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Pagan v. Department of Veterans Affairs

March 16, 1999

RAUL O. PAGAN, PETITIONER,
v.
DEPARTMENT OF VETERANS AFFAIRS, RESPONDENT.



Before Newman, Plager, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Plager, Circuit Judge.

Appealed from: Merit Systems Protection Board United States Court of Appeals for the Federal Circuit

Raul O. Pagan appeals the denial by the Merit Systems Protection Board ("Board") of his petition for enforcement of a settlement agreement. The agreement resulted from a prior Board proceeding in which Pagan had appealed his dismissal from the Department of Veterans Affairs ("DVA"). In the appeal now before us, the Board found that Pagan failed to prove that the DVA breached the agreement. Because we find that the DVA did violate the terms of the settlement agreement, we vacate the decision of the Board, and remand the case for the Board to craft an appropriate remedy.

BACKGROUND

From February 12, 1989 until November 27, 1995, Mr. Pagan worked at the Puerto Rico National Cemetery ("PRNC") as a Program Support Assistant for Office Automation. Mr. Pagan received "fully successful" evaluations on his annual reviews from 1989 to April 1992. From April 1992 through March 1995, Mr. Pagan achieved "highly successful" evaluations and cash awards for his high level of performance.

Despite Mr. Pagan's good reviews, the PRNC in 1995 notified Mr. Pagan of his proposed removal and placed him on administrative leave status. The notice of proposed removal listed fourteen charges against Mr. Pagan, including: improperly paying various PRNC expenses from imprest funds, recommending his future wife for a PRNC job without disclosing the relationship, refusing to take orders from his direct supervisor, acting disrespectfully toward his direct supervisor, failing to follow sick leave procedures, and neglecting to fill out the proper forms and providing payment for an office plumbing job.

Subsequently the PRNC Director, Jorge L. Lopez, sustained the charges against Mr. Pagan. Mr. Lopez considered Mr. Pagan's prior work record, but concluded that removal was reasonable and appropriate in light of the seriousness of the sustained charges.

Mr. Pagan appealed his removal to the Board. The assigned Administrative Judge ("AJ") held a hearing during which the AJ presided over negotiations and helped the parties reach a settlement agreement. The AJ wrote the agreement after both parties expressed their interests. In particular, Mr. Pagan told the AJ that he had to have a clean record because he was in the process of interviewing for a U.S. Postal Service ("USPS") job.

The relevant portions of the settlement agreement provide:

"1) The appellant agrees not to apply to the Puerto Rico National Cemetery (PRNC) for the next 5 years.

"1) The appellant will receive a clean record. All charges and actions will be removed from the appellant's personnel file.

"1) The terms of the agreement will remain confidential between the parties. The appellant agrees not to disclose the terms to any other individual or agency employee. The agency agrees not to disclose the terms to any prospective employer." Pagan v. Department of Veterans Affairs, No. NY-0752-96-0141-I-1 (Initial Decision, Apr. 15, 1996) (accepting the agreement into the record).

The settlement agreement called for Mr. Pagan's resignation from the PRNC for personal reasons, and the withdrawal of his Board appeal. In exchange, the PRNC provided Mr. Pagan with back pay from December 1995 to April 1996, and $8000 in settlement fees. The agreement specifically stated that it was entered into voluntarily, and the Board retained jurisdiction over the agreement for enforcement purposes.

While his appeal was pending and negotiations were on-going, Mr. Pagan applied for a job with the USPS. In his application, Mr. Pagan disclosed his removal and the pending appeal. Following the settlement agreement ending his Board appeal, Mr. Pagan explained during an April 3, 1996 interview with the USPS that the Board hearing had concluded with a confidential settlement agreement. In response to a USPS request for clarification, Mr. Pagan referred to the confidential nature of the agreement, then later submitted a standard agency form showing his voluntary resignation ...


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