NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
06-3317
DAVID MOSS,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
__________________________
DECIDED: December 6, 2006
__________________________
Before SCHALL, LINN, and DYK, Circuit Judges.
PER CURIAM.
David Moss (“Moss”) appeals from a decision of the Merit Systems Protection
Board (“Board”), Moss v. Dep’t of the Navy, No. SF-0752-98-0693-C-3 (M.S.P.B. Jan.
19, 2006) (“Initial Decision”) (without a hearing), which became the final decision of the
Board after the Board denied Moss’s petition for review, Moss v. Dep’t of the Navy, No.
SF-0752-98-0693-C-3 (M.S.P.B. May 12, 2006) (“Final Order”). The Initial Decision
denied Moss’s petition for enforcement of a 1998 Settlement Agreement (the
“Agreement”) between Moss and the Department of the Navy (the “Agency”) because
Moss failed to submit evidence that his 14-day suspension violated the Agreement.
Because the Board’s decision is not arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law and is supported by substantial evidence, we
affirm.
BACKGROUND
In 1998, Moss appealed an Agency decision which removed him from the
position of Sheet Metal Mechanic. The parties settled that appeal, the terms of which
were memorialized in the Agreement. In relevant part, the Agreement required that the
Agency reinstate Moss, place him on leave without pay for thirty days, provide him back
pay, purge all adverse information related to the appealed action from his records, and
pay his reasonable attorney fees. Initial Decision, slip op. at 1-2. It is undisputed that
the Agency complied with all of these requirements. Id., slip op. at 2.
In February 2005, Moss had a physical altercation with his supervisor, which
resulted in a 14-day suspension, beginning April 5, 2005 and ending April 20, 2005. On
September 16, 2005, Moss filed a petition to enforce the Agreement, alleging that the
14-day suspension was the result of Agency retaliation and was an act of bad faith
noncompliance with the reinstatement term of the Agreement. See id.
On January 19, 2006, the Administrative Judge (“AJ”) found that Moss failed to
submit evidence that the 14-day suspension was imposed in bad faith in violation of the
Agreement. See Initial Decision, slip. op. at 3. Accordingly, the AJ dismissed the
petition for enforcement without a hearing. Id. On May 12, 2006, the Board denied
Moss’s petition for review, resulting in the Initial Decision becoming the final decision of
the Board. Final Order, slip op. at 2.
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Moss timely appealed the Board’s Final Order to this court pursuant to 5 U.S.C. §
7703(b)(1). We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
A. Standard of Review
This court must affirm a Board decision unless it is: “(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); see also Hayes v. Dep’t of the Navy, 727
F.2d 1535, 1537 (Fed. Cir. 1984). The burden of establishing reversible error in a
Board decision rests upon the petitioner. Harris v. Dep’t of Veterans Affairs, 142 F.3d
1463, 1467 (Fed. Cir. 1998).
B. Analysis
Moss agrees that the Agency met each of its obligations expressed in the
Agreement. Nevertheless, he claims that the Agency breached an implied covenant of
good faith when it harassed or retaliated against him by suspending him for 14 days.
Although Moss has made some general allegations of harassment and reprisal, he
failed to submit any evidence connecting these allegations, the 14-day suspension, and
the terms of the settlement agreement. Moss also failed to produce evidence illustrating
a pattern of such behavior dating back to the settlement agreement implementation.
Thus, the AJ found that Moss’s bare allegations fail to show that the Agency’s 14-day
suspension was other than bona fide agency action in compliance with the Agreement.
In a settlement agreement, like any other contract, there is an implied covenant
that the parties fulfill their respective contractual obligations in good faith. See Link v.
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Dep’t of the Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995). Thus, a party may breach a
settlement agreement by acting in bad faith with respect to a settlement term. Id. To
establish a breach of the implied covenant of good faith, Moss must establish that the
actions of the agency constituted bad faith noncompliance with the terms. See id.;
Kuykendall v. Dep’t of Veterans Affairs, 68 M.S.P.R. 314, 324-25 (1995) (“To establish a
breach of the settlement agreement based on [the] implied covenant of good faith with
respect to the reinstatement term . . . it is the appellant’s burden to show that the
agency’s proven retaliatory/harassing actions, under the totality of the circumstances,
amounted to an unjustified and substantial deprivation of [the appellant’s] rights as an
incumbent of the position in question.”).
Because the record shows that Moss made only mere allegations that the 14-day
suspension violated the Agreement, but did not support his bare allegations with any
evidence illustrating bad faith, we find no basis to conclude that the Initial Decision is
arbitrary, capricious, or unsupported by substantial evidence. See Charley v. United
States, 208 Ct. Cl. 457 (1975) (holding that “[t]he mere allegation of arbitrary and
capricious action on defendant’s part, absent a direct and pointed attack on the
evidentiary basis of the agency’s action, is insufficient to warrant a judicial determination
of wrongful agency action”). Moreover, the Agreement does not insulate Moss from
bona fide agency actions taken subsequent to his reinstatement. See Grant v. Dep’t of
Transp., 32 M.S.P.R. 321 (1987), aff’d, 833 F.2d 1023, 1023 (Fed. Cir. 1987) (table);
Cook v. U.S. Postal Serv., 30 M.S.P.R. 671 (1986). Finally, to the extent that Moss
asks that we consider new facts to support his allegations, we do not consider facts
raised for the first time on appeal and not presented to or addressed by the Board. See
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Mueller v. U.S. Postal Serv., 76 F.3d 1198, 1201-02 (Fed. Cir. 1996) (“Because we are
limited to reviewing decisions of the Board based on the record before the deciding
official, we decline to base our judgment on evidence that was not part of the record.”).
We have considered Moss’s remaining arguments and find them to be without
merit. For the foregoing reasons, the decision of the Board is affirmed.
COSTS
No costs.
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