NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DOUGLAS S. MARSHALL,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2011-3201
__________________________
Petition for review of the Merit Systems Protection
Board in case no. NY0353100255-I-1.
__________________________
Decided: February 14, 2012
__________________________
DOUGLAS S. MARSHALL, of Guayanilla, Puerto Rico,
pro se.
NELSON R. RICHARDS, Trial Attorney, Commercial
Litigation Branch, United States Department of Justice,
of Washington, DC, for respondent. With him on the brief
were TONY WEST, Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and CLAUDIA BURKE, Assistant
Director.
MARSHALL v. USPS 2
__________________________
Before NEWMAN, LOURIE, and PROST, Circuit Judges.
PER CURIAM.
Douglas S. Marshall appeals the final decision of the
Merit Systems Protection Board (“Board”), which dis-
missed his appeal of the United States Postal Service’s
(“USPS”) employment action based on the parties’ settle-
ment agreement. Marshall v. U.S. Postal Serv.,
NY0353100255-I-1 (M.S.P.B. Oct. 27, 2010), petition for
review denied, (June 13, 2011). For the reasons set forth
below, we affirm.
I. BACKGROUND
Mr. Marshall’s employment history with USPS is de-
tailed in this court’s previous opinion, Marshall v. U.S.
Postal Serv., 402 F. App’x 521 (Fed. Cir. 2010) (“Marshall
I”). As relevant to his current appeal, Mr. Marshall had
certain work limitations due to an injury he incurred in
1995. In 2008, USPS conducted a National Reassessment
Process to evaluate the efficiency of its employees. Dur-
ing that evaluation, USPS informed Mr. Marshall that it
had no available work within his medical restrictions and
would place him on leave-without-pay status. Mr. Mar-
shall appealed that decision to the Board, and while that
appeal was pending, Mr. Marshall and USPS entered into
a settlement agreement. Based on the settlement agree-
ment, the administrative judge dismissed Mr. Marshall’s
appeal. Mr. Marshall then appealed that decision to this
court, arguing that he had been coerced into entering the
settlement. This court affirmed the Board’s decision in
Marshall I, explaining that “we will not ignore Marshall’s
voluntary agreement to the terms of the settlement.” 402
F. App’x at 523.
3 MARSHALL v. USPS
This current appeal involves a subsequent settlement
agreement between Mr. Marshall and USPS. In July
2010, while Marshall I was pending before this court,
USPS offered Mr. Marshall a position as a modified, part-
time flexible carrier in the Guayanilla, Puerto Rico Post
Office. Mr. Marshall rejected this offer and filed an
appeal with the Board based on USPS’s alleged failure to
try to find work for him that accommodated his work
restrictions.
At a hearing before the administrative judge, the par-
ties entered into a settlement agreement under which Mr.
Marshall agreed to withdraw his appeal to the Board with
prejudice and “to withdraw any [Equal Employment
Opportunity] Claims, if any, regarding his employment
with [USPS] to date.” In exchange for the release, USPS
agreed to allow Mr. Marshall to switch from a part-time
flexible letter carrier to a part-time flexible clerk upon his
successful completion of USPS’s window training exam.
Under the agreement, Mr. Marshall acknowledged that
he “underst[ood] that as a [Part-Time Flexible] employee
he [was] not guaranteed a forty hour work week.” The
agreement further states that it “constitute[d] the entire
agreement and understanding between the parties and
may not be modified orally,” and that “[t]here are no
promises, terms, conditions, or obligations other than
those contained herein.” By signing the agreement, Mr.
Marshall acknowledged that he “entered into this Settle-
ment Agreement freely, knowingly, voluntarily, and
without coercion, threat, or duress.”
Based on the settlement, the administrative judge
dismissed Mr. Marshall’s appeal. Mr. Marshall then
petitioned the Board for review, arguing that the settle-
ment agreement “was the result of fraud or mistake and
therefore unlawful” because he signed the agreement
MARSHALL v. USPS 4
understanding that the clerk position was six or seven
hours a day but later discovered that the available posi-
tion for him was only two hours a day. The Board denied
the petition, and Mr. Marshall appealed to this court. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
This court will affirm a decision of the Board unless it
is “(1) arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c).
As we explained in Marshall I, we presume that a set-
tlement agreement is valid and “will set aside a settle-
ment agreement only if it can be shown that it is
unlawful, entered into involuntarily, or was the result of
fraud or mutual mistake.” Marshall I, 402 F. App’x at
523 (citing Sargent v. Dep’t of Health & Human Servs.,
229 F.3d 1088, 1091 (Fed. Cir. 2000)). “‘Those who em-
ploy the judicial appellate process to attack a settlement
through which controversy has been sent to rest bear a
properly heavy burden’ of proving that the settlement was
invalid.” Id. (quoting Asberry v. U.S. Postal Serv., 692
F.2d 1378, 1380 (Fed. Cir. 1982)).
On appeal, Mr. Marshall asks us to “vacate the set-
tlement,” arguing that it was gained under false pre-
tenses because USPS misrepresented the available clerk
position. According to Mr. Marshall, he signed the
agreement believing that the available position would be
forty hours a week when the position actually was ten
hours a week. Such a belief, however, is contrary to the
express terms of the agreement, which Mr. Marshall
5 MARSHALL v. USPS
acknowledged that he entered into voluntarily. The
agreement unambiguously states that the position would
be “part-time” and that as a part-time employee Mr.
Marshall understood he was not guaranteed a forty-hour
work week. Additionally, by signing the agreement, Mr.
Marshall recognized that it “constitute[d] the entire
agreement and understanding between the parties and
[could] not be modified orally.” If a position guaranteeing
him forty hours of work per week was a prerequisite to
Mr. Marshall dismissing his appeal with prejudice, he
should have confirmed that such a provision was included
within the terms of the settlement. Instead, Mr. Marshall
agreed to a part-time position that could involve less than
forty hours of work per week.
Mr. Marshall’s remaining arguments for setting aside
the settlement agreement similarly lack merit. Mr.
Marshall, therefore, has failed to demonstrate that the
Board’s dismissal of his appeal was arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law. The decision of the Board is affirmed.
AFFIRMED