U.S. Court of Appeals, Federal Circuit
January 07, 1999
PATRICIA A. ANTHONY, PETITIONER,
DEPARTMENT OF JUSTICE, RESPONDENT.
Before Michel, Lourie, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
Patricia A. Anthony seeks review of the final decision of the Merit Systems Protection Board (Board), Docket No. AT-0752-96-0482-B-1, sustaining the denial of her petition for enforcement of a settlement agreement that resolved her appeal of a removal action from the Department of Justice (agency). Because the settlement agreement is valid and the agency is in full compliance, we affirm.
On March 22, 1996, Ms. Anthony was removed from her position as a Correctional Treatment Specialist at a federal prison in Montgomery, Alabama for failing to carry out supervisory instructions. Ms. Anthony appealed the removal. While the appeal was pending and while represented by counsel, she entered into a settlement agreement with the agency on July 24, 1996, agreeing to resign no later than October 20, 1996 and to withdraw her appeal challenging her removal. The administrative Judge (AJ) found that the agreement was "lawful on its face and appears to have been freely reached by the parties ... [and] reflects that the parties understand its terms." The AJ entered the agreement into the record for enforcement purposes.
Ms. Anthony petitioned for review of the AJ's decision and moved to reopen the case, challenging the validity of and the agency's compliance with the settlement agreement. The Board reiterated the AJ's determination that the settlement agreement was valid, *fn1 but remanded to the regional office for investigation of Ms. Anthony's allegations of noncompliance as a petition for enforcement. Upon review, the AJ found the agency in full compliance with the settlement agreement and denied the petition for enforcement. However, on review, the Board determined that sufficient new evidence existed to warrant remand to the AJ as to the agency's compliance with two provisions of the settlement agreement. *fn2 As for validity, the Board determined that Ms. Anthony's claim that the settlement agreement was an "abuse of process" was first raised in her petition for review and was thus untimely. Moreover, the Board held that, even if this argument was timely raised, Ms. Anthony "is precluded from contesting the validity of the settlement agreement because the settlement agreement ha[d] previously been found to be valid."
On remand, the AJ issued two orders directing the parties to respond and provide evidence regarding the remanded issues of noncompliance. The AJ determined that the agency had fully complied with the settlement agreement. *fn3 Ms. Anthony filed a petition for review of the AJ's decision with the Board, challenging the underlying removal action as discriminatory as well as the agency's compliance with the settlement agreement. The initial decision became final when the Board determined that Ms. Anthony's petition for review did not meet the criteria for review under 5 C.F.R. § 1201.115 (1997). See 5 C.F.R. § 1201.113(b) (1997). This appeal followed.
The decision of the Board must be affirmed unless it is found 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." 5 U.S.C. § 7703(c) (1994).
On appeal, Ms. Anthony challenges the propriety of the underlying March 22, 1996 removal action and the Board's failure to consider allegedly new evidence bearing on that removal, the validity of the settlement agreement, and the agency's compliance with the settlement agreement.
As an initial matter, Ms. Anthony cannot now challenge the propriety of the underlying removal action once she entered into the settlement agreement. See Asberry v. United States Postal Serv., 692 F.2d 1378, 1380 (Fed. Cir. 1982). Thus, Ms. Anthony's arguments relating to the agency's "discriminatory" treatment of her that led to her removal are irrelevant to this appeal which involves only review of the validity of and the agency's compliance with the settlement agreement. Moreover, Ms. Anthony's challenge to the Board's failure to adhere to the "Civil Rights Act Title VII" is similarly improper, not only because it relates to the underlying removal action, but also because Ms. Anthony averred in her appeal to this court that the appeal did not involve issues of discrimination over which this court does not possess jurisdiction. As a result, any new evidence Ms. Anthony purportedly has relating to the allegedly "discriminatory" removal action, or the reinstatement of other employees, is irrelevant.
Ms. Anthony does challenge the validity of the settlement agreement. In attacking its validity, Ms. Anthony "bears a 'heavy burden.'" Harris v. Department of Veterans Affairs, 142 F.3d 1463, 1468 (Fed. Cir. 1998) (quoting Asberry, 692 F.2d at 1380). A settlement is valid unless the petitioner shows that the settlement "is tainted with invalidity, either by fraud practiced upon [the petitioner] or by a mutual mistake under which both parties acted." Id. (quoting Callen v. Pennsylvania R.R. Co., 332 U.S. 625, 630 (1948)).
At the outset, we note that the settlement agreement cannot be "null and void" as Ms. Anthony urges simply because she is "dissatisfied" with it now that her "financial situation" has been diminished. Ms. Anthony makes various uncorroborated allegations in support of her claim, in particular, that "the settlement [agreement] was fraudulently induced or made under duress or mistake because the petitioner ha[d] been placed under so much stress and her supervisor made the environment in which she was employed so hostile until she was placed in a position where she accepted almost anything (the settlement) without giving it one thought." She also asserts that the AJ "presuade [sic] the petitioner to sign the wayward settlement" and that the AJ "told the petitioner to agree to [the settlement agreement] because she was not going to be reinstated to her position because of her integrity."
The government responds that Ms. Anthony is precluded from challenging the validity of the settlement agreement because the Board previously found the settlement agreement to be valid. See Opinion and Order, Slip op. at 4-5 (MSPB July 29, 1997). The government also argues that Ms. Anthony "does [not] raise argument or evidence that the settlement agreement was coerced, fraudulently induced, or made under duress or mistake."
Ms. Anthony initially challenged the validity of the settlement agreement in her petition for review of the AJ's July 29, 1996 decision accepting the settlement agreement into the record. The Board affirmed as to validity, remanding only on the issue of noncompliance. Ms. Anthony did not appeal to us the Board's decision as to validity at that time. Rather, after the AJ subsequently found the agency in full compliance, Ms. Anthony again raised the validity issue, as an "abuse of process" claim, with the Board. The government is correct that the issue of validity has been previously decided; however, it was decided by the Board, not by us.
Ms. Anthony presents us only with bare allegations that the settlement agreement was procured by fraud or under duress. The record is not clear as to what her allegations were when she initially challenged the agreement's validity in 1996 and whether she presented any supporting evidence at that time. Nevertheless, she has presented only her unsupported assertions, which is insufficient to meet her "heavy burden" in attacking the validity of the settlement agreement. See Harris, 142 F.3d at 1468 (absent corroborating evidence, petitioner's unsupported allegations were insufficient to show fraud). That she was represented by counsel when she entered into the settlement agreement, proceeding pro se subsequent to that event, also undermines her allegations that the AJ "persuaded her" to sign the settlement agreement and that she "accepted almost anything ... without giving it one thought." In sum, Ms. Anthony failed to carry her heavy burden by failing to provide any evidence supporting her allegations of fraud, duress, and mistake. The Board's determination that the settlement agreement was valid is supported by substantial evidence.
Finally, Ms. Anthony reasserts her claim of noncompliance by the agency with respect to the provisions of the settlement agreement requiring the agency (1) to withdraw its opposition to her unemployment compensation claim; (2) to provide her with life and health insurance benefits for the entire time period from her removal (March 22, 1996) to her resignation (October 20, 1996), including the time she was on LWOP status; and (3) to provide outside agencies (i.e., outside of the Federal Bureau of Prisons) with neutral references. The Board's decision that the agency fully complied with those provisions is supported by substantial evidence. Ms. Anthony has presented nothing in this appeal to alter that determination.
For the foregoing reasons, the decision of the Board denying Ms. Anthony's petition for review is affirmed.