Allen v. Department of Veterans Affairs , 420 F. App'x 980 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CAULTON D. ALLEN,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2010-3088, -3178
__________________________
Petition for review of the Merit Systems Protection Board
in case nos. DC0752070694-C-3, DC0752070694-C-4
___________________________
Decided: May 13, 2011
___________________________
CAULTON D. ALLEN, Fort Washington, Maryland, pro
se.
VINCENT D. PHILLIPS, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and BRIAN M.
SIMKIN, Assistant Director. Of counsel was SARAH M.
BIENKOWSKI.
ALLEN v. VA 2
__________________________
Before DYK, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
Caulton D. Allen petitions for review of the final deci-
sion of the Merit Systems Protection Board ("Board") in
Allen v. Dep’t of Veteran Affairs, 2009 M.S.P.B. 238(M.S.P.B. 2009), which denied Mr. Allen’s petition for
enforcement (“PFE”) of a settlement agreement with the
Department of Veterans Affairs (“the agency”). He also
petitions for review of the Board’s final decision in Allen v.
Dep’t of Veteran Affairs, No. DC-0752-07-0694-C-4
(M.S.P.B. May 26, 2010), which denied Mr. Allen’s PFE of
the same settlement agreement. We affirm both deci-
sions.
BACKGROUND
In 2007, the agency removed Mr. Allen from his posi-
tion as an Equal Opportunity Specialist, GS-0360-12, for:
(1) refusing to participate in an Office of Inspector Gen-
eral Investigation; (2) repeatedly being absent without
leave; and (3) failing to follow instructions. On June 8,
2007, Mr. Allen filed an appeal with the Board challeng-
ing his removal. See Allen v. Dep’t of Veteran Affairs, No.
DC-0752-07-0694-I-1 (M.S.P.B. Sep. 6, 2007).
Shortly thereafter, on August 30, 2007, the parties
agreed to resolve the appeal through a settlement agree-
ment. In the settlement agreement, Mr. Allen agreed to,
among other things, “waive and withdraw in their en-
tirety” all proceedings against the agency, including his
June 8, 2007 appeal, and to refrain from bringing any
future proceedings against the agency, with the exception
3 ALLEN v. VA
of any claims arising from breach of the settlement
agreement. A46-47. In return, the agency agreed to:
remove any and all information related to Appel-
lant’s removal action from Appellant’s Official
personnel File (OPF), change his removal to vol-
untary resignation, and make the following
changes:
a. SF 50-B Notification of Personnel Ac-
tion. Removal, dated May 26, 2007,
will be canceled and removed, and VA
will substitute a form SF 50-B Notifi-
cation of Personnel Action [indicating
Mr. Allen’s resignation].
b. SF-50-B Notification of Personnel Ac-
tion. Suspension, dated August 28,
2006, will be cancelled [sic] and re-
moved.
A48 ¶ 10. Further, the agency agreed that “Human
Resource Officer Jeanette Anderson, or her successor(s) . .
. , if contacted for any employment inquiry or reference for
the Appellant [would] provide the information contained
in Exhibit ‘C,’ 1 and [would] truthfully respond regarding
those matters required by law.” A48 ¶ 12. The adminis-
trative judge (“AJ”) presiding over the appeal accepted the
parties' settlement agreement, entered it into the record
for enforcement purposes, and dismissed Mr. Allen's
appeal of his removal. Pursuant to the settlement agree-
ment, Mr. Allen submitted his resignation.
1 Exhibit C contained a list of details about Mr. Al-
len’s employment that the parties agreed would be dis-
closed to third parties in response to employment
inquiries.
ALLEN v. VA 4
More than a year later, on December 30, 2008, Mr. Al-
len applied to the Department of Labor’s Office of Work-
ers’ Compensation Programs (“OWCP”) for benefits under
the Federal Employees’ Compensation Act (“FECA”),
claiming that he sustained a compensable, work-related
“mental disorder/psychiatric illness” stemming from an
incident where his supervisor allegedly “burst” into his
office and yelled at him. A16. In connection with Mr.
Allen’s FECA application, OWCP sent the agency a letter
requesting specific information regarding the accuracy of
Mr. Allen’s claim. Noting that, “in the absence of a full
reply from the agency, OWCP may accept the claim-
ant’s allegations as factual,” the letter asked for responses
to several questions, including whether Mr. Allen had any
performance or conduct problems. A57 (emphasis in
original). On March 27, 2009, Ms. Anderson responded to
these inquiries in narrative form. She also enclosed
supporting documentary evidence, including copies of Mr.
Allen’s Proposed Removal Notice and actual Removal
Decision from his canceled removal action.
On May 11, 2009, Mr. Allen petitioned the Board for
enforcement of the settlement agreement, alleging that
the agency breached the agreement by: (1) providing
information to OWCP that it had agreed to expunge from
Mr. Allen’s Official Personnel File (“OPF”); and (2) dis-
closing information other than that contained in Exhibit
C despite having no legal obligation to do so. Though the
agency admitted that it disclosed information regarding
Mr. Allen’s removal to OWCP, it argued that this disclo-
sure did not violate that settlement agreement because
the information came from a file other than Mr. Allen’s
OPF. On June 10, 2009, the AJ issued an initial decision
finding that Mr. Allen failed to prove breach by the
agency. See Allen v. Dep’t of Veteran Affairs, No. DC-
0752-07-0694-C-3 (M.S.P.B. Jun. 10, 2009).
5 ALLEN v. VA
Mr. Allen timely filed a petition for review (“PFR”) of
the initial decision. In a December 29, 2009 decision, the
Board denied the PFR, but reopened the matter sua
sponte to clarify the Board’s case law regarding “whether
an agency breaches a settlement agreement by disclosing
information concerning settled adverse actions to a third
party[] when the agency has agreed to provide the em-
ployee with a clean record by issuing a new SF-50 and
expunging all of the adverse-action related documents
from the OPF.” Allen, 2009 M.S.P.B. 238 ¶ 6. The Board
concluded that the agreement’s plain language required
only that the agency “remove any and all removal-related
information from [Mr. Allen’s] OPF, and [did] not contem-
plate expungement from all agency-maintained files.” Id.
¶ 11 (internal quotations omitted). Based on this inter-
pretation, the Board found that the agency complied with
the settlement agreement by removing from Mr. Allen’s
OPF all documents relating to his removal. Id. ¶ 13. The
Board also held that the agency did not breach the
agreement when it disclosed removal-related information
to OWCP because the agency was required by law to
respond to OWCP’s request and, in any event, Mr. Allen
did not bargain for non-disclosure to OWCP. Id. ¶¶ 20-24.
Consequently, the Board affirmed the initial decision’s
denial of Mr. Allen’s PFE. Id. ¶ 27. Mr. Allen timely
appealed this decision to this court on February 24, 2010
in Allen v. Dep’t of Veteran Affairs, Docket No. 2010-3088.
Shortly afterwards, on March 19, 2010, Mr. Allen re-
ceived a decision from OWCP notifying him that he was
not eligible for FECA benefits due to his resignation from
the agency. On April 8, 2010, Mr. Allen filed a petition for
review of the Board’s September 7, 2007 decision dismiss-
ing the appeal of his removal as settled, and “request[ed]
that the Board reconsider its [December 29, 2009] final
decision in this matter and reopen the appellant’s appeal
ALLEN v. VA 6
based on new, material, and relevant evidence.” A97
(emphasis in original). The OWCP’s decision, Mr. Allen
argued, constituted new and material evidence showing
that the parties’ settlement agreement was invalid due to
a “mutual mistake by the parties” regarding the effect of
his resignation on his entitlement to FECA benefits. A98.
During the same time frame, on April 2, 2010, Mr. Allen
received from the agency a response to a Freedom of
Information Act (“FOIA”) request. The response revealed
that the removal-related documents that the agency
disclosed to OWCP were separately maintained in an
“unofficial settlement file.” On April 20, 2010, Mr. Allen
filed a supplement to his April 8, 2010 PFR, arguing that
the FOIA response constituted additional new and mate-
rial evidence showing that the parties’ agreement was
invalid. In a May 14, 2010 letter responding to Mr.
Allen’s April 9, 2010 PFR and April 20, 2010 supplement,
the Board informed Mr. Allen that its regulations do not
provide for requests for reconsideration of the Board’s
December 29, 2009 final decision and that he, therefore,
had no further right to review by the Board. The letter
also explained that Mr. Allen’s appeal of the Board’s final
decision was pending at the Federal Circuit, apparently to
note the fact that the Board no longer retained jurisdic-
tion over the decision.
On April 20, 2010, Mr. Allen again petitioned the
Board for enforcement of the settlement agreement,
alleging that the agency breached the agreement by
maintaining removal-related documents in his “OPF
and/or another unauthorized secret personnel file.” A111.
The petition also claimed that the agency had been “dis-
honest” about the location of his OPF since his resigna-
tion. On May 26, 2010, the AJ denied Mr. Allen’s
petition, holding that: (1) collateral estoppel barred Mr.
Allen from relitigating whether documents were expunged
7 ALLEN v. VA
from his OPF; (2) maintenance of an unofficial personnel
filed did not breach the settlement agreement; and (3) Mr.
Allen’s claim that the agency has been “dishonest” about
the location of his OPF did not allege a breach of the
settlement agreement. See Allen, No. DC-0752-07-0694-
C-4 (M.S.P.B. May 26, 2010). This initial decision became
the final decision of the Board on June 30, 2010.
As noted above, Mr. Allen originally appealed the
Board’s December 29, 2009 decision (“2009 Final Deci-
sion”) to this court on February 24, 2010 in Allen, Docket
No. 2010-3088. On April 29, 2010, Mr. Allen sought to
stay that appeal pending the outcome of the two MSPB
petitions he filed in April of 2010. The stay was denied,
and Mr. Allen voluntarily withdrew his appeal. After Mr.
Allen’s April 20, 2010 PFE was denied in Allen, No. DC-
0752-07-0694-C-4 (M.S.P.B. May 26, 2010), he requested,
and this court granted, the reinstatement of his initial
appeal in Allen, Docket No. 2010-3088. On August 30,
2010, in Allen v. Dep’t of Veteran Affairs, Docket No. 2010-
3178, Mr. Allen appealed the Board’s May 26, 2010 denial
of his April 20, 2010 PFE (“2010 Final Decision”). This
court consolidated Mr. Allen’s appeals. We have jurisdic-
tion over Mr. Allen’s appeals of the Board’s final decisions
pursuant to 28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
Our review of the Board’s decisions is limited by stat-
ute. Hamel v. President’s Comm’n on Exec. Exch., 987
F.2d 1561, 1564 (Fed. Cir. 1993) (“We review Board
decisions under a very narrow standard.”). We must
affirm a decision from the Board unless it is “(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.
ALLEN v. VA 8
§ 7703(c). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.” McEntee v. Merit Sys. Prot. Bd., 404 F.3d
1320, 1325 (Fed. Cir. 2005) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). The petitioner bears
the burden of establishing any errors in the Board’s
decision. Harris v. Dep’t of Veterans Affairs, 142 F.3d
1463, 1467 (Fed. Cir. 1998); see also Cheeseman v. Office
of Pers. Mgmt, 791 F.2d 138, 140 (Fed. Cir. 1986).
DISCUSSION
On appeal, Mr. Allen alleges numerous errors in both
of the Board’s decisions. With respect to the Board’s 2009
Final Decision, Mr. Allen argues that the Board erred in
finding that the agency did not materially breach the
parties’ agreement. He also argues that the Board “failed
to address [his] claims of bias exhibited by the [AJ] during
compliance proceedings” and, instead, “exhibit[ed] its own
bias by presenting arguments on behalf of the agency.”
Pet. Inf. Br. at 22. With respect to the Board’s 2010 Final
Decision, Mr. Allen contends that the decision: (1) failed
to address his April 8, 2010 PFR challenging the validity
of the parties’ settlement agreement; (2) misapplied the
doctrine of collateral estoppel, which improperly barred
him from litigating the “issue of whether documents
related to [his] removal action were properly expunged
from [his] OPF”; and (3) failed to adequately address his
claim that the agency was “dishonest” about the location
of his OPF.
Because the Board’s decision was not arbitrary, capri-
cious, an abuse of discretion, or otherwise in conflict with
law, we affirm.
9 ALLEN v. VA
I.
We turn first to the Board’s 2009 Final Decision. Mr.
Allen alleges that the Board erred in finding that the
agency did not breach the parties’ agreement by: (1)
secretly maintaining a separate file holding removal-
related documents “for more than a year and a half after
execution of the” agreement, despite promising to remove
any such documents from his OPF; and (2) disclosing
removal-related documents to OWCP. Id. at 8-9. He also
argues that, even if the agency was required to remove
documents only from his OPF, the agency failed to pro-
vide evidence sufficient to demonstrate that all removal-
related documents were, in fact, removed from the OPF.
Mr. Allen additionally argues that he was entitled to an
evidentiary hearing on the issue of whether the agency’s
disclosures to OWCP were truthful. Finally, he alleges
bias on the part of both the AJ and the Board.
In response, the agency argues that this court should
affirm the Board’s decision because: (1) the agreement
required the agency to remove information only from Mr.
Allen’s OPF, and not any other location; (2) the agreement
expressly provided that the agency would truthfully
disclose facts to third parties as required by law; and (3)
“Mr. Allen did not bargain for non-disclosure to OWCP or
for the agency to affirmatively aid him in the process.”
Resp. Inf. Br. at 16. The agency also contends that there
is no right to an evidentiary hearing in a petition for
enforcement and that Mr. Allen’s assertion of bias is
unsupported.
A settlement agreement is a contract, the interpreta-
tion of which is a matter of law reviewed by this court de
novo. Harris, 142 F.3d at 1467 (Fed. Cir. 1998); Greco v.
Dep’t of Army, 852 F.2d 558, 560 (Fed. Cir. 1988).
Whether a settlement agreement has been breached is a
ALLEN v. VA 10
factual finding, which we review for substantial evidence.
See Thomas v. Dep't of Hous.& Urban Dev., 124 F.3d
1439, 1441-42 (Fed. Cir. 1997). As with other contracts,
our task is to “determine the intent of the parties at the
time they contracted, as evidenced by the contract itself.”
Greco, 852 F.2d at 560. Where a “contract's words and
meaning are unambiguous,” its “terms are not subject to
variation.” Slattery v. DOJ, 590 F.3d 1345, 1347 (Fed.
Cir. 2010). Only where the contract is ambiguous may we
look beyond the contract to determine the parties’ intent.
Id. Consequently, we must begin by looking to the terms
of the agreement to determine the parties’ intent regard-
ing the agency’s obligations. See Greco, 852 F.2d at 560.
A.
Mr. Allen first argues that, by maintaining removal-
related documents in a secret file, the agency breached its
promise to “remove any and all information related to
[Mr. Allen’s] removal action from [his] Official Personnel
File.” See A48 ¶ 10. The provision Mr. Allen cites is
unambiguous. By its plain terms, it requires that Mr.
Allen’s “Official Personnel File” be expunged of removal-
related documents, but says nothing as to any obligation
to expunge those documents from other locations. Inter-
preting a similar provision in Musick v. DOE, 2 we held
that, because the agreement “identifies only one place
from which the specified material is to be removed,” the
“agency only obligated itself to remove pertinent material
from Mr. Musick's OPF.” 339 F.3d 1365, 1369. The same
reasoning applies here.
2 The agreement in Musick provided that the
agency “agrees to remove all documentation relating to
and culminating in Mr. Musick's removal, . . . including
all documentation proposing to remove Mr. Musick from
his position from his Official Personnel File (OPF).”
Musick, 339 F.3d at 1369.
11 ALLEN v. VA
Mr. Allen’s argument that the agency breached the
agreement by maintaining a “secret” file containing
removal documents is, thus, unavailing. When he entered
into the agreement, Mr. Allen was represented by counsel,
and he acknowledged that he fully understood and agreed
to its provisions. Had he desired that, as part of the
agreement, the agency would purge all copies of his
removal documents regardless of their location, he could
have bargained for such a provision. See id. at 1372. Any
failure on Mr. Allen’s part to foresee that the agency may
maintain the removal documents elsewhere is no basis for
departing from the unambiguous meaning of Paragraph
10. Because the provision on which Mr. Allen relies
unambiguously requires removal of documents only from
his OPF – and says nothing about what the agency must
do with removal documents located elsewhere – the Board
correctly found that the agency did not breach the agree-
ment by maintaining removal-related documents in files
other than Mr. Allen's OPF.
B.
Mr. Allen also argues that, even if the agency was re-
quired to purge removal-related documents only from his
OPF, the declarations submitted by the agency to demon-
strate compliance with this obligation were insufficient to
prove that the agency actually removed all such docu-
ments. This argument is unpersuasive, however, because
it was Mr. Allen, and not the agency, who had the burden
of proving breach.
Pursuant to 5 C.F.R. § 1201.183(a), which requires an
agency accused of non-compliance with an agreement to
come forward with evidence of compliance, the agency
submitted two sworn declarations. In the first, Ms.
Anderson averred that she “instructed the Health Re-
source Center” (“HRC”), which maintains the agency’s
ALLEN v. VA 12
OPFs, “to remove from the Appellant’s OPF all documen-
tation related to his removal from the VA, and to replace
this information with an SF-50” reflecting Mr. Allen’s
resignation. The agency also submitted a declaration
from Assistant Human Resources Officer Jennifer
LuttJohan of HRC confirming that “the information
contained in [Mr. Allen’s] OPF which referenced his
removal from [the agency] was replaced with an SF-50
stating that [Mr. Allen] resigned from the VA.” A93. Ms.
LuttJohan further averred that “there is no other docu-
mentation in [Mr. Allen’s] OPF that shows he was disci-
plined or removed.” Id. Mr. Allen, on the other hand,
presented no evidence showing that the agency failed to
expunge all removal-related documents from his OPF
other than the fact that the agency disclosed removal
documents to OWCP.
Mr. Allen’s contention that the agency's declarations
were insufficient to prove compliance conflates the
agency's burden of moving forward with evidence of
compliance with the ultimate burden of proving breach.
While the agency was required to produce evidence “of the
compliance actions that the party ha[d] completed, and a
statement of the actions that are in process and the
actions that remain to be taken,” see 5 C.F.R. §
1201.183(a), the Board found that the agency discharged
this obligation by submitting declarations averring that:
(1) the agency instructed HRC to remove the relevant
documents from Mr. Allen's OPF; and (2) an inspection of
Mr. Allen's OPF revealed that information related to his
removal had been removed and was replaced with an SF-
50 reflecting Mr. Allen's resignation. Once the agency
satisfied this burden of production, it was Mr. Allen who
had the burden of proving that the relevant documents
were not removed from his OPF. See Jones v. Office of
Pers. Mgmt., 61 M.S.P.R. 252, 254 (M.S.P.B. 1994) (party
13 ALLEN v. VA
asserting breach bears the ultimate burden of proving
facts establishing breach notwithstanding 5 C.F.R. §
1201.183(a)) (citing Corbin on Contracts (1986), §§ 709
(one who asserts a breach is ordinarily required to prove
facts establishing such a breach) and 1230 (the plaintiff
must prove the fact of breach). The Board properly
weighed the evidence presented by both sides and con-
cluded that Mr. Allen failed to prove that the agency
maintained removal related documents in his OPF, rather
than in some other file. Because substantial evidence
supports the Board’s conclusion, we find no error as to
this issue.
C.
Mr. Allen additionally argues that the Board erred in
concluding that the agency's disclosure of removal-related
information to the OWCP did not breach the settlement
agreement. Of particular relevance to this issue is the
following provision of the agreement:
[The agency will] change [Mr. Allen's] removal to
voluntary resignation, and make the following
changes:
a. SF 50-B Notification of Personnel Action.
Removal, dated May 26, 2007, will be can-
celed and removed, and VA will substitute
a form SF 50-B Notification of Personnel
Action [indicating Mr. Allen’s resignation].
b. SF-50-B Notification of Personnel Action.
Suspension, dated August 28, 2006, will
be cancelled [sic] and removed.
A48 ¶ 10.
The Board found, and the agency does not dispute,
that, under Conant v. Office of Personnel Mgmt., 255 F.3d
ALLEN v. VA 14
1371 (Fed. Cir. 2001), it was required to read the above
provision as “broadly prohibiting the agency from disclos-
ing removal-related information to any third party.“
Allen, 2009 MSPB 238 ¶ 18 (emphasis in original); see
Resp. Inf. Br. at 13-14 (“Generally, a settlement agree-
ment with a clean record provision implicitly requires
agency communications with third parties to reflect the
amended OPF.”). The Board also noted that, were its
breach analysis based solely on that provision and “the
agency's admitted disclosure of removal-related informa-
tion to OWCP, then under Conant, the agency would have
materially breached” the settlement agreement. Id. ¶ 16.
Based on its reading of a separate provision of the settle-
ment agreement, however, the Board distinguished Co-
nant and concluded that the parties intended to permit
the agency to disclose removal-related information when-
ever such disclosure is “required by law.” Id. ¶¶ 16-19. 3
Paragraph 12, on which the Board relied, provides:
[T]he Agency agrees that Human Resource Officer
Jeanette Anderson, or her successor(s) . . . , if con-
tacted for any employment inquiry or reference for
the Appellant will provide the information con-
tained in Exhibit “C,” and will truthfully respond
regarding those matters required by law.
A48 ¶ 12. Based on this language, the Board concluded
that the parties intended to carve out an exception to any
implied promise of non-disclosure where disclosure of
removal-related documents is required by law. Allen,
2009 MSPB 238 ¶ 19. (“Based on Felch and the parties’
3 Because we agree with the Board’s interpretation
of the “required by law” provision of the agreement, we
express no opinion on the Board’s assumption that Co-
nant would counsel in favor of finding a breach of the
settlement agreement at issue here.
15 ALLEN v. VA
inclusion of express language that permits the agency to
respond as required by law, we find that the parties
intended to permit disclosure of removal-related informa-
tion as required by law.”). We agree. 4
The only reasonable reading of the paragraph is that
it creates an exception to any implied promise of non-
disclosure as to any matter for which the law requires
truthful responses. Consequently, the breach inquiry
turns on whether the agency was required by law to
disclose the removal-related information Ms. Anderson
submitted to OWCP.
As the Board observed, several statutes and regula-
tions impose disclosure obligations on agencies in connec-
tion with an OWCP inquiry. Notably, 20 C.F.R. § 10.16,
which specifically addresses statements made in connec-
tion with FECA claims, cites a number of statutes that
make it a crime to “file a false statement” or “conceal a
material fact” in connection with a FECA claim. See 20
C.F.R. § 10.16 (citing 18 U.S.C. §§ 287, 1001, 1920, and
1922); 18 U.S.C. § 1001 (“[W]hoever, in any matter within
the jurisdiction of [any] branch of the Government of the
United States, knowingly and willfully . . . falsifies, con-
ceals, or covers up . . . a material fact” or “makes any
materially false . . . statement or representation . . . shall
be fined [or] imprisoned.”); 18 U.S.C. 1922 (“Whoever [is]
charged with the responsibility for making the reports of
the immediate superior [for FECA benefits, and] willfully
fails, neglects, or refuses to make any of the reports, or
4 Even without such a provision in the agreement,
it would appear to be contrary to public policy for a gov-
ernment agency to attempt to contract out of an obligation
required by federal law. See Fomby-Denson v. Dep’t of the
Army, 247 F.3d 1366, 1378 (Fed. Cir. 2001) (holding that
a contract barring an agency from reporting criminal
behavior would be against public policy).
ALLEN v. VA 16
knowingly files a false report . . . shall be fined . . . or
imprisoned . . . .”) Thus, in connection with its response
to OWCP’s inquiry, the agency was required by law to
disclose material facts and to respond truthfully. The
question which remains is whether Ms. Anderson needed
to disclose removal-related information to respond truth-
fully or to avoid concealing a material fact.
As part of its examination of Mr. Allen’s workers’
compensation claim, OWCP specifically asked the agency
to describe any performance or conduct issues:
Was this employee generally able to perform re-
quired duties in accordance with expectations?
Were there any performance or conduct problems?
Please describe.
A57. In response, Ms. Anderson explained that, “[a]s a
result of Mr. Allen’s failure to comply with the provisions
of [his] leave restriction, Mr. Allen was charged with over
100 hours of absences without leave (AWOL) for 15 sepa-
rate incidents of AWOL, and 12 incidents of failure to
follow Instructions, as well as failure to participate in an
OIG investigation.” A59. She further noted that, based
on these issues, Mr. Allen’s supervisor proposed his
removal, and the agency decided to terminate Mr. Allen
as of May 21, 2007. Id. She also submitted copies of Mr.
Allen’s Proposed Removal and Removal Decision.
Based on the nature of OWCP’s request, we cannot
say that the Board’s finding that the agency was required
by law to disclose removal-related information was arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law. Information regarding Mr.
Allen’s removal was material to OWCP’s inquiry because,
among other things, it spoke to the gravity of Mr. Allen’s
conduct problems – i.e., it showed that Mr. Allen’s issues
were sufficiently serious to warrant termination. Conse-
17 ALLEN v. VA
quently, we find no error in the Board’s conclusion that
the agency did not breach the agreement when it dis-
closed removal-related information to OWCP.
D.
Mr. Allen further argues that the Board erred in de-
nying him an evidentiary hearing to determine whether
the agency’s response to OWCP was, in fact, truthful. He
also claims that both the AJ and Board were biased
towards him. Neither argument is well-taken.
There is no right to an evidentiary hearing in a peti-
tion for enforcement, and whether to hold a hearing is
within the discretion of the Board. See 5 C.F.R. §
1201.183(a)(3). Mr. Allen, moreover, has not alleged that
he suffered any prejudice when he was denied a hearing.
Though he claims that the information and documents
provided to OWCP “contained misleading, incomplete and
untruthful statements,” he fails to identify any such
statements and has not introduced evidence that contra-
dicts the information disclosed to OWCP. Consequently,
we find no error in the Board’s denial of an evidentiary
hearing.
As to Mr. Allen’s allegations of bias, he argues that
the AJ demonstrated bias by “fail[ing] to address all
material and relevant issues, cit[ing] irrelevant case law,
and accept[ing] insufficient affidavit evidence [submitted]
by the agency.” Pet. Inf. Br. at 22. He also claims that
the Board exhibited bias “by presenting arguments on
behalf of the agency in its” 2009 Final Decision. Id. Mr.
Allen’s allegations of bias, however, are essentially asser-
tions of legal error, and, in any event, do not give rise to
an inference of bias sufficient to justify granting further
relief in this case. See Bieber v. Dep't of the Army, 287
F.3d 1358, 1362 (Fed. Cir. 2002) (citation omitted) (A new
hearing on the basis of bias requires a showing that the
ALLEN v. VA 18
administrative judge or the Board exhibited “a deep-
seated favoritism or antagonism that would make fair
judgment impossible. . . . [J]udicial remarks . . . that are
critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or
partiality challenge" unless they derive from an extra-
administrative source.”). Accordingly, we find that Mr.
Allen’s bias claims are without merit.
II.
With respect to the Board’s 2010 Final Decision, Mr.
Allen argues that the AJ failed to address his April 8,
2010 PFR challenging the validity of the settlement
agreement. He also alleges error in the AJ’s application
of collateral estoppel to his claim that the agency
breached the settlement agreement by maintaining
removal-related documents in his OPF and in other files.
Finally, Mr. Allen contends that the decision failed to
adequately address his contention that the agency was
dishonest about the location of his OPF.
A.
We first address Mr. Allen’s claim that the decision
failed to address his April 8, 2010 PFR challenging the
validity of the settlement agreement. There appears to be
some confusion on behalf of the parties as to the Board’s
disposition of the April 8, 2010 PFR. Mr. Allen alleges
that the Board “failed to address the merits of [this]
petition and referred the petition to its Washington
Regional Office (“RO”) for review in Docket No. DC-0752-
07-0694-C-4.” Pet. Inf. Br. at 2. According to Mr. Allen,
the RO subsequently issued a decision “in DC-0752-07-
0694-C-4 without addressing” the referred PFR. Id. Mr.
Allen additionally alleges that, on May 14, 2010, in con-
nection with his April 8, 2010 PFR, the Board notified
him in a letter that “he had no further right of appeal in
19 ALLEN v. VA
DC-0752-07-0694-C-3, as he had filed a review before the
[Federal Circuit in] Docket No 2010-3088.” Id.Mr. Allen misinterprets the effect of the Board’s May
14, 2010 letter. Though it did note that his appeal of the
Board’s 2009 Final Decision was pending before the
Federal Circuit, it first explained that the Board would
not reconsider its 2009 Final Decision and reopen Mr.
Allen’s removal appeal because its regulations do not
provide for such requests:
This is in response to your April [8] 5 and 20, and
May 6, 2010 requests for reconsideration of the
Board’s December 29, 2009 Opinion and Order in
the appeal [of Allen v. Dep’t of Veterans Affairs,
MSPB Docket Nos. DC-0752-07-0694-C-3, DC-
0752-07-0694-I-1].
The Opinion and Order included a specific state-
ment that it represents the final decision of the
Board in this appeal and also notified you of your
further review rights. The Board’s regulations do
not provide for your request for reconsideration of
the Board’s final decision. There is, therefore, no
further right to review of this appeal by the
Board.
Pet. Supp. to Rcd. Thus, properly understood, this letter
served to inform Mr. Allen that he had no right to further
review by the Board and that, accordingly, the Board
5 In its original form, the letter references an April
9, 2010 request for consideration. Because the record
contains no such request, it appears that the letter was
intended to refer to Mr. Allen’s April 8, 2010 PFR, in
which he requests “that the Board reconsider” its Decem-
ber 29, 2009 “final decision.”
ALLEN v. VA 20
would not consider his April 8, 2010 PFR or his April 20,
2010 supplement. 6
With respect to Mr. Allen’s claim that the Board
“failed to address the merits of [his April 8, 2010 PFR]
and referred the petition to its Washington Regional
Office (“RO”) for review in Docket No. DC-0752-07-0694-
C-4,” he is again mistaken. While it is true that the
Board declined to address the merits of Mr. Allen’s PFR,
it did so not because it referred the PFR to the RO, but
because Mr. Allen had no right to further review of the
Board’s final decision, as explained in the Board’s May 14,
2010 letter. 7 While the Office of the Clerk of the Board
did subsequently notify Mr. Allen that it forwarded a
document titled “Appellant’s Submission,” to the Wash-
ington RO, nowhere does this notice indicate that the
Board referred Mr. Allen’s April 8, 2010 PFR “to its
Washington Regional Office (“RO”) for review in Docket
No. DC-0752-07-0694-C-4,” as Mr. Allen alleges. This
notice, moreover, was dated May 26, 2010 – twelve days
after the Board’s letter “in response to [Mr. Allen’s] April
[8]” petition, in which it informed Mr. Allen that it would
not reconsider its 2009 Final Decision. Thus, by May 26,
2010, there was no longer even a pending petition to be
referred to the Washington RO because the Board had
already decided not to entertain that petition. Because
the record before us contains no indication that the April
6 The letter also impliedly conveyed that the Board
would not exercise its discretion to reconsider the decision
on its own accord. Cf. 5 C.F.R. § 1201.118 (“The Board
may reopen an appeal and reconsider a decision of a judge
on its own motion at any time, regardless of any other
provisions of this part.”).
7 To the extent, moreover, that Allen’s April 8, 2010
PFR sought review of the Board’s September 7, 2007
decision dismissing the appeal of his removal as settled,
Allen’s petition was untimely.
21 ALLEN v. VA
8, 2010 PFR should have been addressed in the Board’s
2010 Final Decision – and shows, instead, that the Board
declined to exercise its jurisdiction pursuant to 5 C.F.R. §
1201.118 to reconsider its 2009 Final Decision – Mr.
Allen’s claim that the 2010 Final Decision erred in failing
to address his PFR is without merit. 8
B.
Mr. Allen also contends that the AJ erred in applying
collateral estoppel to his claim that the agency breached
the settlement agreement by maintaining removal-related
documents in his OPF, an “unofficial settlement file,” and
an “unauthorized secret personnel file.” We disagree. As
in his 2009 PFE, Mr. Allen’s 2010 PFE argued that the
agency breached the settlement agreement by maintain-
ing removal-related documents in Mr. Allen’s OPF and in
other agency files. The only new fact alleged in Mr.
Allen’s 2010 PFE was that, in response to Mr. Allen’s
FOIA request, the agency revealed that the documents
furnished to OWCP were maintained in an “unofficial
settlement file.” This fact, however, does not preclude the
application of collateral estoppel because the 2009 Final
Decision specifically found that: (1) based on our prece-
8 We, accordingly, do not reach the merits of Mr. Al-
len’s arguments regarding the validity of the settlement
agreement for the first time on appeal. Because those
claims were raised only in his PFR, which was not prop-
erly before the RO and was, thus, never the subject of a
final decision, Mr. Allen has failed to demonstrate that we
have jurisdiction to entertain them. See 28 U.S.C. §
1295(a)(9) (providing jurisdiction only over “an appeal
from a final order or final decision of the Merit Systems
Protection Board”); Johnson v. Dep't of Veterans Affairs,
No. 2010-3164, 2010 U.S. App. LEXIS 25161, *3 (Fed. Cir.
December 8, 2010) (“A party seeking the exercise of
jurisdiction in its favor has the burden of establishing
that such jurisdiction exists.”)
ALLEN v. VA 22
dent in Musick, the agency was not required to expunge
removal-related documents from any location other than
Mr. Allen’s OPF; and (2) his OPF was expunged of all
removal-related documents. Consequently, the AJ prop-
erly applied the doctrine of collateral estoppel.
C.
Finally, Mr. Allen argues that the AJ failed to ade-
quately address his claim that the agency has been “dis-
honest” about the location of his OPF since his separation.
We disagree. The AJ considered this claim and properly
concluded that it did not allege a breach of the settlement
agreement.
CONCLUSION
For the foregoing reasons, the final decision of the
Board is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.