United States Court of Appeals
for the Federal Circuit
__________________________
ANNE WHITEMAN,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
__________________________
2011-3165
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DA1221090106-W-2.
___________________________
Decided: August 10, 2012
___________________________
MATTHEW D. ESTES, Tully Rinckey, PLLC, of Wash-
ington, DC, argued for petitioner. On the brief was
STEVEN L. HERRICK.
STACEY K. GRIGSBY, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent.
With her on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and TODD M.
HUGHES, Deputy Director. Of counsel on the brief were
ALEXANDRA R. RANDAZZO and BRETT DAEE, Office of the
WHITEMAN v. TRANSPORTATION 2
Chief Counsel, Federal Aviation Administration, of Wash-
ington, DC.
__________________________
Before DYK, O’MALLEY, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
Anne Whiteman appeals the decision of the Merit
Systems Protection Board (“MSPB”) dismissing her whis-
tleblower retaliation action. The MSPB concluded that
Whiteman was collaterally estopped from bringing her
post-settlement retaliation claim by an earlier district
court action she had filed and that she had waived her
remaining claims by means of a settlement agreement.
Because the MSPB incorrectly concluded that Whiteman’s
post-settlement retaliation claim was collaterally es-
topped, we reverse the dismissal as to that claim only.
We affirm as to the remaining claims because the MSPB’s
conclusion that the settlement agreement is enforceable is
supported by substantial evidence and correctly applies
the well-established law in this area.
I. BACKGROUND
A.
Whiteman was employed by the Federal Aviation
Administration (“FAA”) as an Air Traffic Control Special-
ist. Beginning as early as 1997, she reported to the Office
of Special Counsel (“OSC”) various violations of laws,
rules, or regulations, as well as mismanagement and
abuses of authority by the FAA. Whiteman alleged that
in retaliation for these disclosures, her colleagues and
supervisors began to threaten, harass, and intimidate her.
In response, Whiteman filed two separate Equal Em-
ployment Opportunity (“EEO”) actions. She claimed that
3 WHITEMAN v. TRANSPORTATION
her supervisors and colleagues continued the harassment,
which on one occasion she reported to the local police. 1
According to Whiteman, events came to a head when
a fellow controller intentionally directed a plane into the
airspace of an aircraft that Whiteman was directing.
Although a collision was avoided, the harassment contin-
ued and ultimately resulted in Whiteman being excluded
from the radar room and stripped of all her duties. She
claims that she was placed in a room and under watch by
her supervisor and given “no real job assignment” during
this seclusion. A63. 2 When she asked how long her
seclusion would last, she was given no response. She was
not allowed to leave the office except to use the bathroom.
Shortly thereafter, she was reassigned to the control
tower instead of her previous job in the radar room.
Whiteman “perceived this as a major step backward in
[her] career” given that she had been certified to work in
the radar room for over fifteen years and had worked in
the control tower prior to that. A64.
On February 5, 2003, Whiteman entered into a set-
tlement agreement with the FAA resolving all claims
against the FAA, including “complaints, actions, disputes,
controversies, or issues, pending or otherwise, known or
unknown . . . as of the date of the Settlement Agreement.”
A35. In exchange, she received a guaranteed one-time
priority consideration for the next available funded opera-
tions supervisor position at the Dallas Fort Worth Tower.
The agreement defined “priority consideration” as “bona
fide consideration given to an employee by the selecting
1 Although important to Whiteman’s case, the long
details of her alleged harassment are not set forth in
detail in this opinion, but are well addressed in the deci-
sion of the MSPB.
2 Citations to “A ” herein refer to pages of the Join
Appendix filed by the parties in this appeal.
WHITEMAN v. TRANSPORTATION 4
official before any other candidates are referred for the
position to be filled,” and required that Whiteman “is not
to be considered in competition with other candidates and
is not to be compared with other candidates.” A34.
Whiteman and her attorney, as well as the air traffic
division manager and an attorney for the FAA, signed the
settlement agreement and acknowledged that she had
voluntarily and freely entered into the agreement.
On October 8, 2003, the FAA posted a supervisory po-
sition vacancy without first notifying Whiteman of the
vacancy. When the FAA realized that Whiteman was
entitled to priority consideration for the position, it can-
celled the vacancy announcement, notified Whiteman of
the vacancy, and requested that she provide written
notification if she intended to seek priority consideration.
On December 9, 2003, Whiteman applied for the position.
No other applicants were considered.
On December 18, 2003, the FAA adopted agency-wide
air traffic pay scale changes, which reduced the salary of
the supervisory position. The incumbent of the supervi-
sory position to which Whiteman had applied retired on
January 3, 2004. Whiteman’s application was ultimately
accepted and she started her new job in the supervisory
position in April 2004.
B.
On June 1, 2004, Whiteman sued the FAA in the
Eastern District of Texas, alleging that the FAA’s delay in
notifying her of the vacancy in October 2003 constituted a
breach of the settlement agreement. Whiteman argued
that the delay in hiring caused a reduction of her earnings
due to pay scale changes affecting positions assumed after
December 18, 2003. The court found that the undisputed
facts showed that the FAA had not breached the settle-
ment agreement because Whiteman had been given
5 WHITEMAN v. TRANSPORTATION
priority consideration. The court also found that, even if
the FAA had breached the agreement, Whiteman had
suffered no damages because she could not have assumed
the supervisory position prior to the December 18, 2003,
change in pay scale since the vacancy did not exist until
the employee she replaced retired on January 3, 2004.
Accordingly, the district court concluded that there was
no remaining controversy and dismissed Whiteman’s case
for lack of subject matter jurisdiction under Federal Rule
of Civil Procedure 12(b)(1).
On November 16, 2008, Whiteman filed an individual
right of action (“IRA”) appeal before the MSPB contending
that the FAA had unlawfully retaliated against her for
her whistleblowing activities during the period from 1998
and October 3, 2003. In particular, she argued that the
FAA intentionally delayed considering and promoting her
and that it had exerted improper duress and coercion to
induce her to sign the settlement agreement. Whiteman
contended that as a result, she was precluded from ob-
taining the additional pay from the approximately three-
month period between January 4, 2004, when the position
first became vacant, and April 2004, when she was hired.
The Administrative Judge (“AJ”) found that by the terms
of the settlement agreement, Whiteman had waived her
claims for retaliatory actions occurring prior to the date of
the settlement. The AJ also determined that the settle-
ment agreement was valid and enforceable. With respect
to the alleged post-settlement delay in notifying White-
man of the job opening, the AJ concluded that Whiteman
was collaterally estopped from raising that issue by the
district court proceeding she had previously brought for
breach of the settlement agreement. Because Whiteman
had identified no personnel action that was not waived,
time-barred, or collaterally estopped, the AJ concluded
that the Board lacked jurisdiction over her appeal.
WHITEMAN v. TRANSPORTATION 6
Whiteman petitioned for review, and the MSPB af-
firmed and made final the dismissal by the AJ. The
MSPB agreed with the AJ that Whiteman’s execution of
the settlement agreement was not the result of duress or
coercion, but instead “a considered choice among undesir-
able options.” A19. With respect to collateral estoppel,
the MSPB found that “[i]n both this appeal and the
[d]istrict [c]ourt action, [Whiteman] raised the issue of
whether the agency breached the settlement agreement in
October 2003, thereby resulting in her non-selection for a
promotion.” A22. It therefore concluded that the AJ had
“properly found that this issue was already decided by the
[d]istrict [c]ourt.” A22.
Whiteman appeals the MSPB’s decision that she was
collaterally estopped from litigating her post-settlement
promotion delay claims by the district court proceedings
and that certain of her claims were waived by the settle-
ment agreement. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
II. DISCUSSION
Our review of decisions of the MSPB is limited. We
may only set aside agency actions, findings, or conclusions
if we find them to be “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (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).
Whether the board possesses jurisdiction is a question of
law that this court reviews de novo. Stoyanov v. Dep’t of
the Navy, 474 F.3d 1377, 1379 (Fed. Cir. 2007).
A.
The MSPB erred in concluding that collateral estoppel
applied on the facts of this case. Collateral estoppel exists
7 WHITEMAN v. TRANSPORTATION
where: “(i) the issue previously adjudicated is identical
with that now presented, (ii) that issue was actually
litigated in the prior case, (iii) the previous determination
of that issue was necessary to the end-decision then made,
and (iv) the party precluded was fully represented in the
prior action.” Morgan v. Dep’t of Energy, 424 F.3d 1271,
1274-75 (Fed. Cir. 2005).
Here, the first factor was not met. The district court
addressed only whether Whiteman was entitled to a
higher rate of pay due to the agency’s delay in considering
her for the position, concluding that the case was moot
because she had already received the priority considera-
tion promised under the agreement. Priority considera-
tion meant only that she was to be considered before any
other applicant. The court determined that this require-
ment had been met because Whiteman was the only
applicant to be considered and because she was in fact
hired. Here, in contrast, the issue is not whether the FAA
delayed in October 2003 in considering Whiteman, caus-
ing her to miss the opportunity for a higher salary, but
whether after considering her the FAA delayed from
January to April in 2004 in appointing her to the position,
causing the loss of three month’s pay. This is an entirely
different delay which was not at issue in the district court
proceeding. Thus, the issue was not identical and was not
previously litigated, and collateral estoppel does not
deprive the MSPB of jurisdiction to reach the merits of
Whiteman’s retaliation claim.
B.
Whiteman also contends that because the settlement
agreement was the result of duress and coercion, the
MSPB’s ruling that her pre-settlement claims were barred
should be reversed. In attacking the settlement agree-
ment, Whiteman bears a “heavy burden of proof that the
WHITEMAN v. TRANSPORTATION 8
agreement was improperly obtained.” Tiburzi v. Dep’t of
Justice, 269 F.3d 1346, 1355 (Fed. Cir. 2001) (internal
quotation marks omitted).
We have repeatedly held that the choice between two
unattractive options does not render a decision to retire
involuntary. E.g., Staats v. U.S. Postal Serv., 99 F.3d
1120, 1124 (Fed. Cir. 1996); Schultz v. U.S. Navy, 810
F.2d 1133, 1136 (Fed. Cir. 1987). In this case, the AJ
found that
[Whiteman’s] decision to enter into the set-
tlement agreement, far from representing
the involuntary acceptance of terms imposed
by the agency, resulted instead from a con-
sidered choice among the following undesir-
able options: remaining in the Terminal
Radar Approach Control (TRACON) facility,
with restricted freedom, supervisory “moni-
toring,” and “no work”; accepting a transfer
to a position in Waco, Texas, “a significantly
smaller, less prestigious facility”; or entering
into the settlement, pursuant to which, in
addition to receiving restoration of various
leave, removal of performance charges from
her records, priority consideration for promo-
tion to a supervisory position in the Dallas
Fort Worth Tower, and payment of attorney
fees, she received a reassignment from a con-
troller position in TRACON to a controller
position in the Tower, “a step backward in
her career progression and conveniently pre-
venting her from observing any further op-
erational errors.”
In its final order, the MSPB concluded that the AJ had
“properly [found] that [Whiteman’s] execution of the
9 WHITEMAN v. TRANSPORTATION
settlement agreement was a considered choice among
undesirable options.”
The MSPB’s finding is supported by substantial evi-
dence. Whiteman’s declaration describes the Waco, Texas
offer, which resulted from a mediation of her EEO com-
plaint. The declaration also describes her option to con-
tinue working at TRACON, but in the control tower, not
the radar room. Whiteman instead chose to settle. She
acknowledged that she was represented by counsel and
was satisfied with that representation. The settlement
agreement stated that it “was the result of mutual consid-
eration,” “was made freely and fairly and was not the
result of duress or bad faith negotiations,” that Whiteman
was “fully aware of the meaning of [the settlement
agreement],” and that she would “receive no consideration
beyond that recited in [the] Agreement.” In return for
settling her claims, Whiteman was promised restoration
of over 400 hours of leave, removal of performance
charges from her records, priority consideration for pro-
motion, and payment of attorney fees. Whiteman con-
cedes that she received the promised priority
consideration and, as a result, obtained a new position in
the Dallas Fort Worth airport tower. 3 See Pet’r’s Br. 8-9.
We therefore conclude that substantial evidence supports
the AJ’s assessment of Whiteman’s alternatives, and that
the MSPB did not abuse its discretion in affirming on that
basis.
3 Whiteman also acknowledged that she previously
sought to enforce the settlement agreement in district
court. This raises questions as to whether she is judi-
cially estopped from contesting the agreement or has
ratified the agreement; however, because we affirm the
MSPB’s decision that the agreement was enforceable, we
need not address these issues.
WHITEMAN v. TRANSPORTATION 10
III. CONCLUSION
For the reasons set forth above, we reverse the judg-
ment of the MSPB that it was without jurisdiction to hear
Whiteman’s retaliation claim. We affirm its judgment
that any of Whiteman’s claims existing prior to the set-
tlement agreement have been waived.
REVERSED-IN-PART AND AFFIRMED-IN-PART
COSTS
Costs awarded to the Petitioner.