                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
                                          04-3276

                                   SANDRA F. BARNETT,

                                                   Petitioner,

                                              v.

                            DEPARTMENT OF AGRICULTURE,

                                                   Respondent.

                               _________________________

                               DECIDED: November 4, 2004
                               _________________________

Before MAYER, Chief Judge, LOURIE and DYK, Circuit Judges.

PER CURIAM.

          Sandra F. Barnett appeals from the final decision of the Merit Systems Protection

Board denying her petition for enforcement of a settlement agreement. Barnett v. Dep’t

of Agric., No. AT-0752-02-0853-C-1 (M.S.P.B. March 10, 2004) (“Final Order”). We

affirm.

                                       BACKGROUND

          Sandra F. Barnett was a Food Safety inspector, GS-7, for the Department of

Agriculture, Food Safety and Inspection Service, Moselle, Mississippi (“the agency”).

Barnett v. Dep’t of Agric., No. AT-0752-02-0853-C-1 (M.S.P.B. Feb. 13, 2003).

Effective August 18, 2002, Barnett was removed from her position for allegedly failing to
report for duty as scheduled. On September 9, 2002 she appealed her removal to the

Merit Systems Protection Board.

       On February 6, 2003, the Administrative Judge (“AJ”) conducted a hearing on

Barnett’s appeal from the agency’s action. Id. During the hearing, Barnett and the

agency reached a settlement on the appeal. Id. The settlement agreement called for

Barnett’s resignation from the agency. The agreement also required the agency to

remove the Notice of Removal from Barnett’s official personnel file. With respect to

confidentiality, the agreement provided that: “[T]he settlement agreement will not be

discussed with, disclosed or released to anyone who does not need the information to

implement the agreement. . . .”

       On February 18, 2003, Barnett filed an appeal at the Board accusing the agency

of breaching the settlement agreement. Barnett v. Dep’t of Agric., No. AT-0752-02-

0853-C-1, slip op. at 1 (M.S.P.B. June 10, 2003) (“Initial Decision”). Barnett contended

that the agency materially breached the agreement by failing to keep the terms of the

agreement confidential.      She asserted that unauthorized agency employees were

informed of the settlement agreement.

       The AJ determined that several agency employees present at Barnett’s February

6, 2003 hearing were informed of a possible settlement agreement between Barnett and

the agency. Id. at 3. An affidavit from Barbara Cooley, one of the agency employees

present at the hearing, testified:

              Dr. Calloway . . . said that they were “compromising.” I took
              that to mean Sandra [the appellant] and the agency were
              coming to an agreement. Later, I recalled that Joyce, Dr.
              Calloway and I were in the room when Dr. deMola made the
              comment that he had offered to let her sign that she would
              resign in place of the discharge. . . . Dr. deMola didn’t say



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              anything about whether she actually signed or that the
              information was confidential and should not be shared with
              anyone. . . .

Id. at 3-4. Neither party disputes that within the following day, Ms. Cooley informed

other individuals in the agency of the settlement itself. Id. at 4.

       With respect to materiality, Barnett argued that the confidentiality provision was

“of vital importance” because she wanted to protect the agency workforce from allegedly

“intolerable” working conditions. Id. at 5. By continuing with the February 6, 2003

hearing, Barnett speculated that she could have improved the working environment “by

showing the consequences of what was occurring in the [agency].” Id. Barnett claimed

that she sought to keep the agreement confidential because “she felt she let employees

in the plant down when she signed the agreement.” Id.

       The agency argued that it did not intentionally violate the settlement agreement

because Ms. Cooley was not specifically told of the settlement terms. Id. at 4. The AJ

found the question of intent irrelevant because the mere act of “re-telling . . . one of the

settlement terms is the gravamen of the violation.” Id. Accordingly, the AJ held that Ms.

Cooley’s communication of the settlement to other agency employees breached the

agreement’s confidentiality provision. Id.

       The AJ determined, however, that the agency’s breach of the confidentiality

provision was not material. Id. at 6. The AJ recognized that under the terms of the

agreement, Barnett was not going to return to the agency. Id. According to the AJ, as

far as the other agency employees knew, only one of two things could have happened

to Barnett after the February 6, 2003 hearing: her removal was upheld or she entered

into a settlement agreement.       Id.   Under either circumstance, nondisclosure of the

settlement terms in the workplace would not have furthered Barnett’s stated reason why


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the confidentiality provision was “of vital importance,“ i.e., to protect the workforce. Id.

at 6. On the contrary, the AJ posited that the disclosure of the settlement arguably

conveyed that Barnett had achieved some measure of relief regarding her claims. Id.

       The AJ also determined that the purpose of the settlement agreement was to

allow Barnett to apply for other employment with a clean record. Id. To support that

finding, the AJ relied on “[t]he face of the agreement, as well as the pre-settlement

discussions to which the administrative judge were privy.” Id. Moreover, the AJ found

no settlement provision indicating Barnett’s desire to “protect other employees.” Id.

Accordingly, the AJ held that the agency’s disclosure of the settlement agreement to its

employees did not defeat the purpose of the confidentiality term.

       Barnett petitioned the full Board for review of the Initial Decision. Concluding that

there was no new, previously unavailable evidence and that the AJ made no error in law

or regulation that affected the outcome of the appeal, the Board denied Barnett’s

petition, rendering the Initial Decision final. Final Order, slip op. at 1-2.

       Barnett timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                        DISCUSSION

       Congress has expressly limited the scope of our review in an appeal from the

Board. Specifically, 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) (2000); Ellison v. Merit Sys.

Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993). “Under the substantial evidence standard




04-3276                                       -4-
of review, a court will not overturn an agency decision if it is supported by ‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’”

Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994) (quoting Consol. Edison

Co. of N.Y. v. NLRB, 305 U.S. 197, 299 (1938)). Moreover, the Supreme Court has

explained that “the possibility of drawing two inconsistent conclusions from the evidence

does not prevent an administrative agency’s findings from being supported by

substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).

       On appeal, Barnett makes two primary arguments. First, Barnett asserts that the

Board failed to consider the agency’s explicit representation that union president Joyce

Massey and Barnett’s supervisor, William Calloway, would not be informed of the

settlement agreement. Barnett appears to argue that the agency’s breach was material

because she would not have signed the settlement agreement if she knew that the

agency would inform those particular individuals of the agreement.

       Barnett also argues that the disclosed settlement agreement will hinder future

attempts to improve the working conditions at the agency. Barnett speculates that the

disclosed agreement will discourage other employees from attempting to improve the

working conditions at the Food Safety and Inspection Service in Moselle, Mississippi.

To support her belief, Barnett cites the tenure of her employment at Moselle and the

resignations of other employees, but otherwise fails to explain how the disclosure of the

agreement will hinder future attempts to improve working conditions in Moselle with any

particularity.

       We conclude that the Board did not err in determining that the agency did not

materially breach the settlement agreement.        The agency does not dispute that it




04-3276                                     -5-
breached the agreement. Instead, the agency argues that Barnett has not identified any

evidence proving that the breach was material. In its opposition brief, the agency relies

on many of the AJ’s prior determinations to support its arguments. As the AJ previously

determined, the agency argues that the purpose of the confidentiality provision was to

allow Barnett to seek other employment without the stigma of removal. And nothing in

the record indicates that the limited disclosures shown here precluded Barnett from

obtaining other employment. The agency also cites the lack of evidence regarding how

the subsequent disclosure of the agreement was prejudicial to Barnett’s personal

motivation of improving the workplace.

       In Thomas v. HUD, 124 F.3d 1439 (Fed. Cir. 1997), we stated that “[a] breach is

material when it relates to a matter of vital importance, or goes to the essence of the

contract.” Id. at 1442 (citing 5 Arthur L. Corbin, Corbin on Contracts § 1104 (1964)).

There is substantial evidence that the breach here does not “relate to a matter of vital

importance, or goes to the essence of the contract.” The agency is correct that Barnett

has not provided any evidence of material breach.        Moreover, substantial evidence

supports the AJ’s finding that the purpose of the settlement was to allow Barnett to

apply for other employment with “a clean record,” i.e., pre-settlement discussions. Initial

Decision, slip op. at 6. In addition, we agree with the AJ that the settlement agreement

itself does not evince the intent to “protect other employees.” Id. at 5. The settlement

agreement itself stipulates that “this settlement is non-precedential and may not be cited

for any reason, including comparison, in any other proceeding in any forum.” Because

we conclude that the agreement does not evince the intent to protect other employees,

we need not decide whether such a provision would be enforceable by an employee




04-3276                                     -6-
who is not personally affected by the alleged breach. Accordingly, the Board’s holding

that the breach of the confidentiality provision of the settlement contract was not

material is supported by substantial evidence and was not contrary to law.

      We have considered Barnett’s remaining arguments and find them unconvincing.

                                    CONCLUSION

      For the foregoing reasons, we affirm the Board’s decision.




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