Assad v. United States ( 2023 )

In the United States Court of Federal Claims
No. 20-489 C
Filed: February 16, 2023
________________________________________
)
JAHLEEL ASSAD, )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
________________________________________ )
Kenneth E. Barton, III, Cooper, Barton & Cooper, LLP, Macon, GA, for Plaintiff.
Matthew J. Carhart, Trial Attorney, United States Department of Justice, Civil Division,
Commercial Litigation Branch, Washington, D.C., with whom were Brian M. Boynton, Acting
Assistant Attorney General, Patricia M. McCarthy, Director, L. Misha Preheim, Assistant
Director, and Andrew H. Woodbury, Litigation Attorney, United States Air Force, of counsel, for
Defendant.
OPINION AND ORDER
MEYERS, Judge.
Jahleel Assad contends that the Air Force breached a settlement agreement they entered
regarding his separation from civilian service. Specifically, he believes that the Air Force
violated terms of the settlement agreement by giving a negative reference and failing to remove
negative documentation from his personnel file. The government moves for summary judgment
on the ground that it performed each obligation under the settlement agreement. The Court
agrees. The record is clear that it was a separate employer, which plaintiff admits was not
affiliated with the United States, that gave the negative reference to one of Assad’s potential
employers. And the settlement agreement states explicitly what the Air Force would do to
update Assad’s personnel file and that Assad waived any claim that it should do more than that
explicitly stated in the agreement. Therefore, the Air Force did not breach the settlement
agreement by not doing what the Air Force explicitly said it would not do—adjust Assad’s
personnel records in any way other than those expressly called for in the agreement. Therefore,
the Court grants the government’s motion for summary judgment.
I. Background
Jahleel Assad was a federal civilian employee working as an Electronics Engineer from
October 21, 2013, to December 24, 2016 at Robins Air Force Base, Georgia, and from December
25, 2016 to November 5, 2018 at Naval Air Station (“NAS”) Pensacola, Florida. ECF No. 20-1
at A9. On March 14, 2018,1 Assad filed an Equal Employment Opportunity Commission
(“EEOC”) complaint against the Air Force alleging employment discrimination. ECF No. 21-1
at 26;2 see ECF No. 4 ¶ 5. Later that month, Assad’s supervisor, Ms. Katrina Ockman, issued a
Notice of Proposed Suspension to Assad citing “Conduct Unbecoming of a Federal Employee”
and documented her related interactions in a Memorandum for Record. ECF No. 21-1 at 11-15.
On May 4, 2018, the Air Force opened a Security Information File (“SIF”) suspending Assad’s
access to classified information and restricted areas. ECF No. 21-1 at 16-17; see also ECF No.
20-1 at A110 (“SIFs serve as a repository [for] documentation of unfavorable or derogatory
information that requires further review, evaluation, or investigation to resolve outstanding
administrative or adjudicative concerns.”). The SIF echoed concerns raised by Ockman in
Assad’s Notice of Proposed Suspension, including his time and attendance violations, falsifying
official documents, and failing to follow security procedures. ECF No. 21-1 at 16. The SIF also
provided that, “[w]hen Mr. Assad is counseled, he becomes defensive and abusive towards his
supervisor. This conduct is unacceptable behavior. All supporting documentation will be
forwarded to the Central Adjudication Facility (CAF) for final determination.” ECF No. 21-1 at
16. On May 10, 2018, Assad was “placed in a non-duty pay status . . . while the agency
conduct[ed] an inquiry into [his] inappropriate conduct . . . .” ECF 21-1 at 21. This inquiry
resulted in the issuance of two Notification of Personnel Action Forms (each, an “SF-50”)
suspending Assad’s employment for specified periods of time: the first issued on May 23, 2018,
for conduct unbecoming of a federal employee, and the second issued on August 6, 2018, for
insubordination, defiance of authority, inappropriate conduct, and failure to follow leave
procedures.3 ECF No. 21-1 at 22-25.
On November 5, 2018, Assad entered into a Negotiated Settlement Agreement (the
“Settlement Agreement” or the “Agreement”) with the Air Force “to settle all existing matters
relating to [Assad’s] employment . . . .” ECF No. 4-1 ¶ 1. The Settlement Agreement
constituted a “full and final settlement” and “a complete accord and satisfaction of any and all
claims, including any and all equitable and legal relief.” ECF No. 4-1 ¶ 1. The Settlement
Agreement also contains a clause explaining that it “constitutes the full and complete
understanding” between Assad and the Air Force, and “that no other promises or agreements,
which may have been stated or discussed during the period of time preceding the signing of the
Agreement” would bind the Air Force “unless clearly stated in the Agreement.” ECF 4-1 ¶ 8.
1
Assad filed an informal EEOC complaint on March 14, 2018. See ECF No. 21-1 at 26. He
then filed a formal EEOC complaint on June 26, 2018, after the EEOC Specialist assigned to
review his informal complaint closed the matter. Id.
2
Because Assad’s attachment to his response is not consecutively numbered, the Court cites to
the ECF header when citing ECF No. 21-1.
3
The Air Force issued an additional Notice of Proposed 14 Calendar Day Suspension to Assad in
September 2018. It is unclear from the record whether this Notice replaced the SF-50 dated
August 6, 2018, or if Assad received Notice of a third suspension in September 2018. In either
case, the Air Force acknowledged an administrative error in the Notice, which should have listed
“Absent Without Leave” and “Use of Abusive or Offensive Language” as the causes for his
suspension. ECF No. 21-1 at 42.
2
Additionally, the Settlement Agreement provides that Assad agreed that “by entering into the
Agreement, [he] has been afforded an opportunity to carefully read the Agreement. [He]
understands and agrees to all of the provisions of the Agreement and understands and agrees that
he has been given the opportunity to consult legal counsel regarding the Agreement prior to
signing the Agreement. [Assad] further agrees that he has voluntarily signed the Agreement.”
ECF No. 4-1 ¶ 9.
The Settlement Agreement imposed three principal obligations on the Air Force, which
were:
a. To pay a one-time lump sum payment in the amount of eighteen
thousand two hundred eighty-two ($18,282.00) dollars. This one-
time lump sum payment of $18,282.00 covers attorney’s fees in the
amount of nine thousand ($9,000.00) dollars and Complainant’s
back pay in the amount of nine thousand two hundred eighty two
[sic] ($9,282.00) dollars.
*****
c. To, within fourteen (14) business days, process an SF-50 and
SF-52 through the Defense Civilian Personnel Data System
reflecting Complainant’s voluntary resignation, effective as of the
date of the Complainant’s signature on this Agreement. [and]
d. To provide Complainant with a neutral reference attached
hereto and made a part of the Agreement hereof.
ECF No. 4-1 ¶ 2(a)-(d), ECF No. 4-1 at 8.4 The Neutral Reference Letter confirmed Assad’s
dates of employment, established his duty assignment as an Electronics Engineer (NH-0855-III),
and, in relevant part, provided that “Assad resigned for personal reasons” on November 5, 2018.
ECF No. 4-1 at 8. The Air Force provided the neutral reference. Id.
As consideration for these obligations, Assad agreed to: (1) resign from federal
employment with the Air Force; (2) dismiss his EEOC complaint with prejudice; (3) refrain from
reapplying for employment with the Air Force for a period of five years; (4) waive any claims
against the Air Force related to his employment and EEOC complaint, except to enforce the
terms of the Settlement Agreement; and, (5) unless “expressly provided for in Paragraph 2[,] . . .
waive[] any and all rights to seek adjustments to personnel records maintained by the [Air
Force].” ECF No. 4-1 ¶ 3(a)-(d), (h). Assad “agree[d] that the terms and conditions of the
Agreement constitute[d] a full and complete settlement of any and all pending differences,
disputes, [] grievances, claims or charges which have been, could have been, or could be
brought” against the Air Force. ECF No. 4-1 ¶ 4(a)-(b).
4
Because Assad’s attachment to his amended complaint is not consecutively numbered, the
Court cites to the ECF header when citing ECF No. 4-1.
3
After separating from the Air Force, Assad submitted applications for employment with
two government contractors, IndraSoft, Inc. (“IndraSoft”) and Fluor Marine Propulsion, LLC
(“Fluor”). ECF No. 21 at 6, 9. On February 27, 2019, IndraSoft extended an employment offer
to Assad, which was contingent on his ability to obtain and maintain clearance to access certain
secure areas at Robins Air Force Base with a Common Access Card (“CAC”). ECF No. 4 ¶ 17.
However, on March 11, 2019, IndraSoft informed Assad that his application for such clearance
had been denied, and his offer for employment was thereby rescinded. ECF No. 20-1 at A57.
During his deposition, Assad testified that an IndraSoft security officer told him IndraSoft was
not able to get “hold of [his] records, . . . they are being flagged[,] . . . . [and] that someone filed
a complaint, but the person or entity did not give the reasons . . . .” ECF No. 20-1 at A17 (Assad
Dep. 19:10-15). Assad further testified that he attempted to contact the Department of Defense
(“DoD”) CAF to resolve his clearance issues, but was informed that they “only talk to the
employers not the employees.” ECF No. 20-1 at A18 (Assad Dep. 23:9-10).
Assad also received a conditional offer for employment from Fluor, which was similarly
contingent on his ability to obtain “[s]atisfactory results from a pre-employment investigation”
and security clearance from the Department of Energy (“DoE”). ECF No. 21-1 at 89. Fluor
engaged Employment Background Investigations, Inc. (“EBI”) to complete the pre-employment
screening, which included verification of Assad’s employment history. ECF No. 21 at 9. EBI
successfully verified Assad’s employment at Robins Air Force Base with Mr. Daryl Aikens, his
supervisor, who confirmed that Assad “transferred to another agency” and would be eligible for
rehire “upon review.” ECF 20-1 at A80. EBI further verified Assad’s employment with Albany
Technical College, which yielded “hits” in his supervisor references. ECF No. 20-1 at A67.
During his background check, Assad learned that EBI’s investigation found that an
unnamed former supervisor or supervisors stated that they would not rehire him and that he had
been terminated. ECF No. 21-1 at 99; see also ECF No. 20-1 at A67. EBI’s report provides
additional clarity into the background investigation’s findings. The only contacts that EBI
documented saying that Assad was terminated and not eligible for rehiring were at Albany
Technical College. ECF No. 24-1 at SA82-83.
Finally, although EBI was initially unable to verify Assad’s employment with NAS
Pensacola after contacting Ockman, Fluor later confirmed Assad’s employment through
Amundson, who told Fluor that Assad “is a former employee with the US Air Force and is
eligible for rehire.” ECF No. 20-1 at A88; see also ECF No. 21-1 at 91 (Amundson informing
Ockman he would “see what the settlement agreement stated and [] respond back to the
requesting party as [he] had received the same inquiry.”). Based on EBI’s report, Fluor’s Sub-
Division Manager for the Talent Acquisition Team concluded that “no disqualifying employment
issues exist[ed]” for Assad, and therefore initiated the security clearance process with the DoE.
ECF No. 20-1 at A60-61; ECF No. 20 at 6. Assad subsequently obtained security clearance to
begin employment with the Naval Surface Warfare Center, and remained actively employed
there as of his deposition. ECF No. 20-1 at A20 (Assad Dep. 30:7-20) (“[A]ll my clearance is []
good now.”).
Assad filed suit in this Court on April 22, 2020, alleging the Air Force breached its duties
under the Settlement Agreement to provide a neutral reference and “to show that [his]
resignation [from the Air Force] was voluntary.” ECF No. 4 ¶ 55-65. Assad further alleges that
4
“[a]s a result of the Air Force’s breach of contract, [he] was denied employment of which he was
otherwise qualified.” ECF No. 4 ¶ 66. The Government moves for summary judgment.
II. Jurisdiction and Legal Standard
A. Jurisdiction
The Tucker Act, 28 U.S.C. § 1491(a)(1), confers this Court’s jurisdiction to adjudicate
“any claim against the United States founded either upon the Constitution, or any Act of
Congress or any regulation of an executive department, or upon any express or implied contract
with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”
The Federal Circuit has “long held that disputes over Settlement Agreements are governed by
contract principles” and that a Settlement Agreement is a contract. Cunningham v. United
States, 748 F.3d 1172, 1176 (Fed. Cir. 2014). Accordingly, this Court has jurisdiction to review
an alleged breach of a Settlement Agreement between a private citizen and the Government, “the
proper interpretation of which is a matter of law.” Ramona Two Shields v. United States, 820
F.3d 1324, 1329 (Fed. Cir. 2016) (citation omitted).
B. Legal Standard
Rule 56 of the United States Court of Federal Claims “is patterned on Rule 56 of the
Federal Rules of Civil Procedure . . . and is similar both in language and effect.” Gutz v. United
States, 45 Fed. Cl. 291, 295 (1999). Both rules provide that the Court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” RCFC 56(a). A “genuine” dispute of
material fact exists where a reasonable factfinder “could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it
“might affect the outcome of the suit under the governing law[,]” as opposed to “disputes that are
irrelevant or unnecessary[.]” Id. Indeed, “the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48(emphasis in original). Moreover, absent supporting evidence, “mere allegations of a genuine
issue of material fact . . . will not prevent entry of summary judgment.” Republic Sav. Bank,
F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed. Cir. 2009); see also Anderson, 477 U.S. at
247-48.
In considering a motion for summary judgment, the Court must “tak[e] care in each
instance to draw all reasonable inferences against the party whose motion is under
consideration.” Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir.
1987) (citation omitted). “The moving party bears the [initial] burden of demonstrating the
absence of genuine issues of material fact.” Dairyland Power Co-op. v. United States, 16 F.3d
1197, 1202 (Fed. Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
However, the moving party “may discharge [such initial] burden by showing the [C]ourt that
there is an absence of evidence to support the nonmoving party’s case.” Dairyland Power Co-
op. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986)). “A nonmoving party’s failure of proof concerning the existence of an
element essential to its case on which the nonmoving party will bear the burden of proof at trial
5
necessarily renders all other facts immaterial and entitles the moving party to summary judgment
as a matter of law.” Id. (citing Celotex Corp., 477 U.S. at 323); see also RCFC 56(c).
III. Discussion
“To recover for breach of contract, a party must allege and establish: (1) a valid contract
between the parties, (2) an obligation or duty arising out of the contract, (3) a breach of that duty,
and (4) damages caused by the breach.” San Carlos Irrigation & Drainage Dist. v. United
States, 877 F.2d 957, 959 (Fed. Cir. 1989). It is well settled that a “party breaches a contract
when it is in material non-compliance with the terms of the contract.” Gilbert v. Dep’t of Justice,
334 F.3d 1065, 1071 (Fed. Cir. 2003) (citation omitted). Such “material non-compliance”
constitutes breach when it relates to “a matter of vital importance and goes to the essence of the
contract.” Williams v. United States, 144 Fed. Cl. 218, 231 (2019) (quoting Thomas v. Dep’t of
Hous. & Urban Dev., 124 F.3d 1439, 1442 (Fed. Cir. 1997)).
It is undisputed that the Settlement Agreement is a valid contract. See ECF No. 20 at 8;
ECF No. 21 at 12-13. The parties also do not dispute that the Air Force fulfilled its obligations
under the Settlement Agreement to issue the lump sum payment and process the SF-50 and SF-
52, each indicating that Assad resigned for “Personal Reasons.” ECF No. 20-1 at A51-53; ECF
No. 21-1 at 47-52; see also ECF No. 20-1 at A22-A23 (Assad Dep. 39:11-13, 43:15-18) (Assad
acknowledging the Air Force’s compliance with its payment and SF-50/SF-52 obligations). And
the Air Force provided the neutral reference in the form the Settlement Agreement required.
ECF No. 4-1 at 8. Assad, however, alleges that the Government breached “both its implied and
express obligations” under the Settlement Agreement: (1) to remove all adverse information
from his personnel file, including prompt closure of his SIF; (2) to refrain from sharing adverse
information in the SIF Closure Memorandum (“the SIF Memo”); and (3) to provide neutral
references to IndraSoft and Fluor, without disclosing his ineligibility for rehire and allegations of
his misconduct. ECF No. 21 at 12, 15-16.
Based on the record before the court, Assad has not created a genuine dispute of material
fact supporting his allegations that the Air Force breached its duties under the Settlement
Agreement. The Government is therefore entitled to summary judgment as a matter of law.
A. The Air Force satisfied its duties under the Settlement Agreement when it
provided a neutral reference to IndraSoft.
1. The Air Force did not have a duty to amend Assad’s personnel records,
including with respect to his SIF, except as expressly set forth in Paragraph 2 of
the Settlement Agreement.
Assad complains the Government breached the Settlement Agreement when it “failed to
remove adverse information concerning [his] purported misconduct from his personnel file and
failed to close a security-related investigation that had been [the] subject of the dispute leading to
the Agreement,” which caused IndraSoft to rescind its offer of employment. ECF No. 21 at 12.
Specifically, he testified IndraSoft was not able to get “hold of [his] records, . . . they [were]
being flagged[,] . . . . [and] that someone filed a complaint, but the person or entity did not give
the reasons . . . .” ECF No. 20-1 at A17 (Assad Dep. 19:10-15). According to Assad, the
6
Settlement Agreement created a duty for the Air Force “to take affirmative steps to reflect that
[he] had voluntarily resigned from his position with the Air Force[,]” not only to provide him
with a neutral reference and amend his SF-50 and SF-52. ECF No. 4 at ¶ 56. And the “SF-50
and SF-52 are only a small part of [his] Official Personnel File ([]“OPF”). . . . Accordingly,
when an agency agrees to issue a new SF-50 reflecting that an employee resigned for personal
reasons, the agency breaches the implied terms of the settlement agreement when it refuses to
remove references suggesting otherwise in the employee’s OPF.” ECF No. 21 at 14-15 (citations
omitted).
In support, Assad cites to a string of cases, including Conant v. Office of Personnel
Management, 255 F.3d 1371, 1376-77 (Fed. Cir. 2001), where the Court found the agency’s
external disclosure of an original SF-50—rather than the modified SF-50, reflecting resignation
for “personal reasons”—to materially breach the Settlement Agreement. There, the Federal
Circuit determined that such breach rose from the agency “submitting documents it had agreed to
rescind[,]” which “was not immaterial . . . .” Id. at 1377. Further, Assad argues that the “Merit
Systems Protection Board has not only recognized the Conant rule, but it has also found that an
agency merely issuing a new SF-50, without making further changes to a personnel file, may be
in material breach of implied terms of a settlement agreement.” ECF No. 21 at 16. Therefore,
Assad maintains that the Settlement Agreement not only imposed “an obligation to issue a new
SF-50 reflecting [] voluntary resignation,” but also to “remove[] any information in [his] OPF
that was inconsistent with that explanation[,]” including with respect to his SIF. ECF No. 21 at
16.
In considering a motion for summary judgment, the Court must interpret a Settlement
Agreement’s “provisions to ascertain whether the facts [] allege[d] would, if true, establish a
breach of contract.” Bell/Heery v. United States, 739 F.3d 1324, 1330 (Fed. Cir. 2014); see also
Coast Fed. Bank, F.S.B. v. United States, 323 F.3d 1035, 1038 (Fed. Cir. 2003) (Contract
interpretation “begins with the language of the written agreement.”). If the “provisions are clear
and unambiguous, they must be given their plain and ordinary meaning.” Alaska Lumber & Pulp
Co. v. Madigan, 2 F.3d 389, 392 (Fed. Cir. 1993); see also TEG-Paradigm Envtl., Inc. v. United
States, 465 F.3d 1329, 1338 (Fed. Cir. 2006) (plain and ordinary meaning can be “derived from
the contract by a reasonably intelligent person acquainted with the contemporaneous
circumstances”) (quotation omitted). Indeed, the Court must construe terms “in a manner that
gives meaning to all of [the contract’s] provisions and makes sense.” McAbee Const., Inc. v.
United States, 97 F.3d 1431, 1435 (Fed. Cir. 1996) (citing Hughes Commc’ns Galaxy, Inc. v.
United States, 998 F.2d 953, 958 (Fed. Cir. 1993)). If the contract provisions are clear, “the
[C]ourt may not resort to extrinsic evidence to interpret them.” Id.; see also City of Tacoma v.
United States, 31 F.3d 1130, 1134 (Fed. Cir. 1994) (“Outside evidence may not be brought in to
create an ambiguity where the language is clear.”).
The Settlement Agreement’s plain terms include an integration clause that establishes
that it “constitutes the full and complete understanding between [Assad] and the Agency.” ECF
No. 4-1 ¶ 8. The Air Force’s obligation to update its records are unambiguously set forth in
Paragraph 2 and are limited to “process[ing] an SF-50 and SF-52 through the Defense Civilian
Personnel Data System reflecting Complainant’s voluntary resignation, effective as of the date of
the Complainant’s signature on this Agreement.” ECF No. 4-1 ¶ 2(c). The Settlement
Agreement also makes clear that this would be all the Government would do, providing that
7
“except as expressly provided for in Paragraph 2 . . . [Assad] waive[d] any and all rights to seek
adjustments to personnel records maintained by the Agency.” ECF No. 4-1 ¶ 3(h) (emphasis
added). Assad’s assumption that other records would also be expunged does not impose an
affirmative duty on the Air Force to amend his records. There is no implied duty that can
overcome an express provision of a written contract. E.g., Hawkins v. United States, 96 U.S.
689, 697 (1877) (“Express stipulations cannot in general be set aside or varied by implied
promises . . . .”); Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 831 (Fed. Cir.
2010) (An “implied duty . . . cannot expand a party’s contractual duties beyond those in the
express contract or create duties inconsistent with the contract’s provisions.”).
On this point, Assad’s reliance on Conant is misplaced. In Conant, the Federal Circuit
found the Government had an implied obligation to produce the revised SF-50, rather than a
prior SF-50, when it agreed to modify such records. Conant, 255 F.3d at 1376. The Court did
not imply a general duty to overhaul the employee’s entire personnel record. See id. Thus, the
problem in Conant was that the Government agreed to revise the SF-50, which it did, but when
submitting her information for a disability retirement the Government provided the original SF-
50. Id. Here, Assad provides no evidence that his prior SF-50 was ever provided to a
prospective employer, and he waived his right to seek further adjustments to his records in
signing the Settlement Agreement as negotiated. Thus, there is no breach of the obligation to
provide the correct (i.e., revised) SF-50.
Similarly without merit is Assad’s argument that, unless the Government was required to
remove all adverse information from his OPF, “the provision of the Agreement requiring
[issuance of] a new SF-50 reflecting a voluntary resignation would have been of no value . . . .”
ECF No. 21 at 20. To be sure, “[t]he parties agree[d] and underst[oo]d that no other promises or
agreements, which may have been stated or discussed during the period of time preceding the
signing for the Agreement, will be binding on the Agency unless clearly stated in the
Agreement.” ECF No. 4-1 ¶ 8. If Assad intended to impose a duty on the Air Force to amend
his entire OPF, he (through his counsel) should have negotiated for that in the Settlement
Agreement. While Assad cites to cases relying on other agreements that describe expansive
representations about the treatment of personnel records in his briefings, the Settlement
Agreement contains no such representations. For example, Conant also found a breach because
the Government failed to use its best efforts to help Ms. Conant obtain a disability retirement.
Id. This is no help to Assad, however, because the agreement in Conant expressly obligated the
Government (the IRS) “to use its ‘best efforts’ to ‘effectuate’ Ms. Conant’s disability
retirement . . . .” Id. In other words, this was not an implied duty but an express one spelled out
in the contract. In the end, the Court must enforce the Settlement Agreement as written and there
is no evidence that the Government breached that agreement.
To the extent Assad—who was represented by counsel when negotiating and signing the
Agreement—further argues that the Court should deny summary judgment because he “never
read it” and “it was all kind of rushed[,]” he is mistaken. ECF No. 20-1 at A24 (Assad Dep.
48:15-17). Assad testified that “I did not read the entire document. . . . To be honest, no, I did
not read it carefully . . . .” ECF No. 20-1 at A21 (Assad Dep. 34:20-21, 36:15-16). In bold and
capitalized text located immediately above the signature block where Assad signed, the
Settlement Agreement provides that “the parties acknowledge that they have read the agreement
carefully, that they understand it, and that they are voluntarily entering into the agreement.” ECF
8
No. 4-1 ¶ 12. If a party fails to read and adequately negotiate an agreement, particularly when
represented by counsel, that party cannot later complain that he had not read the agreement.
Accordingly, the Settlement Agreement does not impose any duty on the Air Force—
express or implied—to revise Assad’s personnel records other issuing the revised SF-50 and SF-
52 as set forth in Paragraph 2 of the Agreement. There is no dispute the Air Force did so here.
ECF No. 20-1 at A23 (Assad Dep. 43:15-18) (Assad acknowledging that the Air Force processed
a revised SF-50 and SF-52 reflecting his voluntary resignation).
2. The Air Force did not breach the Settlement Agreement when it issued the
SIF Memo.
Assad argues that the Government’s failure to close his SIF prompted the denial of his
CAC application and was “the reason that IndraSoft had revoked . . . or withdrawn the
[employment] offer . . . about two weeks earlier.” ECF No. 29 at 31:7-11; see ECF No. 21 at 18.
After signing the Settlement Agreement, the Air Force initiated closure of Assad’s SIF and
directed Assad to contact the DoD CAF should adjudication of his security clearance resume on
behalf of a future employer. ECF No. 21-1 at 104. On March 27, 2019, the Air Force issued the
SIF Memo, indicating that the DoD “had lost jurisdiction to make a favorable or unfavorable
eligibility determination” as to Assad’s SIF, thereby closing it, “since . . . Assad was no longer
affiliated with the agency.” ECF No. 20-1 at A111. Such “loss of jurisdiction results when an
individual retires, separates, or ends their affiliation with DoD before an adjudications facility
can make an eligibility determination. Under these circumstances the adjudication facility will
cease all work on the individual’s adjudicative record.” ECF No. 20-1 at A102 (Department of
the Air Force, Air Force Manual 16-1405 (Aug. 1, 2018) (implementing Department of Defense
Manual 5200.02, Procedures For The DoD Personnel Security Program, § 9.3(a) (Aug. 1,
2018))). The Air Force must also “notify the DoD CAF if the individual separates or is no
longer employed by the AF.” Id. Accordingly, the SIF Memo directed the Air Force to notify
the DoD CAF of Assad’s separation, which prompted closure of his SIF due to loss of
jurisdiction. See ECF No. 4-2 ¶ 5.
“The DoD CAF is the sole authority to determine security clearance eligibility of non-
intelligence agencies . . . [and is] an independent organization [that] cannot be influenced by the
Air Force to make an adjudicative decision.” ECF No. 21-1 at 104. If a CAC application is
denied, the owning organization (i.e., the current or prospective employer) must contact the DoD
CAF directly to resolve such denial. ECF No. 29 at 12:5-10. Indeed, it is “the owning
organization [that] will communicate with the DoD CAF to determine whether eligibility can be
established based on the existing background investigation or . . . a new background
investigation[,]” rather than the employee himself. ECF No. 20-1 at A102 (Department of the
Air Force, Air Force Manual 16-1405 (Aug. 1, 2018) (implementing Department of Defense
Manual 5200.02, Procedures For The DoD Personnel Security Program, § 9.3(a)(1)(c) (Aug. 1,
2018))). There is no evidence in the record that IndraSoft contacted the DoD CAF to resolve
Assad’s CAC denial. Assad admitted that he does not know what IndraSoft did. ECF 20-1 at
A18 (Assad Dep. 23:18-20) (“Q: Do you know if Indrasoft ever contacted DOD CAF? A: No. I
don’t know what they did.”). To be sure, if an owning organization does not challenge a denial,
the decision will stand, and the DoD CAF will not further adjudicate the issue on its own accord.
The Air Force lost jurisdiction as Assad’s owning organization upon his separation, and it is not
9
obligated to intervene, or otherwise assist with adjudication of security clearance for prospective
employers. Therefore, the Air Force did not breach the Settlement Agreement when it issued the
SIF Memo, or when DoD CAF denied Assad’s CAC application, causing IndraSoft to revoke its
offer.
The parties do not dispute that the SIF Memo contained inaccurate information about
Assad’s separation. See ECF No. 20 at 9. In particular, the SIF Memo “inaccurately stated
that . . . Assad had been ‘terminated on 20 April 2018 due to . . . inability to follow established
security procedures, personal conduct, and falsifying an official document.’” ECF No. 20 at 4
(citing ECF No. 20-1 at A55). It also provided that Assad “will not return to duty[,]” that
“Commanders recommendation was to remove [him] from civilian employment[,]” and that
“Assad [had] been placed on administrative leave[,] and all access to classified information [had]
been removed.” ECF No. 4-2. However, Assad does not offer any evidence that the SIF Memo,
or any information with respect to his SIF, was provided to prospective employers or third-party
agencies. See ECF No. 20-1 at A31 (Assad Dep. 74:16-19, 75:10-16) (Assad acknowledging
that he does not know whether the SIF Memo was provided to any prospective employer). Nor
could he show the SIF Memo caused or even influenced IndraSoft’s decision to revoke its
employment offer because IndraSoft revoked its offer before the SIF Memo was written.
Compare ECF No. 20-1 at A57 (Indrasoft revocation letter dated 3/11/2019) with ECF No. 4-2
(SIF Memo dated 3/27/2019). Absent evidence that the Air Force provided IndraSoft—or any
prospective employer—with adverse information, Assad fails to establish “damages caused by
the [alleged] breach.”5 Grand Acadian, Inc. v. United States, 87 Fed. Cl. 193, 197 (2009)
(quotation omitted). Although Assad alleges and argues that Air Force personnel provided false
information to prospective employers, he does not offer proof if it. See, e.g., ECF No. 21 at 11
(“[T]he problems . . . Assad encountered due to security clearance and CAC card issues as he
tried to secure employment arose in March 2019, four months after the Agreement was executed
and . . . Assad resigned, and because of information . . . Defendant’s employees submitted
that . . . they knew was not true.”). But “mere allegations of a genuine issue of material fact . . .
will not prevent entry of summary judgment.” Republic Sav. Bank, F.S.B., 584 F.3d at 1374.
Assad further claims that, if he knew “the [Air Force] could tell people that he had been
terminated, if he had any idea that his CAC card and security clearance issues would not have
been resolved, then . . . it’s pretty reasonable to say that neither [he] nor a reasonable person
would have entered into the settlement agreement even with those express terms.” ECF No. 29
at 48:3-10. The Court disagrees. First, there is no evidence in the record that the Air Force
provided adverse information to IndraSoft, or any prospective employer, in breach of the
Settlement Agreement. To the contrary, as discussed in detail below, the evidence shows that it
was a different former employer, which was unaffiliated with the Air Force, that gave negative
information about Assad and that he was terminated. Second, Assad had the opportunity to
negotiate terms with respect to closing, or otherwise amending his SIF (or any other personnel
files), before signing the Agreement. He failed to do so. And, despite whether Assad
understood, or even read, the Agreement in its entirety, it is reasonable to expect that his counsel
5
The record similarly does not indicate that Fluor received, or had any knowledge of, the SIF
Memo or its contents. To the extent Assad also intended to apply this argument to his
employment application with Fluor, it is denied on identical grounds.
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understood the terms—both those that he agreed to, and those he waived. Absent express
provisions addressing these security clearance and access issues, the Court agrees with the
Government that it “shouldn’t read into that absence a tacit commitment to do so in light of the
background principles regarding the discretion reserved to the Executive on these sorts of
determinations.” ECF No. 29 at 11:8-13.
In short, the Settlement Agreement is clear and unambiguous. Thus, the Court must
apply it by its terms as written.
B. The Air Force satisfied its duties under the Settlement Agreement when it
provided a neutral reference to Fluor.
Assad contends that “[i]n July 2019, Defendant [took] additional measures that caused
[him] to lose an . . . offer of employment” with Fluor. ECF No. 21 at 18. Specifically, Assad
alleges that the Government “told third parties, including other federal agencies, that [he] had
been terminated from his position, and . . . that he was not eligible for rehire.” ECF No. 21 at 12.
In relevant part, Assad complains that “someone told [Fluor’s EBI] investigator that [he] had
been terminated and would not be considered for rehire, and despite [his] best efforts, there was
nothing that he could say or documentation that he could provide that could explain . . . this
erroneous information.” ECF No. 21 at 18-19. Ultimately, “Assad did not hear back from Fluor,
and he assumed that the contingent offer of employment had been withdrawn.” ECF No. 21 at
10. He therefore asserts that “it was Defendant’s actions and false statements that cause[d] [him]
not to be able to begin this job[,]” ECF No. 21 at 19, and the Government failed to meet “its
contractual obligation by providing [] the written, neutral reference[,] . . . in light of statements to
third parties that . . . undermined the substance of said reference.” ECF No. 21 at 16.
As an initial matter, Assad offers no evidence that the Air Force provided Fluor, or EBI’s
investigators, with derogatory information about his employment. Assad complains that an “Air
Force Supervisor told the potential employer that the Air Force would not consider rehiring . . .
Assad” and that “Assad did not resign from his position; rather, he had been terminated.” ECF
No. 4 ¶¶ 28-29. But the only communication between Fluor or EBI and the Air Force with
respect to Assad’s employment that is supported by evidence is Amundson’s email stating Assad
“is a former employee with the US Air Force and is eligible for rehire.” ECF No. 21-1 at 100.
This is not “derogatory information about his employment.” Assad also speculates that Ockman
provided derogatory information to EBI or Fluor in breach of the Settlement Agreement, see
generally ECF No. 29 at 33-34, but does not support this allegation with evidence in the record.
It is well-settled that “the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment[.]” Anderson, 477
U.S. at 247-48 (emphasis in original). The only basis for Assad’s speculation is that “Fluor
advised [him] that EBI had been unable to verify the supervisor references for his employment
with Defendant, that one supervisor indicated he would not consider re-hiring [him], and that
while [he] had indicated that he had resigned, EBI found that he had been terminated.” ECF No.
21 at 10 (citing ECF No. 21-1 at 99). But the record clearly establishes that these statements did
not come from the Air Force.
The record is clear. Albany Technical College, not the Air Force, caused the “hits from
employment supervisor references” in EBI’s report by “indicat[ing] they would no[t] consider []
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re-hire” for Assad, and confirming his separation “was a termination[.]” ECF No. 21-1 at 99;
ECF No. 20-1 at A67. To the extent there was any doubt in the various communications
between Fluor, EBI, and Assad as to who made the derogatory comments, EBI’s report clearly
states that the source for the derogatory comments was Albany Technical College. ECF No. 24-
1 at SA 82. Assad does not contend that the Air Force is responsible for the college’s statements.
See ECF No. 29 at 38:17-18 (“[N]o, we are not alleging that the Air Force would be on the hook
for what Albany Technical College reported.”). Under any standard, the record demonstrates
that the statements Assad speculates came from the Air Force did not and those third-party
derogatory statements cannot support Assad’s claim.
The only other feedback from the Air Force (other than Amundson’s response above)
came from Mr. Aikens, who worked with Assad at Robins Air Force Base. Mr. Aikens gave a
“generally positive” reference, stating that Assad “transferred to another agency” and he would
review an application from Assad for rehire if received. ECF No. 20-1 at A80. When asked in
his deposition if Mr. Aikens’ feedback was negative, Assad responded that “He’s negative? No,
it’s not negative . . . .” ECF No. 20-1 at A34 (Assad Dep. 87:12-19) (acknowledging Aiken’s
feedback was not negative). If Mr. Aiken’s feedback to EBI was not negative, it did not breach
any provision of the Settlement Agreement.
Ultimately, Fluor determined that “no disqualifying employment issues exist[ed]” 6 for
Assad after reviewing the results of his background verification and his application for security
clearance remained pending as of July 2021. ECF No. 20-1 at A59-61. The record does not
indicate that his offer has since been rescinded. Id. That Assad assumed Fluor’s silence equated
to withdrawal of his offer is immaterial and does not impact the Air Force’s obligations under the
Settlement Agreement. Accordingly, the Air Force did not breach its Settlement Agreement with
Assad, Assad has failed to create a genuine dispute as to any material fact regarding such alleged
breach, and the Government is entitled to judgment as a matter of law.
IV. Conclusion
For the foregoing reasons, the Court grants the Government’s motion for summary
judgment. The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ Edward H. Meyers
Edward H. Meyers
Judge
6
Assad claims that Mr. Drogo, the Sub-Division Manager for Talent Acquisition at Fluor, failed
“to provide any evidence to support this contention, and therefore, it lacks the necessary
foundation.” ECF No. 21 at 11. However, Assad does not provide any evidence to contradict
Drogo’s affidavit, and the Court will not accept such an abstract assertion.
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