Woodroof v. Commerce

• Court: Court of Appeals for the Federal Circuit
• Decided: November 6, 2025
• Docket: 24-2139
• Status: Unpublished

Opinion

Case: 24-2139 Document: 52 Page: 1 Filed: 11/06/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

ROSANNE WOODROOF, Petitioner

v.

DEPARTMENT OF COMMERCE, Respondent ______________________

2024-2139 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-0432-15-05-85-C-1. ______________________

Decided: November 6, 2025 ______________________

ROSANNE WOODROOF, Warrenton, VA, pro se.

MATTHEW JUDE CARHART, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent. Also represented by WILLIAM JAMES GRIMALDI, PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________ Case: 24-2139 Document: 52 Page: 2 Filed: 11/06/2025

Before MOORE, Chief Judge, TARANTO, Circuit Judge, and CHUN, District Judge. 1 PER CURIAM. Rosanne Woodroof was employed by the Office of In- spector General (OIG) at the U.S. Department of Com- merce (agency) until the agency terminated her employment in 2015. She appealed her removal to the Merit Systems Protection Board (MSPB or Board). In 2016, she and the agency entered into a settlement agree- ment, which included a confidentiality provision, and the Board dismissed the appeal based on the agreement. In 2017, in a separate matter brought by another complainant against Commerce, Ms. Woodroof testified as a witness called by the complainant. At the hearing in that matter, Ms. Woodroof answered questions about her pre-removal performance-improvement (PIP) plan, and Commerce, on cross-examination, asked her questions about those plans and her removal. In 2018, Ms. Woodroof petitioned the Board to enforce the 2016 settlement agreement, arguing that the agency violated the confidentiality provision during its cross-ex- amination by asking questions regarding those topics. As relevant to Ms. Woodroof’s appeal before us, Ms. Woodroof also requested discovery and a status conference. The Board’s administrative judge did not grant the two process requests and denied Ms. Woodroof’s enforcement petition. Woodroof v. Department of Commerce, No. DC-0432-15- 0585-C-1, 2019 WL 917395 (M.S.P.B. Feb. 19, 2019) (Initial Decision); J.A. 12–18. The full Board vacated the Initial Decision but also denied the petition for enforcement, find- ing no material breach of the agreement based on a

1 Honorable John H. Chun, District Judge, United States District Court for the Western District of Washing- ton, sitting by designation. Case: 24-2139 Document: 52 Page: 3 Filed: 11/06/2025

WOODROOF v. COMMERCE 3

provision permitting disclosure to the Board and on Ms. Woodroof’s voluntary testimony about her PIPs. Woodroof v. Department of Commerce, No. DC-0432-15-0585-C-1, 2024 WL 2796996, at *2 (M.S.P.B. May 30, 2024) (Final Decision). On Ms. Woodroof’s petition for review to our court, we now affirm.2 I A Ms. Woodroof began working at the agency as an audi- tor in May 1987. J.A. 126, 259. In 2012, Ms. Woodroof’s then-supervisor rated her performance as below accepta- ble. J.A. 42, 99–100. In 2013, Ms. Woodroof filed a com- plaint against the agency with the Equal Employment Opportunity Commission concerning that rating, a suit she and the agency settled that year (the 2013 settlement); and later that year, she worked, without a PIP, on a short-term project under supervision by two individuals different from her 2012 supervisor. J.A. 39, 42, 44. In 2014, with Ms. Woodroof no longer supervised by the short-term-project

2 Ms. Woodroof has moved in this court to supple- ment the record with (1) testimony from the agency’s in- spector general given at a congressional hearing in 2012 and (2) performance evaluations rendered before 2010. ECF No. 30 at 1–5. The agency opposed. ECF No. 32. We deny the motion for the reasons presented by the agency, including the principle that “we . . . may [not] consider in the first instance evidence not presented to the [adminis- trative judge],” Hernandez v. Department of Air Force, 498 F.3d 1328, 1333 (Fed. Cir. 2007), and the absence of any showing or apparent reason that the documents would ma- terially bear on whether the agency breached the settle- ment agreement’s confidentiality provision. Case: 24-2139 Document: 52 Page: 4 Filed: 11/06/2025

supervisors, the agency placed her on a PIP, and in March 2015, it terminated her employment. J.A. 126, 278. The next month, Woodroof appealed her termination to the Board, and in February 2016, she entered into a settle- ment agreement with the agency, resulting in the Board’s dismissal of her appeal. J.A. 38; J.A. 28–35 (settlement agreement). The agency agreed to (1) pay Ms. Woodroof a lump sum; (2) provide a neutral reference to potential em- ployers; (3) revise certain paperwork to reflect that Ms. Woodroof resigned for personal reasons; and (4) remove from Ms. Woodroof’s official files, while retaining else- where, all records mentioning or arising from her 2014 PIP and 2015 termination. J.A. 30–32. The agreement con- tained a confidentiality provision: The parties agree that the terms of this Agreement are to be kept confidential. Ms. Woodroof agrees that she will not disclose or discuss the terms or conditions of this agreement with any person, other than the MSPB, her immediate family members, her attorney(s), her tax professionals, individuals conducting a background investigation or reinves- tigation pertaining to Ms. Woodroof for an employ- ment suitability determination, eligibility for a national security position, or a security clearance, and those OIG and Agency[, i.e., Commerce,] em- ployees responsible for implementing the terms of the Agreement, except as required by law, as nec- essary to implement the terms of the Agreement, or as ordered by a court or other body of competent jurisdiction. The OIG agrees to treat this Agree- ment in accordance with the Privacy Act, 5 U.S.C. § 552a. J.A. 32. The settlement agreement also included a stand- ard integration clause. J.A. 33. Case: 24-2139 Document: 52 Page: 5 Filed: 11/06/2025

WOODROOF v. COMMERCE 5

B In April 2017, the agency removed another employee, Patricia Derr, who then appealed pro se to the Board. Derr v. Department of Commerce, No. DC-0432-17-0511-I-1, 2017 WL 6270515 (M.S.P.B. Dec. 8, 2017). In October 2017, Ms. Derr asked Ms. Woodroof to be a witness at Ms. Derr’s upcoming November 2017 hearing before the Board because the same two supervisors of Ms. Woodroof’s 2013 short-term project later supervised Ms. Derr, not long be- fore her 2017 termination. J.A. 39. On direct examination during that hearing, Ms. Derr asked Ms. Woodroof whether she had been put on a PIP in 2012 or 2013, and over the agency’s objection, Ms. Wood- roof was allowed to answer questions on that subject. J.A. 260. See generally J.A. 259–91 (direct examination). Ms. Woodroof soon clarified that the plan she was focusing on was a 90-day plan beginning in March 2014. J.A. 262–63. Ms. Woodroof, in support of Ms. Derr’s challenges, testified that her own “PIP was unreasonable for many reasons[, and] it became clear that the direction of the PIP was to force [her] out,” and “what [she] was experiencing did not appear to comply with the law.” J.A. 261. The presiding judge made attempts to restrict Ms. Woodroof’s answers in accordance with a key premise of allowing her to testify, which was that her short-term-project supervisors later su- pervised Ms. Derr. See J.A. 267–70; see J.A. 259 (striking Ms. Derr’s question about Ms. Woodroof’s 2015 termina- tion). Agency counsel then cross-examined Ms. Woodroof. J.A. 291–310. He asked whether her 2013 short-term-pro- ject supervisors (the ones at issue in Ms. Derr’s case) were the proposing or deciding officials for Ms. Woodroof’s re- moval in 2015, and Ms. Woodroof said that they were not. J.A. 295. Ms. Woodroof then mentioned a “settlement”— seemingly the 2013 settlement, preceding her 2014 PIP— Case: 24-2139 Document: 52 Page: 6 Filed: 11/06/2025

and agency counsel referred to a “settlement agreement” (perhaps the same one, perhaps the 2016 one): AGENCY: And [a different supervisor] was your supervisor of record from October 2009 until your proposed removal; wasn’t she? MS. WOODROOF: Of record, technically, not ac- tual, of record. Q: Sorry, I might have said supervisor, I mean sec- ond line supervisor; is that correct? A: Well, you keep saying of record. But the settle- ment established an unusual relationship between me and my supervisor. Technically [that supervi- sor] was not supposed to be my supervisor. Accord- ing to my EEO agreement she was not supposed to – Q: I am not asking you about a settlement agree- ment; that is not admissible. J.A. 295–96. The agency asked Ms. Woodroof several fur- ther questions about her performance, about which super- visor decided to terminate her employment, and who supervised Ms. Woodroof during her 2012-evaluation pe- riod and 2014 PIP. J.A. 298–99; J.A. 308–09. In so doing, the agency introduced Ms. Woodroof’s 2012 evaluation into evidence for impeachment purposes. J.A. 300–03. C On September 19, 2018, Ms. Woodroof petitioned the Board to enforce the 2016 settlement agreement. J.A. 38– 49; J.A. 372. Ms. Woodroof alleged that the agency breached the settlement agreement’s confidentiality provi- sion by asking questions about her PIP and subsequent ter- mination. J.A. 40–46. The agency responded that it did not breach the confidentiality provision by its disclosures in the Board proceeding in Ms. Derr’s case. J.A. 81–86. In Ms. Woodroof’s Reply in support of her petition (first-page Case: 24-2139 Document: 52 Page: 7 Filed: 11/06/2025

WOODROOF v. COMMERCE 7

date October 18, 2018; faxed and docketed October 19, 2018, see J.A. 91–104, 372), she made a discovery request for a “written transcript [from Ms. Derr’s hearing] to re- solve discrepancies and ensure complete and accurate un- derstanding of the hearing.” J.A. 98–100. Separately, Ms. Woodroof supplemented her Reply with a document (first-page date October 15, 2018; faxed and docketed October 19, 2018, see J.A. 120–24, 372) that she described as a “pleading,” in which she alleged addi- tional compliance problems unrelated to the asserted breach of the confidentiality clause. J.A. 120–24. The agency moved to strike that pleading, J.A. 141–44, and a few days later, Ms. Woodroof clarified that she was making only two discovery requests: (1) for “details underlying the [agency]’s assertion(s) regarding the Privacy Act” and (2) “a printed transcript” of the Derr hearing, J.A. 150–53. That discovery was never formally exchanged. In November 2018, the agency asked to schedule a sta- tus conference, J.A. 197–99, and Ms. Woodroof agreed to participate in one, J.A. 205–08, but no conference occurred. In February 2019, the administrative judge (AJ) denied Ms. Woodroof’s petition for enforcement. Initial Decision, at 1–2; J.A. 12–13. The AJ determined that “accurately answering questions about events that occurred during her prior employment d[id] not disclose the terms of th[e set- tlement a]greement” in violation of the confidentiality pro- vision. Id. at 6 (internal quotations removed); J.A. 17. The AJ concluded that the agency did not violate the Privacy Act, or the confidentiality provision, because it did not ask anything pertaining to the agreement itself. Id. at 4, 7; J.A. 15, 18. Ms. Woodroof petitioned for the Board to review the AJ’s decision. J.A. 237–49. On May 30, 2024, the Board vacated the Initial Decision but denied both Ms. Woodroof’s petition for review of the initial order and her petition for enforcement of the 2016 settlement agreement. Final Case: 24-2139 Document: 52 Page: 8 Filed: 11/06/2025

Decision, at *1. The Board relied on the confidentiality par- agraph of the agreement’s express exception for disclosures to the Board. Final Decision, at *2 (citing Conant v. Office of Personnel Management, 255 F.3d 1371, 1376 (Fed. Cir. 2001)). The Board also relied on the fact that Ms. Woodroof “voluntarily chose to participate as a witness in her coworker’s hearing and answered questions on direct ex- amination relating to her PIP[.]” Id. For those reasons, the Board ruled that “the agency’s conduct in questioning [Ms. Woodroof] for the purpose of defending itself in litiga- tion did not amount to a material breach of the agreement.” Id. Ms. Woodroof timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(9). II We may set aside the Board’s decision here only if it is “(1) arbitrary, capricious, an abuse of discretion, or other- wise not in accordance with law; (2) obtained without pro- cedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence[.]” 5 U.S.C. § 7703(c). We review the Board’s factual findings for substantial-evidence support. Knox v. Department of Justice, 125 F.4th 1059, 1064 (Fed. Cir. 2025). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Consol- idated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (1938), even if an opposite conclusion might also be supportable, Consolo v. Federal Maritime Commis- sion, 383 U.S. 607, 619–20 (1966). “Procedural matters rel- ative to discovery and evidentiary issues fall within the sound discretion of the board and its officials.” Curtin v. Office of Personnel Management, 846 F.2d 1373, 1378 (Fed. Cir. 1988) (citations omitted). Challenges involving such matters must include a showing that the error at is- sue “caused substantial harm or prejudice.” Id. at 1379 (ci- tations omitted). Case: 24-2139 Document: 52 Page: 9 Filed: 11/06/2025

WOODROOF v. COMMERCE 9

A We first address Ms. Woodroof’s contention that the Board abused its discretion by not ordering a status confer- ence or compelling discovery. That failure, Ms. Woodroof alleges, ran afoul of 5 C.F.R. § 1201.183(a)(9), with the re- sult that the Board relied on “inapplicable case law” to deny her petition. Woodroof Opening Br. at 10–12. We need not decide whether Ms. Woodroof did not properly present her discovery requests, as the agency suggests. See Appellee’s Br. at 21. It is sufficient for rejecting her procedural chal- lenge that she has not shown how granting her discovery requests or a status conference could have “affected the outcome of [her] case,” the essential requirement for show- ing substantial harm or prejudice. Curtin, 846 F.2d at 1378. Nor do we discern such harm or prejudice, given the Board’s grounds for rejecting the enforcement petition. More particularly, regarding discovery, Ms. Woodroof asked for details about the agency’s theory of how it com- plied with the Privacy Act during Ms. Derr’s hearing. J.A. 152. Ms. Woodroof did not, however, “identify which docu- ments [s]he specifically [was requesting]” or how that in- formation would have changed the Board’s conclusion. Rueter v. Department of Commerce, 63 F.4th 1357, 1371– 73 (Fed. Cir. 2023); see Woodroof Opening Br. at 12. Alt- hough Ms. Woodroof also sought a written transcript of her testimony from Ms. Derr’s hearing, she acknowledges that she had previously purchased one, the record includes a transcript, and on this point as on others, she discusses only the Initial Decision, not the Final Decision. Woodroof Opening Br. at 11; Woodroof Reply Br. at 14; see J.A. 152– 53. Ms. Woodroof refers to discovery about her 2012 rating and her supplemental pleading pertaining to compliance, Woodroof Opening Br. at 12; see J.A. 152–53, but there is no showing of prejudice on the only issue before the Board, namely, material breach of the settlement agreement. She conceded that “[her] attorney did not include the [2012] rat- ings in [the] [s]ettlement [a]greement” and has not Case: 24-2139 Document: 52 Page: 10 Filed: 11/06/2025

indicated how her allegations in her second pleading per- tained to the confidentiality provision. Woodroof Opening Br. at 7, 12. Finally, regarding Ms. Woodroof’s request for a status conference, she says, without further elaboration, only that such a conference would have allowed the parties to resolve all discovery disputes. Woodroof Reply Br. at 14. That adds nothing to the prejudice analysis for the speci- fied discovery requests. We therefore reject Ms. Woodroof’s challenge regarding procedure. B We also reject her challenge to the Board’s denial of her petition for enforcement on its merits. The Board found that the confidentiality provision of the 2016 settlement agreement, which stated agency confidentiality commit- ments and promised to treat the agreement in accordance with the Privacy Act, 5 U.S.C. § 552a, contained a clear ex- ception for disclosures to the Board and that the agency, in its conduct at the Derr hearing was not a material breach. Final Decision, at *2. The above-quoted language of the confidentiality provision makes clear that the Board was correct about the content of the provision. And, contrary to Ms. Woodroof’s argument to us, see Woodroof Opening Br. at 13–16; Woodroof Reply Br. at 7–11, we see no reversible error in the Board’s findings that the record of the Derr hearing—which was clearly before the Board (i.e., its AJ)— does not show a material breach by the agency. As to the non-Privacy Act constraints within the provi- sion, it is sufficient to note that the agency statements at issue were clearly made to the Board. That category of statements is expressly excepted from those constraints. In that crucial respect, the decision of this court in Conant, 255 F.3d at 1376, does not apply, as no such exception was present in that case. Case: 24-2139 Document: 52 Page: 11 Filed: 11/06/2025

WOODROOF v. COMMERCE 11

As to the Privacy Act promise, Ms. Woodroof has not established a violation. Under 5 U.S.C. § 552a(b), the agency cannot “disclose any record which is contained in a system of records by any means of communication to any person, or to another agency,” but that rule is subject to express exceptions, § 552a(b)(1)–(13), and one of them is for “routine use,” § 552a(b)(3)—which means, “with respect to the disclosure of a record, the use of such record for a pur- pose which is compatible with the purpose for which it was collected,” § 552a(a)(7). The Board here relied on Ms. Woodroof’s own voluntary testimony in the Derr proceed- ing—which was to the effect that, through her 2014 PIP plan, the agency had acted in bad faith and in seeming non- compliance with law, moving in the direction of removing here. Final Decision, at *2. That reasonable characteriza- tion of Ms. Woodroof’s testimony is ample ground for deem- ing the agency’s questions on cross-examination a use compatible with the purpose of the record collection, which includes providing an accurate account of agency dealing with employees so that the agency can defend itself against accusation of misconduct. Accordingly, we see no basis for setting aside the Board’s holding that there was no mate- rial breach of the settlement agreement’s promise to re- spect the Privacy Act. III We have considered Ms. Woodroof’s other arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s final decision. The parties shall bear their own costs. AFFIRMED