Edmund Round v. Social Security Administration

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
EDMUND ROUND,
Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
__________________________
2011-3093
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CB7521030012-M-1.
__________________________
Decided: November 10, 2011
__________________________
EDMUND R OUND, of Shaker Heights, Ohio, pro se.
TARA K. H OGAN , Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. D AVIDSON , Director, and TODD M. H UGHES ,
Deputy Director. Of counsel on the brief was DAVID

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ROUND v. SSA 2
SKIDMORE, Office of the General Counsel, Social Security
Administration, of Chicago, Illinois.
__________________________
Before LOURIE, LINN , and PROST, Circuit Judges.
PER C URIAM.
Edmund Round (“Round”) appeals from a decision of
the Merit Systems Protection Board (“Board”) finding that
good cause existed to discipline him for insubordination
and imposing a five-day suspension, without pay. Soc.
Sec. Admin. v. Round, No. CB-7521-03-0012-M-1
(M.S.P.B. Dec. 23, 2009) (“Initial Decision”), reh’g denied,
(M.S.P.B. Jan. 28, 2011) (“Final Order”). For the reasons
explained below, this court affirms.
BACKGROUND
Round is an administrative law judge in the Cleve-
land, Ohio office of the Social Security Administration
(“the Agency”). In 2002, Round and other administrative
law judges in that office drafted standard form prehearing
orders to be issued in their cases. Despite receiving a
direct order from his supervisor to strike certain provi-
sions identified as objectionable, Round deliberately
disobeyed this order and instead directed his staff to mail
prehearing orders containing the objectionable provisions.
At least forty-six of these orders were issued.
On August 27, 2003, the Agency filed charges before
the Board against Round for, inter alia, insubordination
and requested authority to impose a fifteen-day suspen-
sion, without pay. Among the defenses raised by Round,
he contended that the requested disciplinary action
violated the terms of a July 2002 settlement agreement
reached in Dethloff v. Social Security Administration (“the
Settlement Agreement”). See generally Dethloff v. Soc.
Sec. Admin., 100 M.S.P.R. 340, 341 (2005) (noting that

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ROUND v. SSA 3
White and Isbell entered into a settlement agreement
with the Agency). The Board sustained the charge of
insubordination and concluded that a fifteen-day suspen-
sion without pay was appropriate. Soc. Sec. Admin. v.
Isbell, No. CB-7521-03-0010-T-1 (M.S.P.B. May 27, 2005).
As to Round’s “Settlement Agreement” defense, the Board
questioned its applicability to Round because he was not a
party, but concluded that even if it applied to Round, the
terms of the Settlement Agreement were not violated. See
id. at 21 n.19 (“Because of my finding regarding the
agreement, I need not address the effect of the fact that
Round was not a party to the agreement.”). This court
subsequently vacated the Board’s judgment and re-
manded to the Board for an evidentiary hearing. Isbell v.
Soc. Sec. Admin., No. 2006-3431 (Fed. Cir. Dec. 6, 2007).
On remand and after a hearing, the Board sustained
the insubordination charge. Initial Decision at 20. The
Board found that Round’s insubordination was “serious,”
“clearly intentional,” and “performed in the face of specific
and repeated warnings from [his superior].” Id. at 31.
Because, however, Round had previously performed his
duties in an exemplary manner, was motivated by a
desire to improve efficiency, and had engaged in no acts of
misconduct in the intervening six years, the Board re-
duced the penalty to a five-day suspension. Id. at 31-32.
The Board similarly rejected Round’s “Settlement Agree-
ment” defense a second time. Id. at 22-25, 27-29. The
Board affirmed on rehearing, Final Decision at 5, and
Round timely appealed to this court. This court has
jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
This court must affirm the Board’s decision unless it
is: “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having

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ROUND v. SSA 4
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c).
Round argues that the order he was found to have
disobeyed was “not one that [the Agency] was entitled to
have obeyed.” Pet’r’s Br. 10. Specifically, Round contends
that the order was inconsistent with what the Agency
agreed to do six months prior in the Settlement Agree-
ment. Moreover, Round contends that, under the Settle-
ment Agreement, the Agency could not bring a charge of
insubordination but could only return to the Board and
allege a breach of the agreement. Id. at 10-11.
The Agency responds that the Settlement Agreement
in Dethloff does not apply to Round because he was nei-
ther a party to the Settlement Agreement nor a party to
those proceedings. Resp’s Br. 12-13. The Agency further
responds that, even if Round was covered by the Settle-
ment Agreement, it neither extinguished nor foreclosed
the Agency’s statutory power to bring a disciplinary
action, which it brought here, under the framework of 5
U.S.C. § 7521.
This court agrees with the Agency because Round was
not a party to the Settlement Agreement or the Dethloff
proceedings. By the plain terms of the Settlement
Agreement, it applies only to administrative law judges
Isbell and White and the Agency. Round’s contention that
he was an intended beneficiary because the Settlement
Agreement states that “the Agency will treat [Isbell and
White] the same as all other judges in the Cleveland
Hearing Office” similarly lacks merit. The plain meaning
of those terms is that the Agency would treat Isbell and
White no differently from the other judges in the office,
not that all other judges in the office acquired a right to
enforce the agreement. Thus, because Round’s sole ar-
gument on appeal relies on the applicability of the Set-
tlement Agreement, which this court concludes is

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ROUND v. SSA 5
inapplicable to him, and because Round has failed to
identify any other reversible error, the decision of the
Board is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.

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