Yong I. Fenlon v. Department of the Navy

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
YONG I. FENLON,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
______________________
2014-3088
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-11-0459-I-4.
______________________
Decided: November 7, 2014
______________________
YONG I. F ENLON, of Carlsbad, California, pro se.
MARTIN M. T OMLINSON, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. D ELERY , Assistant Attor-
ney General, ROBERT E. K IRSCHMAN, J R., Director, and
CLAUDIA BURKE, Assistant Director.
______________________

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FENLON v. NAVY 2
Before L OURIE, M OORE, and CHEN, Circuit Judges.
P ER CURIAM .
Ms. Yong I. Fenlon appeals from the decision of the
Merit Systems Protection Board (MSPB) dismissing her
claim pursuant to a settlement agreement that resolved
the dispute regarding Ms. Fenlon’s removal from her
position in the Department of the Navy (Navy). We
affirm.
BACKGROUND
Ms. Fenlon was removed from her position as a
financial management analyst with the United States
Marine Corps Installation West Budget Office, a
component of the Navy, for a series of unexcused
absences. Ms. Fenlon filed an appeal with the MSPB
challenging her removal. The parties reached a
settlement, pursuant to which the appeal would be
withdrawn. The settlement agreement, signed by Ms.
Fenlon, provided that it was “in full and final settlement
of any and all claims arising from and related to [Ms.
Fenlon’s] federal employment with the [Navy] prior to the
date of this Agreement.” Respondent’s Appendix (R.A.)
54. The agreement also provided that Ms. Fenlon would
voluntarily resign from her position one day after the
execution of the agreement.
The Office of Personnel Management (OPM) was not a
party to the settlement agreement. While several
provisions of the agreement contemplated the possibility
of Ms. Fenlon seeking disability benefits through OPM,
the agreement stated that “[Ms. Fenlon] acknowledge[d]
that the [Navy] makes no representation about [Ms.
Fenlon’s] eligibility for disability retirement. Sole
authority to grant or deny disability retirement benefits
lies with OPM.” R.A. 57. The agreement further stated
that “[i]n the event [Ms. Fenlon] applies to OPM for
disability retirement benefits, [Ms. Fenlon] acknowledges

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FENLON v. NAVY 3
that this agreement shall remain binding and enforceable
between the two undersigned parties regardless of
whether OPM awards or denies [Ms. Fenlon] disability
retirement benefits.” R.A. 57.
Ms. Fenlon and the Navy jointly agreed to provide the
settlement agreement to the MSPB and make it part of
the record of enforcement before the MSPB. In its initial
decision, the Administrative Judge (AJ) found that the
settlement agreement was lawful, that the parties
indicated that they understood its terms, and that the
agreement was freely reached. Accordingly, the AJ
dismissed Ms. Fenlon’s appeal.
Ms. Fenlon petitioned the MSPB for review of the AJ’s
initial decision, alleging confusion regarding OPM
disability retirement benefits. Ms. Fenlon contended that
she was entitled to receive disability retirement benefits
from OPM. She claimed that “[c]urrently, [the Navy]
can’t provide me [with an] OPM acceptance copy of the
settlement.” R.A. 62. She subsequently filed another
pleading before the MSPB detailing her medical issues
and explaining that she needed to “make sure [her] OPM
disability benefits are covered.” R.A. 64.
The MSPB denied Ms. Fenlon’s petition for review
and affirmed the initial decision, holding that her
allegations solely concerned actions taken or not taken by
the OPM, an agency that was not involved in the
settlement negotiations and was not a party to the
settlement agreement. It explained that “OPM is not a
party to the settlement agreement at issue in this petition
for review, and a settlement agreement simply cannot
impose obligations on such a third party without that
party’s assent.” R.A. 4. The MSPB explained that
“[i]mportantly . . . [Ms. Fenlon] does not allege that the
agency has somehow breached the parties’ settlement
agreement.” R.A. 3. As a result, the MSPB concluded
that Ms. Fenlon had not alleged a valid basis for granting

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FENLON v. NAVY 4
the petition for review, and the AJ’s initial decision
became the MSPB’s final decision. Ms. Fenlon appeals.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
The scope of our review of the MSPB’s decisions is
narrowly defined and limited by statute. We must affirm
the MSPB decision unless it is “(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)
(2012).
We hold that the MSPB properly dismissed Ms.
Fenlon’s appeal based on the settlement agreement. The
settlement agreement resolved the dispute between the
parties and did not entitle Ms. Fenlon to disability
retirement benefits from OPM. OPM was not a party to
the agreement, and a settlement agreement cannot
impose obligations on a third party without that party’s
assent. See, e.g., Parker v. Office of Pers. Mgmt., 93
M.S.P.R. 529 (2003), aff’d, 91 F. App’x 660 (Fed. Cir.
2004). In any event, the question of Ms. Fenlon’s
entitlement to disability retirement benefits from OPM is
now moot: OPM approved Ms. Fenlon’s disability
retirement benefits request in September 2013.
For the first time on appeal before our court, Ms.
Fenlon argues that we should vacate the settlement
agreement because the Navy failed to provide her with
reasonable accommodations as required by the Americans
with Disabilities Act, 42 U.S.C. § 12101, et seq., for
disabled employees prior to her removal from her position
at the Navy. Ms. Fenlon did not raise this argument
below and we cannot consider it for the first time on
appeal. See Mistelske v. Merit Sys. Protection Bd., 314 F.
App’x 272, 275 (Fed. Cir. 2008) (citing Syan v. Merit Sys.
Protection Bd., 765 F.2d 1099, 1101 (Fed. Cir. 1985)).

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FENLON v. NAVY 5
CONCLUSION
For the foregoing reasons, we affirm.
AFFIRMED
COSTS
No costs.

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