NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3222
GREGORY A. MILLER,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
___________________________
DECIDED: January 13, 2006
___________________________
Before RADER, SCHALL, and DYK, Circuit Judges.
RADER, Circuit Judge.
The Merit Systems Protection Board (Board) dismissed Mr. Gregory A. Miller’s
appeal of his removal from the position of motor vehicle operator with the Department of
the Army’s Directorate of Public Works and Logistics at Fort Myer, VA (Agency) as
barred by a March 9, 2004 settlement agreement. See Miller v. Dep’t of Army, DC-
0752-04-0209-I-1 (M.S.P.B. Sept. Mar. 15, 2004) (Board Decision). Because Mr. Miler
has not challenged the Board’s findings, this court affirms.
BACKGROUND
On September 24, 2003, a random drug test on Mr. Miller came back with a
positive reading for marijuana. Because the positive reading violated the Agency’s
drug-free workplace policy, the Agency removed Mr. Miller from his position. Mr. Miller
appealed his removal to the Board.
On February 25, 2004, the administrative judge held a pre-hearing tele-
conference with Mr. Miller’s union representative, Larest Hill, and the Agency. Miller v.
Dep’t of Army, DC-0752-04-0209-I-1 (M.S.P.B. Feb. 25, 2004) (Prehearing
Conference). During this teleconference, the Agency refused to offer Mr. Miller “a last
chance agreement under which [he] could be returned to duty with random drug testing
and a waiver of appeal rights.” Id. However, the Agency did agree to enter into a
settlement agreement with Mr. Miller that would allow him to resign with a clean record.
Id. Thereafter the parties entered into that settlement agreement, a signed copy of
which appears in the Board record. Board Decision, slip op. at 1.
Because the settlement agreement disposed of Mr. Miller’s case, the
administrative judge dismissed the appeal. Id., slip op. at 1-2. In so holding, the
administrative judge noted:
I have reviewed the agreement, and I am satisfied that it is lawful on its
face, that it was freely reached by the parties, and that the parties
understand the terms of the agreement.
Id. After the full Board declined to reconsider the administrative judge’s initial decision,
see Miller v. Dep’t of Army, DC-0752-04-0209-I-1 (M.S.P.B. Apr. 18, 2005), the present
appeal followed.
DISCUSSION
This court affirms a decision of the Board unless it is arbitrary, capricious, an
abuse of discretion, not in accordance with the law, or unsupported by substantial
evidence. See 5 U.S.C. § 7703(c) (2000); Marino v. Office of Pers. Mgmt., 243 F.3d
1375 (Fed. Cir. 2001).
05-3222 2
The present case turns on whether the parties entered into a valid settlement
agreement. In this regard, Mr. Miller does not challenge the validity of the settlement
agreement or interpret the agreement as inadequate to dispose of this case. See Harris
v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1468 (Fed. Cir. 1998) (holding a petitioner
bears a heavy burden in attacking the validity of a settlement agreement). Rather, Mr.
Miller asserts the Board did not take into consideration his argument that he was going
to resign for health and stress issues. Because this assertion is not a challenge to the
settlement agreement itself, the basis for the Board’s opinion, this court cannot say the
Board erred in dismissing Mr. Miller’s appeal.
For the aforementioned reasons, the decision of the Board is affirmed.
05-3222 3