Tyler A. Mellick v. Department of the Interior

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TYLER A. MELLICK,
Petitioner
v.
DEPARTMENT OF THE INTERIOR,
Respondent
______________________
2023-1733
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-16-0121-B-1.
______________________
Decided: April 17, 2024
______________________
T YLER A. MELLICK, Alameda, CA, pro se.
MATTHEW J UDE CARHART , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, D EBORAH ANN BYNUM , P ATRICIA M.
MCCARTHY .
______________________
Before L OURIE, REYNA , and HUGHES , Circuit Judges.
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MELLICK v. INTERIOR 2
P ER CURIAM .
Tyler A. Mellick, a former employee of the U.S. Depart-
ment of the Interior, appeals a decision from the Merit Sys-
tems Protection Board. The decision affirmed an
administrative judge’s ruling that dismissed Mr. Mellick’s
appeal of his termination for violating a Last Chance
Agreement based on lack of jurisdiction. Because we hold
that Mr. Mellick waived his appeal rights by executing the
Last Chance Agreement and did not provide substantial
evidence that the waiver of his appeal rights should not be
enforced, we affirm the Merit Systems Protection Board’s
decision.
I
A
On October 17, 2014, the U.S. Department of the Inte-
rior removed Mr. Mellick, an employee of the agency at
Grand Coulee Dam in Washington state, from federal ser-
vice. P.A. 1–2.1 After Mr. Mellick challenged his removal to
the Merit Systems Protection Board (MSPB), the agency
and Mr. Mellick entered into a settlement agreement that
resolved the matter. The settlement agreement included a
clause stating, “The parties agree to keep the terms and
conditions of this Settlement Agreement confidential and
will not release its contents.” P.A. 3.
As part of the settlement agreement, Mr. Mellick
signed a Last Chance Agreement (LCA) on March 4, 2015,
which allowed his return to work. The LCA stated that
“Mr. Mellick underst[ood] that he must comply with all ap-
plicable rules, management directives/instructions,
1 Citations to “P.A. ___” refer to the appendix filed
with Mr. Mellick’s corrected brief. See Mellick v. Dep’t of
the Interior, No. 23-1733 (Fed. Cir. June 28, 2023), ECF No.
10.
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MELLICK v. INTERIOR 3
regulations, policies, and laws, required of him by the
Agency and the Federal Government.” Id. at 5. The LCA
further represented that “[h]e also underst[ood] that any
misconduct of any type that would merit disciplinary action
at the level of a suspension or higher w[ould] violate this
Agreement.” Id.
Additionally, the LCA provided that “Mr. Mellick un-
derst[ood] and agree[d] that, if he commit[ted] one infrac-
tion or incident of misconduct as described in the
immediately preceding paragraph, the Agency w[ould] find
him in violation of the terms of this Agreement.” Id.
Mr. Mellick also agreed that “within one day of being ad-
vised by the Agency that it ha[d] found him in violation of
this Agreement, he w[ould] submit his voluntary resigna-
tion from employment.” Id. And if he “fail[ed] to provide a
voluntary resignation, the Agency w[ould] separate him
from Federal Service for violation of this Agreement.” Id.
Finally, Mr. Mellick agreed that by signing the LCA,
he “voluntarily waive[d] any and all procedural rights [he]
may have [had] . . . concerning preexisting, current, and
future claims or appeals arising from operation of this
Agreement.” Id. at 6. These procedural rights included “fu-
ture rights to challenge any subsequent resignation or re-
moval resulting from [his] violation of the [LCA],” though
Mr. Mellick could still “challenge any breach of the [LCA].”
Id.
In addition to imposing obligations upon Mr. Mellick,
the LCA also imposed obligations upon the agency and
upon Mr. Mellick’s union, the Columbia Basin Trades
Council (the union). In addition to Mr. Mellick, the signa-
tories to the LCA included Coleman Smith, the power man-
ager at Grand Coulee Dam, and David Cartwright, the
union’s local president.
Several months after executing the LCA, the agency
charged Mr. Mellick with four acts of misconduct that vio-
lated the LCA, which were:
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MELLICK v. INTERIOR 4
(1) ranting at a coworker during a meeting using
obscene language; (2) failing to follow a supervisory
instruction to return to the meeting after he left;
(3) placing the only working elevator on hold, en-
dangering others who might need the elevator in
an emergency; and (4) putting his arms around a
coworker and licking his ear.
Id. at 9. Because the agency determined that Mr. Mellick
violated the LCA, the agency removed him from his posi-
tion effective October 22, 2015.
B
Mr. Mellick appealed the removal to the MSPB, argu-
ing, among other things, that the agency violated the set-
tlement agreement’s confidentiality clause by informing
his coworkers of the LCA’s existence, which resulted in
Mr. Mellick’s coworkers provoking him into breaking the
LCA. Id. at 8–9. In his initial decision, the administrative
judge ruled that Mr. Mellick had breached the LCA based
upon the evidence presented by the agency. The adminis-
trative judge also concluded that the agency had not
breached the confidentiality term of the settlement agree-
ment.
Mr. Mellick then petitioned the MSPB for review of the
administrative judge’s initial decision and the MSPB re-
manded the case back to the administrative judge. The
MSPB affirmed the administrative judge’s ruling that the
appellant had breached the LCA. Id. at 10–12. But the
MSPB concluded that further fact-finding was necessary to
determine whether the agency had breached the confiden-
tiality provision of the settlement agreement. Id. The
MSPB noted that the LCA itself did not have an express
confidentiality provision. But the LCA was incorporated by
reference into the settlement agreement, which provided
that “[t]he parties agree to keep the terms and conditions
of the Settlement Agreement confidential and will not re-
lease its contents.” Id. at 12–13. The MSPB thus concluded
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MELLICK v. INTERIOR 5
that the terms of the LCA “were subject to the [settlement]
agreement’s confidentiality provision.” Id. at 13. Further,
the MSPB reasoned, “[t]he agency’s promise of confidenti-
ality regarding the terms and facts of an agreement goes to
the essence of the settlement,” and “[w]hen a party to a set-
tlement agreement materially breaches the confidentiality
term of the agreement, the nonbreaching party may elect
either to enforce the terms of the agreement or to rescind
the agreement and reinstate the appeal.” Id.
Following remand, the administrative judge held a ju-
risdictional hearing on December 9, 2016. After the juris-
dictional hearing was held, the administrative judge
concluded in an initial decision dated January 13, 2017,
that, because Mr. Mellick had waived his appeal rights by
executing the LCA, and failed to show that the waiver of
his appeal rights should not be enforced, the MSPB did not
have jurisdiction to hear his appeal and dismissed the ac-
tion. In his decision, the administrative judge rejected
Mr. Mellick’s arguments that the agency breached the con-
fidentiality term of the settlement agreement by: (a) allow-
ing Mr. Cartwright to sign the LCA, (b) informing
Mr. Mellick’s first- and second-line supervisors of the LCA,
and (c) disclosing the LCA to Mr. Mellick’s co-workers.
Mr. Mellick then petitioned the MSPB for review of the
administrative judge’s remand decision. In his petition,
Mr. Mellick asserted that the union president was not an
authorized signatory to the LCA and that the employees
who were told about the LCA—the union president and the
appellant’s supervisors—were not responsible for imple-
menting the LCA. S.A. 3.2 The MSPB denied the petition
for review and affirmed the administrative judge’s
2 Citations to “S.A. ___” refer to the supplemental ap-
pendix filed with the government’s response brief. See Mel-
lick v. Dep’t of the Interior, No. 23-1733 (Fed. Cir. Aug. 4,
2023), ECF No. 11.
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MELLICK v. INTERIOR 6
dismissal of the appeal. Id. at 2. The MSPB explained that
Mr. Mellick had “the burden to show that the agency ma-
terially breached the LCA or otherwise acted in bad faith.”
Id. at 4. It further recognized that the MSPB “has consist-
ently viewed the violation of nondisclosure provisions in
settlement agreements seriously.” Id. “Condoning such vi-
olations,” the MSPB explained, “would have a chilling ef-
fect on attempts to settle appeals.” Id. at 4–5.
The MSPB then considered the challenges raised by
Mr. Mellick. First, the MSPB affirmed the administrative
judge’s finding that Mr. Mellick consented to the disclosure
of the LCA to Mr. Cartwright, explaining that the LCA
signed by Mr. Mellick included a signature block for
Mr. Cartwright, which was on the same page as Mr. Mel-
lick’s signature block. Further, the LCA itself included
terms specifying the rights of the union of which Mr. Cart-
wright was the local president. Though Mr. Mellick testi-
fied that the version he had signed was different from the
final LCA that was in the record, the MSPB credited the
administrative judge’s determination that Mr. Mellick’s
testimony lacked credibility.
Second, the MSPB affirmed the finding that the settle-
ment agreement’s confidentiality provision was not
breached by the disclosure of the LCA to Mr. Mellick’s su-
pervisors. The MSPB noted that the agency’s power man-
ager, Mr. Smith, had testified that he had explained to
managers in Mr. Mellick’s supervisory chain that Mr. Mel-
lick would be returning to work pursuant to an LCA and
should be treated fairly. The MSPB concluded that “it was
reasonable for the signatory manager to provide a brief ex-
planation to [Mr. Mellick’s] managers regarding why this
was occurring and urge them to treat [Mr. Mellick] fairly
without revealing the specific terms of the LCA.” Id. at 6.
Further, the MSPB affirmed the administrative judge’s
finding that “the subordinate managers would have a role
in implementing the LCA as they would be observing
[Mr. Mellick’s] conduct upon his return to duty.” Id.
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MELLICK v. INTERIOR 7
The MSPB also affirmed the administrative judge’s
finding that Mr. Mellick had failed to show any disclosure
of the LCA to Mr. Mellick’s co-workers. The MSPB noted
that the finding was based on the administrative judge’s
assessment of witness credibility and identified “no reason
not to afford that determination the appropriate defer-
ence.” Id. at 7.
Finally, the MSPB rejected various discovery-related
challenges raised by Mr. Mellick. It rejected his contention
that the agency should have been sanctioned for cutting
short a deposition of Mr. Smith on the grounds that
Mr. Mellick’s questioning was not relevant to the narrow
issue before the MSPB on remand. After the administra-
tive judge granted the motion to compel the deposition, the
deposition proceeded, and Mr. Mellick sought sanctions.
The MSPB explained that, considering that the agency ap-
peared to have complied with the motion to compel, the ad-
ministrative judge did not abuse his discretion by denying
Mr. Mellick’s motion for sanctions. The MSPB also rejected
Mr. Mellick’s challenges to limits imposed by the adminis-
trative judge upon Mr. Mellick’s questioning of agency em-
ployees’ motivations and his vague assertion that
deposition transcript testimony had been improperly ex-
cluded from the record.
The MSPB concluded that Mr. Mellick failed to show
that his waiver of appeal rights in the settlement agree-
ment should not be enforced and concluded that the admin-
istrative judge properly dismissed his appeal for lack of
jurisdiction.
This appeal followed. We have jurisdiction under
5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
II
Pursuant to 5 U.S.C. § 7703(c), we may set aside the
MSPB’s decision only if it is “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
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MELLICK v. INTERIOR 8
law; (2) obtained without procedures required by law, rule,
or regulation having been followed; or (3) unsupported by
substantial evidence.” Sistek v. Dep’t of Veterans Affs., 955
F.3d 948, 953 (Fed. Cir. 2020) (quoting § 7703(c)). We re-
view legal decisions, such as contract interpretation, de
novo, and findings of fact for substantial evidence. Salmon
v. Soc. Sec. Admin., 663 F.3d 1378, 1381 (Fed. Cir. 2011);
Bolton v. MSPB, 154 F.3d 1313, 1316 (Fed. Cir. 1998). Sub-
stantial evidence means “such relevant evidence as a rea-
sonable mind might accept as adequate to support a
conclusion.” Simpson v. Off. of Pers. Mgmt., 347 F.3d 1361,
1364 (Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
III
A
On appeal to this court, Mr. Mellick first contends that
the MSPB erred when it rejected his argument that the
agency breached the confidentiality term of the settlement
agreement. Per Mr. Mellick, this breach occurred by allow-
ing a union official, Mr. Cartwright, to sign the LCA. Pet.
Inf. Br. 3–4. Second, he argues that his supervisors, who
were informed of the LCA, had no “specific enforcement or
execution responsibilities in the settlement agreement.” Id.
at 6–7. Mr. Mellick asks our court to vacate the MSPB’s
decision and reinstate him to work with full back pay. Id.
at 9.
Both the administrative judge’s and MSPB’s factual
findings challenged by Mr. Mellick are supported by sub-
stantial evidence. First, the MSPB affirmed the adminis-
trative judge’s finding that Mr. Mellick consented to the
disclosure to Mr. Cartwright. This factual finding is based
on the LCA signed by Mr. Mellick, which included a signa-
ture block for Mr. Cartwright on the same page as Mr. Mel-
lick’s signature block. This indicates that Mr. Mellick knew
that Mr. Cartwright would receive and sign the LCA. S.A.
5. Further, the LCA itself included terms specifying the
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MELLICK v. INTERIOR 9
rights of the union of which Mr. Cartwright was the local
president, which demonstrated that the union would need
to be aware of—and agree to—the LCA’s terms. Id. The ad-
ministrative judge found that Mr. Mellick’s uncorroborated
testimony lacked credibility, and the MSPB credited the
administrative judge’s credibility determination. Id. We
have stated that such witness credibility assessments are
“within the discretion of the Board and . . . such evalua-
tions are ‘virtually unreviewable’ on appeal.” Kahn v. Dep’t
of Justice, 618 F.3d 1306, 1313 (Fed. Cir. 2010) (quoting
King v. Dep’t of Health & Human Servs., 133 F.3d 1450,
1453 (Fed. Cir. 1998)).
Second, substantial evidence supports the administra-
tive judge’s finding that the employees who learned of the
LCA had responsibilities with respect to the enforcement
of the LCA. The MSPB noted the testimony of the agency’s
power manager, Mr. Smith, who signed the LCA, in which
he said that he had explained to managers in Mr. Mellick’s
supervisory chain that Mr. Mellick would be returning to
work pursuant to an LCA and should be treated fairly. S.A.
6. The MSPB affirmed the administrative judge’s finding
that, because “the subordinate managers would be observ-
ing [Mr. Mellick’s] conduct upon his return to duty,” they
would have a role in implementing the LCA. Id.
This finding is supported by the testimony of
Mr. Smith, who testified that his view was that those indi-
viduals in the management chain “had as much impact on
the implementation of the last chance agreement as I did
and actually I saw them as having a more than impact [sic]
on the last chance agreement since they were working
closer to Mr. Mellick than I was.” P.A. 65. His testimony
supports the MSPB’s conclusion that “it was reasonable for
the signatory manager to provide a brief explanation to the
[Mr. Mellick’s] managers regarding why this was occurring
and urge them to treat [Mr. Mellick] fairly without reveal-
ing the specific terms of the LCA.” S.A 6. We, therefore,
conclude that there was substantial evidence to support
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MELLICK v. INTERIOR 10
the MSPB’s finding that Mr. Mellick’s union president was
authorized to know of the LCA and that any agency offi-
cials who learned of the LCA had a reason to know in order
to enforce the LCA.
B
Mr. Mellick also argues that the MSPB did not inter-
pret the settlement agreement correctly. Pet. Inf. Br. 8. We
disagree. First, the settlement agreement did not require
the agency to restrict who, within the agency, could learn
of the LCA. The parties to the settlement agreement, in-
cluding the agency, agreed to abide by the terms of the set-
tlement agreement, including the confidentiality provision.
But a party cannot be expected to shield itself from
knowledge of an agreement that it signed. See Shirley v.
Dep’t of Interior, 2013 M.S.P.B. 76, (2013). Thus, the most
logical reading of the confidentiality provision is that it pro-
hibits disclosure only to third parties—not that it prohibits
disclosure to an agency’s own supervisory employees. See
id. While Mr. Mellick was free to attempt to negotiate a
confidentiality provision that imposed restrictions on who
within the agency could learn of the LCA, see, e.g., Sena v.
Dep’t of Defense, 66 M.S.P.R. 458, 464 (MSPB 1995), he did
not. Having failed to negotiate a provision that placed lim-
its on who, within the agency, could review the LCA, he
cannot now insist that the agency was required to impose
such restrictions.
Second, even assuming that the settlement agreement
imposed prohibitions upon intra-agency disclosure, it did
not prohibit the agency from disclosing the LCA to those
agency employees who needed to know of the LCA to exe-
cute its terms. If the power manager, who has only limited
authority over personnel matters, was the only agency em-
ployee permitted to know of the agreement, it would effec-
tively be impossible for the agency to follow the procedural
steps necessary for removing Mr. Mellick pursuant to the
LCA. See P.A. 5 (provision of LCA describing process for
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MELLICK v. INTERIOR 11
removing Mr. Mellick); Pourbabai v. Dep’t of Transp., 90 F.
App’x 396, 397 (Fed. Cir. 2004) (unpublished) (affirming
the decision of the MSPB in which “the administrative
judge held that knowledge by such a person did not violate
the confidentiality provisions of the agreement” where “the
person who knew of the settlement agreement was the per-
son who would deal directly with [the petitioner] up to his
actual retirement”).
Mr. Mellick concedes that disclosures necessary to ef-
fectuate the LCA are permissible in his opening brief, when
he states that the settlement agreement permitted the dis-
closure of the LCA to human resources and legal employees
responsible for investigating allegations of misconduct.
Pet. Inf. Br. 7. Mr. Mellick’s disagreement is with the
MSPB’s conclusion that managers in Mr. Mellick’s chain of
supervision needed to know of the agreement to execute it.
See id. But, for the reasons discussed above, the MSPB’s
decision is supported by our precedent.
IV
We have considered the rest of Mr. Mellick’s argu-
ments and find them unpersuasive. We therefore affirm
the MSPB’s decision.
AFFIRMED
COSTS
No costs.
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