             NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
             citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit

                                      04-3349


                                CARMEN B. MARRON,

                                                     Petitioner,

                                          v.

                             DEPARTMENT OF DEFENSE,

                                                     Respondent.

                             _________________________

                             DECIDED: December 13, 2004
                             _________________________


Before LOURIE, RADER, and SCHALL, Circuit Judges.

PER CURIAM.

                                     DECISION

      Carmen B. Marron seeks review of the final decision of the Merit Systems

Protection Board denying her petition to enforce a settlement agreement with the

Department of Defense. Marron v. Dep’t of Def., No. SE-0752-98-0263-C-1 (M.S.P.B.

Apr. 27, 2004). We affirm.

                                   BACKGROUND

      Marron was formerly employed as a teacher at the Department of Defense

Dependents’ Schools (“DoDDS”). Her separation from DoDDS was the subject of a

prior appeal to the Board, which was dismissed under a settlement agreement whereby
the agency agreed to furnish only neutral information to potential employers. When

Marron subsequently applied for re-employment at DoDDS, she learned that a negative

recommendation from a former supervisor had been added to her application file. After

the agency removed the negative recommendation at her request, Marron petitioned the

Board to reinstate her prior appeal, alleging breach of the settlement agreement.

      An administrative judge (“AJ”) denied Marron’s petition after determining that any

breach by the agency was immaterial. The AJ found no evidence that the negative

recommendation in Marron’s application file had actually affected her re-employment

prospects because her submission of an incomplete application had precluded her

consideration by DoDDS selecting officials. The AJ’s decision became final when the

full Board denied Marron’s petition for review. 5 C.F.R. § 1201.113(b) (2004). Marron

appealed to this court, and we have jurisdiction under 28 U.S.C. § 1295(a)(9) (2000).

                                     DISCUSSION

      We will affirm the Board’s decision unless it was: (1) arbitrary, capricious, or an

abuse of discretion; (2) procedurally deficient; or (3) unsupported by substantial

evidence. 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307,

1311 (Fed. Cir. 2003).

      On appeal, Marron reiterates her arguments presented below that the breach

was material.    Because the AJ’s determination of immateriality is supported by

substantial evidence, we remain unconvinced that the Board erred. In an attempt to

disprove the immateriality of the breach, Marron seeks to introduce on appeal new

evidence of additional teaching positions for which she allegedly qualified. We cannot

consider such evidence because it was not presented to the Board. Oshiver v. Office of




04-3349                                    2
Pers. Mgmt., 896 F.2d 540, 542 (Fed. Cir. 1990). Based on the record below, we

discern no error in the Board’s application of the law, and find that its decision is

supported by substantial evidence. Accordingly, we affirm.




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