Mahboob v. Department of Navy, 90-3342
| Citation | 928 F.2d 1126 |
| Decision Date | 22 March 1991 |
| Docket Number | No. 90-3342,90-3342 |
| Parties | 55 Fair Empl.Prac.Cas. 545, 56 Empl. Prac. Dec. P 40,661 Saba S. MAHBOOB, Petitioner, v. DEPARTMENT OF the NAVY, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
Saba S. Mahboob, Rockville, Md., pro se.
John T. Stemplewicz, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for respondent. With him on the brief, were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Stephen J. McHale, Asst. Director. Also on the brief, was Pam Page, Office of the Gen. Counsel, Dept. of the Navy, of counsel.
Before NEWMAN and RADER, Circuit Judges, and SKELTON, Senior Circuit Judge.
On April 7, 1989, Dr. Saba S. Mahboob (petitioner or plaintiff), who has a Ph.D. in chemistry, was removed from her position as a medical technologist, GS-9, at the National Naval Medical Center for alleged failure to follow instructions, refusal to carry out an order, unauthorized release of official information, and unacceptable performance. She appealed the decision of the agency to the Merit Systems Protection Board (board) on May 1, 1989, alleging that the decision of the Navy to remove her was unjustified and based on discrimination on account of her Moslem religion, national origin (Islam), color, race, age and reprisal for filing several Equal Employment Opportunity (EEO) complaints against the agency. The board referred the case to an administrative judge (AJ) for disposition.
The AJ held a prehearing telephone conference on July 24, 1989, between the plaintiff and her attorney Mr. Gebhardt, who were in one office, and the agency's attorney Mr. Jacobson and the AJ, who were in a different office. The conversation was tape recorded and the tape was entered into the record, and later transcribed. The transcript is in the record on appeal. The plaintiff says that her attorney was walking back and forth in the room with the speaker phone and that she did not hear much of the conversation between him and Jacobson and the AJ. In any event, the agency contends that the plaintiff and the Navy made an oral settlement agreement of plaintiff's case during the telephone conference on the following terms: (1) the Navy would withdraw all adverse information in Dr. Mahboob's official personnel folder; (2) the Navy would reinstate her effective April 7, 1989; (3) she would be placed in an administrative leave with pay status through October 30, 1989; (4) she would be in a leave without pay status from October 31, 1989 through December 31, 1989; (5) all employment reference calls would be referred to Mr. Jacobson; (6) a letter of reference would be signed by a Navy official to be designated; (7) Dr. Mahboob would resign or retire, effective December 31, 1989, or she might apply for another position; (8) she would not apply for any positions serviced by the Consolidated Civilian Personnel Office ("CCPO"), Northwest; and (9) she would withdraw all complaints filed against the Navy and would never resurface this issue in any federal or district court, the Equal Employment Opportunity Commission ("EEOC") or the board. Plaintiff's attorney agreed to these settlement terms, but plaintiff says she did not agree.
The AJ ruled on July 27, 1989, that the parties had settled plaintiff's case in the telephone conference and dismissed plaintiff's appeal. Thereafter, the board on its own motion reopened the case on April 9, 1990, and issued an opinion and order dismissing plaintiff's case as settled. 44 M.S.P.R. 509 (MSPB 1990). The plaintiff then appealed her case to this court acting pro se. She filed a brief and made an oral argument when the case was heard by the court.
The central and controlling fact question in this case is whether the parties made a final oral settlement of plaintiff's case during the telephone conference. A settlement agreement is a contract. Greco v. Army, 852 F.2d 558, 566 (Fed.Cir.1988). Whether a contract has been made by the parties, or whether a contract exists between them, is decided by the trial official or court either as a question of fact, or as a question of law, or as a mixed question of fact and law, depending on the facts and circumstances in the case. This issue was decided in the instant case as a question of fact. In order to determine the correctness of this decision, we must examine all of the evidence, as well as the contentions of the parties.
The plaintiff denies that she made an oral settlement agreement in the telephone conference. She says that her attorney had been urging her for more than three weeks to make a settlement and finally she reluctantly agreed to consider the terms proposed by the Navy. No one told her that the telephone conference was intended to be a final settlement of her case, and she never agreed that the conference would be a final and binding settlement. She contends that the terms set forth by Jacobson for the Navy in the conference were merely proposals made by the agency for her consideration, and that if any settlement was to be made the terms would be contained in a later written agreement which she would be allowed to examine and which would not be binding until and unless it was signed by her and a representative of the Navy. She says further that her attorney had no authority without her consent to agree that the telephone conference was a settlement of her case, and that she had never given such consent.
The plaintiff insists that the transcript of the tape shows that it was the intention of the parties, as well as the AJ, that a final settlement agreement would be later reduced to writing and submitted to the parties for their approval and signatures, and that until and unless this was done there would be no settlement. For instance, at the beginning of the telephone conference the AJ stated:
... and then when the parties get the final hard copy prepared and signed by all parties, they can forward that to me for inclusion in the record.
Again, at the end of the conference the AJ said:
In the meantime, when the written agreement is...
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Inamed Corp. v. Kuzmak
...been finalized does not demonstrate that the parties did not intend to be bound by their agreement"). Compare Mahboob v. Department of Navy, 928 F.2d 1126, 1129 (Fed.Cir.1991) ("The most convincing evidence that the telephone conference was not a final settlement of plaintiff's case, and th......
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Trauma Service Group v. U.S.
...absence of factual disputes, the question of contract formation is a question of law, reviewable de novo. See Mahboob v. Department of Navy, 928 F.2d 1126, 1128 (Fed.Cir.1991); Ransom v. United States, 900 F.2d 242, 244 (Fed.Cir.1990). The question of whether a contract creates a duty is al......
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Medinol Ltd. v. Guidant Corp.
...its terms. Instead, he accepted the settlement without equivocation. "A settlement agreement is a contract." Mahboob v. Department of the Navy, 928 F.2d 1126, 1128 (Fed.Cir.1991). "Since contractual obligations are to be ascertained from objective manifestations of intent, plaintiff's menta......
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Inamed Corporation v. Kuzmak, CASE No. CV 99-02160 MMM (MANx) (C.D. Cal. 5/28/2002)
...been finalized does not demonstrate that the parties did not intend to be bound by their agreement"). Compare Mahboob v. Department of Navy, 928 F.2d 1126, 1129 (Fed. Cir. 1991) ("The most convincing evidence that the telephone conference was not a final settlement of plaintiff's case, and ......