NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3298
JACQUELINE L. WASHINGTON-THOMAS,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Jacqueline L. Washington-Thomas, of Hollywood, Florida, pro se.
Joseph A. Pixley, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Kenneth M. Dintzer, Assistant
Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3298
JACQUELINE L. WASHINGTON-THOMAS,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in AT0752010577-M-2.
__________________________
DECIDED: February 4, 2009
__________________________
Before MAYER, LOURIE, and SCHALL, Circuit Judges.
PER CURIAM.
Jacqueline L. Washington-Thomas appeals the final order of the Merit Systems
Protection Board denying her petition for review of the initial decision that dismissed, as
settled, her appeal of the Department of Veterans Affairs (“agency”) removal action.
Washington-Thomas v. Dept. of Veterans Affairs, No. AT-0752-01-0577-M-2 (M.S.P.B.
Jan. 15, 2008). The board concluded that there was no new, previously unavailable
evidence and that the administrative judge made no error in law or regulation affecting
the outcome. Id.; 5 C.F.R. § 1201.115(d). We affirm.
On April 21, 2001, Washington-Thomas was removed from her position as a
police officer with the VA Healthcare System on the basis of an annual VA
psychological evaluation finding that she was not psychologically fit for duty. On August
29, 2001, in the course of appealing her removal, she entered into an oral settlement
agreement with the agency in which she agreed to dismiss the appeal and thereupon
apply to the Office of Personnel Management (“OPM”) for disability retirement benefits.
The agency agreed to assist her in completing her disability retirement application, and
stipulated that she could refile her removal appeal if OPM denied her application.
Twelve days later, Washington-Thomas, through new counsel, contacted the board in
an effort to rescind the settlement agreement and continue her initial appeal. The board
ordered her to show cause why the appeal should not be dismissed as settled.
Washington-Thomas did not respond to the show cause order, and the board dismissed
the appeal.
Washington-Thomas did not apply for OPM disability retirement benefits. Rather,
she petitioned the board for review the initial decision, and appealed its denial to this
court. After remand and further proceedings determining the validity of the settlement
agreement, the board dismissed the appeal again as settled, and that decision became
final on November 12, 2004. Almost a year later, on November 10, 2005, she submitted
a completed application for disability retirement to OPM, which OPM denied as
untimely. After unsuccessfully appealing OPM’s denial, Washington-Thomas sought to
refile her initial removal appeal, per the terms of the settlement agreement. The board
dismissed this refiled appeal, reasoning that her right to refile was contingent upon her
agreement to apply for OPM disability retirement benefits expeditiously upon dismissal
2008-3298 2
of the initial appeal. Because she neglected to apply for OPM disability retirement
benefits within a reasonable period of time “upon dismissal” of the appeal, she failed to
comply with her end of the bargain, and therefore could not enforce the agreement’s
provision that would have permitted her to postpone and refile her removal appeal.
We must affirm the final decision of the board unless we conclude that it is
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5
U.S.C. § 7703(c). The board correctly determined that the settlement agreement
became effective and binding when formed on August 29, 2001. We agree with the
board that in the settlement agreement the parties intended the language “upon
dismissal of the appeal” to impose a reasonableness requirement regarding the time
frame during which Washington-Thomas agreed to file her OPM disability retirement
application. Her delay in submitting the application to OPM until October 2005—four
years after entering into the agreement and nearly one year after exhausting her
administrative remedies—was unreasonable. Because Washington-Thomas failed to
satisfy this condition precedent to refiling her appeal, the board properly dismissed it as
settled.
2008-3298 3