UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
MARK A. TOMLIN, DOCKET NUMBER Appellant, CH-0752-25-0200-I-1
v.
U.S. POSTAL SERVICE, DATE: August 27, 2026 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mark A. Tomlin , St. Louis, Missouri, pro se.
Roderick Eves , Esquire, and Bobbi Mihal , Esquire, St. Louis, Missouri, for the agency.
Robert Swift , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
James J. Woodruff II, Chairman Henry J. Kerner, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
Effective January 19, 2025, the agency removed the appellant from his position as a City Carrier based on a charge of improper conduct. Initial Appeal File (IAF), Tab 1 at 1, Tab 5 at 15-19. On January 27, 2025, the appellant challenged his removal with the Board. IAF, Tab 1 at 1-2.
On March 21, 2025, the agency and the appellant’s union entered into a settlement agreement resolving a grievance that the appellant had filed based on the removal. IAF, Tab 6 at 4. Under the terms of the agreement, the agency would rescind the removal, expunge it from the appellant’s record, and provide him with other make-whole relief. Id. The agreement also resolved “all other relevant complaints and/or grievances” related to the removal. Id. The agency filed motions to dismiss based on the settlement agreement and for lack of Board jurisdiction. IAF, Tab 7 at 4, Tab 10 at 4-7.
The administrative judge issued an initial decision on August 1, 2025, dismissing the appeal for lack of jurisdiction. IAF, Tab 18, Initial Decision (ID) at 1, 7. The appellant filed a petition for review on the same day. Petition for
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Review (PFR) File, Tab 1. The appellant asserts that the administrative judge erred in not issuing a formal jurisdictional show cause order regarding the settlement agreement. Id. at 4. The agency filed an opposition to the petition. PFR File, Tab 3.
In light of this, the Clerk of the Board issued an Order to Submit Evidence and Argument Regarding Jurisdiction and Mootness, directing the parties to file evidence and argument regarding the validity of the settlement agreement, the enforceability of any waiver of Board appeal rights, and whether the appeal has been rendered moot. PFR File, Tab 4 at 3. Both parties responded. 2 PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW A settlement agreement is a contract between the parties, and its terms are to be interpreted as a question of contract law. Wofford v. Department of Justice, 115 M.S.P.R. 468, ¶ 6 (2010). An appellant may challenge the validity of a settlement agreement if he believes it was unlawful, involuntary, or the result of fraud or mutual mistake. Id. Even if invalidity was not apparent at the time of settlement, the agreement must be set aside if it is subsequently shown by new evidence that the agreement was tainted with invalidity by fraud or misrepresentation. Id. However, the party challenging the validity of a settlement agreement bears a heavy burden of showing a basis for invalidation. Id. To establish that a settlement was fraudulent as a result of coercion or duress, a party must prove that he involuntarily accepted the other party’s terms, that
2 The appellant also challenges the agency’s conduct in processing his removal, including its reliance on information that he alleges is inaccurate or improperly included. PFR File, Tab 5 at 3-4. However, these arguments regarding the merits of the underlying removal action are not relevant to the validity of the settlement agreement, any waiver of Board appeal rights, or whether the appeal has been since rendered moot. PFR File, Tab 5 at 3-4; see Smith v. U.S. Postal Service, 10 M.S.P.R. 320, 321 (1982) (finding that an appellant waived his rights to further challenge the merits of his removal when he settled his appeal). Thus, we need not address these arguments on review.
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circumstances permitted no alternative, and that such circumstances were the result of the other party’s coercive acts. Potter v. Department of Veterans Affairs, 111 M.S.P.R. 374, ¶ 6 (2009).
On review, the Board afforded the parties an opportunity to address whether the agreement was unlawful, involuntary, or the product of fraud, coercion, duress, or mutual mistake. PFR File, Tab 4. In response, however, the appellant does not challenge the circumstances surrounding the execution of the agreement or otherwise allege any basis for setting it aside. PFR File, Tab 5 at 3-4. Rather, he expressly acknowledges that the agreement rescinded his removal and restored him to duty, and instead argues that the agreement did not resolve all issues arising from the agency’s conduct during the disciplinary process and his continuing emotional harm. Id. at 3. The appellant’s post-settlement disagreement with the scope of relief provided by the agreement does not, by itself, establish that the agreement was unlawfully procured or otherwise invalid. 3 See Potter, 111 M.S.P.R. 374, ¶ 6 (finding that an appellant’s mere post-settlement remorse or change of heart cannot serve as a basis for setting aside a valid settlement agreement). Thus, we find that the appellant has not met his burden of proving that the settlement agreement was invalid.
An appellant may also challenge the enforceability of any waiver of Board appeal rights in a settlement agreement. See Swidecki v. U.S. Postal Service, 101 M.S.P.R. 110, ¶ 17 (2006). Such a waiver is enforceable if its terms are comprehensive, freely made, and fair, and the execution of the waiver was not the result of duress or bad faith on the part of the agency. Id. Unlike certain Federal employees who must make an election of remedies under 5 U.S.C. § 7121, a
3 To the extent the appellant argues that he was not satisfied with the performance of his designated representative, it is well settled that an appellant is responsible for the errors of his chosen representative. IAF, Tab 1 at 3; see Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981); see also Wadley v. Department of the Army, 90 M.S.P.R. 148, ¶ 5 (2001) (holding that ineffective representation or contentions of coercion by a party’s representative do not provide a basis for setting aside a settlement agreement).
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preference eligible at the U.S. Postal Service, like the appellant, may file both a grievance and a Board appeal on the same action. Johnson v. U.S. Postal Service, 108 M.S.P.R. 502, ¶ 15 (2008), aff’d, 315 F. App’x 274 (Fed. Cir. 2009). However, an appellant may waive his Board appeal rights in the process of settling his grievance. Blanding v. U.S. Postal Service, 121 M.S.P.R. 248, ¶ 5 (2014). The Board will give due effect to the express terms of a valid agreement waiving Board appeal rights. Id. In addition, an appellant waives his Board appeal rights when a grievance settlement contains a broad and general waiver that encompasses the claim raised before the Board and does not specifically reserve the right to file an appeal. Id.
Here, the terms of the settlement agreement stated that it was a “full and complete settlement” of the appellant’s removal, and it “resolves any and all issues pertaining thereto or giving rise to, including all other relevant complaints and/or grievances.” IAF, Tab 6 at 4. The broad language of the agreement, which does not specifically reserve the right to file or continue an existing appeal with the Board, requires a waiver of the appellant’s Board appeal rights of the removal. See Blanding, 121 M.S.P.R. 248, ¶ 5. The appellant does not allege that the agreement was not freely made, that he was unable to understand its consequences, that he suffered from mental impairment affecting consent, or that the agency acted under duress or bad faith during settlement negotiations. PFR File, Tab 5. Moreover, despite being afforded an opportunity to address the enforceability of the waiver on review, the appellant has not argued that the waiver provision itself was ambiguous, involuntary, or otherwise unenforceable. Id. We find, therefore, that the appellant has not shown that the waiver of appeal rights is unenforceable, and the administrative judge correctly dismissed the appeal. 4
4 Because we find that the settlement agreement is valid and that the appellant waived his Board appeal rights, we need not reach the separate question of whether the appeal was rendered moot. In any event, even assuming the settlement agreement did not independently divest the Board of jurisdiction, the record indicates that the agency
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NOTICE OF APPEAL RIGHTS 5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).
rescinded the removal, restored the appellant to duty, expunged records relating to the removal, and provided back-pay relief. PFR File, Tab 6 at 11-23. The appellant does not dispute that he has received this relief and has not identified any additional relief available in this appeal that the Board could award. Thus, the appeal is moot. See Green v. Department of the Air Force, 114 M.S.P.R. 340, ¶ 7 (2010) (finding that when an agency cancels or rescinds an action after the action has been appealed, the Board may dismiss the appeal as moot). 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.
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If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on
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race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to:
Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.
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Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board
Washington, D.C.