United States Court of Appeals for the Federal Circuit
November 15, 1999
JOSEPH D. GADDY, PETITIONER-APPELLANT,
UNITED STATES POSTAL SERVICE, RESPONDENT-APPELLEE.
Before Bryson, Circuit Judge, Skelton, Senior Circuit Judge, and
Gajarsa, Circuit Judge.
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.
This is an appeal from a final order of the Merit Systems Protection Board (MSPB) dismissing the petition filed by the appellant, Joseph D. Gaddy, for review of his removal from employment. We affirm and hold that because Gaddy had executed a valid and enforceable waiver of his removal, this appeal must be dismissed.
Gaddy was employed as a mail handler for five years until August 16, 1996 when the agency sought to remove him from his position. Gaddy appealed his removal to the MSPB, but withdrew the appeal pursuant to a settlement agreement dated November 22, 1996. See Gaddy v. United States Postal Serv., MSPB Docket No. PH-0752-96-0459-I-1 (Initial Decision, Dec. 20, 1996). In pertinent part, the settlement agreement provided:
2. Appellant's removal will be held in abeyance for a period of one (1) year beginning November 23, 1996. Upon returning to duty effective November 23, 1996, appellant will enter into a one (1) year probationary period. During this probationary period appellant will be required to meet all attendance/work performance requirements.
3. The appellant waives appeal rights to the Merit Systems Protection Board, Grievance/Arbitration, Equal Employment Opportunity complaint procedures and any other forum during the one (1) year probationary period on any disciplinary action against him. ...
I, Joseph D. Gaddy, have read and understand the conditions and restrictions set forth in the above agreement. I am mentally and physically fit so as to be able to understand this agreement in its entirety. I freely sign this agreement without reservation, duress or coercion on the part of any one. I agree to abide by the terms and conditions of this Agreement. (Emphasis added.)
On September 10, 1997, Gaddy allegedly reported for duty under the influence of an intoxicant and assaulted a postal office police officer. For these reasons, Gaddy was notified by letter dated October 10, 1997 of his proposed removal from his position. *fn1 The letter did not refer to the settlement agreement or the earlier removal action; rather, it charged him with reporting for duty under the influence of an intoxicant, unacceptable conduct, and assault on a postal police officer. After filing his response to this letter, Gaddy received the written decision of the manger of distribution operations, who informed him of his removal effective November 8, 1997. Thereupon, Gaddy filed an appeal to the MSPB on March 14, 1998. The MSPB dismissed the appeal on the grounds that Gaddy had waived his right to appeal his removal pursuant to the settlement agreement. See Gaddy v. United States Postal Serv., MSPB Docket No. PH-0752-98-0233-I-1 (Initial Decision, July 13, 1998). Gaddy brought the instant appeal pro se following the MSPB's final decision.
A. Standard of Review
Pursuant to 5 U.S.C. § 7703(c), this court must affirm any agency action, findings, or Conclusions not found to be: (1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedure required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. See Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). Our review is limited to a review of the administrative record. This court will not overturn an agency decision if it is supported by "such relevant evidence as a reasonable mind might accept as adequate to support a Conclusion." Brewer v. United States Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981).
B. The Appellant's Right to Appeal
In assessing whether Gaddy has waived his statutory right of appeal, we begin by observing that a settlement agreement is a contract between the parties and its interpretation is a question of law reviewed de novo. Sweeney v. United States Postal Serv., 159 F.3d 1342, 1344 (Fed. Cir. 1998) (citing King v. Department of the Navy, 130 F.3d 1031, 1033 (Fed. Cir. 1997)). An employee may waive his or her right of appeal and, where the employee has done so voluntarily, any subsequent appeal may be dismissed. Stewart v. United States Postal Serv., 926 F.2d 1146, 1148-49 (Fed. Cir. 1991). Only in instances where the employee can prove that he or she complied with the settlement agreement, and that the agreement was obtained in bad faith or breached by the agency, may the employee set aside the waiver. Link v. Department of the Treasury, 51 F.3d 1577, 1581-82 (Fed. Cir. 1995).
We applied these principles in McCall v. United States Postal Serv., 839 F.2d 664 (Fed. Cir. 1988), where the employee was a mail handler and was removed for various instances of misconduct. McCall appealed his removal and, during the pendency of his appeal, he entered into a settlement agreement with the Postal Service by which he was reinstated subject to a one-year probationary period and certain other conditions. As part of the settlement agreement, McCall waived his right of appeal from any removal action during the probationary period if he failed to comply with the terms of the settlement agreement. Subsequently, McCall breached the agreement and was removed. He challenged his removal and the MSPB dismissed for lack of jurisdiction based on the waiver contained in the settlement agreement. This Court affirmed, stating:
The settlement agreement which McCall signed speaks for itself. ... It was for the [administrative Judge] to construe the settlement agreement ... . The terms of the settlement agreement were unambiguous, and the [administrative Judge] gave them their plain and ordinary meaning. Accordingly, we hold that the [administrative Judge] properly enforced the settlement agreement by upholding the waiver provision and dismissing McCall's appeal for lack of jurisdiction. Id. at 669 (citations omitted). Accord Gibson v. Department of Veterans Affairs, 160 F.3d 722 (Fed. Cir. 1998); Stewart v. United States Postal Serv., 926 F.2d 1146 (Fed. Cir. 1991).
Likewise, Gaddy voluntarily entered into a settlement agreement by which he agreed to waive his right of appeal. As the MSPB correctly held, there is no evidence in the record to indicate that Gaddy's assent to the settlement agreement was obtained in bad faith, or that the MSPB breached the agreement. There is substantial evidence to support the MSPB's Conclusion that Gaddy's misconduct on September 10, 1997 violated the agreement. The terms of the waiver are unambiguous and unequivocal. See Lockridge v. United States Postal Serv., 72 M.S.P.R. 613, 616-20 (1996), aff'd, 121 F.3d 727 (Fed. Cir. 1997). By Gaddy's signature, he expressly admits that he read and understood the agreement and signed it freely. As such, we must agree with the MSPB that Gaddy is without right of appeal due to the settlement agreement.
For the foregoing reasons, the decision of the MSPB is affirmed and this appeal is dismissed.