UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SEVGI COOK,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DE-0752-16-0285-I-1

DATE: September 16, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Sevgi Cook, Colorado Springs, Colorado, pro se.

Laura A. Smith, Esquire, Fort Carson, Colorado, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Vice Chairman Harris recused herself and

did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her appeal as settled. Generally, we grant petitions such as this one 

only in the following circumstances: the initial decision contains erroneous 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

findings of material fact; the initial decision is based on an erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the administrative judge’s rulings during either the course of 

the appeal or the initial decision were not consistent with required procedures or 

involved an abuse of discretion, and the resulting error affected the outcome of 

the case; or new and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, we conclude that the petitioner 

has not established any basis under section 1201.115 for granting the petition for 

review. Therefore, we DENY the petition for review and AFFIRM the initial 

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

However, we FORWARD the appellant’s claims of agency noncompliance with 

the terms of the parties’ agreements to the Board’s Denver Field Office for 

docketing as a petition for enforcement. 

BACKGROUND

¶2 The appellant appealed the agency’s action removing her from her position 

as a Dental Hygienist, GS-0682-06, effective April 22, 2016. Initial Appeal File 

(IAF), Tab 1, Tab 4 at 21, 26-30. During the pendency of the appeal, the parties 

entered into a settlement agreement, which was fully executed on August 4, 2016. 

IAF, Tab 14. On August 5, 2016, the administrative judge issued an initial 

decision incorporating the settlement agreement into the record and dismissing

the appeal. IAF, Tab 17, Initial Decision (ID). In dismissing the appeal, the 

administrative judge found: (1) the Board had jurisdiction over the appeal;

(2) the settlement agreement appeared lawful and freely reached, and the parties 

fully understood the terms of the agreement; and (3) the parties moved that the 

agreement be included in the record for enforcement purposes; thus, the 
3

agreement was incorporated into the record, and the Board retained jurisdiction to 

enforce the agreement. ID at 1-2. 

¶3 On September 1, 2016, the parties executed a document entitled Correction 

to Settlement Agreement that provided for the correction of paragraph 7c of the 

August 4, 2016 settlement agreement, which pertained to a lump sum payment to 

be made to the appellant. Petition for Review (PFR) File, Tab 2 at 13-14. The 

parties did not submit this document for incorporation into the record. 

¶4 On September 7, 2016, the appellant timely filed a petition for review. PFR

File, Tab 1. She alleges that the agency misled her into believing that she would 

receive the payment and new Standard Form 50 (SF-50) set forth in the August 4, 

2016 Settlement Agreement (Agreement) by September 2, 2016, if she signed the 

September 1, 2016 Correction to Settlement Agreement (Correction). Id. at 4-5. 

She further alleges that the agency has not yet made payment or issued the new 

SF-50 and thus has not adhered to the agreements. Id. The agency has filed a 

response opposing the petition for review, to which the appellant has filed a 

reply. PFR File, Tabs 2, 8.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 A settlement agreement is a contract between the parties and its terms are to 

be interpreted as a question of contract law. Wofford v. Department of Justice, 

115 M.S.P.R. 468, ¶ 6 (2010). An appellant may challenge the validity of a 

settlement agreement if she believes it was unlawful, involuntary, or the result of 

fraud or mutual mistake. Id. Even if the alleged invalidity was not apparent at 

the time of settlement, the agreement must be set aside if it is subsequently shown 

by new evidence that the agreement was tainted with invalidity by fraud or 

misrepresentation. Id. The party challenging the validity of a settlement 

agreement bears a heavy burden of showing a basis for invalidation. Id.

¶6 If, however, a party is not challenging the validity of the settlement 

agreement, but believes that the other party has failed to comply with a term of 
4

the agreement, she may file a petition for enforcement with the regional or field 

office that issued the initial decision. McKinney v. Department of Agriculture, 

70 M.S.P.R. 165, 166-67 (1996). While the appellant alleges noncompliance with 

the agreement in question, she also seeks to have the agreement set aside on the 

basis of fraud. PFR File, Tab 1 at 4-5. Thus, the appellant has stated a ground

for the Board to review her submission as a petition for review. McKinney,

70 M.S.P.R. at 167.

¶7 The Correction was not entered into the record below, nor has either party 

requested that the Correction be entered into the record. Nevertheless, a party 

may challenge the validity of a settlement agreement, regardless of whether it has

been entered into the record for enforcement, if the party believes that the 

agreement is unlawful, involuntary, or the result of fraud or mutual mistake. 

Wade v. Department of Veterans Affairs, 61 M.S.P.R. 580, 583 (1994). 

¶8 Here, the appellant alleges fraud on the part of the agency in obtaining her 

consent to the Correction, which modified the original Agreement. PFR File, 

Tab 1 at 4-5. “Fraud in the inducement” is defined as “occurring when a 

misrepresentation leads another to enter into a transaction with a false impression 

of the risks, duties, or obligations involved; an intentional misrepresentation of a 

material risk or duty reasonably relied on, thereby injuring the other party without 

vitiating the contract itself.” Wofford, 115 M.S.P.R. 468, ¶ 7 (quoting Black’s 

Law Dictionary 671 (7th ed. 1999)). To establish that a settlement agreement 

resulted from fraud in the inducement, the appellant must show that the agency 

knowingly concealed a material fact or intentionally misled her. Id.

¶9 Having considered the appellant’s allegations on review, we find that the 

arguments she raised present no basis for setting aside the Agreement or the 

Correction. The appellant has not presented any evidence to suggest that the 

agency knowingly concealed facts or intentionally misled her about the nature of 

the Correction or the completion of the agency’s obligations under the Agreement 

and subsequent Correction. 
5

¶10 The appellant appears to allege that the agency’s timing in contacting her to

request that she sign the Correction shortly before the 30-day period following 

the execution of the Agreement ended is circumspect, but she offers no evidence 

to show that the agency’s contact was intentional or concealed facts about the 

Correction or Agreement. PFR File, Tab 1 at 5. It is undisputed that the agency 

contacted the appellant to sign the Correction to correct an error in paragraph 7c 

of the Agreement regarding the recipient of the payment set forth in the 

paragraph. PFR File, Tab 1 at 5, Tab 2 at 4-5. The record reflects that, although 

a representative for the appellant is listed in this matter, the appellant was not 

represented by an attorney during the pendency of the appeal. IAF, Tab 7. The 

Correction modified paragraph 7c of the Agreement to pay a lump sum to the 

appellant, rather than to an attorney. PFR File, Tab 2 at 13-14. The appellant has 

not provided any evidence to show that the agency contacted her to sign the 

Correction for any reason other than to rectify the error in the Agreement as set 

forth in the Correction. PFR File, Tabs 1, 8. 

¶11 The appellant also asserts that the agency led her to believe that the 

Correction changed the recipient of the payment but not the date of payment 

(purportedly September 2, 2016) set forth in paragraph 7c of the Agreement, but 

it did not intend to provide payment by the agreed-upon date. PFR File, Tab 1 

at 4-5. The appellant has not provided any evidence to establish that the agency 

made such a representation. PFR File, Tabs 1, 8. Moreover, the terms of the 

Correction are unambiguous in modifying the time frame in the Agreement with 

respect to payment in paragraph 7c. PFR File, Tab 2 at 14. In construing a 

settlement agreement, the Board will first consider the terms of the agreement 

itself, which are of paramount importance in determining the intent of the parties 

at the time they contracted. Harris v. Department of Veterans Affairs, 

99 M.S.P.R. 609, ¶ 4 (2005). The Board will only examine extrinsic evidence if 

the terms of the agreement are ambiguous, meaning they are susceptible to more 

than one reasonable interpretation. Id. The Correction sets forth that the 
6

agency’s obligations under paragraph 7c of the Agreement are corrected to: 

“[w]ithin 30 calendar days of this Correction to the Settlement Agreement, 

initiate paperwork to pay the Appellant a lump sum of $15,000[.]” PFR File, 

Tab 2 at 13-14. The Correction further provides that all other terms of the 

Agreement remain in effect. Id. at 13. Accordingly, the Correction is 

unambiguous in providing for 30 days following the date of the Correction to 

initiate paperwork to make the payment, and we cannot find that the appellant 

was misled when she executed the Correction providing for such a time frame for 

payment. 

¶12 The appellant’s argument is also based on the premise that the agency was 

to complete payment and issuance of a new SF-50 within 30 days of the date of 

the Agreement; however, the language of the Agreement does not support this 

interpretation. IAF, Tab 14; PFR File, Tab 1 at 5. The Agreement plainly states 

that the agency was obligated to take the following actions as to payment and 

issuance of a new SF-50: (1) “[w]ithin 30 calendar days of this agreement, 

initiate paperwork to cancel the Appellant’s Removal SF-50 . . . and issue a new 

SF-50”; (2) “[w]ithin 30 calendar days of this agreement, initiate paperwork to 

pay the Appellant all wage payments from date of cancelled removal to date of 

voluntary resignation”; and (3) “[w]ithin 30 calendar days of this agreement, 

initiate paperwork to pay the appellant a lump sum of $15,000[.]” IAF, Tab 14, 

at 2-3. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in 

Brown v. General Services Administration, No. 2021-1996, 2022 WL 2354499,

at *2 (Fed. Cir. June 30, 2022), recently agreed with the Board’s interpretation of

the word “initiate,” finding that a provision in a settlement agreement requiring 

the agency to “initiate payment” required the agency to take steps to initiate 

payment, not complete it. Relying on the Merriam Webster Collegiate Dictionary 

definition of the term “initiate,” the Federal Circuit explained that “[t]he normal 

meaning of initiate is to begin, not to complete.” Brown, 2022 WL 2354499,

at *2. Thus, because the agency had taken steps to initiate the payment, the 
7

Federal Circuit agreed with the Board that the agency had not materially breached 

the settlement agreement by failing to complete the payment within the 

proscribed timeframe.

2

 Id. at *2-3.

¶13 Similarly, here we find that the unambiguous terms of the Agreement do not 

mandate completing payment or issuing the SF-50 by the date specified by the 

appellant. 3

 Id.; PFR File, Tabs 1, 8. Accordingly, the appellant cannot show that 

the agency induced her to sign the Correction based on a misrepresentation that 

the agency would still complete its obligations under the Agreement when she 

was not entitled to completion by September 2, 2016, under the original 

Agreement. Brown, 2022 WL 2354499, at *2-3; PFR File, Tabs 1, 8. 

¶14 Finally, the appellant asserts that the delay in the agency’s compliance with 

the agreements shows that the agency induced her to sign the Correction when it 

did not intend to adhere to the time frames for compliance. PFR File, Tab 1 at 5. 

As set forth above, the appellant’s understanding of the time frame for the 

agency’s compliance with the Agreement and Correction is faulty. Assuming, 

however, that the agency did not comply with the time frames in the Agreement 

and Correction, and thus may have breached the agreements, the mere fact of 

noncompliance is insufficient on its own to establish that the agency did not 

intend to comply with the time frames and that it knowingly concealed a material 

fact or intentionally misled the appellant. Wofford, 115 M.S.P.R. 468, ¶ 8. 

Therefore, the appellant has not presented sufficient evidence or argument to 

support her assertion that the agency fraudulently induced her to sign the 

Correction. 

 2 The Board may follow a nonprecedential decision of the Federal Circuit when it finds 

its reasoning persuasive. Morris v. Department of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 

(2016).

3 To the extent the appellant misunderstood the terms of completion of the agency’s 

obligations under the Agreement, the mistake appears to be one-sided. Unilateral

mistakes are not a basis for finding a settlement agreement invalid. Pawlowski v. 

Department of Veterans Affairs, 96 M.S.P.R. 353, ¶ 15 (2004).
8

¶15 In her reply to the agency’s response, the appellant also raises new 

allegations that she did not fully understand the language of the Agreement and 

that she was under a doctor’s care and under physical and emotional stress when 

she executed the Agreement. PFR File, Tab 8 at 5-6. However, our regulations 

provide that a party may not raise new allegations of error in a reply; thus, we do 

not consider any new allegations first raised in the appellant’s reply. 5 C.F.R. 

§ 1201.114(a)(4); see Boston v. Department of the Army, 122 M.S.P.R. 577, 580 

n.3 (2015) (declining to consider new arguments first raised in a reply brief). 

¶16 Accordingly, we find no basis on which to invalidate the Correction or 

Agreement, and we deny the petition for review and affirm the initial decision. 

We forward the appellant’s allegations of noncompliance with the parties’ 

agreements to the field office for docketing as a petition for enforcement. 

McKinney, 70 M.S.P.R. at 167. 

NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

 4 Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
9

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 
10

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 
11

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction. 5 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

 5 The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
12

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board