Evans v. United States Postal Service , 377 F. App'x 1 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-3003
GARY P. EVANS,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Elliot A. Strokoff, Strokoff & Cowden, P.C., of Harrisburg, Pennsylvania, for petitioner.
P. Davis Oliver, 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 Deborah A.
Bynum, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-3003
GARY P. EVANS,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in PH0752070419-I-1.
______________________
DECIDED: May 5, 2010.
______________________
Before BRYSON, GAJARSA, and MOORE, Circuit Judges.
PER CURIAM.
Gary P. Evans appeals the final order of the Merit Systems Protection Board (the
“Board”) denying his petition for review of an initial decision dismissing his appeal as
settled. 1 See Evans v. U.S. Postal Serv., PH-0752-07-0419-I-1 (M.S.P.B. Aug. 5,
2009). We affirm.
1
Mr. Evans filed a petition for review with the Board two years after the
dismissal of his appeal. Mr. Evans contends that he was unaware of the settlement
agreement because he was incarcerated at the time of the initial decision. But the
decision contains a certificate of service that certifies that the decision was mailed to
Mr. Evans at the prison. However, despite finding that “a question exists regarding the
timeliness of the appellant’s petition for review of the initial decision,” the Board
dismissed on the basis that “there is no new, previously unavailable, evidence and that
the administrative judge made no error in law or regulation that affects the outcome.”
Because the Board did not address the issue of timeliness, we likewise do not rely on
that ground for deciding this case.
The basis of Mr. Evan’s petition for review is his contention that the settlement
agreement is “100 percent fraud” and that his attorneys “were never authorized to
settle” the case.
A settlement agreement is presumed valid absent a showing of fraud or mutual
mistake. Asberry v. U.S. Postal Serv., 692 F.2d 1378, 1380 (Fed. Cir. 1982); see
Sargent v. Dep’t of Health & Human Servs., 229 F.3d 1088, 1091 (Fed. Cir. 2000).
Mere allegations of fraud, unsupported by corroborating evidence, are insufficient to
satisfy the heavy burden that must be met in order to demonstrate that a settlement
agreement is invalid. See Tiburzi v. Dep’t of Justice, 269 F.3d 1346, 1355 (Fed. Cir.
2001).
Aside from uncorroborated assertions, Mr. Evans proffers no persuasive
evidence in support of his allegations of fraud. Mr. Evans was represented by counsel
when he accepted the terms of the settlement agreement, the last page of the
agreement contains his signature, and all prior pages of the agreement contain the
handwritten initials of Mr. Evans’s lawyer. Also, after reviewing the terms of the
settlement agreement, the administrative judge found that it was “voluntarily entered
into, understood by the parties, and lawful on its face.” There is nothing in the record to
indicate otherwise. Furthermore, Mr. Evans offers no evidence to substantiate the
alleged lack of settlement authority of his attorney. See Amin v. Merit Sys. Prot. Bd.,
951 F.2d 1247, 1254-55 (Fed. Cir. 1991) (“[A]n attorney retained for litigation purposes
is presumed to possess express authority to enter into a settlement agreement on
behalf of the client, and the client bears the burden of rebutting this presumption with
affirmative proof that the attorney lacked settlement authority.”).
2010-3003 2
As this court has previously made clear, “[t]hose who employ 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 agreement was involuntarily
obtained. Asberry, 692 F.2d at 1380. Our review is limited to setting aside any action
that 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) (2006);
Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). Because bare
allegations of fraud, absent evidence thereof, do not suffice to demonstrate the invalidity
of a settlement agreement, the Board’s decision was not arbitrary, capricious, an abuse
of discretion or, otherwise, not in accordance with law.
No Costs.
2010-3003 3