The U.S. Court of Appeals for the Federal Circuit in Bernard v. Dept. of Agriculture, 2014-3083 (Fed. Cir. June 11, 2015) held that the MSPB should allow discovery in cases of alleged breach of a settlement agreement, and that failure to do so could be grounds for reversal of a Board decision to deny enforcement.

Bernard appealed his removal from a firefighter position with the Forest Service to the MSPB. Eventually the parties reached a settlement agreement which dictated that Bernard would be allowed to return to work on fire assignments like any other employee. However, within a year of returning to work, the Forest Service notified Bernard that he would be restricted from performing certain types of fire assignments. The alleged reason behind this restriction was that the agency had been unable to find sufficient documentation of Barnard’s qualifications. Even after Bernard produced evidence of his qualifications, the agency made no change to his restrictions.

Bernard notified the agency that he believed it had breached their settlement agreement, and when the agency failed to take corrective action, he filed an enforcement action with the MSPB. Bernard asked the assigned administrative judge several times to be allowed to conduct discovery in order to gather more information to support his claim of breach. The administrative judge never responded to Bernard’s requests for discovery, but issued a decision denying enforcement on the grounds that Bernard had failed to prove breach of the settlement agreement. On appeal, the Board affirmed the decision denying enforcement. Bernard again appealed, this time to the Federal Circuit.

The MSPB argued that Bernard had not needed formal permission from the administrative judge to engage in discovery, and could have sought discovery but failed to do so. The Federal Circuit disagreed. It found that there was no basis for Bernard to seek discovery independently without permission from the administrative judge and that the administrative judge had improperly ignored Bernard’s request for discovery on his breach claim. The Federal Circuit remanded the case back to the Board for further proceedings.

Under the holding of this case, if claimants before the MSPB feel they need more information not readily available to them to support their claim of breach of a settlement agreement, they should explicitly request discovery on the issue before the administrative judge.

* This information is provided by the attorneys at Passman & Kaplan, P.C.