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Priselac v. Department of Navy

U.S. Court of Appeals, Federal Circuit


February 05, 1999

LINDA L. PRISELAC, PETITIONER,
v.
DEPARTMENT OF THE NAVY, RESPONDENT.

Before Michel, Rader, and Schall, Circuit Judges.

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

DECISION

Linda L. Priselac petitions for review of the final decision of the Merit Systems Protection Board (Board) that denied her petition for enforcement of a settlement agreement that resolved her appeal of a removal action by the Department of the Navy (agency). Priselac v. Department of the Navy, Docket No. DC-0432-97-0412-C-1. The February 25, 1998 initial decision of the Administrative Judge (AJ) became the final decision of the Board on September 4, 1998, when the Board denied Ms. Priselac's petition for review. We affirm.

DISCUSSION

I.

On February 11, 1997, the agency removed Ms. Priselac from her position for unacceptable performance. Ms. Priselac appealed her removal to the Board. On September 22, 1997, the parties entered into a settlement agreement which rescinded the removal and provided that:

"The Agency will remove from [Ms. Priselac's] Official Personnel File all references to the proposed removal, the effected removal, and [Ms. Priselac's] placement on a Performance Improvement Plan on or after July 17, 1996."

The agency also agreed to process the necessary paperwork to effectuate the foregoing.

Prior to her removal, Ms. Priselac became eligible for a within-grade-increase (WIGI) on October 1, 1995. However, the agency denied the WIGI in a Notification of Personnel Action dated July 17, 1996 (Notification). The reason for the denial was that Ms. Priselac's work was not at "an acceptable level of competence."

Shortly after the case was settled, Ms. Priselac petitioned the Board for enforcement of the settlement agreement alleging, among other things, that the agency had failed to reinstate her at the proper step within her grade. Specifically, she contended that the agency was required under the settlement agreement to remove the Notification from her personnel file. Without the Notification, Ms. Priselac argued, there was no basis for concluding that she was performing at a less than acceptable level and denying her the WIGI. The Board held that the agency was not under any obligation under the settlement agreement to remove the Notification or rescind the WIGI denial and denied the petition.

II.

We may set aside a decision of the Board only if we find it to be "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the 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); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986), cert. denied, 479 U.S. 1037 (1987). Settlement agreements are contracts, and contract interpretation is an issue of law, which we review de novo. See Mays v. United States Postal Service, 995 F.2d 1056, 1059 (Fed. Cir. 1993).

Ms. Priselac argues that the Board erred in concluding that the agency was not required under the settlement agreement to remove the Notification from her personnel file. The settlement agreement requires the agency to remove from the file all references to the removal action. The settlement agreement does not require the removal of other documents from the Ms. Priselac's file, such as the Notification. Therefore the Board did not err in concluding that the agency was not required to remove the Notification from Ms. Priselac's file. Because Ms. Priselac's argument that the WIGI denial should be rescinded depends on the removal of the Notification, the Board did not err in leaving the WIGI denial in place.

Ms. Priselac also contends that procedural errors were made by the AJ. Because our holding that Ms. Priselac is not entitled to the relief she seeks under the settlement agreement is dispositive of the case, we need not address these arguments.

Each party shall bear its own costs.

19990205


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