U.S. Court of Appeals, Federal Circuit
February 04, 1999
DOC ADAMS, PETITIONER,
SMITHSONIAN INSTITUTION, RESPONDENT.
Before Michel, Clevenger, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Doc Adams petitions for review of the final decision of the Merit Systems Protection Board ("Board") in Adams v. Smithsonian Institution, No. DC-0752-96-0305-C-1 (M.S.P.B. Jan. 7, 1998). The initial decision of the Administrative Judge ("AJ") became the Board's final decision on July 27, 1998, when the Board denied Adams's petition for review. The AJ's decision denied Adams's petition for enforcement of a prior Board order because the AJ found that Adams had failed to produce any evidence of agency violation of any provision of the settlement agreement with Adams, which was entered into the record for enforcement purposes. Because we hold that the Board's determination that no provision of the settlement agreement had been violated was in accordance with law and was supported by substantial evidence, we affirm.
Adams was employed by the Smithsonian Institution ("Smithsonian") as a museum security guard, GS-5, from 1992 until 1997. Smithsonian first removed Adams from employment in a decision dated December 22, 1995. This removal decision was based upon charges of abandonment of post and insolence arising from incidents that occurred in October 1995.
On December 29, 1995, Adams appealed his December 22, 1995 removal to the Board. On March 12, 1996, Adams and Smithsonian entered into a "last chance" settlement agreement ("agreement") which they then submitted for the record. The AJ reviewed the agreement and determined that the parties understood its terms, and that it appeared to have been freely and voluntarily entered into by the parties. Accordingly, the AJ issued her initial decision, entering the agreement into the record, and dismissing the appeal. See Adams v. Smithsonian Inst., No. DC-0752-96-0305-I-1 (M.S.P.B. Mar. 14, 1996). No petition for review was filed, so the AJ's dismissal decision became final on April 18, 1996.
The relevant portions of the agreement provided that: (1) Adams admits to the charges of abandonment of post and insolence; (2) Smithsonian will cancel the removal and instead suspend Adams for a thirty day period commenced December 22, 1995, with back pay awarded from the end of the suspension period until Adams's return to duty; (3) Adams will be returned to duty in a security unit "other than those to which previously assigned"; (4) the agreement will be in effect for seven months from the date of Adams's return to duty; (5) the agreement "constitutes a full & final settlement of this appeal and all grievances and complaints to date"; and (6) the Board will enforce the agreement. In compliance with the agreement, Smithsonian returned Adams to duty on March 12, 1996.
Smithsonian again removed Adams from his position as a security guard on May 23, 1997. The removal was based upon charges of insolence, use of obscene language and gestures, and creating a disturbance. These charges resulted from alleged misconduct by Adams on March 17, 1997. Adams filed a separate appeal to the Board regarding this second removal decision. *fn1
On September 12, 1997 Adams petitioned the Board for enforcement of the 1996 agreement. The Board's Disposition of this petition is the subject of this appeal.
In his petition to the Board, Adams alleged that, in effecting his 1997 removal, Smithsonian had violated the 1996 agreement by relying upon his past disciplinary record, including the incidents of misconduct that had led to his removal in 1995 and to execution of the 1996 agreement. In response, the AJ issued two show cause orders, dated October 7, 1997, and October 14, 1997, respectively, ordering Adams to identify the provision of the settlement agreement that had been violated and to submit evidence of the alleged violation. Adams's reply did not include the ordered identification or evidence.
Our review of Board decisions is strictly limited by statute; we may not reverse a Board decision unless it is arbitrary and capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with law. Vidal v. United States Postal Serv., 143 F.3d 1475, 1477 (Fed. Cir. 1998); see 5 U.S.C. § 7703(c) (1996).
The AJ held that Adams had not proven a violation of the settlement agreement because it contained no provision for a "clean record," and, therefore, Smithsonian's subsequent reliance on the 1995 misconduct admitted by Adams in the 1996 agreement did not violate any term of the agreement. Finding no violation of the agreement, the AJ addressed neither the timeliness of Adams's petition, nor his standing to bring the petition.
In his reply to the show cause orders, Adams asserted his intention to contest his 1997 removal through the petition for enforcement of the 1996 agreement. Adams did not dispute the fact that he had already appealed his 1997 removal to the Board in a separate action under docket number DC-0752-97-0641-I-1. The AJ, therefore, held the prior appeal res judicata against such an attack on the DC-0752-96-0305-C-1 decision, and she refused to consider it.
The AJ's application of the doctrine of res judicata was correct. See Bergman v. Department of Commerce, 3 F.3d 432, 434 (Fed. Cir. 1993) (affirming the Board's dismissal of pro se petition under the doctrine of res judicata).
In his reply to the show cause orders, Adams also submitted an unsupported allegation that the settlement agreement was invalid because he had not freely entered into it. In the very Board decision that Adams is seeking to enforce, the AJ found that Adams had indeed freely and voluntarily entered into the agreement. Holding that an allegation of invalidity could only have been raised in a timely petition for review of that initial decision, the AJ refused to consider Adams's allegation that the settlement agreement was invalid as involuntary.
As a threshold matter, this court has previously recognized that, under the Board's precedent, allegations that a settlement agreement is invalid will only be considered in a timely petition for review, not upon a later petition for enforcement. See Harris v. Department of Veterans Affairs, 142 F.3d 1463, 1468 (Fed. Cir. 1998), citing Wells v. Department of the Army, 74 M.S.P.R. 266, 269 (1997). Even if we could allow Adams to attack the validity of the agreement in this action, he still could not prevail. The party challenging the validity of a settlement agreement "bears a heavy burden," and in order to prevail must prove either that it was procured through fraud against that party, or that it was the result of mutual mistake of the parties. Harris, 142 F.3d at 1468; see also Adams v. Department of the Navy, 53 M.S.P.R. 379, 381 (1992). In his brief to us, Adams has not pointed to any evidence in the record tending to prove either mutual mistake or fraud in the formation of the agreement.
We hold, therefore, that the AJ did not commit reversible error by refusing to consider Adams's untimely allegations that the agreement is invalid. In any event, his challenge to the agreement's validity must fail for lack of any substantiation whatsoever.
Adams has asserted three instances of what he alleges to be reversible error by the AJ. First, Adams alleges that the AJ committed an abuse of discretion by not allowing him to present the terms of the agreement to the Board. Adams has not, however, identified any order or ruling by the AJ denying a request to present such evidence, and no such order is seen in the record before this court.
Rulings on evidentiary issues fall within the sound discretion of the Board and its adjudicatory officers. See Spezzaferro v. FAA, 807 F.2d 169, 173 (Fed. Cir. 1986); 5 C.F.R. §§ 1201.41(a), (b) (1998). This court will not reverse the Board unless there has been an abuse of discretion that is clear and is harmful. See Spezzaferro, 807 F.2d at 173. Even if an abuse of discretion were shown with respect to an evidentiary ruling, in order for Adams to prevail he must also prove that the erroneous exclusion caused substantial harm or prejudice to his rights that could have affected the outcome of the case. See Curtin v. OPM, 846 F.2d 1373, 1379 (Fed. Cir. 1988), citing Cornelius v. Nutt, 472 U.S. 648, 657-59 (1985). Adams has not satisfied this requirement. He has shown neither error, nor harm.
The agreement, in any event, had already been entered into the record in the Board's 1996 decision dismissing Adams's appeal of his 1995 removal as settled. See Adams v. Smithsonian Instit., No. DC-0752-96-0305-I-1 (M.S.P.B. Mar. 14, 1996). In addition, the terms of the agreement are plain and unambiguous. Adams failed to produce any evidence questioning or refuting the plain meaning of the agreement. Moreover, the text of the agreement is undisputed and can be found in the Board's files.
We hold, therefore, that even assuming, arguendo, that the AJ had refused to allow Adams to present the text of the agreement or his interpretation of its terms, this would not constitute an abuse of discretion.
Second, Adams alleges that the AJ committed an abuse of discretion by not allowing him to present the testimony of witnesses regarding the events of March 17, 1997, that led to his removal. Adams has not, however, identified any order by the AJ denying a request to present such witnesses. No such order is noted in the record before this court. Furthermore, any testimony regarding the events of March 17, 1997, that led to Adams's May 1997 removal cannot be relevant to his petition for enforcement of the 1996 settlement agreement which expired before the March 1997 events. The alleged refusal by the AJ to admit such irrelevant testimony thus cannot constitute an abuse of discretion. See Briscoe v. Department of Veterans Affairs, 55 F.3d 1571, 1574 (Fed. Cir. 1995) (finding no abuse of discretion where the Board refused to order discovery of evidence that was irrelevant to the issues in an enforcement petition -- validity of, and compliance with, a last chance agreement -- and that was relevant only to the removal action that was not the subject of the petition).
Third, Adams alleges that by detailing him to the Arts & Industries Security Unit for thirty days beginning on March 1, 1997, Smithsonian violated the 1996 agreement because that unit was under the same management as a unit that he had been assigned to prior to the agreement. Adams has not shown that this allegation was presented to the Board; it appears that he has raised it for the first time in his appeal to this court. Absent extraordinary circumstances, new issues generally cannot be raised for the first time on appeal. See Sanders v. United States Postal Serv., 801 F.2d 1328, 1331-32 (Fed. Cir. 1986).
Because the circumstances do not justify departing from this rule, we will not address the merit of Adams's claim. If we were to do so, however, we could find no violation of the agreement as a matter of law because the transfer in question occurred more than four months after the agreement had expired. Moreover, the agreement did not address common management of security units, but said only that Adams would not be assigned to any unit "to which previously assigned," and he makes no allegation that he served in the Arts & Industries Security Unit prior to the 1996 agreement.