NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3117
JOYCE E. KWARTLER,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Joyce E. Kwartler, of Chester, New York, pro se.
Arlene Pianko Groner, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
her on the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, and Donald E. Kinner, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3117
JOYCE E. KWARTLER,
Petitioner,
v.
DEPARTMENT OF VETERAN AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in
NY0752070048-P-3.
____________________________
DECIDED: August 5, 2009
____________________________
Before LOURIE, and RADER, Circuit Judges, and CLARK, District Judge. *
PER CURIAM.
DECISION
Joyce Kwartler appeals from the decision of the United States Merit Systems
Protection Board (“Board”) denying her petition for review. Kwartler v. Dep’t of Veterans
Affairs, NY-0752-07-0048-P-3 (M.S.P.B. Dec. 17, 2008). The Board dismissed
*
Honorable Ron Clark, District Judge, United States District Court for the
Eastern District of Texas, sitting by designation.
Kwartler’s claim for consequential damages relating to her removal because there was
no finding of unlawful retaliation and because she had waived the right to bring such
claims in the settlement agreement she entered into with the Veterans Administration
(“VA”). Kwartler v. Dep’t of Veterans Affairs, NY-0752-07-0048-P-3 (M.S.P.B. Oct. 28,
2008). Because the Board’s decision was in accordance with law and supported by
substantial evidence, we affirm.
BACKGROUND
Kwartler was employed by the VA as a Veterans Claims Examiner, a position
from which she was removed on September 29, 2006. Kwartler challenged the
agency’s removal action by filing an appeal to the Board, and the parties subsequently
entered into a settlement agreement. The settlement agreement provided that Kwartler
would waive all claims against the VA “with the exception of any claims that may arise
by reason of breach of any term of [the] Settlement Agreement.” The settlement
agreement further stated that Kwartler would be responsible for her attorney fees. In
exchange for Kwartler’s agreement to waive her claims against the VA, the VA agreed
to retroactively promote her to the GS-12, Step 4 pay scale, effective September 21,
2003, and the GS-12, Step 5 pay scale, effective September 18, 2005. The VA would
then issue her a lump sum payment after making payroll withholdings and change its
official records to indicate that she voluntarily retired from the agency. Kwartler, along
with her counsel during her settlement negotiations, Joseph Carbonaro, signed the
settlement agreement on March 27, 2007.
Shortly after the settlement agreement was signed, the Board’s administrative
judge assigned to Kwartler’s case dismissed her appeal as settled. Kwartler v. Dep’t of
2009-3117
-2-
Veterans Affairs, NY-0752-07-0048-I-1 (M.S.P.B. Apr. 3, 2007). Kwartler did not appeal
that decision to the full Board and it thus became final on May 8, 2007.
Kwartler then filed numerous documents with the MSPB in which she alleged,
among other things, that the VA had failed to issue her the payments contemplated in
the settlement agreement and that the VA had discriminated against her when it
removed her from her position. Kwartler was not represented by counsel at this point
and the administrative judge treated her submissions as petitions for enforcement of the
settlement agreement. After various submissions from the VA and Kwartler, the VA
changed the title of Kwartler’s position that appeared on her SF 50-B form to reflect the
job title agreed upon in the settlement agreement and issued checks to Kwartler in the
amount of $7,701.59. Subsequently, the administrative judge dismissed Kwartler’s
remaining complaints as “not credible.” Kwartler v. Dep’t of Veterans Affairs, NY-0752-
07-0048-C-1, slip op. at 5 (M.S.P.B. Aug. 9, 2007). Because Kwartler did not appeal
that decision to the full Board, it became final on September 13, 2007.
Kwartler also submitted, but then attempted to cancel, a request for attorney
fees. The administrative judge denied her motion because she had waived the right to
pursue such fees from the VA in the settlement agreement. Kwartler v. Dep’t of
Veterans Affairs, NY-0752-07-0048-A-1 (M.S.P.B. July 13, 2007). That decision was
not appealed and became final on August 17, 2007.
On September 17, 2007, Kwartler filed a request for compensatory damages
based upon defamation of character, forced retirement, and a hostile work environment.
The administrative judge again dismissed her complaint because she had waived the
right to pursue such claims in the settlement agreement. Kwartler v. Dep’t of Veterans
2009-3117
-3-
Affairs, NY-0752-07-0048-P-1 (M.S.P.B. Nov. 8, 2007). The administrative judge’s
decision became final on December 13, 2007.
On November 13, 2007, Kwartler petitioned the Board to reopen her appeal. The
Board denied her request, but, on its own motion, chose to reopen other final decisions
in Kwartler’s case. The Board then affirmed the administrative judge’s dismissals of
Kwartler’s appeals regarding attorney fees, enforcement of the settlement agreement,
and compensatory damages. Kwartler v. Dep’t of Veterans Affairs, 2008 MSPB 58
(Mar. 13, 2008). The day after the Board’s decision, Kwartler filed another motion for
compensatory damages with the MSPB, which was dismissed by the administrative
judge on collateral estoppel grounds. Kwartler v. Dep’t of Veterans Affairs, NY-0752-
07-0048-P-2 (M.S.P.B. May 28, 2008). That decision became final on July 2, 2008.
In late August, 2008, Kwartler filed motions seeking consequential damages.
The administrative judge dismissed that motion because no finding of retaliation had
been made in Kwartler’s case and because the settlement agreement waived all such
claims. Kwartler, NY-0752-07-0048-P-3, slip op. at 5. Kwartler appealed that decision
to the Board. The Board denied Kwartler’s petition for review and the administrative
judge’s decision became final. Kwartler v. Dep’t of Veterans Affairs, NY-0752-07-0048-
P-3 (M.S.P.B. Dec. 17, 2008).
Kwartler timely appealed the Board’s denial. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
2009-3117
-4-
The scope of our review in an appeal from a Board decision is limited. We can
only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with 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) (2000); see Briggs v. Merit Sys. Prot. Bd.,
331 F.3d 1307, 1311 (Fed. Cir. 2003). We construe the terms of a settlement
agreement de novo. Conant v. Office of Pers. Mgmt., 255 F.3d 1371, 1376 (Fed. Cir.
2001).
On appeal, Kwartler resumes her claims that the Board failed to take into account
allegations of the VA’s denial of accommodations for her disabilities, specifically her
chronic obstructive asthma and post-traumatic stress disorder. She further alleges that
the Board failed to award her damages for defamation of character, discrimination, and
reprisal and termination.
We agree with the Board that Kwartler is not entitled to an award of
consequential damages. Kwartler waived any claim to such an award when she signed
the settlement agreement. In that agreement Kwartler “waive[d] any and all actions,
claims, complaints, EEO Complaints, grievances, appeals and proceedings of whatever
nature against VA, its past and present officers and employees, in their personal as well
as their official capacities, including attorney fees, which are now or hereafter may be
asserted by her or on her behalf on any action taken as of the date of Appellant’s
execution of this Agreement, with the exception of any claims that may arise by reason
of breach of any term of this Settlement Agreement.” None of the allegations made by
Kwartler on appeal are alleged to have arisen from a breach of the agreement; Kwartler
2009-3117
-5-
has therefore waived any such claims. Having voluntarily accepted the settlement
agreement and its benefits, Kwartler cannot now bring a claim that she explicitly waived.
Accordingly, we affirm the Board’s decision.
2009-3117
-6-