Amy Terrell Payton v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AMY TERRELL PAYTON,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2025-1231
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-16-0592-B-1.
______________________
Decided: June 9, 2025
______________________
AMY P AYTON, Gulfport, MS, pro se.
D ANIEL BERTONI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by ELIZABETH
MARIE H OSFORD, P ATRICIA M. MCCARTHY , BRETT SHUMATE.
______________________
Before T ARANTO, HUGHES , and STARK, Circuit Judges.
P ER CURIAM .
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PAYTON v. DVA 2
Amy Terrell Payton worked as a Nursing Assistant
with the Department of Veterans Affairs (VA). In 2013, VA
removed Ms. Payton from her position (for the first time),
and she appealed to the Merit Systems Protection Board.
In 2023, she entered a settlement agreement with VA un-
der which VA would pay her a lump sum and she would
waive any pending or future claims. Government Supple-
mental Appendix (S. Appx.) at 42–45. Subsequently, she
asked the Board to revoke the settlement agreement. A
Board-assigned administrative judge denied the request
and dismissed Ms. Payton’s appeal as settled, determining
that the settlement agreement was enforceable and ad-
dressed all issues in her appeal. S. Appx. 9–10. Ms. Pay-
ton sought full Board review, but the full Board affirmed
the administrative judge’s decision, which became the final
decision of the Board. S. Appx. 1–3. We now affirm.
I
Ms. Payton worked as a Nursing Assistant for VA in
Biloxi, Mississippi. S. Appx. 9; S. Appx. 42. In 2013, VA
removed Ms. Payton from her position. S. Appx. 26. Over
the next ten years, Ms. Payton challenged that removal, in-
cluding by filing an Individual Right of Action (IRA) appeal
to the Board in 2016. S. Appx. 20; S. Appx. 26–30; 5 U.S.C.
§§ 1214(a)(3), 1221.
In September 2023, Ms. Payton (through counsel) and
VA engaged in mediation, S. Appx. 40–41, which led to a
settlement, S. Appx. 42–45. According to the agreement,
Ms. Payton would withdraw her pending claims, com-
plaints, and appeals against VA, and waive future ones
based on pre-agreement events, in exchange for (1) pay-
ment of $35,000 “[w]ithin 30 days of the date this agree-
ment becomes binding and fully effective, or within 30 days
of obtaining a completed vendorization form” that provided
her banking information and (2) modification of her per-
sonnel file to indicate that she had resigned for personal
reasons. S. Appx. 42–43. The agreement recounted
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PAYTON v. DVA 3
Ms. Payton’s rights under the Older Workers Benefit Pro-
tection Act and provided that, “[s]olely as to any claim of
discrimination based on age, 40 years or older,” she “ha[d]
seven (7) days from the date that all Parties” signed the
agreement to revoke it. S. Appx. 44–45. The agreement
also provided the Board with the power to enforce the
agreement. S. Appx. 43.
On October 17, 2023, Ms. Payton’s counsel emailed VA
to indicate Ms. Payton’s intention to revoke the settlement
agreement “[a]s the settlement ha[d] not been fully exe-
cuted by the Agency as of the sending of [the] email” be-
cause all parties had not yet signed the agreement.
S. Appx. 47. VA responded and attached the settlement
agreement, which showed that VA had signed the agree-
ment on October 16, 2023. S. Appx. 47 (discussing agree-
ment with signature at S. Appx. 45). As Ms. Payton and
her attorney had signed the agreement on October 3 and 5,
2023, respectively, the agreement had gone into effect on
October 16, which Ms. Payton’s counsel acknowledged in
an email response to VA. S. Appx. 45; S. Appx. 46.
On October 21, 2023, Ms. Payton terminated her rep-
resentation by her attorney, S. Appx. 50, and emailed VA
directly, stating that she “wish[ed] to revoke this settle-
ment agreement due to age discrimination” and that she
“believe[d]” that VA “want[ed her] to agree to these terms
because [she was] almost 50.” S. Appx. 51. On the same
day, she filed a request to the Board to revoke the entire
settlement agreement, citing alleged age discrimination.
S. Appx. 54–55. On October 23, 2023, VA counsel re-
sponded to Ms. Payton’s October 21 email, acknowledging
that she had revoked the agreement as to the age discrim-
ination claims and stating that she could “pursue any age
discrimination claim [she] ha[d] without any waiver apply-
ing” to such claims. S. Appx. 51. VA counsel requested in-
formation from Ms. Payton so that VA could pay her what
was agreed to “[a]s it relate[d] to the remainder of the
waive[d]” claims. S. Appx. 51. Without providing the
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PAYTON v. DVA 4
requested information, Ms. Payton responded that she
“want[ed] to revoke the contract agreement” and pursue
pleadings before the Board. S. Appx. 52. Ms. Payton also
informed VA counsel that she had filed an equal employ-
ment opportunity (EEO) complaint alleging age discrimi-
nation. S. Appx. 52; S. Appx. 56 (VA letter acknowledging
her EEO complaint filed October 23, 2023).
VA counsel emailed Ms. Payton on November 6, 2023,
requesting that she provide information to process her pay-
ment by completing a vendorization form (providing bank-
account information for VA’s payment). S. Appx. 52. On
November 15, 2023, Ms. Payton emailed VA counsel the
completed form, which VA counsel acknowledged on the
same day. S. Appx. 53. On November 27, 2023, Ms. Pay-
ton filed a request with the Board to “[d]ismiss [her October
21] request to revoke [the] settlement agreement,”
S. Appx. 57, despite not yet receiving payment from VA, see
S. Appx. 62; S. Appx. 1 n.2. On December 14, 2023, VA
emailed Ms. Payton requesting information necessary to
pay her, and Ms. Payton complied. S. Appx. 58–61.
On December 29, 2023, Ms. Payton submitted to the
Board a “second request to revoke th[e] settlement agree-
ment.” S. Appx. 62–63. She stated that she had previously
sought a dismissal to her initial revocation request because
she faced technical difficulties in submitting her pleadings
and “was in distress to obtain the settlement money to pay
for attorney fees.” S. Appx. 62. She argued that (1) VA’s
failure to deposit the settlement payment within thirty
days of November 15, 2023, when she provided VA with the
requested information, was “a breach of contract,” (2) she
had not understood the settlement agreement because her
counsel had not reviewed it with her, and (3) she could still
revoke the settlement agreement because she had re-
quested revocation within seven days of the final signature.
S. Appx. 62–63.
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PAYTON v. DVA 5
On January 3, 2024, a Board-assigned administrative
judge dismissed Ms. Payton’s 2016 IRA appeal as settled.
S. Appx. 9–10. The administrative judge found that
Ms. Payton “understands the terms and has entered into
the agreement voluntarily” and held that the agreement
was “lawful on its face.” S. Appx. 9. Thus, the administra-
tive judge determined that the agreement, which had been
signed by all parties, was enforceable and entered it into
the record. S. Appx. 9–10. Noting that Ms. Payton’s alle-
gation of age discrimination was not an issue in the 2016
IRA appeal, the administrative judge held that no matter
remained for adjudication “[b]ecause the agreement [was]
a full and complete settlement of all the issues [Ms. Pay-
ton] raised in this appeal.” S. Appx. 9 n.1, 10.
Ms. Payton filed a petition for full Board review of the
initial decision. S. Appx. 24; S. Appx. 64. She repeated her
arguments, expressed “strong[] regret” about her decision
to send VA her payment information, and stated that her
banking information had changed. S. Appx. 64. On Octo-
ber 15, 2024, the Board denied the petition and affirmed
the administrative judge’s decision, which became the final
decision of the Board. S. Appx. 1–3. Because the “plain
language of the agreement . . . . does not contain any pro-
vision permitting [Ms. Payton] to revoke the settlement
agreement with respect to her other, non-age discrimina-
tion claims,” the agreement “remains in effect despite her
attempt to revoke it.” S. Appx. 2–3. The Board also noted
that Ms. Payton could file a petition for enforcement of the
agreement to pursue her allegations that VA failed to com-
ply with the agreement because it had not yet paid her.
S. Appx. 1 n.2 (citing 5 C.F.R. § 1201.182(a)). Ms. Payton
timely filed this appeal. We have jurisdiction under 28
U.S.C. § 1295(a)(9). See also 5 U.S.C. § 7703(b)(1)(B).
II
We may set aside the Board’s decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or
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PAYTON v. DVA 6
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). “The petitioner bears the burden of es-
tablishing error in the Board’s decision.” Tiburzi v. Depart-
ment of Justice, 269 F.3d 1346, 1351 (Fed. Cir. 2001).
Ms. Payton argues that this court should “cancel the
settlement agreement due to [VA]’s breach of contract”—
the alleged nonpayment of the $35,000 lump sum within
thirty days of receiving Ms. Payton’s completed vendoriza-
tion form. Payton Informal Brief at 2–4. The Board erred,
Ms. Payton argues, because it did not determine whether
VA had fulfilled its contractual obligations and make find-
ings of fact necessary for that determination. Id. at 2, 4.
We reject this argument, and we therefore affirm the
Board’s decision.1
First, to the extent that Ms. Payton presented to the
Board an argument for breach of the settlement agreement
with rescission as a remedy, we see no error in the Board’s
conclusion that the proper procedure for making such an
argument is one Ms. Payton has not invoked, S. Appx. 1
n.2: a petition for enforcement of the settlement agreement
under 5 C.F.R. § 1201.182. We have so recognized before,
see Torain v. Smithsonian Institution, 465 F. App’x 945,
948 (Fed. Cir. 2012) (citing Trotta v. U.S. Postal Service, 73
1 Although Ms. Payton argued to the Board that she
did not voluntarily enter the settlement agreement and has
the power to revoke her acceptance, S. Appx. 62–63;
S. Appx. 64, she has not raised those arguments in her
opening brief to us, Payton Informal Brief at 1–4; see also
Government Response Brief at 13–14. “[A]rguments not
raised in the opening brief are forfeited.” McIntosh v. De-
partment of Defense, 53 F.4th 630, 641 (Fed. Cir. 2022) (in-
ternal quotation marks and citation omitted). Thus, we do
not address either argument.
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PAYTON v. DVA 7
M.S.P.R. 6, 9 (1997)), and we do so again here. The fact-
based analysis sought by Ms. Payton, which would be nec-
essary to determine whether VA breached the contract and
to assess the materiality of any breach, would be under-
taken by the Board and its administrative judges in adju-
dicating a petition for enforcement. 5 C.F.R. § 1201.183(a);
see, e.g., Lary v. U.S. Postal Service, 472 F.3d 1363, 1366–
68 (Fed. Cir. 2006), decision clarified on denial of reh’g, 493
F.3d 1355 (Fed. Cir. 2007); Poett v. Merit Systems Protec-
tion Board, 360 F.3d 1377, 1380–85 (Fed. Cir. 2004). If a
breach is found, the Board may award an appropriate rem-
edy—which might be, e.g., rescission and reinstatement of
the original appeal or enforcement by specific performance
(here, payment). 5 C.F.R. § 1201.183(a)(8); see Lary, 472
F.3d at 1368–69; Cunningham v. United States, 748 F.3d
1172, 1173, 1175 (Fed. Cir. 2014).
Second, if there ever could be an occasion for bypassing
the petition-for-enforcement process because the merits of
the argument for rescission based on breach are so compel-
lingly clear, this is not such a case. Even if we assume
(without deciding) that there was a breach, there is no en-
titlement to rescission of the settlement agreement where
VA did not repudiate the contract in the absence of a fraud
(or other grounds for invalidity like mutual mistake) or a
“total breach” of the contract. See Franconia Associates v.
United States, 536 U.S. 129, 142–43 (2002) (discussing re-
pudiation); Admiral Financial Corp. v. United States, 378
F.3d 1336, 1344–45 (Fed. Cir. 2004) (discussing the remedy
of rescission and explaining what constitutes a “total
breach”); Restatement (Third) of Restitution and Unjust
Enrichment § 37 cmt. a (Am. L. Inst. 2011) (explaining that
rescission may be a remedy for a “material breach” and
“when there has been performance under a contract that is
subject to avoidance for fraud, mistake, or similar grounds
of invalidity”). There is no apparent VA repudiation of the
settlement agreement here. Nor is there a “showing of
wrongful conduct” at the time of entering that agreement.
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PAYTON v. DVA 8
Asberry v. U.S. Postal Service, 692 F.2d 1378, 1380–81
(Fed. Cir. 1982) (citation omitted); Tiburzi, 269 F.3d at
1355 (citations omitted); see also Callen v. Pennsylvania
Railroad Co., 332 U.S. 625, 630 (1948). And, as VA “stands
ready to pay,” Government Response Brief at 12, the non-
payment asserted here would be a mere late payment that
is not a breach that “so substantially impairs the value of
the contract to the injured party at the time of the breach
that it is just in the circumstances to allow him to recover
damages based on all his remaining rights to performance”
(i.e., a “total breach”). See Admiral Financial Corp., 378
F.3d at 1344–45 (quoting Mobile Oil Exploration & Produc-
ing Southeast, Inc. v. United States, 530 U.S. 604, 608
(2000)).
III
For the foregoing reasons, we affirm the Board’s deci-
sion.
The parties shall bear their own costs.
AFFIRMED
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