Elizabeth J. Martin, a former employee of the Department of Veterans Affairs, filed an Individual Right of Action appeal in 2014 alleging retaliation for whistleblowing. In May 2015, she and the agency entered a settlement agreement to dismiss the appeal and waive future claims. In exchange, the agency agreed to remove three specific sets of disciplinary documents from Martin's Official Personnel File: a 2011 reprimand, a 2013 suspension, and a 2014 removal. Nearly nine years later, in April 2024, Martin petitioned the Board for enforcement, claiming the agency breached the agreement by failing to expunge her file and by providing the un-expunged records to a third-party attorney during an unrelated civil deposition. The Board denied the petition, finding that the agency had removed the specified documents in 2015 and that Martin failed to prove the agency was the source of the information disclosed to the third party. Martin then appealed the Board's decision to the Federal Circuit.
The Federal Circuit reviewed the Board's decision under the substantial evidence standard, which requires the court to uphold the Board's factual findings if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. The court addressed two primary arguments raised by Martin. First, Martin argued that the settlement agreement was breached because references to her disciplinary history remained in publicly available Board decisions from 2014 and 2021. The court rejected this, noting that the Board is not a party to the settlement agreement and therefore cannot breach its terms. Furthermore, the agreement's text only required the agency to remove the specific documents from Martin's Official Personnel File, not to scrub references from third-party databases or other Board decisions. Second, Martin argued that the agency admitted to providing her records to a third party. The court found this argument belied by the record, as the agency consistently denied any breach and the Board explicitly concluded that Martin failed to prove the agency was the source of the information. The court noted that substantial evidence, including sworn declarations from HR employees, supported the Board's finding that the disciplinary events were not in Martin's file. The court also declined to consider Martin's argument regarding the 2014 Board Decision as it was not raised before the Board, adhering to the principle that issues not presented to the agency cannot be raised for the first time on appeal.
The decision affirms the finality of the 2015 settlement agreement, confirming that the agency's removal of the specific disciplinary documents satisfied its contractual obligations. It establishes that the presence of disciplinary history in publicly available Board decisions does not constitute a breach of such agreements. Additionally, it clarifies that a petitioner bears the burden of proving the agency provided records to a third party to establish a breach regarding disclosure; mere knowledge of the records by a third party is insufficient without evidence of the agency's involvement in that disclosure. The case is remanded with no further judicial intervention on this enforcement petition.
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