Perrine v. Department of Veterans Affairs , 403 F. App'x 488 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
TAROL G. PERRINE,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2010-3103
__________________________
Petition for review of the Merit Systems Protection
Board In case no. AT0432070421-M-1.
___________________________
Decided: October 6, 2010
___________________________
TAROL G. PERRINE, of Jacksonville, Florida, pro se.
ANTHONY W. MOSES, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY,
JR., Assistant Director.
__________________________
PERRINE v. VA 2
Before LOURIE, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
DECISION
Tarol G. Perrine petitions for review of a decision of
the Merit Systems Protection Board denying his petition
for enforcement of a settlement agreement with the
Department of Veterans Affairs (“DVA”). We affirm.
BACKGROUND
Mr. Perrine was employed by the DVA as a Read-
justment Counseling Therapist until he was removed
from his position in 2006 for poor performance. After Mr.
Perrine appealed the removal action to the Merit Systems
Protection Board, the parties resolved the appeal by
entering into a settlement agreement. The agreement
provided, in pertinent part, that the agency would ex-
punge the removal action from Mr. Perrine’s official
personnel file and would provide him with a “neutral
reference letter.”
Following the execution of the agreement, Mr. Perrine
objected that the agency had failed to expunge the re-
moval action from his personnel file; he claimed that the
file contained a series of forms reciting his removal, the
settlement, and his resignation, contrary to the agree-
ment of the parties that the references to his removal
would be expunged. When his dispute reached this court,
the agency recommended, in light of some uncertainties in
the record, that the court remand the case to the Board so
that the Board could make findings as to whether the
agency had complied with the “expungement” require-
ment. This court remanded the case for that purpose.
3 PERRINE v. VA
Perrine v. Dep’t of Veterans Affairs, 316 F. App’x 995 (Fed.
Cir. 2009).
On remand, the agency submitted evidence to the
administrative judge supporting its contention that it had
complied with the expungement requirement. The ad-
ministrative judge reviewed the evidence of compliance
and concluded that the agency had expunged the refer-
ences to Mr. Perrine’s removal from his official personnel
file, even though the agency retained a record of the
proceedings in its litigation file for purposes of addressing
any further dispute between the parties over the settle-
ment agreement. The full Board denied Mr. Perrine’s
petition for review.
DISCUSSION
Notwithstanding the findings of the administrative
judge, Mr. Perrine renews his contention that the agency
has not complied with the expungement requirements of
the settlement agreement. We hold that the administra-
tive judge’s findings are supported by substantial evi-
dence and that, in light of those findings, there is no legal
support for Mr. Perrine’s claim that the agency has failed
to comply with its obligations under the agreement.
The DVA introduced evidence in the remand proceed-
ing showing that the materials in Mr. Perrine’s official
personnel file did not contain any reference to his re-
moval. Mr. Perrine failed to rebut that showing. Al-
though he complains that the agency has retained records
of his removal, it is well established, as we noted in our
remand decision, that an agency in such a case is entitled
to maintain a separate litigation file containing docu-
ments that were expunged from the appellant’s official
personnel file so that, for example, the agency can re-
PERRINE v. VA 4
spond to subsequent claims regarding its compliance with
the settlement agreement. See Turner v. Dep’t of Home-
land Sec., 102 M.S.P.R. 330, 334 (2006).
Mr. Perrine makes several additional claims in his pe-
tition, but he has failed to show that any of those claims
entitle him to relief. First, he contends that the agency
engaged in misconduct during his employment and that
his removal was therefore improper. Any claims going to
the legitimacy of the removal action, however, can no
longer be raised in light of Mr. Perrine’s withdrawal of his
appeal and entry into the settlement agreement. He also
contends that the DVA improperly retained his official
personnel file for several years after his removal. That
issue, however, was not part of the remand proceedings
directed by this court. Moreover, it is not clear how that
allegation relates to any purported breach of the DVA’s
obligations under the settlement agreement. Further, he
points to evidence of what he contends is “judicial bias” on
the part of the administrative judge. However, his com-
plaint about comments assertedly made by the adminis-
trative judge during a telephone conversation with the
parties does not give rise to an inference of bias that
would justify granting further relief in this case. See
Bieber v. Dep’t of the Army, 287 F.3d 1358, 1362 (Fed. Cir.
2002) (citation omitted) (To warrant recusal or a new
hearing on the basis of prejudice requires a showing that
the administrative judge or the Board exhibited “a deep-
seated favoritism or antagonism that would make fair
judgment impossible. . . . [J]udicial remarks . . . that are
critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or
partiality challenge” unless they derive from an extra-
administrative source.).
5 PERRINE v. VA
In sum, the DVA has made a comprehensive showing
that it complied with its expungement obligations under
the settlement agreement; Mr. Perrine has failed to rebut
that showing; the Board has found in favor of the agency
on that issue; and Mr. Perrine has failed to provide us
with any reason not to sustain the decision of the Board
on the single issue on which this case was remanded. We
therefore uphold the decision of the Board denying the
petition for enforcement.
AFFIRMED