Sherman v. Merit Systems Protection Board , 530 F. App'x 940 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEELA H. SHERMAN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3015
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0752120193-I-1.
______________________
Decided: September, 12, 2013
______________________
SANDRA RANDLE FORDJOUR, Randle Fordjour & Asso-
ciates, of Arlington, Texas, for petitioner.
KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were BRYAN G.
POLISUK, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
______________________
2 SHERMAN v. MSPB
Before RADER, Chief Judge, NEWMAN, and DYK, Cir-
cuit Judges.
PER CURIAM
The Merit Systems Protection Board (Board) dis-
missed Leela Sherman’s appeal for lack of jurisdiction
because her resignation from the Internal Revenue Ser-
vice (IRS) was not involuntary. Because the Board’s
decision is in accordance with law and supported by
substantial evidence, this court affirms.
I.
Ms. Sherman was employed with the IRS as a Senior
Internal Revenue Agent. In May 2009, she settled a
discrimination lawsuit against the IRS in district court.
Under the terms of the settlement agreement, the IRS
agreed to retroactively promote Ms. Sherman to a general
schedule (GS) 14, Step 1 as of November 2006; to retroac-
tively promote her to Step 2 as of November 2007; and to
retroactively promote her to Step 3 as of November 2008.
The IRS also agreed to pay Ms. Sherman back pay. The
settlement agreement further stated that:
Defendants and Plaintiff agree that Plaintiff will
retire or resign from the IRS on or about Decem-
ber 26, 2009, but not later than the start of the
first pay period of calendar year 2010, as a Reve-
nue Agent, GS 14-3. Plaintiff agrees that this re-
tirement date is irrevocable and supported by
valuable consideration. If Plaintiff, for any rea-
son, fails to retire from the IRS by December 26,
2009 or the start of the first pay period of calendar
year 2010, signature on this document shall serve
as her resignation from employment with the IRS.
Appellee’s App. at 63.
Ms. Sherman did not retire or resign under the terms
of the settlement agreement. On November 21, 2011, the
SHERMAN v. MSPB 3
IRS generated a Notification of Personnel Action for her
resignation, effective January 3, 2010 (the start of the
first pay period of the 2010 calendar year). Ms. Sherman
appealed her removal to the Board, alleging inter alia
involuntary removal and discrimination. The IRS re-
sponded that the 2009 settlement agreement effected Ms.
Sherman’s removal.
On February 13, 2012, the Administrative Judge (AJ)
dismissed the appeal for lack of jurisdiction because Ms.
Sherman did not make a non-frivolous allegation that her
resignation was involuntary. The AJ held that the lan-
guage of the settlement agreement was unambiguous and
that Ms. Sherman had voluntarily agreed to resign or
retire by January 3, 2010. The AJ rejected Ms. Sherman’s
argument that the IRS abandoned the stipulation or
rendered it invalid by failing to promptly process her
resignation. Furthermore, because the AJ determined
that the Board lacked jurisdiction over Ms. Sherman’s
appeal, he did not reach Ms. Sherman’s allegations of
discrimination. The full Board affirmed the AJ’s decision,
and Ms. Sherman appeals to this court.
II.
This court “must affirm the Board’s decision unless it
is arbitrary, capricious, an abuse of discretion or other-
wise not in accordance with law, obtained without proce-
dures required by rule, law, or regulation, or unsupported
by substantial evidence.” Addison v. Dep’t of Health &
Human Servs., 945 F.2d 1184, 1186 (Fed. Cir. 1991); see
also 5 U.S.C. § 7703(c) (2012).
Ms. Sherman argues that the settlement agreement
“relied upon by the AJ is labeled as ‘Proposed’ . . . and
does not contain a signature of a Judge or Presiding
Officer.” Appellant’s Br. at 4. Therefore, according to Ms.
Sherman, there is “[n]o evidence . . . that the Stipulation
was fully executed and final.” Id.4 SHERMAN v. MSPB
Because the Board did not receive this argument, this
court considers it waived. Sargent v. Dep’t of Health &
Human Serv., 229 F.3d 1088, 1091 (Fed. Cir. 2000) (“Our
precedent clearly establishes the impropriety of seeking a
reversal of the [B]oard’s decision on the basis of assertions
never presented to the presiding official or to the
[B]oard.”). Moreover, Ms. Sherman actually conceded to
the Board that the settlement agreement was valid and
fully executed. Appellee’s App. at 76 (“The appellant
confirmed that she does not dispute that she signed the
2009 stipulation and that she is not arguing that the
stipulation is invalid . . . .”).
Next, Ms. Sherman argues that “no credible evidence
has been presented that Ms. Sherman’s removal was
based on the purported settlement agreement,” and not
based on some other reason for which the Board might
have jurisdiction. Appellant’s Br. at 5. Although this
argument did not appear before the Board either, it is
unavailing. Soon after Ms. Sherman’s removal, the IRS’s
Chief Counsel notified Ms. Sherman by letter that her
removal was based on “the fully executed settlement
agreement that resolved Ms. Sherman’s separation from
the IRS.” Appellee’s App. at 43. Ms. Sherman has not
offered any persuasive reason calling into question the
credibility and effect of this letter.
Ms. Sherman further argues that her removal was un-
lawful because the “settlement agreement . . . conditions
Ms. Sherman’s resignation on a future occurrence or lack
of a future occurrence of a specific condition, namely, a
failure to retire. [It] does not contain a present, definite
and unequivocal intent by Ms. Sherman to resign her
position in November 2011, retroactively.” Appellant’s Br.
at 6. This argument lacks merit. A settlement agreement
with conditions does not become invalid so long as the
conditions are definite and unequivocal. See Hammond v.
Dep’t of the Navy, 50 M.S.P.R. 174, 181 (1991). This court
agrees with the AJ that “any reasonable person reading
SHERMAN v. MSPB 5
[the settlement agreement] would understand that [Ms.
Sherman] had agreed to resign. . . . [T]he resignation was
conditional—it would take effect only if [Ms. Sherman]
failed to retire by the start of the first pay period of
2010. . . . T]here is no uncertainty as to what [Ms. Sher-
man] meant.” Appellee’s App. at 4–5. Ms. Sherman did
not retire, and this triggered her resignation effective
January 3, 2010.
III.
Ms. Sherman’s remaining arguments have been care-
fully considered and found unpersuasive. For the forego-
ing reasons, the decision of the Board is affirmed.
AFFIRMED