NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3051 

ARTHUR PERKINS, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

 Respondent. 

Arthur Perkins, of Huntington, New York, pro se. 

Ronald G. Morgan, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent. With him on 

the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E. 

Davidson, Director, and Kirk T. Manhardt, Assistant Director. 

Appealed from: Merit Systems Protection Board 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3051 

ARTHUR PERKINS, 

 Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

 Respondent. 

Petition for review of the Merit Systems Protection Board in NY1221020407-X-1. 

 __________________________ 

DECIDED: April 11, 2008 

 __________________________ 

Before LINN, Circuit Judge, ARCHER, Senior Circuit Judge, and PROST, Circuit Judge. 

PER CURIAM. 

 Arthur Perkins (“Perkins”) seeks review of a final decision of the Merit Systems 

Protection Board (“the Board”), which dismissed his petition for enforcement of a 

settlement agreement after it found the Department of Veterans Affairs (“the agency”) in 

compliance with the agreement. Perkins v. Dep’t of Veterans Affairs, 106 M.S.P.R. 425 

(2007). Because the Board’s decision is supported by substantial evidence, we affirm. 

 In June 2005, Perkins and the agency entered into a settlement agreement to 

resolve Perkins’s individual right of action. Shortly thereafter, Perkins filed a petition for 

review, which was forwarded to a field office for processing as a petition for 

enforcement. Finding partial noncompliance, the Board granted the petition for 

enforcement in part and ordered the agency to comply with the settlement agreement. 
Perkins v. Dep’t of Veterans Affairs, 105 M.S.P.R. 289 (2007). Perkins subsequently 

filed another petition for enforcement, subject of the current petition for review, arguing 

that the agency remained in breach of the settlement agreement in several respects. 

 First, Perkins argued that the agency failed to fully compensate him for overtime 

and holiday pay. The Board found that the agency “ha[d] produced relevant, material 

evidence showing that it ha[d] paid [Perkins] the applicable overtime and holiday pay 

and that [Perkins] ha[d] not met his burden of proving the agency breached the 

agreement.” Perkins, 106 M.S.P.R. at 428. 

 Second, he argued that the agency failed to pay him a cost-of-living allowance 

adjustment as provided in the settlement agreement. The Board, considering 

documentary evidence from the agency to the contrary, including an affidavit from a 

Supervisory Program Analyst, concluded that Perkins had not met his burden to 

demonstrate breach of this provision. Id.

 Third, Perkins contended that the agency failed to comply with a provision of the 

settlement agreement obligating it to submit his position description for “three 

classification reviews by three HR classifiers.” Resp’t App. at 15. Specifically, he 

argued that one of the classification reviews did not qualify because it was conducted by 

the agency’s “Lead Human Resources Specialist,” instead of someone entitled a 

“classifier.” The Board disagreed, concluding that the agency had satisfied the 

provision. See Perkins, 106 M.S.P.R. at 429 n.4 (“[T]he fact that their job titles do not 

include the word ‘classifier’ does not mean that they are unqualified to perform 

classification reviews.”). 

2008-3051 2 
 Fourth, Perkins argued that another classification review did not qualify because 

of numerous errors, including reference to the grade of his position as “WG," rather than 

“WS.” The Board determined that, despite the typographical errors, other information in 

the review—including two other instances in which the classification review correctly 

stated the position title—indicated that “the report [wa]s clearly a classification review of 

[Perkins’s] [position description].” Id. at 429. 

 Perkins also substantively challenged this classification review, namely, the 

classifier’s decision to not award points for “Subfactor C,” which includes the physical 

dispersion, work coordination, and the location of subordinate employees. The Board 

concluded that the agency did not breach the agreement, because “while the settlement 

agreement entitled [Perkins] to three classification reviews by agency classifiers, there 

was no guarantee that he would agree with the analysis set forth in the reviews.” Id. 

 Finally, Perkins argued that the agency failed to submit his position description to 

the Department of the Interior and the Department of Defense for concurrence reviews 

as required by the settlement agreement. Before the Board, the agency submitted 

evidence that it made such requests and the responses it received in response to those 

requests. Accordingly, the Board found the agency in compliance with this portion of 

settlement agreement. Id. at 430. 

Having determined that the agency was in compliance with all provisions of the 

settlement agreement, the Board dismissed Perkins’s petition for enforcement. Id. The 

current petition for review followed. 

 Our scope of review of Board decisions is defined and limited by statute. See 5 

U.S.C. § 7703(c). “The agency’s action in this case must be affirmed unless it is found 

2008-3051 3 
2008-3051 4 

to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law; (2) obtained without procedures required by law, rule or regulation having 

been followed; or (3) unsupported by substantial evidence.” Hayes v. Dep’t of the Navy, 

727 F.2d 1535, 1537 (Fed. Cir. 1984). The petitioner carries the burden to prove 

breach of the settlement agreement, see Tech. Assistance Int’l , Inc. v. United States, 

150 F.3d 1369, 1373 (Fed. Cir. 1993), and in order to prevail, “must show material noncompliance by the agency with the terms of the settlement agreement,” Lutz v. U.S. 

Postal Serv., 485 F.3d 1377, 1381 (Fed. Cir. 2007). 

 On appeal, Perkins essentially presents the same arguments he made before the 

Board and asks us to reweigh the Board’s various factual determinations in his favor. 

“[T]he evaluation of and weight to be given to . . . [the] evidence in the record are 

judgment calls that rest primarily within the discretion of the Board.” Hall v. Dep’t of the 

Treasury, 264 F.3d 1050, 1060 (Fed. Cir. 2001). None of the arguments reiterated by 

Perkins warrants our overturning of the Board’s conclusion that he failed to carry his 

burden to show breach of the settlement agreement. Specifically, Perkins fails to 

establish that the Board’s decision was unsupported by substantial evidence or that the 

Board’s conclusion that Perkins had not shown material non-compliance by the agency 

with the terms of the settlement agreement was arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law. Because the Board’s decision is 

supported by substantial evidence, and we otherwise discern no basis on which to 

overturn the decision, we must affirm. 

COSTS 

No costs.