Before Mayer, Chief Judge, Archer, Senior Circuit Judge, Clevenger,
Elbert Parker appeals the dismissal by the Merit Systems Protection Board ("Board") of his challenge to a settlement agreement entered between himself and the United States Department of Labor ("Labor"). See Parker v. Department of Labor, No. AT0752980615-I-1, slip op. at 2 (Sept. 11, 1998); Parker v. Department of Labor, No. AT0752980097-I-1, slip op. at 2 (Sept. 11, 1998). Because the Board acted within its discretion in determining that Parker did not present new and material evidence of fraud related to the settlement agreement, we affirm.
Mr. Parker was employed as an Information Clerk in the Atlanta, Georgia, Office of the Regional Commissioner of the Bureau of Labor Statistics, an agency of Labor. In October 1997, Parker was placed on a 30-day suspension for misconduct in the workplace. He appealed the suspension to the Board. In December 1997, Parker's supervisor proposed his removal following several additional incidents of misconduct. He was formally removed from his position effective April 4, 1998.
Parker appealed the removal action to the Board, which had not yet acted upon his appeal of the 30-day suspension. At a hearing in September 1998, an Administrative Law Judge approved an oral settlement agreement between Parker and Labor. The settlement agreement provided that Parker would withdraw both of his pending appeals and not reapply for any position at Labor; in exchange, Labor agreed to give Parker neutral job recommendations, purge all references to the suspension and removal from his employee file, and pay Parker's attorney, James Tramel, fees of up to $2,500. After confirming the voluntary nature of the agreement on the record and ruling that it was valid, the Administrative Law Judge entered the settlement agreement and dismissed the appeal. See Parker v. Department of Labor, No. AT0752980615-I-1, slip op. at 2 (Sept. 11, 1998). Later the same day, the appeal in the 30-day suspension action was similarly dismissed. See Parker v. Department of Labor, No. AT0752980097-I-1, slip op. at 2 (Sept. 11, 1998).
In October 1998, Parker petitioned the Board to review the dismissals of his appeals, claiming that the settlement agreement was not voluntary and was entered into by his attorney over Parker's objection. In March 1999, Parker asked the Board to consider, as "new and material evidence" of fraud and deception, a letter sent to Tramel from Labor in late October 1998 ("the Labor-Tramel letter"). In that letter, Labor advised Tramel that it would expect the already-paid attorney's fees to be returned in the event that the settlement agreement was held to be void. Parker, through a new representative, alleged that the letter constituted evidence that Tramel and Labor conspired to terminate his employment rights. The Board denied the petition.
This appeal followed, vesting this court with jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (1994).
This court's review of actions by the Board is strictly limited. See Rosete v. Office of Personnel Mgmt., 48 F.3d 514, 516 (Fed. Cir. 1995). We must affirm the Board's decision unless we find it to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) in violation of required procedures; or (3) unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994).
Settlement agreements are considered binding on both parties; those attempting to attack a settlement through which a dispute was set to rest bear a heavy burden. See Perry v. Department of the Army, 992 F.2d 1575, 1577 (Fed. Cir. 1993). We review the Board's decision to dismiss the appeals in light of the settlement agreement for abuse of discretion. See Asberry v. United States Postal Service, 692 F.2d 1378, 1380 (Fed. Cir. 1982). In order to overturn the settlement agreement, Parker must demonstrate that the agreement is deeply flawed, either by fraud practiced upon him, or by a mutual mistake under which both parties acted. See id.
The crux of Parker's argument is that the Board erred in failing to consider the Labor-Tramel letter--a document that Parker believes demonstrates the conspiracy between Labor and Tramel to deny him rights.
The Labor-Tramel letter was not considered by the Board, as it was received after the final decision in the case had issued. It is undisputed, however, that the evidence was submitted after the time for filings had lapsed. Only "new and material evidence . . . that, despite due diligence, was not available when the record closed" can be submitted late. See 5 C.F.R. § 1201.115(d)(1) (1999).
The Labor-Tramel letter is not new and material evidence. The only "new" information contained in the letter is that Labor expected Tramel to return the fee payment if Parker succeeded in overturning the settlement agreement. This information is not material, nor even relevant, to whether Parker voluntarily assented to the agreement. Instead, it reveals nothing more than the fact that Labor intended to recover the attorney's fees--which were paid as part of the ...