Rana v. Department of the Army , 453 F. App'x 982 ( 2011 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    __________________________
    GENE S. RANA,
    Petitioner,
    v.
    DEPARTMENT OF THE ARMY,
    Respondent.
    __________________________
    2011-3148
    __________________________
    Petition for review of the Merit Systems Protection
    Board in case no. CH4324100910-I-1.
    __________________________
    Decided: December 16, 2011
    __________________________
    GENE S. RANA, of Gurgaon, Haryana, India, pro se.
    JANE C. DEMPSEY, Trial Attorney, Commercial Litiga-
    tion Branch, Civil Division, United States Department of
    Justice, Washington, DC, for respondent. With her TONY
    WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
    Director, and FRANKLIN E. WHITE, JR., Assistant Director.
    __________________________
    RANA   v. ARMY                                           2
    Before RADER, Chief Judge, LOURIE and REYNA, Circuit
    Judges.
    PER CURIAM.
    Petitioner, Gene S. Rana, challenges his discharge
    from active duty and subsequent removal from a civilian
    position. An administrative judge of the Merit Systems
    Protection Board (“Board”) dismissed Mr. Rana’s claim for
    lack of jurisdiction. The Board affirmed, denying Mr.
    Rana’s petition for review. Mr. Rana now contests that
    denial. We have considered Mr. Rana’s arguments and for
    the reasons set forth below, we affirm.
    I
    In 2000, the Department of the Army (“Army”) hired
    Mr. Rana as a military technician. Mr. Rana’s Standard
    Form 50 Notification of Personnel Action required that as
    a condition of his employment, he had to maintain mem-
    bership in the Army Guard Selected Reserve (“AGR”). In
    March 2004, Mr. Rana was released from active duty and
    transferred to a civilian position.
    In August 2005, the Army removed Mr. Rana from his
    civilian position. The Army attributes this removal to Mr.
    Rana’s failure to maintain membership in the AGR, but
    Mr. Rana claims it was a retaliatory measure resulting
    from his whistleblowing activities.
    Mr. Rana appealed his removal to the Board, and the
    parties ultimately settled the matter in September 2007.
    Mr. Rana was represented by counsel at this time. The
    settlement agreement stated in pertinent part:
    This agreement was entered into freely and volun-
    tarily and both parties to this agreement fully un-
    derstand the stated terms of the agreement.
    Further, this agreement resolves all disputes, all
    3                                             RANA   v. ARMY
    issues, and all disagreements between the Appel-
    lant and the Department of the Army arising out of
    or connected with the facts upon which this com-
    plaint and appeal were based with respect to [Mr.
    Rana’s] civilian employment and shall not affect
    [his] appeals with regard to his military status
    (including actions before, or challenging the deci-
    sions of, the Army Board for Correction of Military
    Records (ABMCR)).
    A55 (emphasis added).
    Pursuant to the settlement agreement, Mr. Rana
    agreed to withdraw his appeal in exchange for the receipt
    of twelve months of back pay. Consequently, on Septem-
    ber 18, 2007, an administrative judge dismissed Mr.
    Rana’s appeal and approved and entered the settlement
    agreement into the record. Mr. Rana did not appeal the
    decision approving the settlement agreement, and the
    decision became final in October 2007.
    On August 17, 2010, Mr. Rana requested an order un-
    der the Whistleblower Protection Act of 1989 (“WPA”),
    staying alleged agency actions said to have occurred
    between November 1990 and March 2005. The adminis-
    trative judge denied the request on August 26, 2010,
    because Mr. Rana’s submissions “failed to produce evi-
    dence and argument that . . . would show a substantial
    likelihood he will prevail on his assertion that the Board
    has jurisdiction.” Rana v. Dep’t of the Army, No. CH-4324-
    10-0910-S-1, slip op. at 3-4 (Merit Sys. Prot. Bd. Aug. 26,
    2010).
    The administrative judge also observed that Mr.
    Rana’s latest appeal failed to identify a federal civilian
    position before or during his period of active service that
    might have been impacted by the alleged retaliation he
    purported to have suffered during his period of active
    RANA   v. ARMY                                            4
    duty. The administrative judge emphasized that under 
    5 U.S.C. § 1221
    , Mr. Rana could request that the Board
    review a civilian personnel action threatened or taken in
    reprisal for whistleblowing in violation of 
    5 U.S.C. § 2302
    (b), but that the statute did not vest the Board with
    jurisdiction to stay agency actions impacting Mr. Rana’s
    active military-duty status. The administrative judge
    also found, inter alia, that Mr. Rana had failed to demon-
    strate that he had exhausted his administrative remedies
    by filing a WPA complaint with the Office of the Special
    Counsel (“OSC”) before filing the appeal and his allega-
    tions did not appear to involve an action directly appeal-
    able to the Board.
    On August 17, 2010, Mr. Rana again appealed his
    “untimely discharges” from the AGR and his civilian
    employment to the Board, alleging that he should have
    been restored to civilian employment. Mr. Rana made
    numerous allegations in his appeal form most of which
    appear to relate to the retaliation he allegedly suffered as
    a result of his whistleblowing activities – retaliation that
    he claims culminated in his removal. He also alleged
    discrimination in violation of the Uniformed Services
    Employment and Reemployment Rights Act (“USERRA”)
    and denial of benefits under the Veterans Employment
    Opportunities Act (“VEOA”).
    In an August 19, 2010 Acknowledgement Order and
    November 29, 2010 Order Closing the Record Regarding
    Jurisdiction, the administrative judge notified Mr. Rana
    of the jurisdictional issues raised by his appeal and of his
    burden to prove jurisdiction by preponderant evidence.
    On December 14, 2010, an administrative judge dismissed
    the appeal for lack of jurisdiction because Mr. Rana’s
    submissions failed to identify a law, rule, or regulation
    granting the Board jurisdiction to amend Mr. Rana’s
    active duty military service records, and the Board lacks
    5                                             RANA   v. ARMY
    authority to review the merits of Mr. Rana’s discharge
    from active duty and membership in the AGR. Further-
    more, Mr. Rana failed to allege facts that would vest the
    Board with jurisdiction over his VEOA and USERRA
    allegations, and the settlement agreement precluded the
    Board from exercising jurisdiction over his remaining
    claims, which arose out of or were connected with the
    facts upon which his prior complaint and appeal regard-
    ing his removal from civilian employment had been based.
    The administrative judge also rejected Mr. Rana’s
    claim that he was coerced into signing the settlement
    agreement due to duress and misrepresentations by the
    Army in part because Mr. Rana was represented by
    counsel when he executed the agreement, the settlement
    agreement stated that the parties “freely and voluntarily”
    entered into it and “fully underst[oo]d” its terms, and Mr.
    Rana made no timely attempt to set aside the decision
    approving the settlement agreement.
    Mr. Rana petitioned the full Board for review, claim-
    ing, inter alia, that he would not have entered the settle-
    ment agreement had he been aware of new information
    recently revealed to him, which he claims the Army
    withheld. He also argued that his appeal related to the
    denial of his reinstatement and reemployment. On May
    19, 2011, the Board denied the petition because it found
    no error in the administrative judge’s decision to dismiss
    the appeal for lack of jurisdiction. The Board also deter-
    mined that the evidence proffered by Mr. Rana was not
    new or previously unavailable and that Mr. Rana had
    failed to establish a misrepresentation by the Army
    sufficient to set aside the settlement agreement.
    This appeal followed. We have jurisdiction under 
    28 U.S.C. § 1295
    (a)(9).
    RANA   v. ARMY                                            6
    II
    Mr. Rana challenges the Board’s denial of his petition
    for review of a decision dismissing his appeal for lack of
    jurisdiction. The Board grants a petition for review when
    significant new, previously unavailable evidence is pre-
    sented or when the administrative judge based his deci-
    sion on an erroneous interpretation of law or regulation. 
    5 C.F.R. § 1201.115
    . We must affirm the Board’s decision to
    deny Mr. Rana’s petition unless it is “(1) arbitrary, capri-
    cious, an abuse of discretion, or otherwise not in accor-
    dance 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).
    We review a determination of the Board’s jurisdiction
    de novo. See Stoyanov v. Dep't of the Navy, 
    474 F.3d 1377
    ,
    1379 (Fed. Cir. 2007). The Board's jurisdiction is limited
    to actions made appealable to it by law, rule, or regula-
    tion. 
    5 U.S.C. § 7701
    (a). As the petitioner, Mr. Rana bears
    the burden of proving by preponderant evidence that the
    Board has jurisdiction. 
    5 C.F.R. § 1201.56
    (a)(2).
    We find that the Board properly denied Mr. Rana’s
    petition for review and affirmed the dismissal of his
    appeal. The administrative judge twice notified Mr. Rana
    of the jurisdictional issues raised by his appeal, but Mr.
    Rana failed to submit information that would vest the
    Board with jurisdiction over his claims that could not
    have been raised in connection with his earlier appeal.
    Mr. Rana’s claims that arise out of or are connected with
    the facts on which the complaint relating to his removal
    were based are precluded by the settlement agreement
    into which he freely and voluntarily entered in 2007.
    Once a settlement agreement resolves a basic contro-
    versy regarding a discharge, “there is no case or contro-
    versy touching the discharge and over the merits of which
    7                                              RANA   v. ARMY
    either the [Board] or this Court might exercise jurisdic-
    tion.” Asberry v. U.S. Postal Serv., 
    692 F.2d 1378
    , 1380
    (Fed. Cir. 1982). “A waiver of appeal rights in a settle-
    ment agreement is enforceable and not against public
    policy if the terms of the waiver are comprehensive, freely
    made, and fair, and execution of the waiver was not the
    result of duress or bad faith on the part of the agency.”
    Lawrence v. Office of Personnel Mgt., 
    108 M.S.P.R. 325
    ,
    328 (2008), aff’d, 318 F. App’x 895 (Fed. Cir. 2008).
    Here, the settlement agreement resolves “all disputes,
    all issues, and all disagreements between [Mr. Rana] and
    the [Army] arising out of or connected with the facts upon
    which this complaint and appeal were based with respect
    to his civilian employment claims.” This broad waiver
    encompasses the instant claims relating to his removal.
    The record shows that Mr. Rana was represented by
    counsel when he entered into it. Furthermore, Mr. Rana
    accepted twelve months of back pay pursuant to the
    settlement agreement and made no timely attempt to set
    aside the decision approving it and entering it into the
    record. There are no facts that indicate he did not freely
    or voluntarily enter into the agreement or not understand
    its terms. As such, the settlement agreement is enforce-
    able and precludes Mr. Rana from pursuing claims relat-
    ing to his removal.
    To the extent Mr. Rana’s appeal can be construed as a
    challenge to the validity of the Board-approved settlement
    agreement, such an attack must be made via a petition for
    review of the initial decision dismissing the appeal as
    settled. See Carlson v. Gen. Servs. Admin. 
    101 M.S.P.R. 70
    , 72 (2006). A petition for review must be filed within 35
    days of the issuance of an initial decision or if the initial
    decision was not received more than five days after the
    date of issuance, within 30 days of the date the petitioner
    received the decision. 
    5 C.F.R. § 1201.114
    (d); Carlson, 101
    RANA   v. ARMY                                        8
    M.S.P.R. at 72. Because Mr. Rana did not timely appeal
    the decision approving the settlement agreement, the
    decision became final in October 2007 and is fully en-
    forceable. As to Mr. Rana’s contention that the Army
    withheld evidence that warrants invalidating the settle-
    ment agreement, Mr. Rana failed to adequately explain
    why he could not have obtained this information prior to
    execution of the settlement agreement and has not estab-
    lished a misrepresentation by the Army sufficient to
    invalidate the settlement agreement.
    We have considered Mr. Rana’s additional arguments
    made on appeal and find that they provide no basis for
    relief. For the foregoing reasons, we affirm.
    AFFIRMED
    COSTS
    No costs.
    

Document Info

Docket Number: 2011-3148

Citation Numbers: 453 F. App'x 982

Judges: Lourie, Per Curiam, Rader, Reyna

Filed Date: 12/16/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023