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Anthony v. Department of Justice

January 07, 1999

PATRICIA A. ANTHONY, PETITIONER,
v.
DEPARTMENT OF JUSTICE, RESPONDENT.



Before Michel, Lourie, and Gajarsa, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

DECISION

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.

DISCUSSION

I.

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.

II.

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.

A.

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 ...


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