NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DORETHA MCDELL,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2017-1345
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-14-0341-B-2.
______________________
Decided: April 6, 2017
______________________
DORETHA MCDELL, Arlington, VA, pro se.
AGATHA KOPROWSKI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., FRANKLIN
E. WHITE, JR.
______________________
Before REYNA, MAYER, and HUGHES, Circuit Judges.
2 MCDELL v. ARMY
PER CURIAM.
Doretha McDell appeals from a final judgment of the
Merit Systems Protection Board approving a settlement
agreement and dismissing her appeal as moot. Because
the settlement agreement was freely entered into and it
resolved all issues on appeal, we affirm.
I
On April 3, 2014, Ms. McDell, a Contract Procurement
Analyst with the Army, initiated an individual right of
action at the Board. She alleged that the Army took
retaliatory actions against her for disclosing contracting
and procurement improprieties to the Office of Inspector
General, attorneys for the Army, a Member of Congress,
and the Government Accountability Office. On February
6, 2015, an Administrative Judge issued an initial deci-
sion dismissing the case for lack of jurisdiction.
Ms. McDell appealed to the Board. On June 3, 2015,
the Board remanded the case after concluding that
Ms. McDell had made a nonfrivolous allegation that her
alleged protected disclosures were a contributing factor to
the personnel actions taken against her.
On October 31, 2016, the Army and Ms. McDell en-
tered into a negotiated settlement agreement. On No-
vember 1, 2016, the Administrative Judge dismissed the
appeal after finding that the settlement agreement was
“freely reached,” and “mutually resolves all disputed
issues.” Appx. 10.
Ms. McDell appeals the Board’s dismissal based on
the settlement agreement. We have jurisdiction under 5
U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
II
Our review of Board decisions is limited by statute.
Under 5 U.S.C. § 7703(c), we may only reverse a Board
decision if we find the decision to be (1) arbitrary, capri-
MCDELL v. ARMY 3
cious, an abuse of discretion, or otherwise not in accord-
ance with law; (2) obtained without procedures required
by law; or (3) unsupported by substantial evidence.
Cleaton v. Dep’t of Justice, 839 F.3d 1126, 1128 (Fed. Cir.
2016). We review the Board’s construction of a settlement
agreement de novo. Foreman v. Dep’t of Army, 241 F.3d
1349, 1351 (Fed. Cir. 2001).
Ms. McDell argues that she was “forced to settle[] and
stay in hostile working conditions with no monetary
settlement.” Pet. Br., Question 4. Specifically, she alleges
that the agency has “refused to pay compensatory, actual,
and consequential damages[,] as well as back pay for
misclassification” under the Whistleblower Protection Act
of 1989 and the Whistleblower Protection Enhancement
Act of 2012. Pet. Br. at 5.
When the Board dismisses an appeal based on the
terms of a settlement agreement, we must determine
whether the Board abused its discretion in doing so. See
Asberry v. U.S. Postal Serv., 692 F.2d 1378, 1380 (Fed.
Cir. 1982). To set aside a settlement agreement
Ms. McDell must establish that the agreement “is unlaw-
ful, was involuntary, or was the result of fraud or mutual
mistake.” Sargent v. Dep’t of Health & Human Servs.,
229 F.3d 1088, 1091 (Fed. Cir. 2000). However “[a] bare
allegation of coercion is not sufficient to set aside the
parties’ settlement agreement.” Tiburzi v. Dep’t of Jus-
tice, 269 F.3d 1346, 1355 (Fed. Cir. 2001).
First, to the extent Ms. McDell alleges that the set-
tlement agreement is invalid because she did not receive
any monetary compensation, the agency was not required
to pay Ms. McDell the monetary compensation she now
seeks, nor did it agree to such compensation in the set-
tlement agreement. In an individual right of action, the
Board may order corrective action if it finds that a pro-
tected disclosure was a contributing factor in the person-
nel action taken. 5 U.S.C. § 1221(e)(1). If the Board
4 MCDELL v. ARMY
orders corrective action, such corrective action may in-
clude “back pay and related benefits . . . any other rea-
sonable and foreseeable consequential damages, and
compensatory damages (including interest, reasonable
expert witness fees, and costs).” Id. § 1221(g)(1)(A)(ii).
Here, however, Ms. McDell entered into a negotiated
settlement before the Board issued a final decision on the
merits. Because the Board did not determine if her
alleged protected disclosure was a contributing factor in
the personnel action taken, and, further, did not order
corrective action, the agency was not obligated to compen-
sate Ms. McDell. Additionally, the agency did not agree
to provide Ms. McDell with monetary compensation in the
settlement agreement.
Moreover, the settlement agreement states that “[t]he
Appellant [Ms. McDell] and the Agency agree the follow-
ing is a complete statement of the terms of this Agree-
ment, reached freely and in good faith, and in full
resolution of all matters raised” in the appeal. Appx. 17
(emphasis added). Therefore, the evidence supports the
conclusion that Ms. McDell was not forced to enter into
the settlement agreement.
Additionally, to the extent Ms. McDell argues that the
settlement agreement did not resolve her whistleblower
claims, we disagree. By signing the settlement agree-
ment, Ms. McDell agreed to the “full and complete settle-
ment of the complaint, along with any claims for
damages . . . .” Appx. 18. Ms. McDell also agreed to
“withdraw and dismiss with prejudice” her appeal “includ-
ing all counts of retaliations contained therein.” Id.
Because the settlement agreement was entered into
“freely and in good faith” and resolved all disputed issues,
the Board did not abuse its discretion in dismissing the
appeal based on the terms of the settlement agreement.
AFFIRMED
MCDELL v. ARMY 5
No costs.