Major Morrison v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MAJOR MORRISON,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2016-2490
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-15-0043-C-1.
______________________
Decided: January 13, 2017
______________________
MAJOR MORRISON, Brooklyn, NY, pro se.
P ETER ANTHONY G WYNNE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, R OBERT E. K IRSCHMAN, J R.,
REGINALD T. BLADES , J R.
______________________
Before P ROST , Chief Judge, D YK, and REYNA, Circuit
Judges.

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MORRISON v. DVA 2
P ER CURIAM .
Dr. Major Morrison petitions for review of the Merit
Systems Protection Board’s (“Board”) denial of his petition
for enforcement of a settlement agreement he entered
with the United States Department of Veterans Affairs
(“VA”). Because substantial evidence supports the
Board’s findings and we discern no legal error, we affirm.
BACKGROUND
Dr. Morrison served in the United States Marine
Corps from 1979–1998. He subsequently worked as a
Boiler Plant Operator at the VA’s New York Harbor
Healthcare System. A6.1 In 2014, the VA notified
Dr. Morrison of its decision to remove him from his posi-
tion of Boiler Plant Operator. Id. Dr. Morrison appealed
that decision to the Board on November 25, 2014. Id. On
March 26, 2015, he entered into a settlement agreement
with the VA (“Settlement Agreement”).
In relevant part, the Settlement Agreement provides:
2. VA hereby:
a) agrees to cancel the December 5, 2014 removal
of the appellant from his position as a WG-10
Boiler Plant Operator.
b) agrees to approve, as of the date of this agree-
ment, the appellant’s request to be reassigned to a
WG-5 Motor Vehicle Operator Position.
c) agrees to restore the appellant to status quo
ante with no break in service. Appellant is enti-
tled to all benefits and privileges of employment
that he would have received had he not been re-
moved effective December 5, 2014 including but
1 “A__” refers to the appendix to the VA’s informal
brief.

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MORRISON v. DVA 3
not limited to retroactive pay, annual leave, sick
leave, seniority, pension rights and medical and
health benefits.
d) agrees to pay the appellant, by check or
through electronic funds transfer, for the appro-
priate amount of backpay, with interest, and to
adjust benefits with appropriate credits and de-
ductions in accordance with the Office of Person-
nel Management’s regulations within sixty
calendar days of the date of this agreement.
e) agrees to pay the appellant, by check or through
electronic funds transfer, $7,000 in compensatory
damages within sixty calendar days of the date of
this agreement.
A32. Based on the Settlement Agreement, the Board
dismissed Dr. Morrison’s appeal on April 8, 2015. A6–A8.
Dr. Morrison later filed a petition for enforcement, ar-
guing that the VA had not followed the terms of the
Settlement Agreement. See A17–A21. Because it was
unclear to the Board what portions of the Settlement
Agreement the VA allegedly breached, it issued an order
to show cause. A20; A38. Dr. Morrison responded “that
he wished to be restored to his position of Boiler Plant
Operator and he was only paid $7,000 rather than
$14,000.” A20. On June 29, 2016, the Board denied
Dr. Morrison’s petition after finding that the VA had not
breached any of the Settlement Agreement’s terms. A21.
The Board’s decision became final on August 3, 2016. Id.
J URISDICTION
Pursuant to 28 U.S.C. § 1295(a)(9), we have jurisdic-
tion “of an appeal from a final order or final decision of
the Merit Systems Protection Board, pursuant to sections
7703(b)(1) and 7703(d) of title 5.” But appeals from a
final Board decision “shall be filed within 60 days after

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MORRISON v. DVA 4
the Board issues notice of the final order or decision of the
Board.” Id. § 7703(b)(1)(A).
The Board’s initial decision included a section entitled,
“NOTICE TO APPELLANT,” where it explained that
“[t]his final decision will become final on August 3, 2016.”
A21. The initial decision also included a section entitled,
“NOTICE TO THE APPELLANT REGARDING YOUR
FUTURE REVIEW RIGHTS.” A25. There, it informed
Dr. Morrison that he had a right to file an appeal with
this court. But it cautioned that “[t]he court must receive
your request for review no later than 60 calendar days
after the date this initial decision becomes final.” Id.
Because the Board’s initial decision became final on
August 3, 2016, Dr. Morrison was required to file his
appeal by October 2, 2016. See 28 U.S.C. § 7703(b)(1)(a).
On August 9, 2016, we received various documents from
Dr. Morrison, which we construed as his petition for
review. We then requested that Dr. Morrison complete an
informal brief, which we received on October 11, 2016.
Because we construed Dr. Morrison’s August 3 filing as
his petition for review, his appeal is timely, and we have
jurisdiction under 28 U.S.C. § 1295(a)(9).
MERITS
Dr. Morrison bears the burden of establishing that the
Board erred. See Jones v. Dep’t of Health & Human
Servs., 834 F.3d 1361, 1366 (Fed. Cir. 2016). We affirm
the Board’s decision unless we find it 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.
5 U.S.C. § 7703(c); accord Cleaton v. Dep’t of Justice, 839
F.3d 1126, 1128 (Fed. Cir. 2016). “Substantial evidence is

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MORRISON v. DVA 5
more than a mere scintilla of evidence, but less than the
weight of the evidence.” Jones, 834 F.3d at 1366 (quota-
tion marks and citations omitted).
Dr. Morrison’s informal brief appears to argue that the
Board failed to consider a letter he sent to the Board on
July 5, 2016 alleging that his removal was based on race.
Pet’r’s Inf. Br. 1; see also A40–A41. Whatever the dispute
over Dr. Morrison’s removal, the record indicates that the
parties entered into the Settlement Agreement on March
26, 2015 that settled all issues of dispute between the
parties. A31–A32. The merits of the underlying dispute
prior to the Settlement Agreement, therefore, are not
before us.
Dr. Morrison also appears to complain that the Board
failed to provide a hearing. Given the record before the
Board, we discern no abuse of discretion in the failure to
schedule a hearing in the enforcement proceeding. See
Knight v. Dep’t of Treasury, 2010 M.S.P.B. 80 ¶ 16 (2010);
5 C.F.R. § 1201.183(a)(3) (“The judge may convene a
hearing if one is necessary to resolve matters at issue.”)
(emphasis added).
Next, Dr. Morrison argues that the Board failed to
consider the fact that he “was not fully granted 2 year
ext[ension] of pay and didn’t receive [the] total [of]
[$]14,000.” Pet’r’s Inf. Br. 1. The Board found that the
Settlement Agreement “did not provide for
[Dr. Morrison’s] reinstatement into the position of Boiler
Plant Operator or, a payment in the amount of $14,000.”
A20. We agree. The Settlement Agreement, which “con-
stitutes the entire agreement” and excludes “other terms,”
does not provide for any two-year extension of pay. A32.
And it provides for the payment of $7,000, not $14,000.
Id. We therefore find that the Board did not fail to con-
sider any relevant facts and properly construed the Set-
tlement Agreement.

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MORRISON v. DVA 6
Dr. Morrison seems to argue that he was forced to sign
the Settlement Agreement under protest. See A41; ECF
No. 10, at 11. However, both Dr. Morrison and his repre-
sentative signed the Settlement Agreement, which states
that it “has been entered into freely and voluntarily.”
A32. Given the Settlement Agreement’s language and
Dr. Morrison’s failure to present any evidence of duress,
we agree with the Board’s determination that
Dr. Morrison “voluntarily entered into” the Settlement
Agreement. A7.
Finally, Dr. Morrison accuses the Board of being moti-
vated to close the case quickly. However, he cites no
evidence in support, and we find just the opposite. The
Board prolonged proceedings by ordering Dr. Morrison to
state which particular terms of the Settlement Agreement
he believed the VA violated. A38. Only after receiving
Dr. Morrison’s additional submissions did the Board
determine that the VA did not violate the Settlement
Agreement. Thus, the Board carefully considered the
alleged violations without rushing to a conclusion.
CONCLUSION
Substantial evidence supports the Board’s findings,
and it properly interpreted the Settlement Agreement
between Dr. Morrison and the VA. We therefore affirm.
AFFIRMED
COSTS
No costs.

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