                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2008-3226


                                DARRIEL K. CASTON,

                                                              Petitioner,

                                           v.

                         DEPARTMENT OF THE INTERIOR,

                                                              Respondent.

      Darriel K. Caston, of Sacramento, California, pro se.

        David F. D’Alessandris, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson,
Director, and Patricia M. McCarthy, Assistant Director. Of counsel was Kevin D. Mack,
Assistant Regional Solicitor, Office of the Regional Solicitor, United States Department
of the Interior, of Sacramento, California.

Appealed from: Merit Systems Protection Board
                                NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                             2008-3226

                                       DARRIEL K. CASTON,

                                                                             Petitioner,

                                                  v.

                                DEPARTMENT OF THE INTERIOR,

                                                                             Respondent.

Petition for review of the Merit Systems Protection Board in SF0752040058-X-1.
                            ___________________________

                               DECIDED: November 4, 2008
                               ___________________________


Before BRYSON, DYK, and PROST, Circuit Judges.

PER CURIAM

          Darriel K. Caston (“Caston”) seeks review of a final decision of the Merit Systems

Protection Board (“Board”) denying his petition for enforcement of a settlement

agreement. Caston v. Dep’t of the Interior, 108 M.S.P.R. 190 (M.S.P.B. 2008). We

affirm.



                                         BACKGROUND

          The history of this litigation stretches back fifteen years, and is described in detail

by the Board in its decision. Id. at 192-96. The brief summary presented here includes

only that history directly relevant to the issues on review.

          Darriel K. Caston was an electrical engineer with the Department of the Interior,

Bureau of Reclamation (“agency”). Effective October 1, 2003, Caston was removed
from his position. Caston timely appealed to the Board. Caston asserted that he was

removed in retaliation for protected reports to management that his supervisor, Ms.

Robinson, was “foisting her religious beliefs” on employees and “religious harassment.”

He also asserted that his removal was discrimination on the basis of “religious

harassment discrimination,” sex, and race.

       On April 8, 2004, Caston and the agency signed a settlement agreement

(“agreement”). The agency agreed to cancel Caston's removal and restore him to duty

status from the date of his removal with back pay and reimbursement of attorney fees.

Caston agreed to remain on administrative leave until January 1, 2005, at which time he

would resign from the agency if unable to find other Federal employment. Provision 1 of

the agreement stated that Caston “agrees not to file any additional administrative or

judicial actions regarding the subject matter of this appeal except that he may seek

enforcement of this Agreement.”        Provisions 6, 7, and 11 contain promises of

confidentiality:

       6. The agency agrees to delete and destroy any and all information,
       reports, correspondence, investigations, or any other matters or materials
       relating to the removal . . . from Mr. Caston's personnel file or any other
       supervisory files under its control. . . .

       7. The agency agrees to advise managerial/supervisory officials . . . not to
       disclose any negative or adverse information about Mr. Caston's
       employment. . . . [T]he agency managers and supervisors . . . will refer all
       written or oral requests for information about Mr. Caston from prospective
       employers and others to an individual of Mr. Caston's choosing . . . .
       Absolutely no mention shall be made by the designated reference person
       of Mr. Caston's discipline, or any information upon which his discipline was
       based, or any other alleged misconduct. . . . The agency shall not provide
       any information about Mr. Caston’s removal or any negative information
       about Mr. Caston to any other branch or subdivision of the U.S.
       Government.

       ****



2008-3226                               2
       11. The parties to this Agreement will not discuss or disclose the terms
       and conditions of this Agreement, or the contents of the case file, except
       as necessary to effectuate the terms and conditions of this Agreement.

       Thereafter, Caston filed a formal EEO complaint alleging a hostile work

environment between June 2003 and March 2004 on the bases of religious

discrimination and prior protected activity, including allegations that Ms. Robinson was

abusing employees and that Caston was retaliated against because he reported the

abuse to superiors. In responding to Caston's claim before the EEOC, the agency

introduced evidence regarding the reasons for Caston's removal, including information

about the prior appeal to the Board and the settlement agreement.

       On November 8, 2006, an EEOC administrative judge (“AJ”) ruled against

Caston, concluding that the evidence, even when viewed in the light most favorable to

Caston, was insufficient to support Caston’s claim of a hostile work environment leading

to his termination.

       On March 28, 2007, Caston filed a petition for enforcement with the Board

relating to the 2004 settlement agreement. Caston argued that the agency violated the

confidentiality provisions of the agreement by disclosing the details of the October 2003

termination, the appeal, and the settlement agreement to the EEOC. In response, the

agency argued that Caston had already breached the agreement by initiating the EEOC

proceedings, and that the agency needed to disclose information covered by the

agreement in order to defend itself in the proceedings.

       On July 26, 2007, the AJ found that Caston breached provision 1 of the

agreement by filing the EEO complaint of September 8, 2004, and that the agency

materially breached the agreement by its disclosures in the EEOC proceeding.



2008-3226                               3
However, the AJ concluded that the appropriate response of the agency to Caston's

breach would have been an action for enforcement of the agreement. The AJ reasoned

that the agency did not seek to enforce the agreement in a timely manner, and that

Caston's breach did not excuse the agency's breach in response. The AJ concluded

that Caston’s settled appeal should be reinstated.

       On review, the Board rejected the AJ’s recommendation and dismissed Caston's

petition for enforcement of the agreement. The Board concluded that Caston breached

the agreement, and that Caston's material breach “discharged the agency from its

obligation to perform” under the agreement. 108 M.S.P.R. at 198.

       Caston timely petitioned for review to this court. We have jurisdiction pursuant to

28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

       We must affirm the Board's decision unless we find it to be arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law; obtained without

procedures required by law, rule, or regulation having been followed; or unsupported by

substantial evidence. 5 U.S.C. § 7703(c). Interpretation of the terms of the settlement

agreement is a matter of law that we review without deference. Greco v. Dep't of the

Army, 852 F.2d 558, 560 (Fed. Cir. 1988). The question of whether there has been a

material breach of a settlement agreement is a mixed question of law and fact. Gilbert

v. Dep't of Justice, 334 F.3d 1065, 1071-72 (Fed. Cir. 2003).

       On review, Caston first argues that he did not breach the settlement agreement.

We conclude that the Board did not err in finding that Caston breached the agreement.

Caston “agree[d] not to file any additional administrative or judicial actions regarding the




2008-3226                                4
subject matter of this appeal . . . .” (emphases added). Caston argues we should not

construe the settlement agreement to preclude claims of a hostile work environment,

even if based on the same factual predicate as the settled MSPB action. We need not

decide this issue, however, as Caston raised not only a hostile work environment claim

in his EEO complaint, he also raised the issue of his removal, which is indisputably

covered by the settlement agreement.         Caston thereby breached the settlement

agreement.

       Caston also argues that any such breach was not material. The Board found,

and we agree, that Caston’s breach is material. “A breach is material when it relates to

a matter of vital importance, or goes to the essence of the contract.” Thomas v. Dep’t of

Housing & Urban Dev., 124 F.3d 1439, 1442 (Fed. Cir. 1997) (citing 5 Arthur L. Corbin,

Corbin on Contracts § 1104 (1964)). From the agency’s perspective the primary value

of a settlement agreement is that it settles the dispute with the employee and ends the

litigation. Breaching this provision by reinitiating administrative or judicial procedures

“goes to the essence of the contract” by completely destroying the most valuable aspect

of the agreement for one of the parties. Id. Caston’s breach was therefore material.

       Caston finally argues that even if he materially breached the agreement, the

agency’s breach was not excused.         We agree with the Board that when Caston

materially breached the agreement by filing a complaint alleging discrimination in his

removal and settlement, the agency was not obligated to remain silent, but was entitled

to defend itself. “In resolving disputes among parties who each claim that the other has

breached, courts will ‘[o]ften . . . impose liability on the party that committed the first

material breach.’” Christopher Vill., L.P. v. United States, 360 F.3d 1319, 1334 (Fed.




2008-3226                                5
Cir. 2004) (emphasis omitted) (quoting E. Allen Farnsworth, Farnsworth on Contracts §

8.15, at 439 (1990)); see also Restatement (Second) of Contracts § 237 (1979) (“[I]t is a

condition of each party’s remaining duties to render performances . . . that there be no

uncured material failure by the other party . . . .”). This principle applies to settlement

agreements of Board appeals.       See Thomas, 124 F.3d at 1442.          Of course, this

principle is not without limits; had the agency elected not to terminate the agreement but

engaged in an unrelated breach of the agreement in disclosing information to

prospective employers, that breach might not be excused by Caston’s prior breach.

       The agency’s decision to engage in a responsive breach does not mean that the

agency has constructively elected to rescind the agreement; Caston's obligations under

the agreement remain in force. See Restatement (Second) of Contracts § 237 cmt. a,

illus. 1, 2 (1979).

       Caston also argues that the Board improperly refused to hear evidence of

“perjury,” and that the law of the case and judicial estoppel apply to this case. The

Board properly considered all such evidence on credibility offered by Caston; the Board

was not required to believe Caston’s interpretation of that evidence and did not abuse

its discretion in crediting the challenged agency evidence. The Board has stated that

the law of the case applies “only to an issue that was previously decided in a different

stage of the same litigation.”   Nease v. Dep’t of the Army, 103 M.S.P.R. 118, 124

(M.S.P.B. 2006). None of the findings in various EEOC and other actions mentioned by

Caston is relevant; the doctrine of law of the case does not apply here. Judicial or

administrative estoppel also does not apply because Caston has not identified any

instance in which the agency argued and benefited from an administrative finding that




2008-3226                                6
the agency subsequently argued was erroneous. See 31 C.J.S. Estoppel & Waiver §

186 (2008).

      In summary, the Board correctly held that Caston’s material breach of the

settlement agreement excused the agency’s actions.

      The decision of the Board is affirmed.



      No costs.




2008-3226                              7
