                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
                                       05-3249

                                   LAURA V. KING,

                                                           Petitioner,

                                           v.

                            DEPARTMENT OF THE NAVY,

                                                           Respondent.


                            ________________________

                            DECIDED: February 10, 2006
                            ________________________


Before LOURIE, GAJARSA, and LINN Circuit Judges.

PER CURIAM.

                                      DECISION

        Laura King (“Ms. King”) appeals from the Merit Systems Protection Board’s

(“Board”) final decision that denied her appeal to enforce her settlement agreement with

the Department of the Navy (“Navy”) because she failed to raise an issue of disputed,

material fact that requires an evidentiary hearing. King v. Dep’t of the Navy, M.S.P.B.

No. SE-0752-92-0328-C-3 (May 24, 2005) (“King V”). We affirm.

                                   BACKGROUND

      In June of 1992, Ms. King was removed from her job with the Navy because she

had been absent without leave. Ms. King appealed her removal to the Board, after
which she and the Navy entered into a settlement agreement. In the settlement, the

Navy agreed to “cancel the removal action of the appellant . . . and remove all reference

to the removal action from her Official Personnel File.” King v. Dep’t of the Navy,

M.S.P.B. No. SE-0752-98-0328-I-1 (August 1992) (“King I”).

       Since then, Ms. King and the Navy have engaged in several legal disputes

regarding the settlement agreement and other matters. In 1996, the first dispute arose

when Ms. King learned that the Office of Personnel Management (“OPM”) and the

Defense Finance and Accounting Services (“DFAS”) retained records concerning the

previous removal action. King v. Dep’t of the Navy, 130 F.3d 1031, 1033 (Fed. Cir.

1997) (“King II”). In King II, we held that “the petitioner was denied the benefit of her

agreement” because it was “undisputed that the mutual intent [of the settlement

agreement] was to purge the personnel records that are officially kept and thus might be

available to a future employer.” Id. at 1033-34.

       After Ms. King was removed from the Navy in 1992, she was employed as an

administrative law judge with the State of Washington, Office of Administrative Hearings

(“OAH”). As such, she presided over an unemployment benefits case between Jerime

Dehuff and the Navy. In April of 2003, Ms. King found in favor of Dehuff and required

the Navy to pay his unemployment benefits. While the Dehuff matter was pending

before her, Ms. King was involved in her own litigation against the Navy. King v. Dep’t of

the Navy, 64 Fed. Appx. 204 (Fed. Cir. Apr. 10, 2003) (nonprecedential) (“King III”).

       On May 2, 2003, the Navy petitioned the OAH to review the Dehuff matter

claiming that Ms. King should have recused herself because her ongoing litigation was a

conflict of interest. In support, the Navy submitted three pages of opinions from her




05-3249                                      2
previous litigations. The Commissioner of the Employment Security Department agreed

and remanded the case to a different administrative judge. The new judge affirmed Ms.

King’s prior decision on July 14, 2003.

       In June of 2003, Ms. King filed another Board petition to enforce the settlement

agreement that claimed the Navy’s request in the Dehuff matter violated the settlement

agreement. King v. Dep’t of the Navy, M.S.P.B. No. SE-0752-92-0328-C-2 (October 15,

2003). However, the Administrative Judge (“AJ”) determined that, due to the settlement

agreement’s limited scope, it only applied to Ms. King’s official personnel records and

not to litigation materials. Id. The AJ reasoned that because the opinion from King II

was published, her removal was public record. Id.

       We affirmed the Board’s decision and explained that the Navy can retain

“information regarding Ms. King’s removal for the purpose of defending itself in litigation,

and to use that information if it became necessary to do so in the court of the litigation.”

King v. Dep’t of the Navy, 112 Fed. Appx. 750, 753 (Fed. Cir. 2004) (nonprecedential)

(“King IV”).

       Meanwhile, on July 25, 2003, the OAH requested any correspondence between

Ms. King and the Navy regarding their ongoing proceedings. By letter dated August 1,

2003, the Navy transmitted 430 of Ms. King’s litigation documents to the OAH. On

November 18, 2003, the OAH reprimanded Ms. King for hearing cases where the Navy

was a party because her ongoing litigations created a conflict of interest. However, no

formal discipline was taken by the OAH because there was no appearance of

impropriety found.




05-3249                                      3
      On June 24, 2004, Ms. King filed this action seeking enforcement of the

settlement agreement yet again. In her petition, she contended that the 430 litigation

documents violated her settlement agreement. On October 20, 2004, the AJ denied the

petition in his initial decision. King v. Dep’t of the Navy, M.S.P.B. No. SE-0752-92-0328-

C-3 (October 20, 2004). The AJ found that because Ms. King had not rebutted the

Navy’s assertion that they were litigation documents, which were not contained in the

Official Personnel File, she was collaterally estopped from arguing that her settlement

agreement covered the documents. Id. Thus, Ms. King cannot argue to suppress those

documents. Id.

      The Board made the initial decision final on May 24, 2005. King v. Dep’t of the

Navy, M.S.P.B. No. SE-0752-92-0328-C-3 (May 24, 2005) (“King V”). Ms. King now

appeals.

                                STANDARD OF REVIEW

      We must affirm the decision of the Board unless the decision was: “(1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained

without procedures required by law, rule, or regulation having been followed; or (3)

unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2005); accord Kievenaar v.

Office of Personnel Mgmt., 421 F.3d 1359, 1362 (Fed. Cir. 2005). This court has

jurisdiction over “a petition to review a final order or final decision of the Board.”

5 U.S.C. § 7703(b)(1) (2005).




05-3249                                     4
                                       DISCUSSION

       Ms. King asserts that the 430 litigation documents submitted to the OAH violated

her settlement agreement. However, she is collaterally estopped from raising this issue

by King IV.

       Collateral estoppel is warranted when (1) an issue is identical to that involved in

the prior matter, (2) the issue was actually litigated in the prior matter, (3) the resulting

judgment of the prior case was determinative of the issue, and (4) the party precluded

was fully represented in the prior case. Morgan v. Dep’t of Energy, 424 F.3d 1271,

1274-75 (Fed. Cir. 2005). In this matter, the issue involving the submission of 430

litigation documents is identical to the submission of the three litigation documents in

King IV. There, the issue was actually litigated and we held that the Navy may submit

litigation documents since they were outside the scope of Ms. King’s settlement

agreement.1 King IV, 112 Fed. Appx. at 753. The prior judgment determined the issue

and Ms. King was fully represented. Id. Thus, Ms. King is collaterally estopped from

relitigating whether litigation documents are covered by the settlement agreement.

       We have considered all of the other issues raised by Ms. King and find they are

without merit. Therefore, because Ms. King is collaterally estopped from raising the

issues previously determined in King IV, we perceive no legal error in the Board’s

decision and affirm. Costs to appellee.




       1
               Ms. King argues that the Navy should prove all 430 litigation documents
were litigation related. The Navy, however, does not shoulder this initial burden, and
Ms. King failed to specifically allege or rebut the fact that these are litigation documents.
See Herring v. Dep’t of the Navy, 90 M.S.P.R. 165, 168 (2001).


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