Steven G. Coker v. Department of Commerce

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3296
STEVEN G. COKER,
Petitioner,
v.
DEPARTMENT OF COMMERCE,
Respondent.
Peter H. Noone, Avery Dooley Post & Avery, LLP, of Belmont, Massachusetts,
for petitioner.
Robert E. Chandler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Brian M. Simkin, Assistant Director.
Appealed from: Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3296
STEVEN G. COKER,
Petitioner,
v.
DEPARTMENT OF COMMERCE,
Respondent.
Petition for review of the Merit Systems Protection Board in DA0752070282-C-1.
___________________________
DECIDED: May 11, 2009
___________________________
Before MAYER, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Steven G. Coker challenges the decision of the Merit Systems Protection Board
denying his petition for enforcement of a settlement agreement with the Department of
Commerce. We affirm.
BACKGROUND
Mr. Coker worked as a criminal investigator with the National Oceanic and
Atmospheric Administration, an agency within the Department of Commerce. On

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February 22, 2007, the agency issued a notice removing him from his position for failing
to provide accurate time and attendance information on official documents. Mr. Coker
filed an appeal with the Merit Systems Protection Board challenging his removal.
Mr. Coker and the agency then entered into a settlement agreement in which the
agency agreed to rescind the initial removal action and to replace it with an action
removing him for failure to satisfy the medical requirements of his position. Mr. Coker
agreed to submit medical documentation demonstrating his inability to meet those
requirements. As part of the agreement, the agency was required to reinstate Mr.
Coker’s sick leave balance in the amount of 1,399 hours and to approve his use of sick
leave retroactively from March 2, 2007, to the effective date of his removal. The
settlement agreement included a release in which Mr. Coker agreed to:
[w]aive, release and forever discharge the Agency . . . from any claims,
demands, or causes of action, which the Appellant has or may have,
arising from his MSPB appeal or from his employment with the Agency.
This release includes but is not limited to a release of any right to
administrative, judicial or congressional relief, or any other type of relief, or
of any claim to back pay, attorney’s fees and costs, or other type of
compensation, except what is specifically set forth in paragraph 3
[pertaining to the rescission of the initial removal, issuance of the new
removal for failure to meet the medical requirements, and reinstatement of
Mr. Coker’s sick leave balance].
The settlement agreement also contained an integration clause:
TOTALITY OF AGREEMENT. This Settlement Agreement constitutes the
entire agreement between the parties and represents full and final
resolution of all aspects of the claims which Appellant may have against
the Agency arising out of his appeal to the MSPB, as cited above, or his
employment with the Agency. No other conditions or assurances,
expressed or implied, are included.
On June 29, 2007, the Board approved the settlement agreement and dismissed Mr.
Coker’s case, while retaining jurisdiction to ensure compliance with the agreement.
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In accordance with the settlement agreement, the agency retroactively reinstated
Mr. Coker and placed him on paid sick leave for the period from March 2, 2007, through
September 2, 2007, when he was removed for failure to meet the medical requirements
of his position because of hearing loss. Mr. Coker’s sick leave payments did not include
Law Enforcement Availability Pay (“LEAP”), a type of premium pay provided to federal
criminal investigators who are required to work, or be available to work, substantial
amounts of unscheduled duty beyond their 40-hour work week. See 5 U.S.C. § 5545a.
The agency explained that it had canceled Mr. Coker’s certification for eligibility for
availability pay on the ground that his medical condition prevented him from performing
unscheduled duty during the period in question. See 5 C.F.R. § 550.184(d).
On August 31, 2007, Mr. Coker filed a petition for enforcement of the settlement
agreement. He contended that the agency’s decision not to include availability pay as
part of his compensation for his hours of approved sick leave breached the agreement.
The administrative judge assigned to the enforcement action concluded that the
settlement agreement did not obligate the agency to provide availability pay to Mr.
Coker. The administrative judge therefore issued a decision denying the petition for
enforcement. After the full Board denied Mr. Coker’s petition for review, he filed a
petition for review by this court.
DISCUSSION
The Law Enforcement Availability Pay Act (“LEAP Act”) provides that a criminal
investigator who is eligible to receive availability pay shall receive such pay while on
approved sick leave or annual leave. 5 U.S.C. § 5545a(f)(1)(B). The administrative
judge explained that because the settlement agreement “was silent regarding LEAP,”
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Mr. Coker was not entitled to availability pay. Mr. Coker contends that the LEAP Act
was “expressly incorporated into the agreement as a matter of law,” and that the agency
was therefore required to provide availability pay for the period in which he was on
approved sick leave status pursuant to the agreement. That argument is unpersuasive
for several reasons.
To begin with, the right to receive availability pay was not “expressly”
incorporated into the settlement agreement. As the administrative judge made clear, no
portion of the agreement addressed the issue of availability pay. Moreover, the
settlement agreement contained an integration clause that clarified that no other
express or implied assurances were included in the agreement. We therefore discern
no error in the administrative judge’s conclusion that the settlement agreement did not
expressly incorporate the right to receive availability pay.
Mr. Coker argues that he was automatically entitled to availability pay incident to
the agency’s obligation to pay him for his sick leave. But in the settlement agreement
Mr. Coker explicitly waived his right to “any . . . type of compensation, except what is
specifically set forth in paragraph 3.” Availability pay is a type of compensation, and
paragraph 3 of the settlement agreement did not specifically provide for such
compensation. Mr. Coker therefore waived any right he might otherwise have had to
seek availability pay under the LEAP Act.
Mr. Coker claims that on other occasions he had received availability pay while
he was on approved administrative leave or sick leave. For that reason, Mr. Coker
argues that his entitlement to availability pay was implicit in the settlement agreement
based on his course of dealing with the agency. Even assuming that, as Mr. Coker
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alleges, he had previously received availability pay while he was on sick leave, his
course-of-dealing argument is without merit. Evidence of the parties’ course of dealing
constitutes parol evidence that is typically not relevant to the interpretation of a contract
unless that contract is ambiguous. United States v. Ford Motor Co., 463 F.3d 1267,
1278 (Fed. Cir. 2006); Barron Bancshares, Inc. v. United States, 366 F.3d 1360, 1735-
36 (Fed. Cir. 2004). Because the settlement agreement made no reference to
availability pay and expressly released the agency from any claims for compensation
beyond that specifically referenced in the agreement, the terms of the settlement
agreement were unambiguous, and Mr. Coker cannot rely on course-of-dealing
evidence to supplement those terms.
Mr. Coker argues that the settlement agreement is voidable because he and the
agency “had reasonable and differing interpretations of an essential term of the
agreement.” Specifically, Mr. Coker asserts that he is entitled to avoid the agreement
because of his misunderstanding of the sick leave provision, which he interpreted as
obligating the agency to provide him availability pay as part of that approved sick leave.
Because Mr. Coker alleges a misunderstanding, the failure of the parties to attach a
common meaning to a material term would render the contract void, and not, as Mr.
Coker asserts, voidable at his discretion. See Restatement (Second) of Contracts § 20
(1981). In any event, there is no cause for rescission here because Mr. Coker’s
interpretation of the settlement agreement is not a reasonable one; the agreement
clearly foreclosed any claim by Mr. Coker to compensation beyond the restoration of his
sick leave. See id. at §§ 20, 201; 2 E. Allan Farnsworth, Farnsworth on Contracts § 7.9,
at 285 (3d ed. 2004) (standard of reasonableness applies when parties attach different
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meanings to contract language). Mr. Coker asserts that he interpreted the agency’s
agreement to “rescind” his initial removal as a promise to restore the status quo ante—
including his eligibility to receive availability pay. But the agency never agreed to
restore Mr. Coker to his prior position; instead, the settlement agreement provided that
Mr. Coker would still be removed from his position, albeit on medical grounds, and that
he waived any right to compensation that he would otherwise have been entitled to
(other than that specifically provided for in paragraph 3 of the agreement). Thus, Mr.
Coker’s belief that the rescission of his initial removal would entitle him to availability
pay was not a reasonable one.
Moreover, as the administrative judge observed, “because LEAP is an active-
duty benefit that compensates an employee’s availability to perform unscheduled duty, it
is probable that the appellant, who is physically unable to perform his position, was
never intended to receive LEAP while waiting for his removal to be finalized.” Mr. Coker
disputes that he was physically unable to perform the duties of his position at the time
the settlement agreement was executed, because the Office of Personnel Management
did not issue its notice finding Mr. Coker to be disabled until February 8, 2008.
However, Mr. Coker agreed to be removed from the agency on the ground that he was
unable to meet the medical requirements of his position. Substantial evidence therefore
supports the administrative judge’s conclusion that the agency did not intend to provide
availability pay to Mr. Coker while he was waiting for his removal on medical grounds to
be finalized.
The regulations governing availability pay provide that an agency may cancel an
availability pay certification based on a finding that an investigator “is unable to perform
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2008-3296 7
unscheduled duty for an extended period due to physical or health reasons.” 5 C.F.R.
§ 550.184(d). When the agency retroactively reinstated Mr. Coker, it canceled his
certification on the ground that his medical condition—which Mr. Coker himself attested
to, and which formed the basis for his removal from his position—rendered him unable
to perform unscheduled duty. The cancellation action was in accordance with 5 C.F.R.
§ 550.184(d) and did not conflict with any provision of the settlement agreement.
Because Mr. Coker did not satisfy the requirements for availability pay established by
law, the agency was free to cancel his certification for failure to meet those
requirements regardless of whether or not availability pay would normally be paid during
an employee’s sick leave.
For these reasons, we agree with the Board that the settlement agreement did
not require the agency to provide availability pay to Mr. Coker. We therefore affirm the
Board’s denial of his petition for enforcement.

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