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 ent ered into the Board’s administrative record. The sole ground on which Brown chall enges 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 D epartment of the Army (“Army”) removed its employee Brown, he appealed that action to t he Board. At the opening of the hearing on October 13, 2004 before the Board’s administrative judge, that official announced that the parties had r eached a settlement, which the government’s attorney read into the record. The settlement agreement contai ned 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 lit igation 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 administrativ e 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. Ho wever, if the parties choose to supplement the record with a writt en settlement agreement, I will keep the record open through October 22, 2004.” At the close of the hearing, t he administrative judge stated: I’m making clear that I don’t need a s upplemental 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 a llowing the parties the opportunity through the 22nd. If they want to s upplement it with a written agreement that’s consistent with those terms, that’s fine.

05-3177 2But 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 administrativ e hearing did Brown contend, or even suggest, that the agreement would not be effect ive unless and until the parties signed it.

In his initial decision dismissing t he appeal because of the settlement agreement, the administrative judge stated: I have reviewed the agreement, and I am satisf ied 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 becaus e it had not been signed by the parties. The Board denied the petition fo r review, thus making the administrative judge’s initial decision the final decision of the Board.
II Brown contends that the settlement agr eement 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 j udge’s initial decision, this cour t 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 3In any event, Brown’s challenge to the settlement agreement fails on its merits. "It is well-established that an oral settl ement agreement is bi nding on the parties, particularly when the terms are me morialized 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 admin istrative judge leave no doubt that the parties intended, and the administrative j udge understood, the oral settlement to be binding. Although the adminis trative judge left the record open for nine days to permit the parties to sign an agreement (if they elect ed 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 c onsistent 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 agai nst the Army that the agreem ent settled, that statement does not trump the strong evidence in t he record that the parties understood and intended that the unsigned settl ement 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 settl ement 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 . . . freel y reached by the parties, and the parties

05-3177 4understand 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 Pr otection Board dismissing Brown’s appeal because of the settlement agreement is
AFFIRMED

. No costs.

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