                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JENNIFER B. WHITAKER,                           DOCKET NUMBER
                   Appellant,                        DE-1221-13-0118-W-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: January 22, 2015
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           J. Douglas Whitaker, Esquire, Papillion, Nebraska, for the appellant.

           Alexis S. Conway and Reynolds Wilson, Esquire, Washington, D.C., for
             the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the March 12, 2013 initial
     decision, which dismissed her individual right of action (IRA) appeal as settled.


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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


     For the reasons set forth below, the appellant’s petition for review is DISMISSED
     as untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).

                                         BACKGROUND
¶2         The appellant was employed as a Criminal Investigator with the agency’s
     Office of the Inspector General (OIG) in Omaha, Nebraska. Initial Appeal File
     (IAF), Tab 1 at 1, 12. In November 2012, the appellant received official notice
     that the agency intended to close OIG’s Omaha Field Office and reassign her to
     another duty location. Id. at 12. The appellant filed a Board appeal, alleging that
     her second-line supervisor, the Special Agent in Charge (SAC), decided to close
     the Omaha Field Office in retaliation for her protected whistleblowing activity.
     Id. at 4, 9.
¶3         The parties agreed to participate in the Board’s Mediation Appeals Program
     (MAP), and, following mediation, they entered into a settlement agreement,
     pursuant to which the agency agreed that the appellant could work from Omaha
     until January 2015.      IAF, Tab 7 at 1, Tab 8, Tab 9 at 6-7.      The appellant
     submitted the settlement agreement to the administrative judge with a motion to
     dismiss the appeal. IAF, Tab 9 at 4-10. On March 12, 2013, the administrative
     judge issued an initial decision dismissing the appeal as settled and accepting the
     settlement agreement into the record for enforcement purposes.       IAF, Tab 10,
     Initial Decision (ID).    The administrative judge informed the parties that the
     initial decision would become the final decision of the Board on April 16, 2013,
     unless a petition for review were filed by that date. ID at 2.
¶4         On July 23, 2014, the appellant filed a petition for review, requesting that
     the Board set aside the settlement agreement because the agency fraudulently
     induced her to settle her appeal. Petition for Review (PFR) File, Tab 1 at 5.
     Specifically, the appellant alleges that, in pleadings and during settlement
     negotiations, the agency inaccurately represented that the SAC was not the
                                                                                          3


     agency official who decided to close the Omaha Field Office. 2 Id. at 10-11. In
     support of her allegation that the agency misrepresented the SAC’s involvement
     in the decision, the appellant submits two emails that the SAC wrote in July and
     August 2012, respectively.     Id. at 28, 31.    In the July 2012 email, the SAC
     referred to a “persistent lack of productivity over the past five years” in the
     Omaha office. Id. at 28. He stated in the August 2012 email, “I have decided to
     close the Omaha Field Office” and discussed the relocation of affected
     employees. Id. at 31. The appellant asserts that these emails are new evidence
     that she did not discover until June 30, 2014, but does not explain how she
     learned of the emails. PFR File, Tab 1 at 5-6, 13, 25, Tab 3 at 4-5, 9, Tab 4 at 9,
     14, Tab 5 at 5.
¶5         The agency has filed a response to the petition for review, asserting that the
     petition is untimely filed without good cause for delay and, alternatively, that the
     appellant has not established grounds for granting the petition. PFR File, Tab 4
     at 4-22. The appellant has filed a reply. PFR File, Tab 5.

                         DISCUSSION OF ARGUMENTS ON REVIEW
¶6         An attack on the validity of a settlement agreement must be made in the
     form of a petition for review of the initial decision dismissing the case as settled.
     Hazelton v. Department of Veterans Affairs, 112 M.S.P.R. 357, ¶ 8 (2009).
     Generally, a petition for review must be filed within 35 days after the date of
     issuance of the initial decision. 5 C.F.R. § 1201.114(e). The appellant’s petition
     for review was filed on July 23, 2014, more than 15 months after the April 16,
     2013 filing deadline, which is a substantial delay. See ID at 2; PFR File, Tab 1 at


     2
       In the agency’s response to the petition for review, the agency argues that the
     appellant should be prohibited from introducing evidence regarding the parties’
     settlement discussions. PFR File, Tab 4 at 19-22. We find it unnecessary to decide this
     issue because the agency, in pleadings and an affidavit filed in the record below, also
     represented that the SAC did not make the decision to close the Omaha Field Office.
     Stay File, Tab 4 at 8-9, 18.
                                                                                      4


     1; see also Terry v. Equal Employment Opportunity Commission, 111 M.S.P.R.
     258, ¶ 7 (2009) (finding a filing delay of approximately 5 months to be
     substantial).
¶7         The Board will waive the time limit for filing a petition for review only
     upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
     establish good cause for the untimely filing of a petition, the appellant must
     demonstrate that she exercised due diligence or ordinary prudence under the
     circumstances of her case. Alonzo v. Department of the Air Force, 4 M.S.P.R.
     180, 184 (1980). The discovery of new evidence may constitute good cause for
     the untimely filing of a petition for review if the evidence was not readily
     available before the close of the record below and is of sufficient weight to
     warrant a different outcome. Terry, 111 M.S.P.R. 258, ¶ 8.
¶8         Here, we find that the appellant has failed to establish good cause for the
     Board to waive the time limit for filing her petition for review. First, the emails
     are not new evidence because the information contained in the emails is
     duplicative of evidence that the appellant herself submitted into the record below.
     See Dull v. Department of the Navy, 76 M.S.P.R. 31, 35 (1997) (to constitute new
     and material evidence justifying waiver of the time limit for filing a petition for
     review, the information contained in the documents, and not merely the
     documents themselves, must have been unavailable despite due diligence when
     the record closed). With a February 2013 motion to stay her reassignment, the
     appellant submitted an email from the SAC in which he referenced a need to
     defend “[his] recommendation to have two agents relocated to either Kansas City
     or Sioux Falls and cover the state of Nebraska from other Regional Offices.”
     Stay File, Tab 1 at 73. The appellant also submitted emails authored by other
     OIG employees referring to the SAC’s “vision for the Region” and stating that the
     SAC was “planning to reorganize,” as well as to statistical data reports prepared
     by the SAC, all of which she alleged indicated that the SAC made the decision to
     close the Omaha Field Office. IAF, Tab 1 at 32, Tab 5 at 25-26, 32; Stay File,
                                                                                      5


      Tab 1 at 13-19, 32-36, 59.     The emails that the appellant contends are new
      evidence merely reiterate the SAC’s involvement in the decision. See PFR File,
      Tab 1 at 28, 31.
¶9         Even assuming, however, that the emails were new evidence, the appellant
      has not demonstrated that they were not readily available despite due diligence
      before the record closed below.    The emails were created in July and August
      2012, respectively, before the appellant filed her Board appeal and before she
      entered into the settlement agreement that she now seeks to invalidate. See id. at
      28, 31; IAF, Tab 1 at 1, Tab 9 at 4. The appellant’s IRA appeal was premised
      upon the proposition that the SAC made the decision to close the Omaha Field
      Office. IAF, Tab 1 at 9, Tab 5 at 20-23; Stay File, Tab 1 at 13-19, 31, Tab 5 at
      5-7. The appellant was aware that the agency disputed this assertion. Stay File,
      Tab 4 at 8, 18.    Prior to settling her appeal, the appellant served discovery
      requests upon the agency, which likely would have required the agency to
      produce the emails at issue. See PFR File, Tab 4 at 53, 57, 71, 73 (requesting all
      documents referencing or relating to, and all communications discussing or
      relating to, the closure of the Omaha Field Office). However, instead of awaiting
      production of the agency file and the agency’s responses to her discovery
      requests, the appellant decided to settle her appeal. IAF, Tab 7 at 1, Tab 9 at
      4-10; PFR File, Tab 4 at 80-81.      Documents which an appellant could have
      obtained through the discovery process cannot be considered previously
      unavailable despite due diligence. Terry, 111 M.S.P.R. 258, ¶ 8; see De Le Gal v.
      Department of Justice, 79 M.S.P.R. 396, 400 (1998) (in the absence of a motion
      to compel, the appellant failed to show that he exercised due diligence in
      obtaining evidence), aff’d, 194 F.3d 1336 (Fed. Cir. 1999) (Table).
¶10        To the extent that the appellant alleges that the agency was obligated to
      provide her with the emails prior to settling her appeal, we disagree.        The
      appellant agreed to participate in the MAP, which suspended further proceedings
      in her appeal, including the agency’s responses to her discovery requests. IAF,
                                                                                         6


      Tab 7 at 1; see 5 C.F.R. § 1201.28(d). In addition, the appellant was represented
      by experienced counsel, who agreed that the agency’s response to her discovery
      requests would be due 20 days after the mediation, if the mediation did not
      resolve her appeal. PFR File, Tab 4 at 80. Although the appellant may now
      regret her decision to settle instead of awaiting discovery responses that would
      have potentially strengthened her case, she cannot correct her judgmental error
      after the fact. See Dull, 76 M.S.P.R. at 35 (declining to waive the time limit for
      filing a petition for review where the appellant elected to settle in lieu of moving
      to compel production of documents); Cassidy v. U.S. Postal Service, 65 M.S.P.R.
      86, 90 (1994) (same).
¶11          Furthermore, even assuming that the emails constituted new evidence, the
      appellant has not demonstrated that she exercised due diligence or ordinary
      prudence once she obtained them. As stated above, the appellant claims that she
      did not discover these emails until June 30, 2014. She did not file her already
      untimely petition for review, however, until 3 additional weeks had passed, on
      July 23, 2014. The appellant has offered no justification for this additional delay.
¶12          Finally, even had the appellant established good cause for the Board to
      waive the time limit for filing her petition for review, her new evidence does not
      establish her claim of fraudulent inducement.       One who attacks a settlement
      agreement bears a heavy burden of showing that the contract is tainted, and thus
      invalidated, by fraud practiced upon her.         Armstrong v. Department of the
      Treasury, 110 M.S.P.R. 533, ¶ 12 (2009), aff’d in part, vacated in part, 591 F.3d
      1358 (Fed. Cir. 2010). 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 her. Wofford v. Department of
      Justice, 115 M.S.P.R. 468, ¶ 7 (2010). A material fact is “one in existence at the
      time of the agreement, one that involves a basic assumption of the [agreement],
      and one that materially affects performance [of the agreement].” As’Salaam v.
      U.S.   Postal   Service,   65   M.S.P.R.   417,   ¶¶ 421   (1994).    To   establish
                                                                                        7


      misrepresentation, the appellant must show that a reasonable person would have
      been misled by the agency’s statements. Armstrong, 110 M.S.P.R. 533, ¶ 12.
¶13         The only dispute of fact identified by the appellant in her petition for
      review is who was responsible for closing the Omaha Field Office.               The
      appellant’s position below, and on review, is that the SAC was the responsible
      individual. The agency’s position, however, is that the Deputy Inspector General
      for Investigations, and not the SAC, was responsible. PFR File, Tab 4 at 11-13.
      The appellant does not contend that she was unaware of the agency’s position
      when she elected to settle this appeal. Further, the emails that she submits for the
      first time on review fail to establish that the agency knowingly concealed a
      material fact or intentionally misled her concerning a basic assumption of the
      agreement or affecting performance of the agreement.          Rather, they simply
      constitute additional evidence that she believes supports her original view of this
      matter before it was settled. Therefore, even if had the appellant established good
      cause for the untimely filing of her petition for review, we find her evidence is of
      insufficient    weight      to    invalidate        the   settlement    agreement.
      Armstrong, 110 M.S.P.R. 533, ¶ 20.
¶14         Accordingly, we DISMISS the petition for review as untimely filed. This is
      the final decision of the Merit Systems Protection Board regarding the timeliness
      of the petition for review. The initial decision remains the final decision of the
      Board with regard to the dismissal of the appeal.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit.
            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
                                                                                        8


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 want to request review of the Board’s decision concerning your
claims     of   prohibited   personnel      practices   under   5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.     Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
         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 United States 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 United
States     Code,    at   our     website,     http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective           websites,           which            can         be         accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
                                                                            9


attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
