U.S. Court of Appeals, Federal Circuit
January 12, 1999
LAURA V. KING,
DEPARTMENT OF THE NAVY, RESPONDENT.
Before Newman, Lourie, and Schall, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Laura V. King petitions for review of two final decisions of the Merit Systems Protection Board (Board). In a previous appeal, we held that the Department of the Navy (Navy) had breached a settlement agreement with Ms. King by failing to purge her files of references to a removal action and that, accordingly, the Board had erred in dismissing her enforcement petition. See King v. Department of the Navy, 130 F.3d 1031, 1033-34 (Fed. Cir. 1997). We remanded the case to the Board for further proceedings. See id. On remand, the Board determined that the Navy's breach of the settlement agreement was immaterial. See King v. Department of the Navy, No. SE-0752-92-0328-M-1 (June 5, 1998) (an initial decision that became final on July 15, 1998). See id. It therefore denied Ms. King's request to rescind the settlement agreement. In a second decision (captioned as an order), the Board dismissed Ms. King's petition for enforcement of the settlement agreement as moot, based on the Navy's actions to comply with the agreement. See King v. Department of the Navy, No. SE-0752-92-0328-X-1 (July 30, 1998). We affirm.
Ms. King was a Security Specialist, GS-11, working for the Navy at the Puget Sound Naval Shipyard. Her difficulties began when she complained to her superiors about sexually offensive material posted in her work area. Subsequently, she alleged that the Navy failed to adequately correct the situation and retaliated against her when she repeated her complaints and sought redress before the Equal Employment Opportunity Commission (EEOC). The Navy subsequently reduced Ms. King's duties and responsibilities, and threatened to transfer her. After Ms. King became ill and did not go to work based on her doctor's advice, the Navy revoked her security clearance and placed her on absent without leave (AWOL) status. The Navy removed Ms. King from her position in June of 1992 based on her AWOL status.
Ms. King appealed her removal to the Board. Thereafter, she and the Navy entered into a settlement agreement, in which the Navy agreed to "cancel the removal action of the appellant . . . and remove all references to the removal action from her Official Personnel File." See King v. Department of the Navy, No. SE-0752-92-0328-I-1 (August 28, 1992). In addition, the Navy agreed to treat her lost time due to illness as authorized leave and to pay her reasonable attorney's fees up to $1200. For her part, Ms. King agreed to voluntarily resign. The agreement was entered into the appeal record and the appeal was dismissed.
Through a Freedom of Information Act inquiry, Ms. King was informed that records of the Office of Personnel Management (OPM) and the Defense Finance and Accounting Service (DFAS) contained references to the removal action. Based on the Navy's failure to purge these records, Ms. King brought an action before the Board to enforce the settlement agreement. The Board concluded that the term "Official Personnel File" in the settlement agreement referred to Ms. King's file maintained by the Navy, which was purged, and did not include the files of OPM or DFAS. Thus, the Board dismissed Ms. King's enforcement petition. On appeal, we determined that the settlement agreement contemplated all official records, not just the records maintained by the Navy. Accordingly, we reversed the Board's decision and remanded the case for further proceedings. See King v. Department of the Navy, 130 F.3d at 1033-34.
On remand, Ms. King, for the first time, sought to rescind the settlement agreement due to the Navy's breach of the agreement. The administrative Judge (AJ) determined, however, that the Navy's breach of the settlement agreement was immaterial and that therefore Ms. King could not rescind the agreement. See King v. Department of the Navy, No. SE-0752-92-0328-M-1. The AJ found that the only document in the record that referred to Ms. King's removal was a retirement register maintained by DFAS. See id. The AJ concluded that the failure to purge this record was immaterial because there was no evidence that the retirement register had been released to anyone and because the obscure nature of the record made it unlikely that potential employers would seek it. See id. The AJ also recommended that the Navy request the amendment of Ms. King's retirement record by DFAS. See id. On July 15, 1998, the AJ's initial decision became final.
Responding to the Board's recommendation, the Navy requested that DFAS amend Ms. King's retirement record. On June 18, 1998, DFAS complied with the Navy's request and amended the retirement record to show that Ms. King's separation was the result of a resignation rather than a removal. On July 30, 1998, the Board issued a final decision dismissing Ms. King's petition for enforcement of the settlement agreement as moot in view of the amendment of the DFAS record. See King v. Department of the Navy, No. SE-0752-92-0328-X-1.
Our scope of review in an appeal from a decision of the Board is limited. 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. The decisions of the Board in this case are none of these.
On appeal, Ms. King's principal argument is that the Navy's breach of the settlement agreement was material and that the Board should have ordered the agreement rescinded. She argues that the Navy's failure to completely purge her records of references to her removal was a breach that could not be cured. As the Board found, however, the Navy did cure the breach of the settlement agreement, albeit six years after Ms. King's removal, and she presented no evidence that the delay in amending her records harmed her.
Only material breaches of a settlement agreement justify rescinding the agreement. See Thomas v. Department of Housing and Urban Dev., 124 F.3d 1439, 1442 (Fed. Cir. 1997). "Not every departure from the literal terms of a contract is sufficient to be deemed a material breach of a contract requirement . . . ." Stone Forest Indus., Inc. v. United States, 973 F.2d 1548, 1550 (Fed. Cir. 1992). A material breach "relates to a matter of vital importance, or goes to the essence of the contract." Thomas, 124 F.3d at 1442. Materiality depends on "the nature and effect of the violation in light of how the particular contract is viewed, bargained for, entered into, and performed by the parties." Stone Forest, 973 F.2d at 1551.
As we stated in the previous appeal, the goal of an employee who "voluntarily resigns in exchange for purging of the records that show prior adverse action" is "to eliminate this information as it may affect future employment with the government or elsewhere." King v. Department of the Navy, 130 F.3d at 1033. Thus, on remand the Board correctly framed the issue as whether the adverse retirement record harmed or reasonably could have harmed Ms. King's employment prospects. Although Ms. King asserts that the adverse record prevented her from obtaining permanent full-time employment, there is no evidence in the record that any prospective employer obtained the record. In fact, Ms. King has not identified any party to whom she unsuccessfully applied for work.
In addition, we see no error in the Board's finding that the retirement record that the Navy failed to purge was not the type of record that a potential employer would likely seek in the course of making an employment decision. The record is not part of Ms. King's personnel file maintained by her former employing agency. Rather, it is an obscure record maintained for retirement purposes by a finance office. Therefore, it is unlikely that a prospective employer would have sought Ms. King's retirement record. Moreover, as noted above, Ms. King failed to present any evidence that anyone from whom she sought work saw the record. Accordingly, we will not disturb the Board's refusal to rescind the settlement agreement.
Neither did the Board err in dismissing Ms. King's petition for enforcement of the settlement agreement as moot. The Navy purged its own records and promptly complied with the Board's recommendation to request that DFAS purge the only known uncorrected record reflecting Ms. King's removal. Accordingly, the Navy has made a good faith effort to comply with the settlement agreement. Ms. King seems to argue that the Navy should have searched for other uncorrected records. We will not impose on the Navy the burden to search every possible government record for reference to Ms. King's removal, however. We are confident that if the Navy or Ms. King discovers other uncorrected records, the Navy will continue to comply with the settlement agreement and promptly correct or request correction of the relevant records. Because the Navy has complied with the terms of the settlement agreement by purging all known records, Ms. King's petition for enforcement is moot.
Each party shall bear its own costs.