James W. Fuller, Petitioner, v. United States Postal Service, Respondent, 945 F.2d 417 (Fed. Cir. 1991)

Petitioner James W. Fuller appeals the final decision of the Merit Systems Protection Board (MSPB or Board) in Docket No. ATO75288CO209-1, which denied Fuller's petition to enforce a settlement agreement entered into with the Postal Service. Because of petitioner's contentions, the Board treated his action as a petition to set aside the settlement agreement and denied it on the ground that he had failed to prove that the Postal Service had breached the agreement. We affirm the Board's decision.

DISCUSSION

During petitioner's appeal from the Postal Service's order removing him from his position as a distribution clerk, the parties entered into a settlement agreement which resulted in the dismissal of his appeal to the MSPB. The agreement provided that the petitioner would resign from his position, and that the agency would cancel the removal action and remove all records from the petitioner's file "concerning the removal action." Thereafter, Mr. Fuller filed a petition to enforce the settlement agreement. He contended that the agency had breached the settlement agreement by divulging to a prospective employer that a removal action was pending against him or that he had been removed. The "prospective employer" referred to by Mr. Fuller was a Postal Service officer in another office in California. The officer, who had never seen Mr. Fuller's personnel file, informed Mr. Fuller that someone in the San Diego office had reported in a telephone conversation that "a termination or some action" was pending against Mr. Fuller.

After several preliminary proceedings, the Board in its final decision of March 7, 1991, reopened the whole case on its own motion and affirmed the decision of the administrative judge that Mr. Fuller had failed to discharge his burden by proving that the Postal Service had breached the settlement agreement. The Board held, and we agree, that the agreement did not guarantee that there would not be a disclosure of petitioner's removal "in any form." The Board also found that the Postal Service had taken all necessary precautions to ensure that all references to the removal action were removed from Mr. Fuller's file and that he had failed to prove otherwise. The Board's decision is supported by substantial evidence.

As the court has frequently emphasized, our jurisdiction to review and set aside the Board's decision is limited by the governing statute, 5 U.S.C. § 7703(c). After a review of the administrative record, we hold that Mr. Fuller has failed to establish that the Board's decision was not supported by substantial evidence; that it was arbitrary or capricious, an abuse of discretion, or that it was not otherwise in accordance with the law. See Haynes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).