Mannion v. Department of the Treasury , 429 F. App'x 986 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JANICE L. MANNION,
Petitioner,
v.
DEPARTMENT OF THE TREASURY
Respondent.
__________________________
2011-3089
__________________________
Petition for review of the Merit Systems Protection
Board in case No. PH315H080586-I-1.
___________________________
Decided: July 11, 2011
___________________________
JANICE L. MANNION, Hingham, Massachusetts, pro se.
MATTHEW F. SCARLATO, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, DEBORAH A.
BYNUM, Assistant Director.
__________________________
MANNION v. TREASURY 2
Before NEWMAN, SCHALL and MOORE, Circuit Judges.
PER CURIAM.
Ms. Janice L. Mannion, appearing pro se, appeals the
Merit Systems Protection Board’s (Board) decision deny-
ing her request to reopen and reinstate her appeal.
Resp’t’s App. 6-9. Because the Board did not abuse its
discretion, we affirm the Board’s decision to deny her
request to reopen and reinstate her appeal.
BACKGROUND
The Department of the Treasury (Treasury) hired Ms.
Mannion in 1987 as a Revenue Agent. After serving a
one-year probationary period, Ms. Mannion continued
working for Treasury until she resigned in August 2004.
Nearly three years after her resignation, Treasury rehired
Ms. Mannion as a Revenue Agent on August 6, 2007. As
a condition of her rehire, Treasury required Ms. Mannion
to complete another one-year probationary period.
During her probationary period, Ms. Mannion’s man-
ager John Greenwood allegedly observed repeated defi-
ciencies in Ms. Mannion’s performance. Based upon these
observations, Mr. Greenwood gave Ms. Mannion failing or
unacceptable ratings in several aspects of her Critical Job
Elements. Because Ms. Mannion allegedly failed to
satisfy her Critical Job Elements, the agency terminated
Ms. Mannion effective August 2, 2008, before she com-
pleted her one-year probationary period.
On August 7, 2008, The National Treasury Employees
Union (NTEU) filed a grievance challenging Ms. Man-
nion’s termination. On August 29, 2008, Ms. Mannion
filed an appeal to the Board challenging her removal
arguing that when Treasury rehired her, she was a ten-
ured employee and did not have to complete a new proba-
tionary period. Ms. Mannion also claimed that her
3 MANNION v. TREASURY
termination was the result of discrimination based upon
her marital status, age, sex, and as an act of reprisal.
The parties entered into settlement negotiations with
the assistance of the administrative law judge. As a
result of these negotiations, Ms. Mannion agreed to settle
her appeal. The settlement agreement indicates that Ms.
Mannion agreed to settle after consulting with her attor-
ney and the administrative judge regarding “the state of
the law regarding probationary employees and the limited
grounds available to challenge a removal . . . .” Id. at 68.
Probationary employees have a limited regulatory right of
appeal, but have no statutory right of appeal because they
are excluded from the definition of “employee” under 5
U.S.C. § 7511(a)(1)(A).
On January 29, 2009, she voluntarily withdrew her
appeal pursuant to the terms of the settlement agreement
and the administrative judge dismissed Ms. Mannion’s
appeal in an initial decision dated February 12, 2009.
Pursuant to the settlement agreement, Treasury agreed
to, inter alia, pay Ms. Mannion $25,000 in attorneys’ fees
and issue a new Standard Form 50 (SF-50) reflecting a
voluntary resignation “for personal reasons.” 1 Id. at 69.
Ms. Mannion agreed to:
[V]oluntarily waive[ ] any and all right to file,
pursue or litigate in any forum, including, but not
limited to the . . . MSPB . . . any and all claims of
any kind, legal, equitable, or otherwise, which re-
late to or arise from her employment with the
Agency occurring prior to the date of full execu-
tion of this Agreement. This waiver includes but
is not limited to any claims raised or which could
1 This portion of the settlement agreement contains
a clear typographical error and should refer to Standard
Form 52, not SF-50.
MANNION v. TREASURY 4
have been raised relating to her removal from
employment, and any claims of discrimination,
hostile work environment, retaliation, or the like,
pending or which could have been raised relating
to her removal from employment . . . .
Id. at 68-69.
On March 8, 2010, Ms. Mannion filed a petition for
review with the Board. In the petition, Ms. Mannion
argued that the Board should reconsider her appeal in
light of its later decision in Abdullah v. Department of the
Treasury, 113 M.S.P.R. 99 (2009). Because Ms. Mannion
previously withdrew her appeal, the Board treated Ms.
Mannion’s petition as a request to reopen and reinstate
the withdrawn appeal. Id. at 7. Applying the “unusual
circumstances” standard, the Board rejected Ms. Man-
nion’s request because the settlement agreement pre-
cluded reopening and reinstating the appeal. Id.
DISCUSSION
Our review of a Board decision is limited by statute.
Pursuant to 5 U.S.C. § 7703, we must sustain the Board’s
decision unless it 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. We review the Board’s decision to
not reopen or reinstate an appeal for an abuse of discre-
tion. See, e.g., Zamot v. Merit Sys. Prot. Bd., 332 F.3d
1374, 1378 (Fed. Cir. 2003).
The Board has long held that the “withdrawal of an
appeal is an act of finality that removes the appeal from
the Board’s jurisdiction, and . . . the Board will not rein-
state an appeal once it has been withdrawn in the absence
of unusual circumstances such as misinformation or new
5 MANNION v. TREASURY
and material evidence.” See, e.g., Brown v. Dep’t of the
Navy, 71 M.S.P.R. 451, 453-54 (1996) (citing Natividad v.
Dep’t of Health & Human Servs., 63 M.S.P.R. 114, 117
(1994); Scarboro v. Dep’t of the Navy, 55 M.S.P.R. 494, 498
(1992)). Ms. Mannion, however, did not withdraw her
appeal in a vacuum. Instead, as a condition to settlement,
Ms. Mannion “withdrew and terminated with prejudice
her appeal before the MSPB . . . [and] voluntarily
waive[d] any and all rights to file, pursue or litigate in
any forum, including . . . the MSPB . . . any and all” of her
claims against Treasury. Resp’t’s App. 68. As the Board
correctly determined, because Ms. Mannion waived her
claims by executing the settlement agreement, it would be
improper to allow Ms. Mannion to reinstate or reopen her
appeal. Id. at 8.
Ms. Mannion contends that we should set aside the
settlement agreement, because she decided to settle after
receiving erroneous advice from the administrative judge.
Specifically, Ms. Mannion contends that her decision to
settle was based on the administrative judge’s “false
assumption” that she was a probationary employee and,
thus, not entitled to full appeal rights. Ms. Mannion
contends that the Board’s later holding in Abdullah
indicates that that administrative judge was incorrect
and she was a non-probationary employee with adverse
action appeal rights. Ms. Mannion also cites to other
evidence, including the 2010 Federal Personnel Hand-
book, numerous government websites, and an email from
an attorney she hired to review her case, that she con-
tends support her argument that she was not a proba-
tionary employee at the time of her termination.
We see no reason to set aside the settlement agree-
ment in light of the Board’s decision in Abdullah or any of
the other evidence cited by Ms. Mannion. “It is well-
established that in order to set aside a settlement, an
MANNION v. TREASURY 6
appellant must show that the agreement is unlawful, was
involuntary, or was the result of fraud or mutual mis-
take.” Sargent v. Dep’t of Health & Human Servs., 229
F.3d 1088, 1091 (Fed. Cir. 2000). As a letter from Ms.
Mannion’s legal counsel to the Board illustrates, prior to
settlement, the parties disputed whether Ms. Mannion
was a probationary employee. The letter states that
“[a]lthough [Treasury] contends that Ms. Mannion is a
probationary employee, please note that she disputes this
allegation and maintains that she was a tenured em-
ployee who completed any probation to which she may
have been subject.” Resp’t’s App. 46. Even if the admin-
istrative judge during settlement informed Ms. Mannion
that she was unlikely to prevail on her arguments that
she was a tenured employee, Ms. Mannion was fully
represented by counsel during this process. Although her
attorney previously contended that she was not a proba-
tionary employee at the time of her termination, Ms.
Mannion decided to forgo her claims against Treasury in
exchange for, inter alia, $25,000 in attorney’s fees and the
issuance of a SF-50 stating her removal was a voluntary
resignation “for personal reasons.” Id. at 69-71.
Public policy favors settlement and a party cannot set
aside a settlement agreement simply because changing
precedent or new evidence makes its chances of achieving
success on the merits more likely. To hold otherwise
would mean no settlement agreement would truly be
final, and the government would have no incentive to
enter into settlements that reach fair compromises and
avoid costly litigation.
There is also no evidence that Treasury breached the
settlement agreement. Ms. Mannion insinuates that
Treasury breached the settlement agreement by failing to
provide a SF-50 that reflects her career tenure. Pet’r’s Br.
6. The settlement agreement only requires that the form
7 MANNION v. TREASURY
indicate Ms. Mannion’s “reason for resignation” as “re-
signed for personal reasons.” Resp’t’s App. 69. The
settlement agreement, however, says nothing about
career tenure and nowhere requires the government to
indicate that Ms. Mannion had career tenure.
The Board did not abuse its discretion when it deter-
mined that Ms. Mannion may not reopen and reinstate
her appeal after withdrawing it with prejudice and waiv-
ing any right to further pursue the appeal or any other
action before the Board. We have considered Ms. Man-
nion’s other arguments and find them unpersuasive in
light of the settlement agreement.
CONCLUSION
For the reasons discussed above, we affirm the
Board’s denial of Ms. Mannion’s request to reopen and
reinstate her appeal.
AFFIRMED
COSTS
Each party shall bear its own costs.