NOTE: This disposition is non-precedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

PAMELA R. CAHILL, 

Petitioner, 

v. 

DEPARTMENT OF DEFENSE 

Respondent. 

__________________________ 

2010-3101 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in consolidated case nos. PH315H090360-I-1 and 

PH0752070430-C-2. 

___________________________ 

Decided: November 9, 2010 

___________________________ 

PAMELA R. CAHILL, Oak Ridge, New Jersey, pro se. 

CHRISTOPHER A. BOWEN, Trial Counsel, Commercial 

Litigation 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 REGINALD T.

BLADES, JR., Assistant Director. 

__________________________ 
CAHILL v. DEFENSE 2

Before GAJARSA, LINN and MOORE, Circuit Judges. 

PER CURIAM. 

This is an appeal from the final order of the Merit 

Systems Protection Board (“MSPB” or “Board”) denying 

the petitions for review of the consolidated actions in 

Cahill v. Dep’t of Def., Docket Nos. PH-315H-09-0360-I-1 

and PH-0752-07-0430-C-2 (Feb. 4, 2010). 

Ms. Cahill filed suit against her most recent employer, the Defense Commissary Agency (“DeCA”), alleging that DeCA improperly removed her. The July 23, 

2009 initial decision in case number PH-315H-09-0360-I-1 

dismissed the suit, with the Administrative Judge (“AJ”) 

holding the MSPB did not have jurisdiction because Ms. 

Cahill had not completed one year of employment and 

could not allege any other basis for jurisdiction. 

Ms. Cahill also filed a separate action against her 

former employer, the Defense Contract Audit Agency 

(“DCAA”), alleging it breached its settlement agreement 

(“SA”) with Ms. Cahill when a DCAA employee informed a 

human resources specialist with DeCA that DCAA had 

removed Ms. Cahill for failure to maintain a security 

clearance. In its July 21, 2009 initial decision in case 

number PH-0752-07-0430-C-2, the AJ found that DCAA 

did not breach the SA and that Ms. Cahill failed to establish that DCAA provided DeCA with her May 31, 2007 

Standard Form 50 (“SF-50”)1 indicating that she had been 

removed from her position. 

 1 Standard Forms” are used government-wide for 

different employment and benefits program services. 

“Standard Forms” are required to be used by all agencies, 

while “Optional Forms” are available for use by all agen-
3 CAHILL v. DEFENSE

The Board’s decision in PH-0752-07-0430-C-2 is affirmed because it is supported by substantial evidence, 

and the dismissal of the PH-315H-09-0360-I-1 decision for 

lack of jurisdiction is affirmed because it is legally correct.

BACKGROUND

In order to understand the history and the interrelationship of these cases, we must provide a procedural 

background before we can discuss the substance of the 

present appeal. 

A. Ms. Cahill’s Removal from the DCAA and Subsequent 

Appeal 

Ms. Cahill worked as an Office Automation Assistant 

with the DCAA, a position classified as non-critical sensitive. On November 7, 2005, Ms. Cahill was randomly 

selected for a drug test and tested positive for marijuana. 

On November 16, 2005, DCAA indefinitely terminated her 

access to sensitive information and also suspended her 

pending an investigation of the test results. 

On July 17, 2006, the Services Consolidated Adjudications Facility, which handled security clearances, determined that Ms. Cahill failed to present any credible 

evidence challenging the test results and revoked her 

security clearance. DCAA was advised of this decision on 

July 31, 2006. The revocation was appealed and denied. 

DCAA was informed of the denial on April 11, 2007. 

Because of her failure to maintain eligibility to access 

sensitive information and the absence of any positions not 

requiring security clearance, Ms. Cahill was terminated 

from the DCAA on May 10, 2007. The removal became 

final on May 31, 2007. She was issued an SF-50 stating 

 

cies but are not required. SF-50 is the “Notification of 

Personnel Action” form. 
CAHILL v. DEFENSE 4

that her removal was for “failure to maintain eligibility to 

access classified information and/or occupancy of a sensitive position.” 

Ms. Cahill challenged her termination with the 

MSPB. She was represented in those proceedings by 

counsel. She entered into the SA with DCAA to resolve 

the appeal arising out of her termination. Pursuant to 

the SA, Ms. Cahill agreed to dismiss her appeal with 

prejudice and waive any future action against DCAA or 

its officers. The DCAA agreed to the following: 

 In the event a prospective employer of the 

plaintiff seeks information concerning plaintiff’s 

employment tenure with the DCAA, plaintiff may 

direct the prospective employer to Mr. Harry 

Olmo, Human Resources Management Division, 

the Personnel Department, Mid-Atlantic Region 

in Philadelphia. 

 For private sector employers, Mr. Olmo will 

provide the following information to Appellant’s 

prospective employer: the position she held, the 

dates of her employment, her salary, that her performance was always at least fully successful, and 

that she left for personal reasons. For any federal 

government employers, Mr. Olmo will inquire 

whether the position requires a security clearance. If it does not, Mr. Olmo will provide the 

same information as will be given to prospective 

private sector employers. If a security clearance 

is required for the position, Mr. Olmo will disclose 

the nature of Appellant’s removal, to include the 

revocation of her eligibility for access to classified 

information and/or occupancy of a sensitive position. 

Appellee App. 45. The agreement also stated: 
5 CAHILL v. DEFENSE

 Appellant was represented by Frederic H. 

Pearson, Pearson and Shapiro, Union, New Jersey. Appellant has had a reasonable amount of 

time to consider the terms of this Agreement. By 

signing the Agreement, Appellant represents and 

agrees that she has carefully read and fully understands all of the provisions of this Agreement, 

including the waivers set out in paragraph 2(b), 

and she is voluntarily entering into the Agreement and was not coerced by any party or the representative of any party. 

Appellee App. 45. Upon the execution of the SA, the AJ 

dismissed Ms. Cahill’s appeal with prejudice on September 25, 2007. 

B. Ms. Cahill’s Employment with DeCA and Her Subsequent Removal 

On July 7, 2008, Ms. Cahill began working for DeCA 

as a store associate. Before starting to work with DeCA 

she was required to complete Optional Form 306 (“OF306”)2 regarding her past employment and criminal 

history. On the OF-306 she answered “no” in response to 

the question: “[d]uring the last 5 years, were you fired 

from any job for any reason, did you quit after being told 

you would be fired, did you leave any job by mutual 

agreement because of specific problems, or were you 

debarred from Federal employment by the Office of Personnel Management?” On August 17, 2008, DeCA 

changed Ms. Cahill’s status from a temporary employee to 

a career conditional appointment. The SF-50 informing 

her of this change noted that conversion to a permanent 

position would depend upon the receipt of Ms. Cahill’s 

official personnel file (“OPF”). 

 2 OF-306 is the “Declaration for Federal Employment” form. 
CAHILL v. DEFENSE 6

DeCA obtained her OPF containing the May 31, 2007 

SF-50 indicating that contrary to Ms. Cahill’s statement, 

she had been removed from her DCAA position for failure 

to maintain a security clearance. In addition, Donna 

Clark, an Employee Relations Specialist with DeCA, 

contacted DCAA to inquire about Ms. Cahill’s previous 

employment position. The replacement for Mr. Olmo, 

Anthony Santini, first asked if the position was with the 

Federal government, and subsequently if it required a 

security clearance. Ms. Clark confirmed that the position 

was with the Federal government and required a security 

clearance. She was advised that Ms. Cahill had been 

removed for failing to maintain a security clearance, but 

that her performance was otherwise fully successful. 

On January 28, 2009, DeCA issued its notice of proposed removal to Ms. Cahill, citing the contradiction 

between Ms. Cahill’s OF-306 statement and the May 31, 

2007 SF-50 in her OPF. DeCA issued its notice of removal and removed Ms. Cahill on March 6, 2009. 

C. Ms. Cahill’s First Petition to Enforce the SA 

In May or April of 2008, prior to completing the OF306 form for the DeCA position, Ms. Cahill sought and 

obtained copies of the records in her OPF. Ms. Cahill 

then filed a petition to enforce the SA, asserting that the 

SF-50 should not state that she was removed, but rather 

that she had resigned. 

The AJ denied Ms. Cahill’s petition for enforcement, 

holding that the SA did not require the agency to alter the 

SF-50. Sauter3 v. Dep’t of Def., M.S.P.B. Docket No. PH0752-07-0430-C-1 (Sept. 16, 2008). The AJ also denied 

her request to change her performance appraisals, as this 

 3 Ms. Cahill was using the name “Ms. Sauter” at 

the time. 
7 CAHILL v. DEFENSE

was not addressed by the SA, and noted that Ms. Cahill 

had an attorney negotiate the SA with DCAA and the SA 

stated she had read and understood all the terms. 

Ms. Cahill appealed this decision to the full board. 

The MSPB denied the appeal and found that the AJ had 

not made any legal error and that there was no new, 

previously unavailable evidence. Ms. Cahill did not 

appeal that decision to this court. 

D. Ms. Cahill’s Second Petition to Enforce the SA 

After DeCA’s proposal to remove Ms. Cahill, she filed 

a second petition to enforce the SA, claiming that DCAA 

breached the SA by providing the SF-50 to DeCA and by 

Mr. Santini informing Ms. Clark of her removal. DCAA 

asserted it had not provided the SF-50 to DeCA, noting 

that it was contained in her OPF. DCAA also asserted 

that Mr. Santini’s conversation with Ms. Clark complied 

with the terms of the SA. 

The AJ again concluded that DCAA was in compliance 

with the SA and therefore denied Ms. Cahill’s petition for 

enforcement. Cahill v. Dep’t of Def., M.S.P.B. Docket No. 

PH-0752-07-0430-C-2 (July 21, 2009). The AJ found that 

DCAA did not breach the SA when Mr. Santini informed 

Ms. Clark about Ms. Cahill’s removal from DCAA, “as this 

was expressly authorized by the SA.” The AJ also concluded that there was no evidence that DCAA had provided DeCA with the SF-50 form, and that the SA “did not 

require DCAA to purge documents from appellant’s OPF 

or change documents to show that appellant had resigned.” Ms. Cahill then appealed to the full board, which 

consolidated the appeal with that of her termination from 

DeCA, as described below. 
CAHILL v. DEFENSE 8

E. Ms. Cahill’s Appeal of Her Termination from the DeCA 

Ms. Cahill appealed her termination from DeCA to 

the MSPB. It is undisputed that Ms. Cahill was a probationary employee and had not completed one year of 

continuous service when DeCA terminated her. The AJ 

held that the Board did not have jurisdiction pursuant to 

5 U.S.C. § 7511(a)1(A)i or ii. Cahill v. Dep’t of Def., 

M.S.P.B. Docket No. PH-315H-09-0360-I-1 (Jul. 23, 2009). 

The AJ also held that the record did not show that DeCA 

had removed Ms. Cahill because of partisan political 

reasons or her marital status, which would have given the 

Board jurisdiction under 5 C.F.R. § 315.806(b). Finally, 

the AJ held that “nothing in Part 731 [of 5 C.F.R.] or the 

Federal Register [ ] indicates that the failure of agency to 

notify OPM [Office of Personnel Management] provides 

any legal right or remedy to an appellant,” and thus the 

MSPB lacked jurisdiction. Id. Ms. Cahill appealed the 

decision to the full board. 

The full board denied Ms. Cahill’s petitions for review 

in her consolidated appeal of Cahill v. Dep’t of Def., 

M.S.P.B. Docket No. PH-0752-07-0430-C-2 (Jul. 21, 2009) 

and Cahill v. Dep’t of Def., M.S.P.B. Docket No. PH-315H09-0360-I-1 (Jul. 23, 2009), making the initial decisions of 

the AJ final. Ms. Cahill appealed to this court. 

DISCUSSION

Pursuant to 5 U.S.C. § 7703(c), this court’s review of 

MSPB decisions is limited by statute: 

[T]he court shall review the record and hold 

unlawful and set aside any agency action, findings, or conclusions found to be– 

(1) arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with the law; 
9 CAHILL v. DEFENSE

(2) obtained without procedures required by law, 

rule, or regulation having been followed; or 

(3) unsupported by substantial evidence. 

5 U.S.C. § 7703(c) (2006). Judicial review of MSPB decisions is limited to a review of the administrative record. 

Id. Our judicial function is exhausted when there is a 

rational basis for the conclusions reached by the MSPB. 

Carroll v. Dep’t of Health & Human Servs., 703 F.2d 1388, 

1390 (Fed. Cir. 1983). “The standard is not what the 

Court would decide in a de novo appraisal, but whether 

the administrative determination is supported by substantial evidence on the record as a whole.” Parker v. 

United States Postal Serv., 819 F.2d 1113, 1115 (Fed. Cir. 

1987). 

On appeal, Ms. Cahill first argues that she “was not 

given opportunity to submit evidence to support the 

confidential agreement that was breeched [sic].” Appellant’s Brief, Form 11. However, as noted by the AJ, parol 

evidence “will be considered in construing a SA only if the 

agreement is ambiguous.” Cahill v. Dep’t of Def., M.S.P.B. 

Docket No. PH-0752-07-0430-C-2 (Jul. 21, 2009) (citing 

United States v. Human Res. Mgmt., Inc., 745 F.2d 642, 

648 (Fed. Cir. 1984)). Ms. Cahill has failed to identify any 

ambiguities in the SA. Therefore, the AJ correctly prohibited Ms. Cahill from submitting parol evidence concerning 

the SA’s meaning. 

Second, Ms. Cahill contends that the SA required 

DCAA to change her SF-50 to state that she resigned. 

Because Ms. Cahill did not appeal the February 6, 2009 

final decision of the full MSPB affirming the initial September 16, 2008 decision holding the SA did not require 

DCAA to alter the SF-50 or any evaluations, this court is 
CAHILL v. DEFENSE 10

without jurisdiction to address that matter. See 5 U.S.C. 

§ 7703 (granting sixty days to appeal a decision of the 

MSPB).4 

Ms. Cahill also asserts that the DeCA termination 

should be “correct[ed].” Appellant’s Brief, Form 11. To 

the extent she is challenging the AJ’s July 23, 2009 decision that the Board lacked jurisdiction, Ms. Cahill does 

not dispute any of the facts relied on by the AJ in making 

this determination. She does not contest that she had not 

completed one year of continuous service and that she was 

not removed for either her marital status or for partisan 

political reasons. Thus, the AJ’s decision is legally correct. 

Next, Ms. Cahill claims that the MSPB applied the 

wrong law because her DeCA position did not require a 

security clearance. To the extent Ms. Cahill is challenging her dismissal from her position at DeCA, she does not 

assert that the AJ applied the wrong law regarding its 

lack of jurisdiction over probationary employees and 

presents no reason why that jurisdictional decision was 

incorrect. 

Ms. Cahill also argues that the MSPB applied the 

wrong law because “[e]vidence shows . . . [her] removal 

was based on prohibited personnel practice described in 5 

U.S.C. 2302(b).” Appellant’s Brief, Form 11. Ms. Cahill’s 

 4 Even assuming we had jurisdiction to consider 

Ms. Cahill’s claim, we note that the agreement does not 

mention the word “resignation” nor does it call for the 

agency to amend documents within Ms. Cahill’s OPF; all 

of Ms. Cahill’s assertions with respect to the SA are 

inconsistent with the plain language of the SA. Thus, the 

board’s decision that DCAA was not required to change 

her SF-50 or her evaluation is supported by substantial 

evidence. 
11 CAHILL v. DEFENSE

argument lacks merit. First, Ms. Cahill has not specifically alleged or pointed to any evidence in the record of a 

violation of prohibited personnel practices under that 

statute. DeCA’s removal of Ms. Cahill was based upon 

the conflict between her representation that she had 

never been fired and the statement on her SF-50. Second, 

the MSPB does not have jurisdiction over § 2302(b) matters, except in limited situations concerning whistleblowers. Saunders v. Merit Sys. Prot. Bd., 757 F.2d 1288, 1290 

(Fed. Cir. 1985) (citation omitted) (“The board does not 

have appellate jurisdiction to consider such allegations of 

prohibited personnel practices. Section 2302(b) is not an 

independent source of appellate jurisdiction and does not 

itself authorize an appeal.”). Therefore, the AJ did not err 

in not applying 5 U.S.C. § 2302(b) because there was no 

evidence in the record showing a violation of that statute. 

As a result, the issue is not properly before this court. 

Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 

1998). 

Lastly, Ms. Cahill asserts that the Board should have 

permitted her to submit evidence of her allegations. This 

assertion is at odds with the record. With regard to the 

appeal of the DeCA removal, the Board gave Ms. Cahill 

the opportunity to address why her appeal should not be 

dismissed for lack of jurisdiction. Ms. Cahill also had 

ample opportunity to present her case with respect to the 

DCAA appeal, but chose not to respond to the MSPB’s 

May 29, 2009 acknowledgement order allowing for appellant response to the agency’s written submission within 

ten days. Not only did the Board permit Ms. Cahill to 

submit evidence of her allegations, it requested such 

evidence. Ms. Cahill’s last argument is flawed. 

In sum, the AJ applied the correct law in finding the 

MSPB lacked jurisdiction over Ms. Cahill’s appeal of her 

DeCA removal, and the AJ also correctly held that DCAA 
CAHILL v. DEFENSE 12

had not breached the SA. Thus, the Board did not abuse 

its discretion in denying the petitions for review in the 

consolidated actions on appeal. Accordingly, because the 

Board’s February 4, 2010 decision is legally correct, this 

court affirms the dismissal for lack of jurisdiction for the 

DeCA removal, and the challenged breach of the SA is 

affirmed because it is supported by substantial evidence. 

COSTS

No Costs.