                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LISA MARIE BUTLER,                              DOCKET NUMBER
                   Appellant,                        AT-0752-11-0530-C-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: August 19, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Lisa Marie Butler, Atlanta, Georgia, pro se.

           Robert M. Finer, Esquire, Atlanta, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review and the agency has filed a cross
     petition for review of the initial decision, which denied her petition for
     enforcement of the parties’ settlement agreement.         For the reasons discussed
     below, we DENY the petition for review, GRANT the cross petition for review,


     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     and AFFIRM the initial decision AS MODIFIED. Except as expressly modified
     by this Final Order, the initial decision is the Board’s final decision.
¶2         The appellant asserts in her petition for review that the administrative judge
     erred in denying her petition for enforcement of a June 15, 2011 settlement
     agreement providing, among other things, that “if prospective employers
     contact[ed] any of the appellant’s former managers, the former managers . . .
     [would] disclose no information to the prospective employers absent a written
     authorization from the Appellant.” Petition for Review (PFR) File, Tab 1; see
     Butler v. Department of Treasury, MSPB Docket No. AT-0752-11-0530-I-1
     Initial Appeal File (IAF), Tab 17, Initial Decision at 3. The agency opposed the
     appellant’s petition for review and filed a cross petition for review, challenging
     the administrative judge’s finding that the agency breached the settlement
     agreement by disclosing the appellant’s termination to a third party. PFR File,
     Tab 3.
¶3         In order to prevail, the appellant bears the ultimate burden of showing
     material noncompliance by the agency with the terms of the settlement
     agreement.    Flores v. U.S. Postal Service, 115 M.S.P.R. 189, ¶ 9 (2010).        A
     breach is material when it relates to a matter of vital importance, or goes to the
     essence of the contract. Id. A party may establish a breach of an agreement by
     proving that the other party failed to comply with a provision of the contract in a
     way that was material, regardless of the party’s motive. See Link v. Department
     of the Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995).
¶4         The administrative judge found that the agency committed a material breach
     of the settlement agreement when it disclosed to a prospective employer that the
     agency terminated the appellant.       MSPB Docket No. AT-0752-11-0530-C-1,
     Compliance File (CF), Tab 32, Compliance Initial Decision (CID) at 6-7.
     However, the administrative judge denied the appellant’s petition for enforcement
     based on his finding that the appellant materially breached the settlement
     agreement by repeatedly failing to provide prospective employers with the toll
                                                                                            3

     free phone number and web address specified in Paragraph 17 of the parties’
     agreement and instead providing her former supervisor’s name and direct
     telephone number as an employment reference. 2 CID at 8. The administrative
     judge found that, although the agency materially breached the settlement
     agreement, the appellant’s unclean hands from her prior material breaches of the
     agreement foreclosed any remedy from the Board. CID at 9.
¶5         On review, the appellant raises numerous allegations of factual and
     procedural error, but she does not dispute that she referred prospective employers
     directly to her former manager instead of following the procedure set forth in the
     settlement agreement for providing employment information to prospective
     employers. PFR File, Tab 1. Accordingly, the appellant’s only relevant argument
     on review is that the administrative judge erred in finding that she breached the
     agreement before the agency had. See id. at 7. The appellant, however, did not
     raise this argument in any of her pleadings below. The Board generally will not
     consider an argument raised for the first time in a petition for review absent a
     showing that it is based on new and material evidence not previously available
     despite the party’s due diligence.        Banks v. Department of the Air Force,
     4 M.S.P.R. 268, 271 (1980).        To constitute new and material evidence, the
     information contained in the documents, not just the documents themselves, must
     have been unavailable despite due diligence when the record closed. Grassell v.
     Department of Transportation, 40 M.S.P.R. 554, 564 (1989).               The appellant
     did not make the required showing here; therefore, the Board will not consider
     her argument.
¶6         For the first time on review, the appellant also argues that the agency
     breached the settlement agreement by failing to verify that the toll free number

     2
       Paragraph 17 of the parties’ settlement agreement states, in pertinent part, that: “The
     Appellant agrees to inform prospective employers that information concerning her IRS
     employment can be obtained by calling [the specified 800 number] or accessing [the
     specified website] and entering the Appellant’s SSN and IRS Employer Code.” IAF,
     Tab 16 at 2.
                                                                                        4

     and the internet site referenced in Paragraph 17 of the settlement agreement
     provided the correct information.     PFR File, Tab 1 at 6.     She states that the
     toll free number provided incorrect information about her dates of employment
     and therefore “prospective employers would not have gotten the correct
     information anyway.” Id. Although the appellant states that she just became
     aware of this particular breach by the agency, she has not established that she
     based her argument on new and material evidence, which was unavailable prior to
     the close of the record below.     See 5 C.F.R. § 1201.115(d).     Accordingly, the
     Board will not consider her argument. 3
¶7        The appellant raised additional arguments on review, which the Board has
     considered. For example, the appellant argues that: the administrative judge was
     biased; he abused his discretion; and he denied her due process because he
     informed her that she would have to repay the settlement money that she received
     from the agency if she prevailed and elected to rescind, rather than to enforce, the
     agreement. PFR File, Tab 1 at 8-9. We find, however, that the appellant does not
     present any new and material evidence or argument that affects the outcome of
     her appeal.   The administrative judge accurately explained the legal remedies
     available to the appellant if she prevailed on her petition for enforcement,
     including the consequences of electing to rescind the agreement and reinstate her
     appeal.   CF, Tab 24 at 2.     Moreover, the appellant has not shown that the
     administrative judge’s comments or actions evidenced a “deep-seated favoritism
     or antagonism that would make fair judgment impossible,” warranting a new
     proceeding. See Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.
     Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).          We

     3
       Although unclear, the appellant may be attempting to challenge the validity of the
     settlement agreement based on mutual mistake of fact or other grounds. Generally,
     however, an attack on the validity of a settlement agreement should be raised in a
     petition for review of the initial decision that dismissed the appeal pursuant to the
     settlement. See Wofford v. Department of Justice, 115 M.S.P.R. 367, ¶ 9 (2010)
     (citation omitted).
                                                                                               5

     therefore deny the petition for review for failure to meet the Board’s
     review criteria.
     The agency’s cross-petition for review

¶8         The agency filed a cross-petition for review arguing that the administrative
     judge erred in finding that the agency breached the settlement agreement. PFR
     File, Tab 3. Because the appellant materially breached the agreement before the
     agency disclosed her termination to a third party, her breach discharged the
     agency from its obligation to perform. See Caston v. Department of the Interior,
     108 M.S.P.R. 190, ¶¶ 20-21 (2008) (finding that the appellant’s material breach
     of the agreement discharged the agency’s obligation not to disclose information
     that was required to be kept confidential).
¶9         We therefore GRANT the cross-petition for review and MODIFY the
     compliance initial decision to VACATE the administrative judge’s findings that
     the agency breached the settlement agreement and the appellant came before the
     Board with unclean hands. 4

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
     Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
     request the United States Court of Appeals for the Federal Circuit to review this
     final decision.       You    must submit       your request to        the   court at the
     following address:




     4
        See, e.g., Precision Instrument Manufacturing Co. v. Automotive Maintenance
     Machinery Co., 324 U.S. 806, 814 (1945) (the clean hands doctrine “closes the doors of
     a court of equity to one tainted with inequitableness or bad faith relative to the matter in
     which he seeks relief, however improper may have been the behavior of
     the defendant”).
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                          United States 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).
     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 United States 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
United States 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           7

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.
