                           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             THIS FINAL ORDER IS NONPRECEDENTIAL ∗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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                       2

     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
                                                                                     3

     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
                                                                                          4

      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
                                                                                        5

      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
                                                                                  6

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).
                                                                                  7

      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.
