Charles L. Feiss, Petitioner, v. Veterans Administration, Respondent, 847 F.2d 841 (Fed. Cir. 1988)

DECISION

Charles L. Feiss seeks review of the final decision of the Merit Systems Protection Board, Docket No. CH315H8710442, dismissing his appeal of the Veterans Administration's removal decision for lack of jurisdiction. We affirm.

OPINION

Two days before Feiss was to be removed in December 1986, Feiss and the agency entered a settlement agreement. That agreement reappointed Feiss to his position but required him "to complete a probationary period of one year commencing on December 7, 1986." The agency terminated Feiss's employment in May 1987. Feiss appeals from the second removal decision.

The only issue is whether a valid settlement agreement exists. If it does, the agency then removed Feiss during a probationary period from which action Feiss has no appeal rights, except on grounds not asserted here. See, e.g., Stokes v. Federal Aviation Admin., 761 F.2d 682, 684-85 (Fed. Cir. 1985). As the party attacking a settlement agreement, Feiss bears a heavy burden of proving that the agreement is invalid either by fraud or mutual mistake. Callen v. Pennsylvania R.R. Co., 332 U.S. 625, 630 (1948); Asberry v. United States Postal Serv., 692 F.2d 1378, 1380 (Fed. Cir. 1982). Feiss has not met that burden. Thus, the board properly dismissed.

Feiss's arguments that "the agency and MSPB have steadfastly opposed [his] efforts to present evidence [on other issues]" and that the second termination notice improperly referred to Feiss's work during his first employment period are irrelevant.

We have considered each of Feiss's arguments. Under our statutorily prescribed scope of review, 5 U.S.C. § 7703(c) (1982), the board's final decision is affirmed.