       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                  JACK P. MCGEE,
                     Petitioner,

                           v.
        DEPARTMENT OF AGRICULTURE,
                Respondent.
              __________________________

                      2012-3071
              __________________________

    On appeal from the Merit Systems Protection Board
in Case No. AT1221100202-C-1.
              ___________________________

                Decided: July 20, 2012
             ___________________________

   JACK P. MCGEE, of Smyrna, Georgia, pro se.

    LAUREN S. MOORE, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were STUART F. DELERY, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and PATRICIA M.
MCCARTHY, Assistant Director.
               __________________________
MCGEE   v. AGRICULTURE                                      2


   Before NEWMAN, CLEVENGER, and BRYSON, Circuit
                     Judges.
PER CURIAM.

                          DECISION

   Jack P. McGee appeals a decision of the Merit Sys-
tems Protection Board denying his petition for enforce-
ment of a settlement agreement with the United States
Forest Service. We affirm.

                         BACKGROUND

    Mr. McGee worked as a Qualified Review Appraiser
for the Forest Service, an agency within the Department
of Agriculture. He was initially paid at the GS-12 salary
level but was later promoted to the GS-13 level.

     In November 2009, Mr. McGee filed an individual
right of action (“IRA”) appeal pursuant to the Whistle-
blower Protection Act, asserting that the Forest Service
had retaliated against him for engaging in protected
whistleblowing activity. At a mediation session held on
August 11, 2010, the Forest Service and Mr. McGee
entered into an agreement settling that action. The
settlement agreement provided, in pertinent part, as
follows:

   The Agency agrees to:

   1. Reassign [Mr. McGee] to the Forest Legacy
   Program Realty Specialist, GS-1170, with the spe-
   cific staff responsibility in the area of State & Pri-
   vate Forestry’s Forest Legacy Program.

                          *   *   *
3                                    MCGEE   v. AGRICULTURE


    d. Mr. Murphy [Mr. McGee’s first-line supervi-
    sor] will prepare a position description and the
    position will be classified in accordance with es-
    tablished classification policy and procedure. Mr.
    Murphy will work with the classification staff to
    ensure that the position description properly re-
    flects the duties and responsibilities of this posi-
    tion. The position will be sent for expedited
    classification.

                         *   *   *

    e. The Agency does not represent that the posi-
    tion will be classified at a specific grade. Appel-
    lant acknowledges that the position may be
    classified at the GS-12 or GS-13 grade level.

                         *   *   *

    g. The Agency agrees to make efforts to reassign
    [Mr. McGee] to this position no later than October
    1, 2010. [Mr. McGee] acknowledges that the tim-
    ing of this reassignment is contingent on OPM’s
    [the Office of Personnel Management’s] classifica-
    tion of this position, which is not within the
    Agency’s control.

Based on the settlement agreement, the Board dismissed
Mr. McGee’s IRA appeal as settled.

    It is clear from the record that Mr. McGee hoped that
the position contemplated by the settlement agreement
would be graded at the GS-13 salary level, but the agency
ultimately graded the position at the GS-12 level. When
that occurred, Mr. McGee filed a petition to enforce the
settlement agreement, alleging that the Forest Service
MCGEE   v. AGRICULTURE                                    4


had breached the agreement. In particular, Mr. McGee
alleged that (1) the Forest Service had breached para-
graphs 1(d) and 1(g) of the agreement because Mr. Mur-
phy had been prohibited from working with the
classification specialist to develop a position description
for Mr. McGee’s new position, and (2) the position descrip-
tion had not been sent to OPM for classification. Mr.
McGee requested that the Forest Service be ordered to
comply with the terms of the settlement agreement.

    In its response, the Forest Service asserted that Mr.
Murphy had worked with the agency classification staff in
formulating a position description for Mr. McGee and that
the settlement agreement did not require that the posi-
tion description be sent to OPM for classification.

     The administrative judge who was assigned to the
proceeding conducted a pre-hearing conference at which
the administrative judge designated the issues to be
decided in the enforcement proceeding as limited to the
following:

   [1] whether the agency materially breached the
   settlement agreement because Murphy was pre-
   vented from working with the classification staff
   to ensure that [Mr. McGee’s] position description
   accurately reflected his duties and responsibilities
   and

   [2] whether the agency breached the settlement
   by not sending the position description to OPM for
   classification.

Mr. McGee did not object to that designation of the issues
to be decided.
5                                    MCGEE   v. AGRICULTURE


    At a hearing in March 2011, the parties addressed
whether the agency had prohibited Mr. Murphy from
working with the classification staff and whether Mr.
McGee considered it a material breach that the position
description was not classified by OPM but instead by
agency personnel. At the conclusion of the hearing, Mr.
McGee stipulated that the issue of whether his position
description was required to be classified by OPM was not
material to his decision to enter into the settlement
agreement.

     The administrative judge subsequently issued an ini-
tial decision denying the petition for enforcement. Based
on Mr. McGee’s stipulation, the administrative judge
found that the Forest Service did not materially breach
the settlement agreement when it did not send the posi-
tion description to OPM for classification. However, the
administrative judge determined that the requirement
that Mr. Murphy work with the classification staff, to
ensure that the position description for Mr. McGee’s new
position properly reflected the duties and responsibilities
of the position, was a material term of the settlement
agreement. The administrative judge further found that
Mr. Murphy did not work with the classification staff as
required by the agreement and that his failure to do so
constituted a breach of the agreement by the Forest
Service. Nevertheless, the administrative judge deter-
mined that the breach was not material “because the
agency ultimately complied with the intent of the agree-
ment that Mr. Murphy have input into the position de-
scription so that the position description properly
reflected the duties and responsibilities of the position.”
The administrative judge explained that “[i]t would be
meaningless to order the agency to direct Mr. Murphy to
work with the classification staff in a reclassification of
the position description because Mr. Murphy testified the
MCGEE   v. AGRICULTURE                                      6


position description accurately reflects the duties and
responsibilities of the position.” Mr. McGee then filed a
petition for review by the full Board.

    The full Board denied Mr. McGee’s petition for review
in an order explaining its views. With respect to the
question of Mr. Murphy’s involvement in the classification
process, the Board found that Mr. Murphy was “suffi-
ciently involved in the submission of the final position
description for the classification process so as ‘to ensure
that the position description properly reflects the duties
and responsibilities of this position,’ as required under the
contested paragraph of the settlement agreement.”

    Mr. McGee then petitioned for review by this court.

                         DISCUSSION

    1. Mr. McGee first asserts that the Board “dis-
miss[ed] the importance of” the provision requiring Mr.
Murphy to prepare the position description and that the
Board “ignor[ed] the whole issue of fraud and bad faith
dealings by the agency.” We disagree. The record shows
that the Board thoroughly reviewed Mr. Murphy’s in-
volvement in preparing the position description and his
communications with the classification staff regarding the
position’s classification. In his initial decision, the admin-
istrative judge discussed the provision regarding Mr.
Murphy and determined that it had been breached.
However, the administrative judge went on to determine
that the breach was not material because the agency
complied with the intent of the agreement that Mr. Mur-
phy have input into the position description so that it
would properly reflect the duties the position. It is there-
fore clear that the Board did not dismiss the importance
of the provision concerning Mr. Murphy.
7                                    MCGEE   v. AGRICULTURE


     Mr. McGee also alleges that the agency committed
fraud by failing to provide Mr. Murphy or his supervisor,
Mr. Dondero, with a copy of the settlement agreement.
However, the record shows that Mr. McGee and David
Torok, an employee in the agency’s human resources
office, “both spoke to [Mr. Murphy] about his role in
creating the new position description.” Accordingly, it is
clear that Mr. Murphy was aware of the settlement
agreement, even if he never received a physical copy of it.
In any event, Mr. McGee has not explained why the
agency’s alleged failure to provide Mr. Murphy with a
copy of the settlement agreement constitutes fraud.

    2. Mr. McGee next takes issue with what he describes
as the Board’s characterization of his actions in preparing
his own position description as “deliberate actions to
create a position description that would grade out as a
GS-13.” The Board, however, did not ascribe any impro-
priety to the actions of Mr. McGee or Mr. Murphy in
attempting to obtain a GS-13 position for Mr. McGee. To
the contrary, the Board acknowledged that both Mr.
McGee and Mr. Murphy intended for the position to be
graded at the GS-13 level and that the formulation of a
new position description for Mr. McGee had begun prior
to the parties’ settlement agreement. Mr. McGee’s allega-
tions on this point do not provide a basis for relief.

    3. Mr. McGee argues that the Board incorrectly
stated that Mr. Dondero showed the final version of the
position description to Mr. Murphy before it was sent to
the classification specialist, Ms. Valdez. The record
reflects that Mr. Murphy and Mr. Dondero repeatedly
discussed the position description and that Mr. Murphy
agreed with the changes that were made to it. Even if the
Board mistakenly believed that Mr. Dondero showed the
final version of the position description to Mr. Murphy
MCGEE   v. AGRICULTURE                                     8


before sending it to Ms. Valdez, Mr. McGee has not made
any showing that the Board’s error is significant or that
he was prejudiced by Mr. Murphy’s failure to review the
final version of the position description, since he was
already aware of its contents.

    4. Focusing on the removal of Quality Assurance In-
spection (“QAI”) duties from the position description, Mr.
McGee argues that “[i]t is clear from the testimony that
the source of this alleged policy decision, which had an
adverse impact on the Petitioner’s position classification”
was “the very same parties . . . who had been responsible
for the reprisal actions against the Petitioner as cited in
his original IRA appeal.” Mr. McGee argues that “the
Board’s reliance on the agency’s version of [why the QAI
duties were removed from the position description] is not
supported by credible evidence.” In fact, Mr. Murphy
testified that he agreed with the decision to remove the
QAI duties from the position description because a policy
decision was made at the national level to retain that
function in a different program and not to transfer it to
the Legacy Program, where Mr. Murphy and Mr. McGee
worked. Mr. McGee has failed to show that the decision
was the result of any improper conduct that would sup-
port his petition for enforcement of the settlement agree-
ment.

    5. Mr. McGee takes issue with the Board’s discussion
of the phrase “mastery of real estate knowledge,” which,
at one point, appeared in the position description. It is
unclear what significance the Board attached to that
phrase, but in any event Mr. Murphy acknowledged that
the final position description used by the classification
specialist accurately reflected the duties and responsibili-
ties of the new position. Mr. McGee complains that the
“‘new’ position . . . bore little resemblance to the original
9                                    MCGEE   v. AGRICULTURE


position submitted by Mr. Murphy.” It is clear from the
settlement agreement, however, that Mr. McGee was not
guaranteed a specific position at a specific grade, so we
discern no error in the Board’s discussion of that issue.

    6. Mr. McGee next argues that the Board erred in
summarily dismissing his claims concerning the agency’s
classification process and his claim that the agency
breached its duty of good faith in carrying out the settle-
ment agreement. Mr. McGee, however, has not presented
any evidence that the agency acted improperly during the
classification process, nor has he shown how a proper
classification process would have led to a different result.
The short answer to Mr. McGee’s argument is that the
settlement agreement did not guarantee him a position at
the GS-13 level, and the evidence shows that his position
was properly graded as a GS-12 position.

    7. Mr. McGee claims that the agency did not show
that it complied with the settlement agreement or that
there was good cause for its noncompliance. We disagree.
The Board considered the issue of compliance with the
agreement and determined that the Forest Service did not
materially breach the settlement agreement by failing to
send the position description to OPM for classification.
That determination was largely based on Mr. McGee’s
stipulation in his closing argument that he did not con-
sider sending the position description to OPM to be a
material term of the settlement agreement. With respect
to Mr. Murphy’s involvement in developing the position
description, the Board determined that although the
Forest Service breached the settlement agreement, the
breach was not material “because the agency ultimately
complied with the intent of the agreement that Mr. Mur-
phy have input into the position description so that the
position description properly reflected the duties and
MCGEE   v. AGRICULTURE                                  10


responsibilities of the position.” The record shows that
the position description that was ultimately approved
reflects the duties and responsibilities of the position.

    8. Mr. McGee argues that the Board summarily re-
jected his claim that he was not appointed to a position at
the level specified in the settlement agreement. It is
clear, however, that the settlement agreement did not
designate a specific position (or salary level) that Mr.
McGee would receive. Accordingly, there is no force to
that claim.

    9. The bulk of Mr. McGee’s informal brief concerns
his claim that the Forest Service fraudulently induced
him to sign the settlement agreement. Mr. McGee con-
tends that the agency offered him a GS-13 position during
the mediation hearing, that he accepted that offer, and
that he was told that the agency would have to seek a GS-
13 classification from OPM before it could be effective.
Mr. McGee alleges that the Forest Service officials knew
that the position could be classified as a GS-13 at the
agency level but nevertheless insisted that a provision be
included in the agreement requiring the position to go to
OPM for classification. According to Mr. McGee, it was on
that basis that the Forest Service refused to specify the
GS-13 classification in the settlement agreement. Ulti-
mately, the classification issue was not sent to OPM but
was instead resolved by the agency. Within the agency,
the decision to remove the QAI duties and “mastery of
real estate knowledge” elements from the position de-
scription resulted in the position becoming a GS-12 posi-
tion instead of a GS-13 position.

   The first problem with Mr. McGee’s fraudulent in-
ducement claim is that he failed to raise it before the
Board and has raised it for the first time in this court,
11                                    MCGEE   v. AGRICULTURE


which is impermissible. Bosley v. Merit Sys. Prot. Bd.,
162 F.3d 665, 668 (Fed. Cir. 1998); Meglio v. Merit Sys.
Prot. Bd., 758 F.2d 1576, 1577 (Fed. Cir. 1984). Mr.
McGee alleges that he was not aware of the agency’s
fraud and bad faith until the enforcement hearing, which
occurred after his agreement to limit the issues before the
Board. But that explanation is unconvincing. Given that
Mr. McGee claims that he was offered a GS-13 position,
that he accepted it, and that the agency gave him a GS-12
position instead, he had a fully sufficient basis to argue
that the agency had improperly induced him to enter into
the settlement agreement by promising to give him a GS-
13 position and then breached it by offering him a GS-12
position instead. Rather than raising that argument at
the time (even though he was represented by counsel),
Mr. McGee agreed to limit the issues regarding breach of
the settlement agreement to Mr. Murphy’s insufficient
involvement in crafting the position description, and the
agency’s failure to have the position description approved
by OPM. Moreover, Mr. McGee acknowledges that he was
aware of all the facts underlying asserted fraud in the
inducement claim by the time he sought review of the
administrative judge’s initial decision, yet he did not raise
that argument before the Board in his petition for review.

     Even aside from the problem of waiver, Mr. McGee’s
fraudulent inducement claim fails on the merits. The
settlement agreement makes clear that Mr. McGee’s new
position could end up being graded at either the GS-12 or
the GS-13 level. And at the hearing, Mr. McGee was
asked, “[b]ut you knew in the settlement agreement that
it could be a 12, it could be a 13, just whatever classifica-
tion determined?” He responded, “Yes. And they defi-
nitely stated it would not be a 14.” Although Mr. McGee
claims that he was offered—and that he accepted—a GS-
13 position, the settlement agreement simply does not
MCGEE   v. AGRICULTURE                               12


support that claim, and his counsel presumably under-
stood that the written agreement would control the par-
ties’ obligations, not any statements that may have been
made in the process leading to the formulation of the
agreement, or any expectations that Mr. McGee may have
had about how the classification process would play out.

    Mr. McGee was offered a job that was assigned a GS-
12 salary level based on a position description that Mr.
Murphy agreed was accurate. Mr. McGee’s assertion that
he believed he had accepted an offer that included a
position graded at GS-13 is contrary to the terms of the
settlement agreement, which made no such representa-
tion. Mr. McGee has thus failed to show that he was
fraudulently induced to sign the settlement agreement.

    For the foregoing reasons, we affirm the decision of
the Board.

   No Costs.

                         AFFIRMED
