Administrative Judges can facilitate and accept settlement agreements since settlement agreements promote both public and Congressional policy. Jordan v. OPM, 77 M.S.P.R. 610 (1998). Many courts as well as the Board have stated that as a matter of policy the law favors settlement. Nicart v. Office of Personnel Management, 43 M.S.P.R. 154 (1990).

Settlement agreements are contracts and must be read as a whole and interpreted to give meaning to all of its parts so that none of them are in conflict. Dixon v. Dept. of Army, 80 M.S.P.R. 51 (1998). 

Under basic principles of contract law, the mutual assent necessary for the formation of a contract takes the form of an offer and an acceptance. Nicart v. Office of Personnel Management, 43 M.S.P.R. 154 (1990).
 
 

AUTHORITY OF REPRESENTATIVES

Attorneys are presumed to have the authority to represent the parties and to settle cases. An appellant who asserts that his representative lacked such authority carries a heavy burden which cannot be met by merely conclusory statements. Rodriguez v. DVA, 79 M.S.P.R. 42 (1998).

An appellant may rebut the presumption that his attorney has the authority to settle his case by an unequivocal denial that he ever authorized a settlement without his assent to the terms. See Ernest v. U.S. Postal Service, 72 M.S.P.R. 346 (1996).

Because it was not clear whether the representative who entered into the settlement agreement was designated by the appellant, Board declined to apply the usual presumption of express authority to settle an appeal Board held that a representative does not possess the inherent authority to settle by virtue of his general power to handle the appeal. Wildowsky v. Department of Veterans Affairs, 72 M.S.P.R. 298 (1996).

Where the agency argues that its representative lacked the authority to enter a settlement agreement, a purported agreement with the United States is not binding unless the appellant can show that the official with whom the agreement was made had authority to bind the Government to the agreement. While it is unnecessary to prove the agent's authority in every case, where the agency makes a non-frivolous claim that its agent lacked authority, the appellant bears the burden of proving that the agent had authority to bind the agency. Wesselhoft v. Department of the Interior, 46 M.S.P.R. 594 (1991).
 

ORAL SETTLEMENT AGREEMENTS

Oral settlement agreements are enforceable. Westfall v. United States Postal Agency,

64 M.S.P.R. 90 (1994).

The parties' representations to an administrative judge that an oral settlement has been reached is an act of finality which removes the appeal from the Board's jurisdiction. Dougherty v. Federal Deposit Insurance Corporation, 52 M.S.P.R. 311 (1992); Young v. Department of the Air Force, 32 M.S.P.R. 315 (1987).

Where the appellant's representative expressly accepted the specific terms of the agreement, as orally read into the record by the administrative judge, oral settlement agreement was reached. Hoyos v. Department of Veterans Affairs, 63 M.S.P.R. 532 (1994).

Board found that the oral settlement agreement was the official agreement of record, even though the appellant refused to sign the written agreement. Timberlake v. U.S. Postal Service, 79 M.S.P.R. 520 (1998).

Where the parties’ representatives told the AJ that they expected to substitute a written agreement for the oral agreement, the written agreement, which the appellant signed and which included those terms, superseded the oral agreement. Joseph v. Department of the Navy, 73 M.S.P.R. 371 (1997).

Ordinarily, the fact that an appellant did not sign a settlement agreement will not, standing alone, invalidate the agreement; a written contract need not be signed to make the agreement binding. Rather, it is necessary only to show that the parties agreed to be bound. The parties may agree, however, not to be bound until the agreement is signed. Mastrogiuseppe v. Department of the Interior, 66 M.S.P.R. 251 (1995).

Where the agreement contains the provision that the effective date "shall be the last date upon which all signatures, as set out below, are affixed" and the signatures of the agency’s and the appellant's representatives are affixed, but space labeled for the appellant’s signature was blank, the Board found that by this term the parties intended to make the agreement binding only upon its signing by the parties. See, e.g., Ali v. Department of the Army, 50 M.S.P.R. 563 (1991) (the appellants refusal to sign the written agreement after the oral agreement was reduced to writing did not affect the validity of the oral agreement in the absence of record evidence that the oral agreement was not to be binding until it was reduced to writing and signed by the parties). Mastrogiuseppe v. Department of the Interior, 66 M.S.P.R. 251 (1995).
 

BURDEN OF PROOF

The burden is on the appellant to show that the agency is in noncompliance with the settlement agreement. However, the agency is required to produce relevant, material, and credible evidence of compliance. Bynum v. Department of Veterans Affairs, 77 M.S.P.R. 662 (1998); Vaughan v. U.S. Postal Service, 77 M.S.P.R. 541 (1998).

In the absence of any explanation proffered by employee for the lateness of his attack on the validity of settlement agreement, Board would not consider his claims that the administrative judge failed to look at the facts or otherwise assure that his rights were protected, and that unidentified "misrepresentation" caused him to withdraw his appeal. Timberlake v. U.S. Postal Service, 79 M.S.P.R. 520 (1998).

Burdens applicable to petitions for enforcement of settlement agreements were restated; where the parties use a term of art without defining it, the board will apply its regulatory or statutory definition unless it is shown that they intended otherwise; where a USPS preference eligible is to receive back pay under an agreement, his entitlement is controlled by the Back Pay Act, not the agency’s ELM. Bradley v. USPS, 79 M.S.P.R. 110 (1998).

While the Board does not have the authority to enforce a settlement agreement not entered into the record for enforcement purposes, it has the authority to consider the validity of such an agreement entered into proceedings not before the Board, so as to determine its effect on a personnel action before the Board. See Sullivan v. Department of Veterans Affairs, 79 M.S.P.R. 81 (1998).

To establish that a settlement was fraudulent as a result of coercion or duress, a party must prove that he involuntarily accepted the other party’s terms, that circumstances permitted no alternative, and that such circumstances were the result of the other party’s coercive acts. Mullins v. VA, 79 M.S.P.R. 206 (1998).
 

INTERPRETATION

Board interprets agreements according to contract law; it must first ascertain whether the written understanding is clearly stated and was understood by the parties; parties must fulfill their obligations in good faith; the definition of conduct that is in bad faith was stated. Greene v. USPS, 79 M.S.P.R. 164 (1998).

When a settlement agreement is silent as to the time or duration of performance, a reasonable time under the circumstances will be presumed. Here, the agreement required the agency to clear the appellant's personnel records of any reference to the removal, but it did not specify a deadline by which this had to occur. There is no indication that the parties contemplated waiting a year or more after the agreement was signed to implement its provisions. See Mullins v. Department of the Air Force, 79 M.S.P.R. 206 (1998).

Where one gives the appellant a job at a higher grade level than that to which the agency demoted him, he may not be kept in the lower level, even just "on paper"; rather, the agency is required to assign him to a job with the same level of difficulty, responsibility, and qualification as others at the higher level. Jones v. USPS, 80 M.S.P.R. 337 (1998).

The appellant’s unauthorized entries to the Intensive Care Unit violated DVA policy and materially breached a last-chance settlement agreement. Gibson v. DVA, 160 F.3d 722 (Fed. Cir. 1998).

Interpretation of a settlement is a question of law which the court determines without deference to the Board; if the agreement does not clearly state the parties’ understanding, or if there is an ambiguity during its formation or performance, the court will implement the intent of the parties at the time the deal was struck; the appellant was in material breach by withdrawing his disability retirement application; claims of invalidity may be based on mutual mistake or fraud and require the appellant to meet a heavy burden; and mistake here was unilateral, not mutual, based on the plain meaning of the agreement’s terms; claims of fraud were "legally and evidentiary insufficient’; agency may be in breach of requirement under the law to file for disability retirement for the appellant and of term of settlement requiring assistance to him. Harris v. DVA, 142 F.3d 1463 (Fed. Cir. 1998).

Where terms of settlement are unambiguous, the parties’ intent is determined by them; by failing to produce the specific process for hearing the appellant’s reprisal allegations that was envisioned in the agreement, the agency was in breach; a contract may be modified by mutual assent to all of the modifications; a breach is material if it relates to a matter of vital importance; a party who proves material breach my choose to enforce the agreement or rescind it and reinstate the appeal. Carson v. Department of Energy, 79 M.S.P.R. 502 (1998).

A contract is ambiguous if it is susceptible of differing, reasonable interpretations; the clarity of a term shows that the appellant knew at the time he signed that the agency had not accepted his view, so that his contrary interpretation is unreasonable. Shaw v. Air Force, 79 M.S.P.R. 446 (1998).

Employee did not establish that settlement should be set aside on account of a mutual mistake regarding employee’s entitlement to a retirement annuity, where such entitlement was in a fact in existence when the agreement was executed. Nullifying a settlement agreement may only be done when there is a mutual mistake that goes to a basic assumption about a fact in existence at the time of the agreement. Farrero v. National Aeronautics and Space Admin., 83 M.S.P.R. 487 (1999).

Settlement agreement would be set aside where both parties were mutually mistaken as to lawfulness of material provision that the employee would be placed in a leave without pay status from January 22, 1998, until the date that he was eligible to retire. Garcia v. Department of the Air Force, 83 M.S.P.R. 277 (1999).

Where a settlement obligated the agency to expunge information relevant to the appellant’s demotion, the performance appraisal on which the demotion was based must be expunged; the appraisal may not be kept in a separate performance file for RIF purposes. Fernandez v. Department of Justice, MSPB Docket No. AT-0752-0516-B-1 (January 14, 2000)

It violates the rules of contract interpretation to give effect to one term of a settlement while ignoring another; in interpreting a settlement agreement, words are assigned their ordinary meaning, unless it is shown that the parties intended otherwise. The "any" in an agreement can mean "all" or "every" as well as "some" or "one." Weber v. USDA, MSPB Docket No. CH-0752-99-0092-C-1 (May 4, 2000). 
 

VALIDITY

A party may challenge the validity of a settlement agreement resulting in the withdrawal of an appeal, even when that agreement is not entered into the Board's record for purposes of enforcement, if the party believes that the agreement is unlawful, was involuntary, or was the result of fraud or mutual mistake. See Hoyos v. Department of Veterans Affairs, 63 M.S.P.R. 532 (1994).

Evidence that establishes the invalidity of a settlement agreement may be "new and material"; if the agency knew or should have known that its action could not be sustained, that would establish that a resulting agreement was invalid because of coercion. DeLeGal v. Justice, 79 M.S.P.R. 396 (1998).

Where the ID dismissed an appeal as settled, newly-discovered evidence would establish good cause for late appeal if it shows that the settlement agreement was invalid; where OWCP found the appellant entitled to benefits for AWOL period for which he was removed, but the case had been settled before it acted, and where the appellant does not show that the settlement should be set aside as coercive, or the product of misinformation, Board dismissed the petition for review. Satterfield v. USPS, 80 M.S.P.R. 132 (1998).

Board sets forth rules to establish jurisdiction over retirement entered as a result of settlement; to show that waiver of appeal rights in retirement agreement is unenforceable, the appellant must show that: (1) he complied with the agreement, but the agency did not; (2) he did not voluntarily enter into the agreement; or, (3) the agreement was a result of fraud or mutual mistake. Siman v. Air Force, 80 M.S.P.R. 306 (1998).

A challenge to the merits of a settled removal action, without any assertion of facts to show fraud in negotiating or entering into the settlement agreement fail to make the showing fraud necessary to invalidate the settlement agreement. Burks v. Department of the Interior, 84 M.S.P.R. 423 (1999).
 

CAPACITY OF APPELLANT TO ENTER AGREEMENT

Parties to a settlement agreement are presumed to have full legal capacity to contract unless they are under guardianship, an infant, mentally ill or defective, or intoxicated. See Hoyos v. Department of Veterans Affairs, 63 M.S.P.R. 532 (1994).

Agreement will be set aside as invalid where the appellant has demonstrated that he was mentally impaired at the time of the settlement or unable to fully understand the nature of the agreement. See Short v. U.S. Postal Service, 66 M.S.P.R. 214 (1995) (affidavit of employee's mental health social worker indicated that the appellant suffered from Adjustment Disorder with Depressed Mode and was incapable of making rational decision regarding settlement concerning his employment).

Where an appellant alleges emotional distress as grounds for voiding a settlement agreement, the Board considers whether she was represented below, whether she has demonstrated that she was mentally impaired at the time of the settlement, and whether she has otherwise shown that she was unable to fully understand the nature of the settlement agreement or to assist her representative in the appeal. See Bynum v. Department of Veterans Affairs, 77 M.S.P.R. 662 (1998).

Coercive acts by a party's own representative do not provide a basis for overturning a settlement that is otherwise fair. See Bynum v. Department of Veterans Affairs, 77 M.S.P.R. 662 (1998).

Where the appellant alleges emotional distress as a grounds for voiding a settlement agreement, the Board will consider: whether the appellant was represented below; whether he has demonstrated that he was mentally impaired at the time of settlement; and whether he has otherwise shown that the was unable to fully understand the nature of the settlement agreement or to assist his representative in the appeal. Simpson v. U.S. Postal Service, 83 M.S.P.R. 253 (1999).
 

LAST CHANCE AGREEMENT

The Board has long recognized that an appellant's waiver of appeal rights in an LCA is consistent with public policy. See McCall v. U.S. Postal Service, 839 F.2d 664, 666-67 (Fed. Cir. 1988) (a knowing and voluntary waiver of appeal rights in a last-chance settlement agreement is not void as a matter of public policy; implicit in such an agreement is a requirement that the agency abide by it in good faith). 

Waiver of a statutory right, such as an appeal right to the Board, must be clear, unequivocal, and decisive; a provision in a LCA that refers only to the appellant’s waiver of his appeal rights concerning the adverse action it settles does not waive his right to appeal from any action imposed subsequently for the alleged violation of the agreement; silence in a settlement agreement does not mean ambiguity; the fact that the LCA holds the appellant’s removal in abeyance does not mean that the appeal right as to the second removal was waived. Smith v. DVA, 78 M.S.P.R. 594 (1998).

Where LCA is silent on future appeal rights, parol evidence is admissible; silence does not mean ambiguity absent parol evidence indicating waiver. Ellis v. USPS, 77 M.S.P.R. 675 (1998).

The court has directed that the Board first consider the issue of an appellant's alleged breach of the agreement before we consider the applicability of any waiver of appeal rights. See Gibson v. Department of Veterans Affairs, 160 F.3d 722, 725 (Fed. Cir. 1998). 

There are two ways that a party may prove that the other party breached: a party may breach an LCA either by acting in bad faith or by failing to comply with the agreement in a material way. See Link v. Department of Treasury, 51 F.3d 1577, 1582-83 (Fed. Cir. 1995).

In case where employee was removed for violating LCA and FMLA-qualifying leave may have been involved, the administrative judge should have considered the FMLA claims without shifting the burden of proof to the appellant. Gardner v. U.S. Postal Service, 79 M.S.P.R. 9 (1998).

To show that waiver of appeal rights in settlement agreement is unenforceable, the appellant must show that he complied with the agreement but the agency breached it, that he did not voluntarily enter into the agreement, or that the agreement was a result of fraud or mutual mistake. Siman v. Department of Air Force, 80 M.S.P.R. 306 (1998).

The agency removed the appellant for violating the LCA’s provision requiring her to engage in satisfactory conduct, performance, and attendance acceptable to management. The Board held that it is not its role is not to interpret the language of the LCA in a way that modifies the agreement's material terms, but rather to determine whether the alleged breaches occurred, considering the facts and circumstances of the case. See Tackett v. Department of the Air Force, 80 M.S.P.R. 624 (1999).

When determining whether an appellant has breached an LCA, it is not the Board's responsibility to determine whether the breaching misconduct warrants removal. When a removal is "suspended" in an LCA, and then the appellant commits a breach of the LCA, the "suspended" removal is "reinstated." The penalty of removal then is a product of the former misconduct. Once a determination that a breach has occurred is made, the issue of the reasonableness of the removal is a matter not before the Board. See Tackett v. Department of the Air Force, 80 M.S.P.R. 624 (1999).

Although, on the merits of the breach of the LCA issue, the appellant has the burden of proving, by a preponderance of the evidence, that he did not breach the last-chance agreement, the agency was required to prove the existence and applicability of an unwritten policy which the appellant was charged with violating. The appellant must ultimately prove, however, that he did not violate the policy. See Gibson v. Department of Veterans Affairs, 160 F.3d 722 (Fed. Cir. 1998).

The Board found that the agency did not rely on the parties’ last change settlement agreement when the agency charged the appellant with AWOL, but the agency did rely on the settlement agreement in selecting the penalty of removal, including the provision that provided for a waiver of the appellant’s appeal rights. The Board concluded that the agency may assert the applicability of the settlement agreement’s waiver provision since the agency notice of appeal cannot confer jurisdiction where it does not otherwise exist. 

Covington v. Army, MSPB Docket No. AT-0752-00-0124-I-1, (April 11, 2000).
 

BREACH OF AGREEMENT

Normally, when an agency is in breach of a settlement, the appellant has the option of enforcing the agreement or rescinding it and reinstating his appeal; that option is not generally available where a provision cannot be enforced by the Board because it is unlawful; rescission is appropriate where the unlawful provision was a "principal term" and "material to the agreement"; where it is not clear whether it is, or whether the appellant wished to have his appeal reinstated, the Board held that he should be allowed to sever the illegal provision; 5 U.S.C. §  5301 does not bar an agency from agreeing to provide an employee with pay retention, since pay retention itself is generally authorized by statute and routinely afforded to employees. Day v. Air Force, 78 M.S.P.R. 364 (1998).

The appellant’s status as a former employee does not preclude Board authority to enforce against him the terms of a settlement to which he had agreed; the opposite conclusion would lead to absurd results and would not effectuate the parties’ intent; interpretations of settlement agreements that create absurd results are disfavored. Wisdom v. DOD, 78 M.S.P.R. 652 (1998).

The appellant's general allegation that the agency has harassed him by denying him rights and privileges to which he is entitled must be considered an allegation of the agency's breach of the good faith provision implicit in every agreement. To establish such a breach, the appellant must show that the agency's proven retaliatory or harassing actions, under the totality of the circumstances, amounted to an unjustified and substantial deprivation of his rights. See Timberlake v. U.S. Postal Service, 79 M.S.P.R. 520 (1998).

Agency’s belated attempts to cure its breach do not mean that no breach occurred; even if breach was inadvertent, it does not excuse breach. See Mullins v. Department of the Air Force, 79 M.S.P.R. 206 (1998).

The appellant materially breached a settlement agreement by withdrawing his application for disability retirement. Under the agreement, the appellant was obliged to pursue the disability retirement application in good faith and the agency was obliged to assist him fully in that regard, i.e., to complete and prosecute in good faith a disability retirement application for him. See Harris v. Department of Veterans Affairs, 142 F.3d 1463 (Fed. Cir. 1998).

Settelment agreement that provided that the employee would be considered for vacant positions without considered of rescinded disciplinary action was breached when promotion panel refused to consider him because of disciplinary action. Halsey v. United States Postal Service, 82 M.S.P.R. 176 (1999).

Agency breached agreement when it failed to reevaluate request for LEO credit in an expeditious manner. Ford v. Department of Navy, 85 M.S.P.R. 310 (2000).
 

NEUTRAL REFERENCES/CONFIDENTIALITY PROVISION

The appellant argued that the agreement's provision that the parties will not disclose its contents is a "gag order" that violates his First Amendment rights. The Board rejected this argument finding that it has repeatedly enforced such nondisclosure provisions in settlement agreements and that the appellant voluntarily waived his right to disclose the agreement's terms by signing the agreement. Joseph v. Department of the Navy, 73 M.S.P.R. 371 (1997).

Where employee agreed to resign in exchange for agency’s promise not to tell future employers about his performance, the agency materially breached this settlement agreement when it told a prospective employer that the employee had been the subject of an internal investigation. The employee was therefore relieved from his contractual duty to resign. Thomas v. HUD, 124 F.3d 1439 (Fed. Cir. 1997).

Where the agency (Navy) agreed as part of a settlement to remove all references to a removal action from an employee’s official personnel files, it was obligated to not only purge local Navy files, but also to purge records with the Office of Personnel Management and the Defense Finance and Accounting Service. King v. Navy, 130 F.3d 1031 (Fed. Cir. 1997).

Because the confidential information had already been disseminated, the breach could not be fully cured in any event. See Mullins v. Department of the Air Force, 79 M.S.P.R. 206 (1998).

A breach is material when it relates to a matter of vital importance, or goes to the essence of the contract. Here, the parties clearly considered the provision at issue to be of vital importance. It was this point which held up the formation of the agreement; it was only after the administrative judge expressed his strong views as to the appropriateness of this provision that the agency agreed to it and the parties were able to resolve the appeal. Further, this provision, which would mean that anyone looking at the appellant's personnel file would be unaware of the agency's removal action against him, was clearly of great importance to the appellant's future. See Mullins v. Department of the Air Force, 79 M.S.P.R. 206 (1998).

In response to a petition for enforcement concerning violation of the confidentiality provision of a settlement agreement, the agency argued that the discloser was not an employee in the Personnel Services Department of the Dallas District Office and that "[t]he agency cannot be held accountable for alleged conversation between neighbors or any other unofficial rumor mills." The settlement agreement did not identify specific persons who are subject to the neutral reference provision. The Board held that when a term of an agreement is ambiguous, the ambiguity should be resolved in a manner that is consistent with the purpose and effect of the agreement and with the intent of the parties. As the court in Thomas noted, inadvertent leaks are an inherent risk in confidentiality agreements. "When, however, the leak comes directly from a responsible official inside the agency in response to an inevitable inquiry from a potential employer, we cannot permit the agency that willingly entered into such an arrangement to breach it without being held responsible." Vaughan v. U.S. Postal Service, 77 M.S.P.R. 541 (1998).

Because the agency breached the confidentiality provision when it disclosed the agreement to OPM in connection with the appellant’s disability retirement application, the appellant is entitled to rescission and reinstatement of her appeal, but she must first return all money received as the result of the agreement; agency not entitled by FOIA, Privacy Act, its own regulations, or OPM’s authority to reveal agreement to OPM; breach is material where provision was a vital portion of the agreement and there was no way to correct it. Given OPM's request, the agency could and should have contacted the appellant and allowed her to handle the request. See King-Roberts v. U.S. Postal Service, 79 M.S.P.R. 464 (1998) (Appeal pending, King-Roberts v. USPS, 98-3370 (Fed. Cir. filed 09/09/98).

Agency’s breach of confidentiality provision of settlement agreement, which occurred when employee’s supervisor told his wife about a term of the agreement, concerned a matter that was of vital importance to the agreement, and was material. Diehl v. U.S. Postal Service, 82 M.S.P.R. 620 (1999).

Other cases involving neutral references/confidentiality provisions: 

The agency may require the appellant to comply or otherwise provide information which will allow it to compute a back-pay award under the Back Pay Act, but it may not require information from him that is outside the scope of the Back Pay Act. While the USPS’s Employee and Labor Relations Manual may require more than the Back Pay Act, neither the Back Pay Act nor its implementing regulations require the employee sign anything indicating he agrees with the agency's computations of back pay. The Back Pay Act does not specifically address any protocol required of employees entering into settlement agreements. See Timberlake v. U.S. Postal Service, 79 M.S.P.R. 520 (1998).

The right to back pay is limited by law, and it may not be implied from the fact that a case is settled. With regard to the appellant's contention that the agency has not complied because it has not issued him back pay or restored his leave, we begin with the proposition that "[i]n a suit against the United States, there cannot be a right to money damages without a waiver of sovereign immunity." The Board's authority to award back pay and restore leave must derive, if at all, from the Back Pay Act, the settlement agreement, or another source, such as a collective bargaining agreement with the agency, that imposes on it the mandatory obligation to award back pay. Kelley v. Department of the Air Force, 50 M.S.P.R. 635 (1991).

Settlement agreements, however, which are strongly favored by public policy, resolve disputes without litigation. Such agreements in no way imply that the underlying personnel action was unwarranted or unjustified. The Board finds that the provision in the LCA, in which the agency agrees to cancel the removal action after the appellant's successful completion of a two-year probationary period, does not constitute a finding by an "appropriate authority" under the Back Pay Act that the underlying removal action was "unjustified or unwarranted" and the Board has never made a determination regarding whether the removal action was "unjustified or unwarranted." The appellant has no right to back pay and benefits under the provisions of the Back Pay Act a collective bargaining agreement in this case, or from the settlement itself. See Kelley v. Department of the Air Force, 50 M.S.P.R. 635 (1991).

The agreement does not reference that the appellant will receive back pay or will be made whole or will suffer no financial loss of any sort as a result of the settlement. For compliance appeals, the Board will reject a status-quo-ante analysis of settlement agreement provisions, such as the "cancellation" of a personnel action. Rather, in construing the terms of a settlement agreement, the four corners of the agreement itself shall be examined to determine the parties' intent. See Kelley v. Department of the Air Force, 50 M.S.P.R. 635 (1991).

The Board will not imply that the parties have intended an award of back pay and benefits that are not specified for the employee, when they have merely agreed to the "cancellation" of a personnel action in a settlement agreement. The parties are free, within the confines of the law, to settle a case on whatever terms they agree to; thus, the Board will not simply assume that a provision as important as back pay and benefits is subsumed in the absence of their specification of such a term. See Kelley v. Department of the Air Force, 50 M.S.P.R. 635 (1991).

The back pay rights of non-preference eligible postal employees are governed by the Postal Service's Employee and Labor Relations Manual (ELM); back pay rights of preference eligible postal employees are governed by the Back Pay Act. Rivas v. U.S. Postal Service, 72 M.S.P.R. 383 (1996).
 

RETIREMENT ISSUES

When an employee resigns pursuant to a settlement agreement, the date of resignation under the agreement is controlling for determining retirement entitlements. Because the settlement at issue in the present case was entered into the record for enforcement purposes, it is equivalent to a final Board order in all respects, and OPM must effect its terms to the same extent it would a Board order on the merits in administering a retirement matter before it. Jordan v. Office of Personnel Management, 77 M.S.P.R. 610 (1998).

OPM's authority to administer the retirement system does not empower it to ignore separation dates effected pursuant to settlement agreements entered into a record before the Board. The Board's procedures empower its administrative judges to facilitate and accept settlement agreements. Congress specifically intended the Board to settle matters subject to its jurisdiction, the Federal Rules of Evidence promote the policy of facilitating settlements by excluding settlement offers as evidence to show the existence or extent of liability, and the Board has authority to enforce the settlement agreement once the agreement becomes part of the Board record. OPM must, therefore, accept the separation date effected pursuant to the settlement agreement in determining the appellant's retirement claims, in the same way it accepts other certifications without further inquiry. Jordan v. Office of Personnel Management, 77 M.S.P.R. 610 (1998).
 

OTHER

An employee generally has the right to withdraw her resignation before its effective date, but the employee's commitment to resign under the terms of a settlement agreement is a valid reason for an agency to refuse to accept her withdrawal. If the agreement is shown to be invalid or the agency is found to have breached the agreement, however, the agreement may not constitute a valid basis for the agency to refuse the employee's withdrawal. Tretchick v. Department of Transportation, 109 F.3d 749 (Fed. Cir. 1997).

When an agency delays its compliance beyond a date set by a Board order or a settlement agreement, the U.S. Court of Appeals for the Federal Circuit and the Board have found that the interest of justice is served by the award of attorney fees. See Garstkiewicz v. U.S. Postal Service, 981 F.2d 528, 530 (Fed. Cir. 1992).

Under the settlement agreement, the parties agreed that the agency would pay the appellant for reasonable attorney fees and related expenses and that the Board would "retain jurisdiction to resolve any dispute concerning attorney's fees." The agreement did not specify that the appellant was required to file a motion for attorney's fees with the Board. Board held that it was proper for the appellant to file a petition for enforcement. Montreuil v. Department of the Air Force, 55 M.S.P.R. 685 (1992).