury, 264 F.3d 1050, 1060 (Fed. Cir. 2001). None of the arguments reiterated by

Perkins warrants our overturning of the Board’s conclusion that he failed to carry his

burden to show breach of the settlement agreement.           Specifically, Perkins fails to

establish that the Board’s decision was unsupported by substantial evidence or that the

Board’s conclusion that Perkins had not shown material non-compliance by the agency

with the terms of the settlement agreement was arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law. Because the Board’s decision is

supported by substantial evidence, and we otherwise discern no basis on which to

overturn the decision, we must affirm.

                                         COSTS

       No costs.




2008-3051                                4
