Marron v. Department of Defense ( 2004 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3349
CARMEN B. MARRON,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
_________________________
DECIDED: December 13, 2004
_________________________
Before LOURIE, RADER, and SCHALL, Circuit Judges.
PER CURIAM.
DECISION
Carmen B. Marron seeks review of the final decision of the Merit Systems
Protection Board denying her petition to enforce a settlement agreement with the
Department of Defense. Marron v. Dep’t of Def., No. SE-0752-98-0263-C-1 (M.S.P.B.
Apr. 27, 2004). We affirm.
BACKGROUND
Marron was formerly employed as a teacher at the Department of Defense
Dependents’ Schools (“DoDDS”). Her separation from DoDDS was the subject of a
prior appeal to the Board, which was dismissed under a settlement agreement whereby
the agency agreed to furnish only neutral information to potential employers. When
Marron subsequently applied for re-employment at DoDDS, she learned that a negative
recommendation from a former supervisor had been added to her application file. After
the agency removed the negative recommendation at her request, Marron petitioned the
Board to reinstate her prior appeal, alleging breach of the settlement agreement.
An administrative judge (“AJ”) denied Marron’s petition after determining that any
breach by the agency was immaterial. The AJ found no evidence that the negative
recommendation in Marron’s application file had actually affected her re-employment
prospects because her submission of an incomplete application had precluded her
consideration by DoDDS selecting officials. The AJ’s decision became final when the
full Board denied Marron’s petition for review. 5 C.F.R. § 1201.113(b) (2004). Marron
appealed to this court, and we have jurisdiction under 28 U.S.C. § 1295(a)(9) (2000).
DISCUSSION
We will affirm the Board’s decision unless it was: (1) arbitrary, capricious, or an
abuse of discretion; (2) procedurally deficient; or (3) unsupported by substantial
evidence. 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307,
1311 (Fed. Cir. 2003).
On appeal, Marron reiterates her arguments presented below that the breach
was material. Because the AJ’s determination of immateriality is supported by
substantial evidence, we remain unconvinced that the Board erred. In an attempt to
disprove the immateriality of the breach, Marron seeks to introduce on appeal new
evidence of additional teaching positions for which she allegedly qualified. We cannot
consider such evidence because it was not presented to the Board. Oshiver v. Office of
04-3349 2
Pers. Mgmt., 896 F.2d 540, 542 (Fed. Cir. 1990). Based on the record below, we
discern no error in the Board’s application of the law, and find that its decision is
supported by substantial evidence. Accordingly, we affirm.
04-3349 3