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Adams v. Smithsonian Institution

February 04, 1999

DOC ADAMS, PETITIONER,
v.
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.

DECISION

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.

DISCUSSION

I.

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.

II.

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 ...


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