NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3270
HUGH E. LEE, JR.,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Hugh E. Lee, Jr., of Gulf Breeze, Florida, pro se.
Daniel G. Kim, Trial Attorney, Commercial Litigation Branch, Civil Division, 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 Donald E.
Kinner, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3270
HUGH E. LEE, JR.,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in
AT0752090156-I-1.
____________________________
DECIDED: February 5, 2010
____________________________
Before LOURIE, RADER, and SCHALL Circuit Judges.
PER CURIAM.
Hugh E. Lee appeals from the final decision of the Merit Systems Protection
Board (the “Board”) dismissing his appeal as settled. Lee v. U.S. Postal Serv., 111
M.S.P.R. 551 (2009); Lee v. U.S. Postal Serv., No. AT-0752-09-0156-I-1 (M.S.P.B. Jan.
30, 2009). Because the Board did not err in holding that Lee had already settled his
case before petitioning the Board for review, we affirm.
BACKGROUND
Lee was employed by the U.S. Postal Service with a permanent assignment as
an electronic technician. However, since 2001, he had been on a limited duty
assignment as a mail handler. On October 31, 2008, Lee requested and received leave
due to stress. On November 3, 2008, his doctor provided him with a cleared-for-work
letter, and the Postal Service cleared Lee for work on November 7, 2008. Lee called a
manager at the Postal Service on November 20, 2008 to inquire as to his work status,
and he returned to work on November 25, 2008. Lee appealed to the Board, alleging
that the Postal Service had constructively suspended him from work between November
5 and November 22, 2008, and raising allegations of discrimination.
On January 30, 2009, the administrative judge (“AJ”) dismissed Lee’s appeal for
lack of jurisdiction. According to the AJ, under 5 U.S.C. §§ 7511–7513, the Board had
jurisdiction over a suspension of Lee for more than 14 days only if the agency placed
him on leave contrary to his wishes, and if his absence was involuntary for that whole
period. The AJ found that Lee had not been constructively suspended from work
because he had initiated his absence on October 31, 2008 and he had failed to report
for duty or otherwise contact management after he had submitted his complete
clearance package on November 7, 2008, until November 20, 2008. The AJ also found
that the Postal Service did nothing to bar Lee from returning to work. The AJ further
found that the period of time between when Lee requested to return to work, on
November 20, 2008, and when he was directed to return to work, on November 24,
2008, was less than 14 days. Thus, because Lee was not constructively suspended for
a period of more than 14 days, if at all, the Board lacked jurisdiction. Finally, the AJ
held that Lee’s allegation of discrimination was insufficient to establish Board jurisdiction
in the absence of an otherwise appealable action. The AJ therefore dismissed Lee’s
appeal.
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On March 12, 2009, Lee entered into a settlement agreement with the Postal
Service during the processing of a separate Equal Employment Opportunity (“EEO”)
complaint. The agreement settled all of Lee’s claims relating to discrimination and
retaliation and placed him, subject to certain conditions, back in his job as an electronic
technician with some back pay. The agreement also specifically stated that Lee had
agreed to fully and finally settle all claims of any nature
against . . . the United States Postal Service . . . arising out
of the subject matter of this complaint, whether or not these
claims are all known to the parties and whether or not these
claims have all yet matured. These claims include, but are
not limited to allegations of discrimination and retaliation . . .
. Mr. Lee further agrees to generally release . . . the Postal
Service . . . from all claims of any nature ever arising from
his employment with the Postal Service up to and including
the date of full execution of this agreement.
J.A. 47 (emphases added). The agreement did not mention Lee’s appeal before the
Board or his allegation of constructive suspension.
On March 30, 2009, Lee petitioned the full Board for review of the AJ’s initial
decision on the alleged constructive suspension. In a decision issued on June 26,
2009, the Board denied the petition, concluding that the AJ made no error in law or
regulation that affected the outcome. However, the Board also reopened the case on its
own motion, under 5 C.F.R. § 1201.118, in order to grant the Postal Service’s motion to
dismiss the appeal as settled. The Board found that Lee had waived his appeal rights
to the Board by signing the settlement agreement. The Board reasoned that Lee’s
constructive suspension appeal arose from his employment with the Postal Service
before the settlement agreement was executed, thus falling within the terms of the
settlement agreement. The Board also found that any unilateral mistake as to the
scope of the settlement agreement did not provide a basis for not applying it in this
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case, so the Board declined to consider parol evidence. The Board further found the
waiver of appeal rights enforceable, as Lee had failed to show that the agreement was
not freely made, was unfair, or resulted from agency duress or bad faith. The Board
thus vacated the initial decision and dismissed the appeal as settled.
Lee timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board decision is limited. We can
only set aside the Board’s decision if it was “(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) (2000); see Briggs v. Merit Sys. Prot. Bd.,
331 F.3d 1307, 1311 (Fed. Cir. 2003). “The interpretation of a settlement agreement is
an issue of law. We review the Board’s determinations of law for correctness, without
deference to the Board’s decision.” King v. Dep’t of the Navy, 130 F.3d 1031, 1033
(Fed. Cir. 1997) (citations omitted).
Lee argues that the Postal Service breached the settlement agreement in May
2009, before the Board issued its decision, rendering the agreement unenforceable and
therefore an improper basis for dismissal of his appeal. Lee further argues that the
settlement agreement was unrelated to his case before the Board and thus cannot form
the basis for a dismissal of his appeal. Finally, on the merits of his appeal, Lee asserts
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that he was constructively suspended from November 4, 2008 * until November 25,
2008, as he had already been cleared for work but was not allowed to return to work.
The government responds that, on the merits, there is no final decision from the
Board for us to review, as the Board reopened the case and vacated the AJ’s initial
decision. The government further argues that the Board correctly dismissed the appeal
as settled, as Lee failed to establish that the settlement agreement is invalid or that,
notwithstanding the agreement, he retained his appeal rights. The government asserts
that the Board was correct in reading the agreement to encompass the allegations
arising in his Board appeal, as the plain language in the agreement indicates that the
parties intended for it to serve as a broad waiver of Lee’s appeal rights against the
Postal Service. The government also argues that the agreement did not arise from
fraud or mutual mistake, and even if Lee was mistaken as to the scope of the waiver,
unilateral mistake is insufficient to allow Lee to limit the effect of an otherwise valid
settlement agreement. Finally, the government contends that Lee waived his argument
that the Postal Service breached the agreement, as he raised it for the first time in this
appeal.
We agree with the government that the settlement agreement precluded Lee
from pursuing a petition for review before the Board. As an initial matter, we may not
address the AJ’s initial decision, as we review only final decisions of the Board. See
5 U.S.C. § 7703(b)(1). Thus, we do not address the AJ’s dismissal of Lee’s appeal for
*
In his brief, Lee occasionally refers to October 4 instead of November 4,
2008, but we understand that he is referring to November 4, one of the dates on which
he was arranging to be cleared for work.
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lack of jurisdiction but limit our review to whether the Board correctly concluded that
Lee’s dispute with the Postal Service had been settled.
The Board did not err in holding that the plain language of the settlement
agreement covered Lee’s appeal before the Board. Although the agreement primarily
related to Lee’s discrimination complaint and his placement as an electronic technician,
it also unambiguously covered “all claims of any nature ever arising from his
employment with the Postal Service” through March 12, 2009. That constituted a
“further agree[ment]” beyond the subject matter of Lee’s EEO complaint, indicating that
the parties had contemplated that the agreement would cover situations other than
those enumerated. It is undisputed that Lee’s appeal before the Board arises from his
employment with the Postal Service and involves events occurring in late 2008, before
the agreement’s execution. Although Lee asserts that the agreement was unrelated to
his appeal before the Board, we are required to apply the unambiguous language of the
contract. See Slattery v. Dep’t of Justice, 2010 U.S. App. Lexis 199, *4–5 (Fed. Cir.
Jan. 6, 2010) (“A settlement agreement is a contract, and is reviewed, like all contracts,
to ascertain its meaning including, if required to implement its purposes, determination
of contractual intent and mutual understanding. However, when a contract’s words and
meaning are unambiguous, its terms are not subject to variation.” (citations omitted)).
Furthermore, the Board did not err in finding the agreement enforceable. As the
government points out, Lee has not alleged that the agreement or any portion of it arose
from fraud or mutual mistake. Settlement agreements in which employees voluntarily
waive their appeal rights are generally permissible, as long as the agency has not
breached the agreement or acted in bad faith. See McCall v. U.S. Postal Serv., 839
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F.2d 664, 667 (Fed. Cir. 1988). On appeal, Lee asserts that the Postal Service
breached the agreement, rendering it unenforceable. However, he does not explain
how the Postal Service breached the agreement, nor did he raise the argument before
the Board. If, as the government surmises, Lee’s argument is that the breach occurred
by the Postal Service’s reliance upon the agreement to seek dismissal of the Board
appeal, that reliance cannot be considered a breach. Such circular reasoning cannot
prevail; the Postal Service should be entitled to rely on the plain language of its
agreement with Lee to understand that the claim before the Board had already been
settled.
Because the settlement fully resolved Lee’s Board appeal, “[t]here is therefore no
case or controversy . . . over the merits of which either [the Board] or this court might
exercise jurisdiction.” Asberry v. U.S. Postal Serv., 692 F.2d 1378, 1380 (Fed. Cir.
1982). Accordingly, we affirm the Board’s decision dismissing Lee’s appeal as settled.
COSTS
No costs.
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