The Merit Systems Protection Board (MSPB) recently found the Navy in breach of a settlement agreement when the Navy failed to expunge all references to the appellant’s proposed removal from her Official Personnel File (OPF). Kitt v. Department of the Navy, 2011 MSPB 82 (September 2, 2011). Kitt had entered into a “last chance settlement agreement” with the Navy in March of 2008, pursuant to which the Navy agreed “[t]o change the nature of Employee’s Standard Form [SF] 50 bearing effective date 11 August 2007 from Removal to a 30-days Suspension.”
Kitt learned in April 2009 that the Navy had not expunged her record, when it denied her a security clearance, in part because her OPF still showed she had been issued a Notice of Removal. The administrative judge rejected Kitt’s petition for enforcement of the settlement, citing a prior Board decision, Cutrufello v. U.S. Postal Service, 56 M.S.P.R. 99 (1992), finding that an agency was not in breach where the settlement agreement did not specifically require the agency to “expunge” from the file all references to the appellant’s removal.
The Board here expressly reversed the prior decision, ruling that the plain meaning of the word “change” means “to replace with another” and that express language had not been necessary to require the agency to remove any record of Kitt’s removal from her OPF. The Board concluded that the agency’s actions constituted a material breach of the agreement, thus giving Kitt the right to rescind the agreement, or else to seek its enforcement. The case has been remanded for further adjudication.
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