The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA A. PATTON, DOCKET NUMBERS
Appellant, DA-1221-14-0571-X-1
DA-1221-14-0571-C-1
v.
DEPARTMENT OF THE ARMY,
Agency. DATE: January 13, 2016
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Patricia A. Patton, Cibolo, Texas, pro se.
Adam Stoffa, Esquire, and Shannon M. Callahan, Esquire, Fort Sam
Houston, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The administrative judge issued a compliance initial decision granting the
appellant’s petition for enforcement and finding the agency in noncompliance
with the parties’ settlement agreement. MSPB Docket No. DA-1221-14-0571-
C-1, Compliance File (CF), Tab 7, Compliance Initial Decision (CID). The
∗
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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appellant filed a petition for review, to which the agency responded. The agency
filed a statement of compliance, to which the appellant did not respond. For the
reasons discussed below, 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).
We further find the agency in compliance and DISMISS the petition for
enforcement. 5 C.F.R. § 1201.183(c)(1)).
DISCUSSION OF ARGUMENTS ON REVIEW AND EVIDENCE ON
COMPLIANCE
¶2 On October 20, 2014, the parties entered into a settlement agreement
resolving the appellant’s whistleblower individual right of action appeal. MSPB
Docket No. DA-1221-14-0571-W-1, Initial Appeal File (IAF), Tab 22. In
pertinent part, the agency agreed to:
[R]emove from the appellant’s Official Personnel File and all other
systems of record in which the appellant’s file is retrievable by name
all references of her reprimand, dated January 21, 2014. However,
the agency may maintain a copy of this agreement and any other
case-related documents in a separate file to be used only for the
purposes of compliance with the agreement or for purposes of further
adjudication should the Board find it necessary to reopen this appeal.
Id. at 5.
¶3 On October 23, 2014, the administrative judge issued an initial decision
entering the settlement agreement into the record for enforcement purposes and
dismissing the appeal. IAF, Tab 23, Initial Decision (ID) at 1-2. The decision
became final after neither party petitioned for review.
¶4 On March 12, 2015, the appellant filed a petition for enforcement. She
contended that the agency breached the settlement agreement when two
management employees testified in detail about the letter of reprimand during
proceedings related to her equal employment opportunity (EEO) complaints. CF,
Tab 1 at 3-4.
¶5 On June 23, 2015, the administrative judge issued a compliance initial
decision granting the petition for enforcement in part. The administrative judge
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found that testimony by the Deputy Chief of Staff for the Installation
Management Command did not breach the settlement agreement because he did
not mention the letter of reprimand. CID at 8-9; CF, Tab 5 at 18. However, the
administrative judge found that testimony by the Budget Deputy G8 (Budget
Deputy) did breach the settlement agreement because he mentioned the letter of
reprimand and offered to provide a copy of it to the EEO investigator. CID at
9-10; CF, Tab 5 at 38. The administrative judge found that the Budget Deputy’s
offer to provide the letter demonstrated that the agency had failed to expunge the
letter and references to it from any files retrievable by the appellant’s name, in
violation of the settlement agreement. CID at 12. The administrative judge
further found that this violation was a material breach of the settlement
agreement. Id. Because the appellant had elected to enforce the settlement
agreement, the administrative judge ordered the agency to ensure that all
references to the letter were removed from the agency’s systems of record
retrievable by the appellant’s name, including the documentation referred to
during the Budget Deputy’s testimony. CID at 13.
¶6 On July 22, 2015, the appellant filed a petition for review pursuant
to 5 C.F.R. §§ 1201.183(a) and 1201.183(a)(6)(ii). MSPB Docket No. DA-1221-
14-0571-C-1, Petition for Review (PFR) File, Tab 1. She did not allege that the
administrative judge erred in finding that the agency breached the settlement
agreement. Rather, she requested $150,000 in damages to remedy the agency’s
breach of the agreement and the negative physical and emotional consequences
she suffered as a result of the breach. Id. at 6. On August 7, 2015, the agency
filed a response contending that the Board lacks authority to grant the requested
relief. PFR File, Tab 3 at 4.
¶7 On July 28, 2015, the agency filed a statement of compliance pursuant
to 5 C.F.R. § 1201.183(a)(6)(i). MSPB Docket No. DA-1221-14-0571-X-1,
Compliance Referral File (CRF), Tab 1. The agency submitted a declaration from
an agency Labor/Management Employee Relations Specialist averring that she
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had searched the agency’s hard copy files maintained at the Civilian Personnel
Advisory Center and had removed from any system of records retrievable by the
appellant’s name all files that referenced the letter of reprimand. Id., Subtab A.
The agency also submitted declarations from the Budget Deputy and from the
Chief of the Manpower Division, Directorate of Resource Management,
Installation Management Command, averring that they had deleted from their
electronic files all emails and documents relating or referring to the reprimand.
Id., Subtabs B, C.
Petition for Review
¶8 Generally, we grant a petition for review such as this one only when: the
initial decision contains erroneous findings of material fact; 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. See 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.
¶9 As explained above, the appellant has not asserted that the administrative
judge erred in finding that the agency materially breached the settlement
agreement. She therefore has not articulated a basis for reversal under section
1201.115.
¶10 The appellant’s sole contention on petition for review is that the Board
should award her $150,000 in damages to remedy the physical and emotional toll
the agency’s actions have had upon her. PFR File, Tab 1 at 6. The Board has no
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authority to award compensatory damages for breach of a settlement agreement.
Principe v. U.S. Postal Service, 101 M.S.P.R. 626, ¶ 3 (2006); see Kwartler v.
Department of Veterans Affairs, 108 M.S.P.R. 330, ¶¶ 13-14 (2008) (explaining
the Board’s authority to award compensatory damages in certain cases); Seibel v.
Department of Treasury, 87 M.S.P.R. 260, ¶ 15 (2000) (same). The appellant’s
argument therefore offers no basis to overturn the initial decision. Accordingly,
we deny the petition for review and affirm the initial decision as the Board’s final
decision. 5 C.F.R. § 1201.113(b).
Petition for Enforcement
¶11 A settlement agreement is a contract, and the appellant, as the nonbreaching
party, bears the burden to prove “material noncompliance” with a term of the
contract. Lutz v. U.S. Postal Services, 485 F.3d 1377, 1381 (Fed. Cir. 2007). The
agency must produce relevant and material evidence of its compliance with the
agreement. Haefele v. Department of the Air Force, 108 M.S.P.R. 630, 634
(2008).
¶12 As explained above, we affirm the administrative judge’s initial decision
finding that the agency materially breached the settlement agreement when the
Budget Deputy offered to provide a copy of the appellant’s letter of reprimand,
which ought to have been expunged pursuant to the agreement. The
administrative judge ordered the agency to ensure that all references to the letter
were removed from the agency’s systems of record retrievable by the appellant’s
name. The agency subsequently submitted three declarations attesting that it had
done so. CRF, Tab 1, Subtabs A-C. The appellant did not respond to this
submission, although the Board advised her that if she failed to respond, the
Board might assume that she was satisfied and dismiss her petition for
enforcement. CRF, Tab 2 at 2. After considering the agency’s submissions and
the appellant’s failure to respond, we now assume the appellant is satisfied, find
the agency in compliance, and dismiss the petition for enforcement. This is the
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final decision of the Merit Systems Protection Board in this compliance
proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1)
(5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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, 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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.