UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

ROBERT ROSS, Appellant,

v

. DEPARTMENT OF HOMELA ND SECURITY, Agency

. DOCKET NUMBER DA

- 0752

- 15

- 0521

- I

- 1

DATE: June 24, 2016



### THIS ORDER IS NONPRECEDENTIAL 1

Robert Ross , Crossroads, Texas, pro se

. Melissa Pleasant , Baton Rouge, Louisiana, for the agency

.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which
dismissed as settled his appeal of a 30

- day suspension . For the reasons discussed below, we GRANT the appellant’s petition for review and REMAND the case to
the regional office for further adjudication i n accordance with this Order.

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedenti al orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by t he Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).2

DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The ag ency issued a July 7, 2015 decision to suspend the appellant for
30 days based on a charge of willful misuse of a G overnment vehicle for nonofficial purposes in vi olation of 31 U.S.C. § 1349 (b)
, and the appellant filed an appeal with the Board

. Initial Appeal File (IAF), Tab 1, Tab 8 at 2 1. During the proceedings before the Board, the parties executed a settlement agreement. IAF, Tab 24. Under the terms of the parties’ settlement agreement, the agency agreed to rescind the 30

- day suspension imposed in the July 7, 2015 decision
letter and replace it with a 5

- day suspension. IAF, Tab 8 at 21, Tab 24 at 4

- 5.
T he appellant, in turn, agreed to withdraw his Board appeal and his equal employment o pportunity complaints against the agency and to “resolve all employment disputes, whether filed or not, through the effective d ate of the settlement agreement. ” IAF, Tab 24 at 4

- 5

. ¶3 The administrative judge found that the agreement was lawful on its face,
that the parties freely entered into it, and that they understood the terms. IAF,
Tab 25 , Initial Decision at 1. Having approved the parties’ agreement, the administrative judge dismissed the appeal as settled and entered the agreement
into the rec ord for enforcement purposes

. Id. ¶4 The appellant has filed a petition for review arguing that the settlement agreement should be set aside because of mut ual mistake or deception based on his disagreement with the agency’s interpretati on and application o f Paragraph III.C of the agreement. Petition for Review (PFR) File, Tab 1 at 4

. 2 The agency has responded in opposition. PFR File, Tab 4

. ¶5 We find it unnecessary to consider the appellant’s contention , however,
because , as discussed below, the settleme nt agreement must be set aside because
it is not lawful on its face

.

2 Paragraph III.C of the agreement provid es that the appellant could either take leave without pay or use accrued annual leave from July 20 to August 7, 2015. IAF, Tab 24 at 6.3

¶6 Under 31 U.S.C. § 1349 (b) , the agency is required to impose a penalty of no
less than a 1

- month suspension for the appellant’s offense of willfu lly using a
G overnment vehicle for other than official purpose s. 3 Social Security
Administration v. Givens , 27 M.S.P.R. 360 , 362 n. 2. (1985)

. The settlement agreement does not rescind t he charge of willful misuse of a G overnment vehicle
for non official purposes in violation of 31 U.S.C. § 1349 (b). Because the statute imposes a manda tory minimum penalty for the appellant’s offense, the agency could not lawfully agree to reduce the penalty for the charged offense below a
30

- day suspension. Fields v. Veterans Administration
, 21 M.S.P.R. 176 , 177 (1984) ; see Farrell v. Department of the Interior , 86 M.S.P.R. 384 , ¶ 8 ( 2000) (holding that an agency may not lawfully undertake in a settlement agreement to provide an appellant with benefits that the age ncy lacks authority to provide)

. Thus, the settlement agreemen t was not lawful on its face. ¶7 A settlement agreement must be set aside if it is tainted with inv alidity either by fraud practiced upon a party or by a mutual mistake under which both parties acted. Fields
, 86 M.S.P.R. 384
, ¶ 8. U nder the circumsta nces, we find
that bo th parties acted under a mutual mistake as to the lawfulness of agency’s agreement to suspend the appellant for less than 1 month for the sustained
offense
, that the mistake concerned a material provision of the agreement, and
that t he agreement must be set aside. Id.
, ¶ 12 ; Stipp v. Department of the Army , 61 M.S.P.R. 415 , 4 19

- 20 (1994) (setting aside a settlement agreement due
to mutual mistake as to the lawfulness of a material provision)

.

3 The statute states , in pertinent part, that : An officer or employee who willfully uses or authorizes the use of a passenger motor vehicle or aircraf t owned or leased by the United States Government (except for an officia l purpose authorized by section 1344 of this title ) or otherwise violates section 1344 shall be suspended without pay by the he ad of the agency. The officer or employee shall be suspended for at least one month, and when circumstances warrant, for a longer period or summarily removed from office

. 31 U.S.C. § 1349 (b).4

¶8 Accordingly, we vacate the initial decision dismissing this appeal as settled,
and we remand the case to the Dallas Regional Office for re instatement of
the appeal. 4

ORDER ¶9 For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order

.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board

4 On remand, t he p arties are not precluded from further attempting to settle this appeal.