UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROBERT ROSS,

Appellant,

v. 

DEPARTMENT OF HOMELAND 

SECURITY,

Agency. 

DOCKET NUMBER

DA-0752-15-0521-I-1

DATE: June 24, 2016

THIS ORDER IS NONPRECEDENTIAL1

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 in 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 
2

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The agency issued a July 7, 2015 decision to suspend the appellant for 

30 days based on a charge of willful misuse of a Government vehicle for 

nonofficial purposes in violation 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 21. 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. 

The appellant, in turn, agreed to withdraw his Board appeal and his equal 

employment opportunity complaints against the agency and to “resolve all 

employment disputes, whether filed or not, through the effective date 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 record for enforcement purposes. Id. 

¶4 The appellant has filed a petition for review arguing that the settlement 

agreement should be set aside because of mutual mistake or deception based on 

his disagreement with the agency’s interpretation and application of 

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 settlement agreement must be set aside because 

it is not lawful on its face. 

 2 Paragraph III.C of the agreement provides 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 willfully using a 

Government vehicle for other than official purposes. 3

 Social Security 

Administration v. Givens, 27 M.S.P.R. 360, 362 n.2. (1985). The settlement 

agreement does not rescind the charge of willful misuse of a Government vehicle 

for nonofficial purposes in violation of 31 U.S.C. § 1349(b). Because the statute 

imposes a mandatory 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 agency lacks authority to provide). 

Thus, the settlement agreement was not lawful on its face. 

¶7 A settlement agreement must be set aside if it is tainted with invalidity 

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. Under the circumstances, we find 

that both 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 the agreement must be set aside. Id., ¶ 12; Stipp v. Department of the 

Army, 61 M.S.P.R. 415, 419-20 (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 aircraft owned or leased by the United States Government 

(except for an official purpose authorized by section 1344 of this title) or 

otherwise violates section 1344 shall be suspended without pay by the head 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 reinstatement 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, the parties are not precluded from further attempting to settle this appeal.