Galloway v. Department of Agriculture ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DAVID GALLOWAY,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
__________________________
2009-3279
__________________________
Petition for review of the Merit Systems Protection
Board in AT0752061173-C-3.
___________________________
Decided: October 13, 2010
___________________________
DAVID GALLOWAY, of Tallahassee, Florida, pro se.
JESSICA R. TOPLIN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and PATRICIA M.
MCCARTHY, Assistant Director.
__________________________
GALLOWAY v. AGRICULTURE 2
Before BRYSON, DYK, and MOORE, Circuit Judges.
PER CURIAM.
David Galloway petitions for review of a decision of
the Merit Systems Protection Board, which held that the
Department of Agriculture substantially complied with a
settlement agreement arising from a prior dispute. We
affirm.
I
Mr. Galloway worked as a Budget Analyst for the De-
partment of Agriculture until he was removed from that
position as of August 8, 2006. On September 13, 2006,
Mr. Galloway appealed the removal action to the Merit
Systems Protection Board. The parties resolved that
dispute through a settlement agreement. Under that
agreement, the agency agreed to pay Mr. Galloway
$83,000 and agreed to change the official reason for his
removal from misconduct to inability to perform the major
functions of his position. The agency also agreed to assist
Mr. Galloway in his application for disability retirement
by submitting agency documentation to the Office of
Personnel Management (“OPM”) “within five (5) workdays
after receipt from [Mr. Galloway] or OPM” and by
“promptly providing forms or information [Mr. Galloway]
is not able to obtain from internet or other ready sources.”
The settlement agreement provided that the agency’s
assistance “will cease at the time a decision is rendered by
OPM on [Mr. Galloway’s] application for disability re-
tirement.” In return, Mr. Galloway withdrew his appeal
before the Board as well as a formal complaint before the
Equal Employment Opportunity Commission (“EEOC”).
He also agreed to provide the agency with written notice
of any alleged noncompliance with the settlement agree-
ment “within 30 days of the date on which [Mr. Galloway]
3 GALLOWAY v. AGRICULTURE
knew or should have know[n] of the alleged noncompli-
ance.” On February 9, 2007, the Board approved the
agreement, accepted it into the record for purposes of
enforcement, and retained jurisdiction to ensure compli-
ance with the agreement. 1
On September 5, 2007, OPM sent a letter to the
agency stating that it had approved Mr. Galloway’s
application for disability retirement. OPM added, how-
ever, that it needed to know the date of Mr. Galloway’s
last day of pay and it needed the agency to submit “final
retirement records through the regular retirement proc-
essing channels,” so that OPM “could send monthly
interim annuity payments” and “complete final adjudica-
tion of the annuity.” In response, Cameron McCluskey, a
Human Resource Specialist with the agency, sent an e-
mail to OPM dated September 5, 2007, which reported
Mr. Galloway’s effective removal date but not Mr. Gallo-
way’s last day of pay. That e-mail stated that OPM
should contact Ms. McCluskey if it needed additional
information.
On May 1, 2008, a retirement benefits specialist with
OPM sent an e-mail to Ms. McCluskey stating that OPM
needed to know Mr. Galloway’s last day of pay. Ms.
McCluskey obtained that information and conveyed it to
OPM by telephone later that week. With that informa-
tion, OPM activated Mr. Galloway’s annuity on May 15,
2008, retroactive to his last day of pay on September 28,
2005.
1 On April 26, 2007, Mr. Galloway filed a petition
for enforcement of the settlement agreement on grounds
not pertinent to this appeal. The Board ruled in favor of
the agency, and Mr. Galloway did not seek review of that
decision.
GALLOWAY v. AGRICULTURE 4
Meanwhile, on February 25, 2008, Mr. Galloway filed
a second petition for enforcement, which was captioned
“AT-0752-06-1173-C-2.” In that petition, Mr. Galloway
alleged that the agency had breached the settlement
agreement by failing to submit his personnel records to
OPM and that he had suffered “severe financial problems”
as a result. On June 6, 2008, the administrative judge
who was assigned to the case denied the petition for
enforcement, finding that the agency was in compliance
with the settlement agreement. In particular, the admin-
istrative judge found that Mr. Galloway had failed to
notify the agency of the alleged breach, which constituted
a material breach of the settlement agreement on his part
and had the effect of relieving the agency of its obligations
under the agreement. The administrative judge further
stated that, even if Mr. Galloway had not breached the
settlement agreement, the agency’s duty to assist under
the settlement agreement had ended because OPM had
rendered its decision on Mr. Galloway’s application for
disability retirement.
Mr. Galloway petitioned for review of that decision be-
fore the full Board on July 2, 2008. The full Board held
that Mr. Galloway’s failure to notify the agency was not a
material breach of the settlement agreement, because
“the notice provision is not a matter of vital importance,
which goes to the essence of the contract, and prior notice
of an alleged breach was not the major benefit the agency
received under the settlement agreement.” Galloway v.
Dep’t of Agric., 110 M.S.P.R. 311, 317 (2008). The full
Board also held that OPM’s September 5, 2007, letter did
not release the agency from its duty to assist Mr. Gallo-
way and that Mr. Galloway’s last day in pay was the type
of information contemplated by the settlement agreement.
While the agency stated in a pleading that it had reported
Mr. Galloway’s last day in pay to OPM, the full Board
5 GALLOWAY v. AGRICULTURE
noted that the agency had not submitted any evidence to
support that assertion. Accordingly, the full Board re-
manded the case “in order [for the administrative judge]
to resolve the disputed factual issue of whether the
agency reported [Mr. Galloway’s] last day in pay to OPM.”
Id. at 319.
On remand, the case received a new caption, “AT-
0752-06-1173-B-1” (“the B-1 case”). On March 11, 2009,
the administrative judge determined that the agency was
in substantial compliance with the settlement agreement
and denied Mr. Galloway’s petition for enforcement.
While the administrative judge recognized that the
agency had initially sent the wrong information to OPM,
he found that the agency had made a good faith effort to
comply with OPM’s request and that the agency’s mistake
was not a material breach of the settlement agreement.
Mr. Galloway filed a petition for review of the administra-
tive judge’s decision in the B-1 case with the full Board on
March 31, 2009.
Before the full Board ruled in the B-1 case, Mr. Gal-
loway filed a third petition for enforcement, which was
captioned “AT-0752-06-1173-C-3” (“the C-3 case”). In that
petition, Mr. Galloway argued that the agency had not
complied with the settlement agreement because it “has
not reimbursed him for the severe financial problems
resulting from the agency’s failure to timely submit his
personnel records to OPM.” The agency argued that Mr.
Galloway’s claim in the C-3 case was barred by the doc-
trine of res judicata, based on the administrative judge’s
ruling in the B-1 case that the agency’s untimely submis-
sion was not a material breach of the settlement agree-
ment. The administrative judge held that res judicata
was inapplicable because the B-1 case was pending before
the full Board and therefore was not a final decision.
GALLOWAY v. AGRICULTURE 6
Nevertheless, the administrative judge held that the law
of the case doctrine precluded Mr. Galloway’s claim
because the agency’s compliance had already been deter-
mined and because none of the exceptions to the law of
the case doctrine applied to Mr. Galloway’s petition. As a
result, the administrative judge dismissed Mr. Galloway’s
C-3 petition on July 2, 2009.
Shortly thereafter, on July 14, 2009, the full Board
denied Mr. Galloway’s petition for review of the B-1 case
in a final decision. On August 4, 2009, Mr. Galloway
petitioned for review of the C-3 case before the full Board.
Mr. Galloway then filed two petitions for review in this
court, one for review of the B-1 case and one for review of
the C-3 case. This court informed Mr. Galloway that an
appellant cannot have an appeal pending before both this
court and the Board for the same case. From the record,
it appears that Mr. Galloway elected to pursue his appeal
of the C-3 case before the Board, and on October 15, 2009,
this court dismissed his appeal of the C-3 case for failure
to pay the court’s docketing fee and for failure to file a
discrimination statement as required by Fed. Cir. R.
15(c). On October 27, 2009, the full Board denied Mr.
Galloway’s petition for review of the C-3 case in a final
decision.
Even though the record suggests that Mr. Galloway
intended to pursue the B-1 case before this court, Mr.
Galloway paid the docketing fee for his appeal of the C-3
case on December 29, 2009, but did not pay the docketing
fee for his appeal of the B-1 case. As a result, this court
processed Mr. Galloway’s submissions as pertaining to
the C-3 appeal and reinstated that appeal on December
29, 2009. On February 23, 2010, Mr. Galloway’s appeal of
the B-1 case was dismissed for failure to pay the court’s
docketing fee and for failure to file a discrimination
7 GALLOWAY v. AGRICULTURE
statement. Mr. Galloway then wrote a letter to this court
in which he expressed confusion over which appeal had
been dismissed. On May 18, 2010, Mr. Galloway was
informed that his appeal of the C-3 case remained open
and his appeal of the B-1 case had been dismissed. In his
informal brief, Mr. Galloway identifies the C-3 case as the
decision under review, but his arguments address issues
presented in the B-1 case, not the issues that the Board
addressed in the C-3 case.
II
1. The government treats Mr. Galloway’s appeal as
challenging only the Board’s decision in the C-3 case, and
it argues that there is no error in the Board’s decision in
that case. If the appeal were directed solely at that
decision, we would agree. The issue of whether the
agency was in compliance with the settlement agreement
was resolved in the B-1 case, and in the later C-3 case Mr.
Galloway failed to offer any persuasive reason for the
Board to reach a different conclusion than it had previ-
ously reached in the B-1 case. See Griffin v. Office of
Pers. Mgmt., 75 M.S.P.R. 263, 269-70 (1997).
The record, however, suggests that Mr. Galloway in-
tended to challenge the Board’s decision in the B-1 case.
Even though Mr. Galloway’s docketing fee payment and
informal brief refer to the C-3 case, we recognize that Mr.
Galloway, a pro se appellant, may have mistakenly used
the wrong case number in referring to the appeal he
sought to prosecute. The requirement of filing a timely
notice of appeal is jurisdictional, but it does not foreclose
an appellant from proceeding simply because he has
mistakenly used the wrong caption or docket number in
prosecuting his appeal. See Sanabria v. United States,
437 U.S. 54, 67 n.21 (1978) (“A mistake in designating the
GALLOWAY v. AGRICULTURE 8
judgment appealed from is not always fatal, so long as the
intent to appeal from a specific ruling can fairly be in-
ferred by probing the notice and the other party was not
misled or prejudiced.”); Trustees of the Construction
Indus. & Laborers Health & Welfare Trust v. Hartford
Fire & Ins. Co., 578 F.3d 1126, 1128 (9th Cir. 2009)
(wrong docket number on notice of appeal not fatal);
United States v. Grant, 256 F.3d 1146, 1150-51 (11th Cir.
2001) (same); Marshall v. Hope Garcia Lancarte, Inc., 632
F.2d 1196, 1197 (5th Cir. 1980) (same); Scherer v. Kelley,
584 F.2d 170, 175 (7th Cir. 1978) (same). In this case, did
Mr. Galloway expressed his intention, in correspondence
with this court, to pursue his appeal in the B-1 case. In
addition, his informal brief makes clear that he is contest-
ing the merits of the administrative judge’s decision on
his request for enforcement of the settlement agreement,
which was the issue in the B-1 case, not the question
whether his later enforcement petition was barred by law
of the case, which was the issue in the C-3 case. Under
these circumstances, we construe Mr. Galloway’s filings
in this court as sufficient to constitute a valid petition for
review of the B-1 case.
2. On the merits, Mr. Galloway argues that the
agency breached the settlement agreement because it
failed to send his personnel records to OPM within the
prescribed time period. He claims that the delay caused
him to incur additional health care expenses, and he
seeks an award of damages based on that loss. It is well
settled, however, that the Board has no authority to
award damages for breach of a settlement agreement and
that it is limited to enforcing the agreement or directing
that it be rescinded. Foreman v. Dep’t of the Army, 241
F.3d 1349, 1352 (Fed. Cir. 2001); Smith v. Dep’t of the
Army, 72 M.S.P.R. 676, 679 (1996). Thus, even if Mr.
Galloway can prove that the agency committed a material
9 GALLOWAY v. AGRICULTURE
breach of the settlement agreement, he is entitled only to
have the agreement enforced or rescinded. Lutz v. U.S.
Postal Serv., 485 F.3d 1377, 1380 n.2 (Fed. Cir. 2007);
Wonderly v. Dep’t of the Navy, 68 M.S.P.R. 529,
532 (1995). Mr. Galloway currently seeks to reopen his
EEOC complaint, which was dismissed as part of the
settlement agreement. Yet reopening the EEOC com-
plaint can occur only if the settlement agreement is
rescinded. Rescinding the agreement would undo all of
the settlement terms, causing Mr. Galloway to lose any
benefits he received under the agreement—including the
$83,000 payment that the agency made to Mr. Galloway.
See Mullins v. Dep’t of the Air Force, 79 M.S.P.R. 206,
212 (1998) (explaining the effect of rescinding a settle-
ment agreement and remanding “to permit the appellant
to make an informed choice” whether to pursue rescis-
sion).
The Board ruled that Mr. Galloway is not entitled to
rescission of the settlement agreement because the
agency substantially complied with the terms of the
agreement. We conclude that substantial evidence sup-
ports the Board’s ruling. Mr. Galloway argues that the
agency failed to forward his personnel records to OPM,
which allegedly precluded him from receiving his full
annuity and health insurance. However, the delay in
forwarding the records in general appears not to have
been the cause of the delay in OPM’s action; rather,
OPM’s action was delayed solely because of the delay in
sending OPM the information as to Mr. Galloway’s last
day of pay. The record indicates that OPM has adjudi-
cated Mr. Galloway’s annuity and that Mr. Galloway has
received his retirement benefits. See A122 (e-mail from
OPM to Mr. Galloway stating, “As soon as we have last
day of pay confirmed by your employer, I should be able to
do reinstatement and transfer in of your health insurance
GALLOWAY v. AGRICULTURE 10
to the OPM Retirement System.”); A103 (timeline pre-
pared by Mr. Galloway noting that, on May 14, 2008,
“OPM sent me a letter [stating] that my application for
disability retirement was completed”); Pet. Br. 7 (“On or
about December 7, 2009, the Petitioner received a refund
of $17,157.33 from the National Pay Center for payments
he made for his health insurance.”). It is true that the
information the agency initially provided to OPM did not
include the last day of pay and that the omission delayed
Mr. Galloway’s annuity determination. Nevertheless, the
record shows that his annuity was made retroactive to his
last day of pay, and that he has received all that he was
entitled to. See Doiron v. U.S. Postal Serv., 68 M.S.P.R.
170, 172 (1995) (the agency substantially complied with a
Board order to give the appellant back pay, even though
payment was delayed, because the appellant “has now
been paid the amount to which he is entitled”).
While the settlement agreement required the agency
to provide any requested information within five working
days, the delay in providing the information regarding
Mr. Galloway’s last day of pay does not require rescission
of the settlement agreement. First, it is clear that the
primary benefits of the agreement for Mr. Galloway were
receiving the lump sum payment and securing the
agency’s assistance in order to obtain disability retire-
ment benefits. The agency paid the lump sum, promptly
responded to OPM’s requests, and provided both Mr.
Galloway and OPM with contacts for any follow-up re-
quests. 2 Mr. Galloway subsequently received his full
2 We note that Mr. Galloway failed to report any al-
leged noncompliance to the Department of Agriculture as
required by the settlement agreement. While we agree
with the full Board that Mr. Galloway’s failure to notify
the agency of its default was not a material breach of his
obligations under the agreement, it nonetheless likely
11 GALLOWAY v. AGRICULTURE
disability retirement benefits, retroactive to his last day
of pay. While the settlement agreement contemplated a
quick and accurate response from the agency, we agree
with the Board that the agency’s mistake regarding the
last day of pay was not a material breach because it did
not “relate[] to a matter of vital importance, or go[] to the
essence of the contract.” Thomas v. Dep’t of Housing &
Urban Dev., 124 F.3d 1439, 1442 (Fed. Cir. 1997); see
Diehl v. U.S. Postal Serv., 82 M.S.P.R. 620, 624 (1999).
The delay in providing that information did not signifi-
cantly deprive Mr. Galloway of the benefit he reasonably
expected from the agreement, see Corsiglia v. U.S. Postal
Serv., 69 M.S.P.R. 5, 11 (1995), to the extent that it would
justify allowing Mr. Galloway to rescind the agreement
(even assuming that, given the choice, he would elect
rescission and the accompanying surrender of the benefits
he has received under the agreement). Therefore, we
agree that the agency substantially complied with the
settlement agreement and that the Board properly denied
relief on Mr. Galloway’s petition for enforcement.
AFFIRMED
contributed to the delay in processing his retirement
application, because if he had advised the agency of its
error, it would have been alerted to the error sooner and
presumably could have acted to correct it at that time.
Mr. Galloway argues that the agency ignored “many
opportunities to correct” its mistake. In support of that
claim he points to several e-mails between himself and an
OPM representative indicating that OPM was aware of
the agency’s error. However, the e-mail exchanges with
OPM do not show that the Department of Agriculture was
aware of the error. To the contrary, the record shows that
as soon as OPM contacted the Department of Agriculture
and identified the error, the Department of Agriculture
promptly corrected its mistake.