NOTE: This disposition is non-precedential.
United States Court of Appeals
for the Federal Circuit
__________________________
PAMELA R. CAHILL,
Petitioner,
v.
DEPARTMENT OF DEFENSE
Respondent.
__________________________
2010-3101
__________________________
Petition for review of the Merit Systems Protection
Board in consolidated case nos. PH315H090360-I-1 and
PH0752070430-C-2.
___________________________
Decided: November 9, 2010
___________________________
PAMELA R. CAHILL, Oak Ridge, New Jersey, pro se.
CHRISTOPHER A. BOWEN, Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and REGINALD T.
BLADES, JR., Assistant Director.
__________________________
CAHILL v. DEFENSE 2
Before GAJARSA, LINN and MOORE, Circuit Judges.
PER CURIAM.
This is an appeal from the final order of the Merit
Systems Protection Board (“MSPB” or “Board”) denying
the petitions for review of the consolidated actions in
Cahill v. Dep’t of Def., Docket Nos. PH-315H-09-0360-I-1
and PH-0752-07-0430-C-2 (Feb. 4, 2010).
Ms. Cahill filed suit against her most recent em-
ployer, the Defense Commissary Agency (“DeCA”), alleg-
ing that DeCA improperly removed her. The July 23,
2009 initial decision in case number PH-315H-09-0360-I-1
dismissed the suit, with the Administrative Judge (“AJ”)
holding the MSPB did not have jurisdiction because Ms.
Cahill had not completed one year of employment and
could not allege any other basis for jurisdiction.
Ms. Cahill also filed a separate action against her
former employer, the Defense Contract Audit Agency
(“DCAA”), alleging it breached its settlement agreement
(“SA”) with Ms. Cahill when a DCAA employee informed a
human resources specialist with DeCA that DCAA had
removed Ms. Cahill for failure to maintain a security
clearance. In its July 21, 2009 initial decision in case
number PH-0752-07-0430-C-2, the AJ found that DCAA
did not breach the SA and that Ms. Cahill failed to estab-
lish that DCAA provided DeCA with her May 31, 2007
Standard Form 50 (“SF-50”) 1 indicating that she had been
removed from her position.
1 Standard Forms” are used government-wide for
different employment and benefits program services.
“Standard Forms” are required to be used by all agencies,
while “Optional Forms” are available for use by all agen-
3 CAHILL v. DEFENSE
The Board’s decision in PH-0752-07-0430-C-2 is af-
firmed because it is supported by substantial evidence,
and the dismissal of the PH-315H-09-0360-I-1 decision for
lack of jurisdiction is affirmed because it is legally correct.
BACKGROUND
In order to understand the history and the interrela-
tionship of these cases, we must provide a procedural
background before we can discuss the substance of the
present appeal.
A. Ms. Cahill’s Removal from the DCAA and Subsequent
Appeal
Ms. Cahill worked as an Office Automation Assistant
with the DCAA, a position classified as non-critical sensi-
tive. On November 7, 2005, Ms. Cahill was randomly
selected for a drug test and tested positive for marijuana.
On November 16, 2005, DCAA indefinitely terminated her
access to sensitive information and also suspended her
pending an investigation of the test results.
On July 17, 2006, the Services Consolidated Adjudica-
tions Facility, which handled security clearances, deter-
mined that Ms. Cahill failed to present any credible
evidence challenging the test results and revoked her
security clearance. DCAA was advised of this decision on
July 31, 2006. The revocation was appealed and denied.
DCAA was informed of the denial on April 11, 2007.
Because of her failure to maintain eligibility to access
sensitive information and the absence of any positions not
requiring security clearance, Ms. Cahill was terminated
from the DCAA on May 10, 2007. The removal became
final on May 31, 2007. She was issued an SF-50 stating
cies but are not required. SF-50 is the “Notification of
Personnel Action” form.
CAHILL v. DEFENSE 4
that her removal was for “failure to maintain eligibility to
access classified information and/or occupancy of a sensi-
tive position.”
Ms. Cahill challenged her termination with the
MSPB. She was represented in those proceedings by
counsel. She entered into the SA with DCAA to resolve
the appeal arising out of her termination. Pursuant to
the SA, Ms. Cahill agreed to dismiss her appeal with
prejudice and waive any future action against DCAA or
its officers. The DCAA agreed to the following:
In the event a prospective employer of the
plaintiff seeks information concerning plaintiff’s
employment tenure with the DCAA, plaintiff may
direct the prospective employer to Mr. Harry
Olmo, Human Resources Management Division,
the Personnel Department, Mid-Atlantic Region
in Philadelphia.
For private sector employers, Mr. Olmo will
provide the following information to Appellant’s
prospective employer: the position she held, the
dates of her employment, her salary, that her per-
formance was always at least fully successful, and
that she left for personal reasons. For any federal
government employers, Mr. Olmo will inquire
whether the position requires a security clear-
ance. If it does not, Mr. Olmo will provide the
same information as will be given to prospective
private sector employers. If a security clearance
is required for the position, Mr. Olmo will disclose
the nature of Appellant’s removal, to include the
revocation of her eligibility for access to classified
information and/or occupancy of a sensitive posi-
tion.
Appellee App. 45. The agreement also stated:
5 CAHILL v. DEFENSE
Appellant was represented by Frederic H.
Pearson, Pearson and Shapiro, Union, New Jer-
sey. Appellant has had a reasonable amount of
time to consider the terms of this Agreement. By
signing the Agreement, Appellant represents and
agrees that she has carefully read and fully un-
derstands all of the provisions of this Agreement,
including the waivers set out in paragraph 2(b),
and she is voluntarily entering into the Agree-
ment and was not coerced by any party or the rep-
resentative of any party.
Appellee App. 45. Upon the execution of the SA, the AJ
dismissed Ms. Cahill’s appeal with prejudice on Septem-
ber 25, 2007.
B. Ms. Cahill’s Employment with DeCA and Her Subse-
quent Removal
On July 7, 2008, Ms. Cahill began working for DeCA
as a store associate. Before starting to work with DeCA
she was required to complete Optional Form 306 (“OF-
306”) 2 regarding her past employment and criminal
history. On the OF-306 she answered “no” in response to
the question: “[d]uring the last 5 years, were you fired
from any job for any reason, did you quit after being told
you would be fired, did you leave any job by mutual
agreement because of specific problems, or were you
debarred from Federal employment by the Office of Per-
sonnel Management?” On August 17, 2008, DeCA
changed Ms. Cahill’s status from a temporary employee to
a career conditional appointment. The SF-50 informing
her of this change noted that conversion to a permanent
position would depend upon the receipt of Ms. Cahill’s
official personnel file (“OPF”).
2OF-306 is the “Declaration for Federal Employ-
ment” form.
CAHILL v. DEFENSE 6
DeCA obtained her OPF containing the May 31, 2007
SF-50 indicating that contrary to Ms. Cahill’s statement,
she had been removed from her DCAA position for failure
to maintain a security clearance. In addition, Donna
Clark, an Employee Relations Specialist with DeCA,
contacted DCAA to inquire about Ms. Cahill’s previous
employment position. The replacement for Mr. Olmo,
Anthony Santini, first asked if the position was with the
Federal government, and subsequently if it required a
security clearance. Ms. Clark confirmed that the position
was with the Federal government and required a security
clearance. She was advised that Ms. Cahill had been
removed for failing to maintain a security clearance, but
that her performance was otherwise fully successful.
On January 28, 2009, DeCA issued its notice of pro-
posed removal to Ms. Cahill, citing the contradiction
between Ms. Cahill’s OF-306 statement and the May 31,
2007 SF-50 in her OPF. DeCA issued its notice of re-
moval and removed Ms. Cahill on March 6, 2009.
C. Ms. Cahill’s First Petition to Enforce the SA
In May or April of 2008, prior to completing the OF-
306 form for the DeCA position, Ms. Cahill sought and
obtained copies of the records in her OPF. Ms. Cahill
then filed a petition to enforce the SA, asserting that the
SF-50 should not state that she was removed, but rather
that she had resigned.
The AJ denied Ms. Cahill’s petition for enforcement,
holding that the SA did not require the agency to alter the
SF-50. Sauter 3 v. Dep’t of Def., M.S.P.B. Docket No. PH-
0752-07-0430-C-1 (Sept. 16, 2008). The AJ also denied
her request to change her performance appraisals, as this
3 Ms. Cahill was using the name “Ms. Sauter” at
the time.
7 CAHILL v. DEFENSE
was not addressed by the SA, and noted that Ms. Cahill
had an attorney negotiate the SA with DCAA and the SA
stated she had read and understood all the terms.
Ms. Cahill appealed this decision to the full board.
The MSPB denied the appeal and found that the AJ had
not made any legal error and that there was no new,
previously unavailable evidence. Ms. Cahill did not
appeal that decision to this court.
D. Ms. Cahill’s Second Petition to Enforce the SA
After DeCA’s proposal to remove Ms. Cahill, she filed
a second petition to enforce the SA, claiming that DCAA
breached the SA by providing the SF-50 to DeCA and by
Mr. Santini informing Ms. Clark of her removal. DCAA
asserted it had not provided the SF-50 to DeCA, noting
that it was contained in her OPF. DCAA also asserted
that Mr. Santini’s conversation with Ms. Clark complied
with the terms of the SA.
The AJ again concluded that DCAA was in compliance
with the SA and therefore denied Ms. Cahill’s petition for
enforcement. Cahill v. Dep’t of Def., M.S.P.B. Docket No.
PH-0752-07-0430-C-2 (July 21, 2009). The AJ found that
DCAA did not breach the SA when Mr. Santini informed
Ms. Clark about Ms. Cahill’s removal from DCAA, “as this
was expressly authorized by the SA.” The AJ also con-
cluded that there was no evidence that DCAA had pro-
vided DeCA with the SF-50 form, and that the SA “did not
require DCAA to purge documents from appellant’s OPF
or change documents to show that appellant had re-
signed.” Ms. Cahill then appealed to the full board, which
consolidated the appeal with that of her termination from
DeCA, as described below.
CAHILL v. DEFENSE 8
E. Ms. Cahill’s Appeal of Her Termination from the DeCA
Ms. Cahill appealed her termination from DeCA to
the MSPB. It is undisputed that Ms. Cahill was a proba-
tionary employee and had not completed one year of
continuous service when DeCA terminated her. The AJ
held that the Board did not have jurisdiction pursuant to
5 U.S.C. § 7511(a)1(A)i or ii. Cahill v. Dep’t of Def.,
M.S.P.B. Docket No. PH-315H-09-0360-I-1 (Jul. 23, 2009).
The AJ also held that the record did not show that DeCA
had removed Ms. Cahill because of partisan political
reasons or her marital status, which would have given the
Board jurisdiction under 5 C.F.R. § 315.806(b). Finally,
the AJ held that “nothing in Part 731 [of 5 C.F.R.] or the
Federal Register [ ] indicates that the failure of agency to
notify OPM [Office of Personnel Management] provides
any legal right or remedy to an appellant,” and thus the
MSPB lacked jurisdiction. Id. Ms. Cahill appealed the
decision to the full board.
The full board denied Ms. Cahill’s petitions for review
in her consolidated appeal of Cahill v. Dep’t of Def.,
M.S.P.B. Docket No. PH-0752-07-0430-C-2 (Jul. 21, 2009)
and Cahill v. Dep’t of Def., M.S.P.B. Docket No. PH-315H-
09-0360-I-1 (Jul. 23, 2009), making the initial decisions of
the AJ final. Ms. Cahill appealed to this court.
DISCUSSION
Pursuant to 5 U.S.C. § 7703(c), this court’s review of
MSPB decisions is limited by statute:
[T]he court shall review the record and hold
unlawful and set aside any agency action, find-
ings, or conclusions found to be–
(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law;
9 CAHILL v. DEFENSE
(2) obtained without procedures required by law,
rule, or regulation having been followed; or
(3) unsupported by substantial evidence.
5 U.S.C. § 7703(c) (2006). Judicial review of MSPB deci-
sions is limited to a review of the administrative record.
Id. Our judicial function is exhausted when there is a
rational basis for the conclusions reached by the MSPB.
Carroll v. Dep’t of Health & Human Servs., 703 F.2d 1388,
1390 (Fed. Cir. 1983). “The standard is not what the
Court would decide in a de novo appraisal, but whether
the administrative determination is supported by sub-
stantial evidence on the record as a whole.” Parker v.
United States Postal Serv., 819 F.2d 1113, 1115 (Fed. Cir.
1987).
On appeal, Ms. Cahill first argues that she “was not
given opportunity to submit evidence to support the
confidential agreement that was breeched [sic].” Appel-
lant’s Brief, Form 11. However, as noted by the AJ, parol
evidence “will be considered in construing a SA only if the
agreement is ambiguous.” Cahill v. Dep’t of Def., M.S.P.B.
Docket No. PH-0752-07-0430-C-2 (Jul. 21, 2009) (citing
United States v. Human Res. Mgmt., Inc., 745 F.2d 642,
648 (Fed. Cir. 1984)). Ms. Cahill has failed to identify any
ambiguities in the SA. Therefore, the AJ correctly prohib-
ited Ms. Cahill from submitting parol evidence concerning
the SA’s meaning.
Second, Ms. Cahill contends that the SA required
DCAA to change her SF-50 to state that she resigned.
Because Ms. Cahill did not appeal the February 6, 2009
final decision of the full MSPB affirming the initial Sep-
tember 16, 2008 decision holding the SA did not require
DCAA to alter the SF-50 or any evaluations, this court is
CAHILL v. DEFENSE 10
without jurisdiction to address that matter. See 5 U.S.C.
§ 7703 (granting sixty days to appeal a decision of the
MSPB). 4
Ms. Cahill also asserts that the DeCA termination
should be “correct[ed].” Appellant’s Brief, Form 11. To
the extent she is challenging the AJ’s July 23, 2009 deci-
sion that the Board lacked jurisdiction, Ms. Cahill does
not dispute any of the facts relied on by the AJ in making
this determination. She does not contest that she had not
completed one year of continuous service and that she was
not removed for either her marital status or for partisan
political reasons. Thus, the AJ’s decision is legally cor-
rect.
Next, Ms. Cahill claims that the MSPB applied the
wrong law because her DeCA position did not require a
security clearance. To the extent Ms. Cahill is challeng-
ing her dismissal from her position at DeCA, she does not
assert that the AJ applied the wrong law regarding its
lack of jurisdiction over probationary employees and
presents no reason why that jurisdictional decision was
incorrect.
Ms. Cahill also argues that the MSPB applied the
wrong law because “[e]vidence shows . . . [her] removal
was based on prohibited personnel practice described in 5
U.S.C. 2302(b).” Appellant’s Brief, Form 11. Ms. Cahill’s
4 Even assuming we had jurisdiction to consider
Ms. Cahill’s claim, we note that the agreement does not
mention the word “resignation” nor does it call for the
agency to amend documents within Ms. Cahill’s OPF; all
of Ms. Cahill’s assertions with respect to the SA are
inconsistent with the plain language of the SA. Thus, the
board’s decision that DCAA was not required to change
her SF-50 or her evaluation is supported by substantial
evidence.
11 CAHILL v. DEFENSE
argument lacks merit. First, Ms. Cahill has not specifi-
cally alleged or pointed to any evidence in the record of a
violation of prohibited personnel practices under that
statute. DeCA’s removal of Ms. Cahill was based upon
the conflict between her representation that she had
never been fired and the statement on her SF-50. Second,
the MSPB does not have jurisdiction over § 2302(b) mat-
ters, except in limited situations concerning whistleblow-
ers. Saunders v. Merit Sys. Prot. Bd., 757 F.2d 1288, 1290
(Fed. Cir. 1985) (citation omitted) (“The board does not
have appellate jurisdiction to consider such allegations of
prohibited personnel practices. Section 2302(b) is not an
independent source of appellate jurisdiction and does not
itself authorize an appeal.”). Therefore, the AJ did not err
in not applying 5 U.S.C. § 2302(b) because there was no
evidence in the record showing a violation of that statute.
As a result, the issue is not properly before this court.
Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir.
1998).
Lastly, Ms. Cahill asserts that the Board should have
permitted her to submit evidence of her allegations. This
assertion is at odds with the record. With regard to the
appeal of the DeCA removal, the Board gave Ms. Cahill
the opportunity to address why her appeal should not be
dismissed for lack of jurisdiction. Ms. Cahill also had
ample opportunity to present her case with respect to the
DCAA appeal, but chose not to respond to the MSPB’s
May 29, 2009 acknowledgement order allowing for appel-
lant response to the agency’s written submission within
ten days. Not only did the Board permit Ms. Cahill to
submit evidence of her allegations, it requested such
evidence. Ms. Cahill’s last argument is flawed.
In sum, the AJ applied the correct law in finding the
MSPB lacked jurisdiction over Ms. Cahill’s appeal of her
DeCA removal, and the AJ also correctly held that DCAA
CAHILL v. DEFENSE 12
had not breached the SA. Thus, the Board did not abuse
its discretion in denying the petitions for review in the
consolidated actions on appeal. Accordingly, because the
Board’s February 4, 2010 decision is legally correct, this
court affirms the dismissal for lack of jurisdiction for the
DeCA removal, and the challenged breach of the SA is
affirmed because it is supported by substantial evidence.
COSTS
No Costs.