NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not 

citable as precedent. It is a public record. The disposition 

will appear in tables published periodically. 

United States Court of Appeals for the Federal Circuit 

 

05-3177 

FLETCHER C. BROWN, JR., 

 Petitioner 

v. 

DEPARTMENT OF THE ARMY, 

 Respondent. 

___________________________ 

DECIDED: December 9, 2005 

___________________________ 

Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and DYK, Circuit 

Judge. 

PER CURIAM. 

 The petitioner, Fletcher C. Brown, a former federal employee, challenges the 

decision of the Merit Systems Protection Board (“Board”) that dismissed his appeal 

based upon a settlement agreement that was entered into the Board’s administrative 

record. The sole ground on which Brown challenges that decision is that the settlement 

agreement was ineffective because it was not signed by the parties. We affirm the 

Board’s decision. 
I 

The facts are undisputed. After the Department of the Army (“Army”) removed its 

employee Brown, he appealed that action to the Board. At the opening of the hearing 

on October 13, 2004 before the Board’s administrative judge, that official announced 

that the parties had reached a settlement, which the government’s attorney read into the 

record. The settlement agreement contained sixteen paragraphs. It included provisions 

in which the Army agreed to change the action it had taken against Brown “from 

removal to resignation for personal reasons”, and Brown to “withdraw with prejudice” his 

appeal to the Board and other litigation he had instituted. 

After government counsel stated that he had “agree[d] to” the terms of the 

agreement read into the record, Brown (who is represented by counsel) stated, in 

response to questions by the administrative judge, that he had had an opportunity to 

discuss the terms with his counsel and that he “agree[d] to these terms.” Brown’s 

lawyer stated that he also “agree[d] to the terms of the agreement as read.” 

The administrative judge then stated: 

I will accept this settlement agreement into the record, and I will dismiss 

the appeal based on that settlement. However, if the parties choose to 

supplement the record with a written settlement agreement, I will keep the 

record open through October 22, 2004.” 

At the close of the hearing, the administrative judge stated: 

I’m making clear that I don’t need a supplemental written agreement to 

settle the appeal. 

I have accepted that the settlement as you’ve just agreed to as the 

settlement agreement, and I’m just allowing the parties the opportunity 

through the 22nd. If they want to supplement it with a written agreement 

that’s consistent with those terms, that’s fine. 

05-3177 2
But the case is settled based on the written agreement – I mean, based on 

the settlement agreement the parties just entered into the record. Okay? 

At no point during the administrative hearing did Brown contend, or even 

suggest, that the agreement would not be effective unless and until the parties signed it. 

 

In his initial decision dismissing the appeal because of the settlement agreement, 

the administrative judge stated: 

I have reviewed the agreement, and I am satisfied it is lawful on its face, it 

was freely reached by the parties, and the parties understand its terms. 

Accordingly, the agreement is enforceable by the Board and will be 

entered into the record. 

Brown, represented by different counsel, filed with the full Board a petition to 

review the initial decision. He made various contentions, including the claim that the 

settlement agreement was ineffective because it had not been signed by the parties. 

The Board denied the petition for review, thus making the administrative judge’s initial 

decision the final decision of the Board. 

II 

Brown contends that the settlement agreement was ineffective because it was 

not signed by the parties. Because Brown did not raise that issue before the 

administrative judge, it is not properly before us. “Where, as here, the Board denied 

review of the administrative judge’s initial decision, this court will not consider issues not 

raised before the administrative judge.” Elmore v. Dept. of Transportation, 421 F.3d 

1339, 1342 (Fed. Cir. 2005). See Meglio v. Merit Sys. Prot. Bd., 758 F.2d 1576, 1577 

(Fed. Cir. 1984). 

05-3177 3
In any event, Brown’s challenge to the settlement agreement fails on its merits. 

"It is well-established that an oral settlement agreement is binding on the parties, 

particularly when the terms are memorialized into the record.” Tiburzi v. Dept of Justice, 

269 F.3d 1346, 1351 (Fed. Cir. 2001) (quoting Sargent v. Dep’t of Health & Human 

Servs., 229 F.3d 1088, 1090 (Fed. Cir. 2000)). “[W]here the parties intend to enter into 

an oral agreement, it is binding on the parties even if its terms are not embodied in a 

subsequent written instrument.” Id., 269 F.3d at 1352. 

Here the proceedings before the administrative judge leave no doubt that the 

parties intended, and the administrative judge understood, the oral settlement to be 

binding. Although the administrative judge left the record open for nine days to permit 

the parties to sign an agreement (if they elected to do so), he also stated that “the case 

is settled based on the settlement agreement the parties just entered into the record,” 

and that he was merely “allowing the parties that opportunity . . . to supplement it with a 

written agreement that is consistent with those terms.” Although one sentence in the 

settlement agreement refers to “the date of his signature on this agreement” as the cutoff date for Brown’s claims against the Army that the agreement settled, that statement 

does not trump the strong evidence in the record that the parties understood and 

intended that the unsigned settlement agreement disposed of this litigation. Brown 

never contended otherwise before the administrative judge, and he publicly stated (as 

did his attorney) that he agreed with the settlement terms read into the record. Brown 

has not directly challenged or refuted the Board’s determination that the settlement 

agreement was “lawful on its face . . . freely reached by the parties, and the parties 

05-3177 4
understand its terms.” The record does not support Brown’s contention that the 

settlement was involuntary and thus invalid. 

CONCLUSION 

The decision of the Merit Systems Protection Board dismissing Brown’s appeal 

because of the settlement agreement is 

AFFIRMED. 

No costs. 

05-3177 5