Opinion

Eric Milligan v. Department of the Army

Court: Merit Systems Protection Board
Filed: Apr 20, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ERIC JOHN MILLIGAN, DOCKET NUMBER

Appellant, CH-0752-20-0387-C-1

DEPARTMENT OF THE ARMY, DATE: April 20, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Eric John Milligan , Loogootee, Indiana, pro se.

Matthew G. Neumann , Rock Island, Illinois, for the agency.

Robert L. May Jr. , Esquire, Crane, Indiana, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the compliance initial

decision, which denied his petition for enforcement of a settlement agreement.

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

the initial decision is based on an 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

The appellant filed an appeal challenging his removal from his position as a

WG-5703-08-05 Motor Vehicle Operator with the Crane Army Ammunition

Activity in Crane, Indiana. Milligan v. Department of the Army, MSPB Docket

No. CH-0752-20-0387-I-1, Initial Appeal File (IAF), Tab 1 at 1. While the

appeal was pending, the parties entered into a settlement agreement that resolved

the appellant’s Board appeal and all of his claims against the agency related to his

removal. IAF, Tab 14. Under the terms of the settlement agreement, the

appellant agreed to withdraw his Board appeal and prior claims against the

agency, and, in return, the agency agreed, in relevant part, to “provide a neutral

reference to private parties who ask for employment information about Appellant

when the inquiry is directed to [Civilian Personnel Advisory Center - Crane Army

Ammunition Activity (CPAC-CAAA),]” by simply confirming the dates of the

appellant’s employment and his former position title. Id. at 5. 2 The agreement

also explicitly provided that:

The agency also agreed to pay the appellant $50,000. Id.

Appellant understands a Privacy Act release signed by Appellant,

and or his legal representative, will likely cause a responding Federal

agency (including the Army) to release all records identified in the

Privacy Act release. Appellant further understands the Agency is

prohibited from withholding any portion of his employment

information from other Federal entities pursuant to Executive Order

13839.

Id.

The administrative judge thereafter issued an initial decision finding that

the appeal was within the Board’s jurisdiction and that the settlement agreement

was lawful on its face, freely entered into, and that the parties understood its

terms. IAF, Tab 15, Initial Decision at 2. Accordingly, she entered the

agreement into the record for the purposes of enforcement by the Board and

dismissed the appeal as settled. Id. at 2-3.

The appellant subsequently filed a petition for enforcement contending the

following: “failure to comply with Mediated Settlement Agreement.” Milligan v.

Department of the Army, MSPB Docket No. CH-0752-20-0387-C-1, Compliance

File (CF), Tab 1 at 2. He alleged that the agency kept him “from obtaining

employment with at least eleven jobs,” argued that his final Standard Form 50

(SF-50) documenting his removal contained several errors—such as failing to

note the parties’ settlement agreement—and maintained that the agency had

reported “unproven negative” information about him to the Defense

Counterintelligence and Security Agency, which he learned through a Privacy Act

request. CF, Tab 7 at 4-6; see also IAF, Tab 1 at 23. The agency maintained that

it had fully complied with the settlement agreement. CF, Tab 6.

Without holding the requested hearing, the administrative judge issued a

compliance initial decision finding the agency in compliance with the settlement

agreement. CF, Tab 11, Compliance Initial Decision (CID) at 9.

The administrative judge found, among other things, that the appellant did not

show that the agency materially breached the settlement agreement with regard to

his removal SF-50 because the plain language of the settlement agreement’s

“neutral reference” clause did not require the agency to alter the appellant’s

personnel file. CID at 5-6. She also found that the appellant failed to show that

the agency materially breached the settlement agreement’s “neutral reference”

clause because the plain language of the agreement only obligated the agency to

provide a neutral reference to private parties who reached out to the agency at the

address and phone number designated in the agreement, not to provide a neutral

reference to other Federal agencies 3 or to withhold any information requested

during an investigation of the appellant’s suitability for another federal position.

CID at 6-7. To this end, she concluded that the appellant knowingly and

intentionally waived any agency obligation under the settlement agreement

regarding the release of information in the context of background investigations.

CID at 7-8. The administrative judge thus denied the appellant’s petition for

enforcement. CID at 10.

The appellant has filed a petition for review of the compliance initial

decision. Compliance Petition for Review (CPFR) File, Tab 1. On review, he

reiterates his general claims that the agency made non-neutral disclosures about

him and that his final SF-50 contains multiple inaccuracies. Id. at 5-8. He asks

the Board to ensure the agency’s compliance with the neutral reference provision

“not only through CPAC responses but in all official [F]ederal reporting

mechanisms that impact future employment” and to adjust his SF-50 to “support

On this point, we note some conflicting language within the initial decision. In one

place, the decision states that the settlement agreement gave the agency the freedom to

provide a negative reference to a Federal agency or contractor seeking a reference.

CID at 6 (emphasis added). However, in each other reference to this settlement term,

the decision describes the agency as having that freedom to provide a negative reference

only to a Federal agency. CID at 2, 5-7. Under the circumstances, we interpret the one

reference to contractors as a scrivener’s error. In any event, we find the error harmless

because the record contains no evidence indicating that the agency provided a negative

reference to any contractor in violation of the settlement agreement.

the intended mutual benefit of the settlement.” 4 Id. at 7, 8. The agency has filed

a response. CPFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board has the authority to enforce a settlement agreement that has been

entered into the record in the same manner as any final Board decision or order.

Stasiuk v. Department of the Army, 118 M.S.P.R. 1, ¶ 5 (2012). A settlement

agreement is a contract, and the Board will therefore adjudicate a petition to

enforce a settlement agreement in accordance with contract law. Id. When, as

here, the appellant files a petition for enforcement of a settlement agreement over

which the Board has enforcement authority, the agency must produce relevant,

material, and credible evidence of its compliance with the agreement. Id.

However, the ultimate burden of proof is on the appellant, as the party seeking

enforcement, to show that the agency failed to fulfill the terms of the agreement.

Id.

Here, we agree with the administrative judge that the appellant failed to

establish that the agency materially breached the settlement agreement. As the

administrative judge correctly explained, the plain language of the settlement

agreement did not require the agency to alter the appellant’s final SF-50 or other

employment records in any respect, and it did not require the agency to provide a

neutral reference to other Federal agencies or withhold any information requested

during an investigation of the appellant’s suitability for another federal position,

as the appellant appears to be alleging. CID at 5-7. Furthermore, as the

administrative judge properly pointed out, the appellant did not provide any

evidence demonstrating that the agency actually provided a negative reference to

The appellant also resubmits documents that he submitted with his compliance appeal.

Compare CF, Tab 1 at 19-73 with CPFR File, Tab 1 at 9-63. However, evidence that is

already part of the record is not new evidence that warrants granting review. Meier v.

Department of the Interior, 3 M.S.P.R. 247, 256 (1980); see 5 C.F.R. § 1201.115(d)

(identifying new and material evidence as a basis on which the Board may, in

appropriate circumstances, grant review).

“at least eleven” employers, whereas the agency submitted an affidavit from a

human resources official swearing under penalty of perjury that she has never

received a request for a reference check for the appellant and has never provided

any information about the appellant’s employment or removal to any non-Federal

entity or private employer. CID at 8-9; CF, Tab 6 at 11-12. Because the record

reflects that the administrative judge considered the evidence as a whole, drew

appropriate inferences, and made thorough, reasoned conclusions, we discern no

reason to disturb her findings. See, e.g., Clay v. Department of the Army,

123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative

judge’s findings when she considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions).

On review, the appellant does not dispute any of the administrative judge’s

findings; instead, he simply reargues his claims from below. CPFR File, Tab 1

at 5-8. However, the mere reargument of issues already raised and properly

resolved by the administrative judge below does not establish a basis for review.

Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359

(1987). Furthermore, we note that the appellant expressly acknowledges in his

petition for review that “[he] understand[s] that the agreement does not

specifically require a change to the SF-50, but [] believe[s] this adjustment would

support the intended mutual benefit of the settlement . . . .” CPFR File, Tab 1

at 8 (emphasis added). He also specifically states that he believes that a “truly

neutral reference should include neutral entries in all personnel and security

databases . . . .” Id. at 6. As noted above, he requests the agency’s compliance

with the neutral references provision “not only through CPAC responses but in all

official [F]ederal reporting mechanisms that impact future employment” and asks

that “all derogatory data” from systems used to assess clearance eligibility be

corrected or removed. Id. at 7. But as discussed above and correctly explained

by the administrative judge in the compliance initial decision—and seemingly

conceded by the appellant—such terms are not a part of the settlement agreement.

When an agreement’s words and meaning are unambiguous, as they are here, its

terms are not subject to variation. Slattery v. Department of Justice, 590 F.3d

1345, 1347 (Fed. Cir. 2010). Although the appellant may now wish that the

settlement agreement included language like he asks for above, the Board has no

authority to unilaterally modify the terms of a settlement agreement or to read a

nonexistent term into an agreement that is unambiguous. Flores v. U.S. Postal

Service, 115 M.S.P.R. 189, ¶ 10 (2010) (citing Galatis v. U.S. Postal Service,

109 M.S.P.R. 651, ¶ 10 (2008); Hamilton v. Department of Veterans Affairs,

92 M.S.P.R. 467, ¶ 6 (2002)).

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.

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.

(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).

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

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

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).

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.

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