Elizabeth J. Martin v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ELIZABETH J. MARTIN,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2025-1944
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-1221-14-0116-C-1.
______________________
Decided: April 14, 2026
______________________
ELIZABETH J. MARTIN, St. Louis, MO, pro se.
VIJAYA SURAMPUDI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by ALBERT S.
IAROSSI, PATRICIA M. MCCARTHY, BRETT SHUMATE.
______________________
Before CHEN, HUGHES, and STOLL, Circuit Judges.
PER CURIAM.
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MARTIN v. DVA 2
Elizabeth J. Martin petitions for review of a Merit Sys-
tems Protection Board order finding the Department of
Veterans Affairs in compliance with a settlement agree-
ment and thus denying her petition for enforcement. For
the reasons below, we affirm.
I
Ms. Martin was previously employed by the Depart-
ment of Veterans Affairs. In 2014, Ms. Martin filed an in-
dividual right of action (IRA) appeal with the Board,
alleging that the agency took several adverse personnel ac-
tions against her in retaliation for protected whistleblow-
ing disclosures. In May 2015, Ms. Martin and the agency
entered a settlement agreement. In exchange for dismiss-
ing the IRA appeal and waiving future claims predicated
on the same facts, the agency agreed to remove the follow-
ing from Ms. Martin’s Official Personnel File (OPF):
i. The proposed reprimand dated October 24,
2011, and the formal grievance decision up-
holding the reprimand dated February 2,
2012.
ii. The proposed suspension dated May 17, 2013,
and the decision on proposed suspension dated
June 18, 2013.
iii. The proposed removal dated February 27,
2014, and the reprimand dated May 8, 2014.
S.A. 21–22 at ¶ 2(a).1 The settlement agreement was en-
tered into the record, and the underlying IRA appeal dis-
missed. Ms. Martin never confirmed that the agreed-upon
items were removed from her OPF.
1 S.A. refers to the supplemental appendix filed with
the government’s informal brief. ECF No. 18-2.
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MARTIN v. DVA 3
Nearly nine years later, on April 9, 2024, Ms. Martin
filed a petition for enforcement with the Board, asserting
that the agency breached the settlement agreement by fail-
ing to expunge her OPF as agreed in paragraph 2(a) and by
providing her un-expunged OPF to a third-party attorney.
Specifically, she stated that on October 11, 2023, she was
deposed in an unrelated civil litigation by the opposing
party’s private attorney (Deposing Counsel). Ms. Martin
provided evidence that prior to that deposition, she signed
a release allowing Deposing Counsel to access her agency
personnel records. Then, during the deposition, Deposing
Counsel questioned Ms. Martin about her work history, in-
cluding the specific disciplinary actions listed in para-
graph 2(a) of the settlement agreement. Ms. Martin argued
to the Board that such questions were evidence that the
agency breached its agreement to remove those discipli-
nary actions from her OPF. The agency disagreed, submit-
ting evidence that the documents encompassed by
paragraph 2(a) were removed from Ms. Martin’s OPF in
June 2015 and arguing that Ms. Martin failed to show that
Deposing Counsel obtained the disciplinary information
from the agency.
On April 21, 2025, the Board issued an Initial Decision
finding the agency in compliance with paragraph 2(a) of
the settlement agreement and denying Ms. Martin’s peti-
tion for enforcement. See Martin v. Dep’t of Veteran Affs.,
No. CH-1221-14-0116-C-1, 2025 MSPB LEXIS 2280, at *1
(M.S.P.B. Apr. 21, 2025). The Board determined that
Ms. Martin failed to prove the agency was the source of De-
posing Counsel’s information regarding her disciplinary
history, emphasizing that Ms. Martin admitted she did not
know where Deposing Counsel obtained the information
and that Ms. Martin’s own counsel hypothesized it was ob-
tained from “various pleadings.” Id. at *7 (quotation omit-
ted). Combined with the agency’s evidence of compliance,
and evidence of alternative ways Deposing Counsel could
have obtained the disciplinary information—namely,
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MARTIN v. DVA 4
references to Ms. Martin’s disciplinary history in unrelated
but publicly available Board decisions from 2014 (the
2014 Board Decision) and 2021—the Board denied
Ms. Martin’s petition for enforcement. Id. at *7–8 (first cit-
ing Martin v. Dep’t of Veterans Affs., No. CH-0714-21-0155-
I-1, 2021 WL 2894683 (M.S.P.B. July 9, 2021) (referencing
Ms. Martin’s 2014 proposed removal); and then citing Mar-
tin v. Dep’t of Veterans Affs., No. CH-1221-12-0374-W-2,
2014 WL 7045133 (M.S.P.B. Dec. 11, 2014) (referencing
Ms. Martin’s October 2011 reprimand)).
The Board’s decision denying Ms. Martin’s petition for
enforcement became final on May 26, 2025. See 5 C.F.R.
§ 1201.113(b). Ms. Martin timely appealed, and we have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(9).
II
The scope of our review of Board decisions is narrow.
We may only set aside the Board’s decision if it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). We review the Board’s legal conclusions de novo
and its factual findings for substantial evidence. Hansen v.
Dep’t of Homeland Sec., 911 F.3d 1362, 1366 (Fed. Cir.
2018). The determination as to what the terms of a settle-
ment agreement require is a question of law, whereas find-
ings as to the conduct of the breaching party—what they
did or did not do—is a question of fact. Gilbert v. Dep’t of
Just., 334 F.3d 1065, 1071–72 (Fed. Cir. 2003). The peti-
tioner, Ms. Martin, bears the burden of establishing the
Board’s error. Harris v. Dep’t of Veterans Affs., 142 F.3d
1463, 1467 (Fed. Cir. 1998).
Ms. Martin makes two distinct arguments on appeal.
First, Ms. Martin alleges that the agency and the Board
breached the settlement agreement by not expunging ref-
erences to her disciplinary history from the 2014 Board
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MARTIN v. DVA 5
Decision available online. Pet. Br. 2; see Martin, 2014 WL
7045133 (referencing Ms. Martin’s October 2011 repri-
mand). But Ms. Martin did not make this argument in her
petition for enforcement to the Board, and we may not con-
sider it for the first time on appeal. See Wallace v. Dep’t of
the Air Force, 879 F.2d 829, 832 (Fed. Cir. 1989). Regard-
less, Ms. Martin’s argument lacks merit. As the agency
notes, the Board is not a party to the settlement agreement
and thus cannot breach its terms. Resp. Br. 7; see Fenlon v.
Dep’t of the Navy, 582 F. App’x 883, 884 (Fed. Cir. 2014).
Further, paragraph 2(a) requires only that the agency re-
move the specified disciplinary events from her OPF.
S.A. 22 at ¶ 2(a). It does not require the agency to remove
references to her disciplinary history from Merit Systems
Protection Board decisions available in online third-party
databases. Thus, the Board and agency’s failure to expunge
references to Ms. Martin’s disciplinary history from the
2014 Board Decision does not constitute a breach of the set-
tlement agreement’s terms.
Second, Ms. Martin argues that the Board failed to con-
sider that the agency “admitted” it provided her discipli-
nary records to a third party, and contends she was given
“zero grounds” for relief despite the Board recognizing a
breach of the settlement agreement. Pet. Br. 2–3. Ms. Mar-
tin’s argument is belied by the record: the agency consist-
ently denied any breach of the settlement agreement, and
the Board explicitly concluded that Ms. Martin failed to
prove any breach of the settlement agreement. See Martin,
2025 MSPB LEXIS 2280, at *1; S.A. 38–42. Further, sub-
stantial evidence—including sworn declarations from two
current human resources employees attesting that the dis-
ciplinary events in paragraph 2(a) are not in Ms. Martin’s
OPF—supports the Board’s factual findings. Thus, both of
Ms. Martin’s arguments on appeal lack merit, and the
Board’s decision is supported by substantial evidence.
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MARTIN v. DVA 6
III
We have considered Ms. Martin’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, the Board’s order is affirmed.
AFFIRMED
COSTS
No costs.
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