McFadden v. Department of Agriculture

95 F. App'x 332
CourtCourt of Appeals for the Federal Circuit
DecidedApril 7, 2004
DocketNo. 04-3043
StatusPublished

This text of 95 F. App'x 332 (McFadden v. Department of Agriculture) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McFadden v. Department of Agriculture, 95 F. App'x 332 (Fed. Cir. 2004).

Opinion

DECISION

PER CURIAM.

Michael P. McFadden appeals from a decision of the Merit Systems Protection Board, Docket No. PH-0752-01-0394-X-1, in which the Board denied a petition by the United States Department of Agriculture to enforce a settlement agreement against Mr. McFadden. Mr. McFadden agrees that the Board correctly denied the petition, but he argues that the Board erred by failing to address his claims of misconduct by the Department of Agriculture and by the administrative judge. We affirm.

BACKGROUND

Mr. McFadden worked as a Supervisory Agricultural Management Specialist at the [334]*334Harrisburg, Pennsylvania, office of the Farm Service Agency (“the Agency”), a division of the Department of Agriculture. On July 12, 2001, the Agency sought to remove Mr. McFadden for conduct unbecoming a federal employee. After an internal decision sustaining the charges, and during the pendency of Mr. McFadden’s appeal to the Board, Mr. McFadden and the Agency reached a settlement agreement that resulted in the dismissal of the appeal. The settlement agreement provided, in pertinent part:

The Appellant agrees to:

3. never seek employment with the Farm Service Agency (a component within the United States Department of Agriculture) or its successor Agency at the State or County level in a Federal or County office position. It is further agreed that by signing this Agreement, the Appellant does not waive his right to apply for other Federal employment.
Both Parties Agree:
6. this settlement Agreement will be entered into the record of the Merit Systems Protection Board so that the Board will retain jurisdiction for the purpose of enforcing compliance with the terms of this Agreement.

In September 2002, Mr. McFadden applied for employment as a Loan Specialist (Agricultural) in the Agency’s Washington, D.C., office. The Agency filed a motion with the Board to enforce the settlement agreement, arguing that by applying for employment with the Agency’s Washington office, Mr. McFadden had violated the settlement agreement. Mr. McFadden responded by arguing that the agreement barred him only from seeking employment with the Agency’s state or county offices and did not bar him from seeking employment in the Agency’s national office in Washington, D.C.

The administrative judge who was assigned to the case ruled that Mr. McFadden had violated the settlement agreement and granted the Agency’s petition for enforcement. The administrative judge served a copy of the decision on the Office of Personnel Management (“OPM”).

Mr. McFadden appealed the administrative judge’s decision to the full Board, arguing that the settlement agreement did not bar him from applying for a position with the Agency’s national office. He also alleged that the Agency had breached the agreement by filing the petition for enforcement and that the Agency’s breach was a “form of job discrimination in thwarting [his] attempt to secure employment.” Mr. McFadden argued that, but for the filing of the petition, the Agency would have awarded him one of the jobs for which he had applied. He therefore requested that the Board place him in the position for which he had applied, grant him back pay and benefits, and restore any sick leave lost because of the delay in his obtaining employment with the Agency. Finally, Mr. McFadden complained that the administrative judge had violated his privacy by serving her order on OPM.

The Board reversed the administrative judge’s decision and denied the Agency’s petition for enforcement. The Board interpreted the settlement agreement to bar Mr. McFadden from seeking employment at the Agency’s state and county offices, but not the Agency’s national office in Washington, D.C. In a footnote, the Board responded to Mr. McFadden’s privacy concerns by stating that “[s]ervice of Board decisions on OPM ... is required by statute. 5 U.S.C. § 7701(b)(1).”

Mr. McFadden agrees with the Board’s decision refusing to enforce the settlement [335]*335agreement, but he takes this appeal to press his allegations that the Agency breached the agreement by filing a petition for enforcement and that the Board violated his privacy rights by serving a copy of the initial decision on OPM.

DISCUSSION

1. Mr. McFadden requests that we direct the Board to order the Agency to appoint him to one of the positions for which he applied and to grant him the related back pay and benefits. He complains that although the Board ruled in his favor and denied the Agency’s petition to enforce the settlement agreement, the Agency’s act of filing the petition prevented him from being appointed to one of the positions for which he applied. In particular, Mr. McFadden argues that the Agency’s act of filing the petition violated 5 U.S.C. § 2302(b), which provides, in pertinent part, that:

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—
(4) deceive or willfully obstruct any person with respect to such person’s right to compete for employment ...
(5) influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;
(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment....

Mr. McFadden further contends that the Agency’s petition was filed for the purpose of harassment and retaliation, citing 5 U.S.C. § 2302(b)(9)(A):

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—
(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—
(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation....

Mr. McFadden did not raise any of those allegations before the administrative judge. Rather, Mr. McFadden raised the allegations of wrongdoing by the Agency for the first time in his petition for review of the administrative judge’s recommendation by the full Board. We have previously held that “[a] party in an MSPB proceeding must raise an issue before the administrative judge if the issue is to be preserved for review in this court.” Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed.Cir.1998). Moreover, in his brief before the full Board, Mr. McFadden did not describe with any specificity the reasons why he believed the Agency was violating the agreement.

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95 F. App'x 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcfadden-v-department-of-agriculture-cafc-2004.