United States Court of Appeals 

for the Federal Circuit 

__________________________ 

ANNE WHITEMAN, 

Petitioner, 

v. 

DEPARTMENT OF TRANSPORTATION, 

Respondent. 

__________________________ 

2011-3165 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. DA1221090106-W-2. 

___________________________ 

Decided: August 10, 2012 

___________________________ 

MATTHEW D. ESTES, Tully Rinckey, PLLC, of Washington, DC, argued for petitioner. On the brief was 

STEVEN L. HERRICK. 

STACEY K. GRIGSBY, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, argued for respondent. 

With her on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and TODD M.

HUGHES, Deputy Director. Of counsel on the brief were 

ALEXANDRA R. RANDAZZO and BRETT DAEE, Office of the 
WHITEMAN v. TRANSPORTATION 2

Chief Counsel, Federal Aviation Administration, of Washington, DC. 

__________________________ 

Before DYK, O’MALLEY, and REYNA, Circuit Judges. 

REYNA, Circuit Judge. 

Anne Whiteman appeals the decision of the Merit 

Systems Protection Board (“MSPB”) dismissing her whistleblower retaliation action. The MSPB concluded that 

Whiteman was collaterally estopped from bringing her 

post-settlement retaliation claim by an earlier district 

court action she had filed and that she had waived her 

remaining claims by means of a settlement agreement. 

Because the MSPB incorrectly concluded that Whiteman’s 

post-settlement retaliation claim was collaterally estopped, we reverse the dismissal as to that claim only. 

We affirm as to the remaining claims because the MSPB’s 

conclusion that the settlement agreement is enforceable is 

supported by substantial evidence and correctly applies 

the well-established law in this area. 

I. BACKGROUND

A. 

Whiteman was employed by the Federal Aviation 

Administration (“FAA”) as an Air Traffic Control Specialist. Beginning as early as 1997, she reported to the Office 

of Special Counsel (“OSC”) various violations of laws, 

rules, or regulations, as well as mismanagement and 

abuses of authority by the FAA. Whiteman alleged that 

in retaliation for these disclosures, her colleagues and 

supervisors began to threaten, harass, and intimidate her. 

In response, Whiteman filed two separate Equal Employment Opportunity (“EEO”) actions. She claimed that 
3 WHITEMAN v. TRANSPORTATION

her supervisors and colleagues continued the harassment, 

which on one occasion she reported to the local police.1 

According to Whiteman, events came to a head when 

a fellow controller intentionally directed a plane into the 

airspace of an aircraft that Whiteman was directing. 

Although a collision was avoided, the harassment continued and ultimately resulted in Whiteman being excluded 

from the radar room and stripped of all her duties. She 

claims that she was placed in a room and under watch by 

her supervisor and given “no real job assignment” during 

this seclusion. A63.2 When she asked how long her 

seclusion would last, she was given no response. She was 

not allowed to leave the office except to use the bathroom. 

Shortly thereafter, she was reassigned to the control 

tower instead of her previous job in the radar room. 

Whiteman “perceived this as a major step backward in 

[her] career” given that she had been certified to work in 

the radar room for over fifteen years and had worked in 

the control tower prior to that. A64. 

On February 5, 2003, Whiteman entered into a settlement agreement with the FAA resolving all claims 

against the FAA, including “complaints, actions, disputes, 

controversies, or issues, pending or otherwise, known or 

unknown . . . as of the date of the Settlement Agreement.” 

A35. In exchange, she received a guaranteed one-time 

priority consideration for the next available funded operations supervisor position at the Dallas Fort Worth Tower. 

The agreement defined “priority consideration” as “bona 

fide consideration given to an employee by the selecting 

 1 Although important to Whiteman’s case, the long 

details of her alleged harassment are not set forth in 

detail in this opinion, but are well addressed in the decision of the MSPB. 

2 Citations to “A ” herein refer to pages of the Join 

Appendix filed by the parties in this appeal. 
WHITEMAN v. TRANSPORTATION 4

official before any other candidates are referred for the 

position to be filled,” and required that Whiteman “is not 

to be considered in competition with other candidates and 

is not to be compared with other candidates.” A34. 

Whiteman and her attorney, as well as the air traffic 

division manager and an attorney for the FAA, signed the 

settlement agreement and acknowledged that she had 

voluntarily and freely entered into the agreement. 

On October 8, 2003, the FAA posted a supervisory position vacancy without first notifying Whiteman of the 

vacancy. When the FAA realized that Whiteman was 

entitled to priority consideration for the position, it cancelled the vacancy announcement, notified Whiteman of 

the vacancy, and requested that she provide written 

notification if she intended to seek priority consideration. 

On December 9, 2003, Whiteman applied for the position. 

No other applicants were considered. 

On December 18, 2003, the FAA adopted agency-wide 

air traffic pay scale changes, which reduced the salary of 

the supervisory position. The incumbent of the supervisory position to which Whiteman had applied retired on 

January 3, 2004. Whiteman’s application was ultimately 

accepted and she started her new job in the supervisory 

position in April 2004. 

B. 

On June 1, 2004, Whiteman sued the FAA in the 

Eastern District of Texas, alleging that the FAA’s delay in 

notifying her of the vacancy in October 2003 constituted a 

breach of the settlement agreement. Whiteman argued 

that the delay in hiring caused a reduction of her earnings 

due to pay scale changes affecting positions assumed after 

December 18, 2003. The court found that the undisputed 

facts showed that the FAA had not breached the settlement agreement because Whiteman had been given 
5 WHITEMAN v. TRANSPORTATION

priority consideration. The court also found that, even if 

the FAA had breached the agreement, Whiteman had 

suffered no damages because she could not have assumed 

the supervisory position prior to the December 18, 2003, 

change in pay scale since the vacancy did not exist until 

the employee she replaced retired on January 3, 2004. 

Accordingly, the district court concluded that there was 

no remaining controversy and dismissed Whiteman’s case 

for lack of subject matter jurisdiction under Federal Rule 

of Civil Procedure 12(b)(1). 

On November 16, 2008, Whiteman filed an individual 

right of action (“IRA”) appeal before the MSPB contending 

that the FAA had unlawfully retaliated against her for 

her whistleblowing activities during the period from 1998 

and October 3, 2003. In particular, she argued that the 

FAA intentionally delayed considering and promoting her 

and that it had exerted improper duress and coercion to 

induce her to sign the settlement agreement. Whiteman 

contended that as a result, she was precluded from obtaining the additional pay from the approximately threemonth period between January 4, 2004, when the position 

first became vacant, and April 2004, when she was hired. 

The Administrative Judge (“AJ”) found that by the terms 

of the settlement agreement, Whiteman had waived her 

claims for retaliatory actions occurring prior to the date of 

the settlement. The AJ also determined that the settlement agreement was valid and enforceable. With respect 

to the alleged post-settlement delay in notifying Whiteman of the job opening, the AJ concluded that Whiteman 

was collaterally estopped from raising that issue by the 

district court proceeding she had previously brought for 

breach of the settlement agreement. Because Whiteman 

had identified no personnel action that was not waived, 

time-barred, or collaterally estopped, the AJ concluded 

that the Board lacked jurisdiction over her appeal. 
WHITEMAN v. TRANSPORTATION 6

Whiteman petitioned for review, and the MSPB affirmed and made final the dismissal by the AJ. The 

MSPB agreed with the AJ that Whiteman’s execution of 

the settlement agreement was not the result of duress or 

coercion, but instead “a considered choice among undesirable options.” A19. With respect to collateral estoppel, 

the MSPB found that “[i]n both this appeal and the 

[d]istrict [c]ourt action, [Whiteman] raised the issue of 

whether the agency breached the settlement agreement in 

October 2003, thereby resulting in her non-selection for a 

promotion.” A22. It therefore concluded that the AJ had 

“properly found that this issue was already decided by the 

[d]istrict [c]ourt.” A22. 

Whiteman appeals the MSPB’s decision that she was 

collaterally estopped from litigating her post-settlement 

promotion delay claims by the district court proceedings 

and that certain of her claims were waived by the settlement agreement. We have jurisdiction pursuant to 28 

U.S.C. § 1295(a)(9). 

II. DISCUSSION

Our review of decisions of the MSPB is limited. We 

may only set aside agency actions, findings, or conclusions 

if we find them to be “(1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; (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). 

Whether the board possesses jurisdiction is a question of 

law that this court reviews de novo. Stoyanov v. Dep’t of 

the Navy, 474 F.3d 1377, 1379 (Fed. Cir. 2007). 

A. 

The MSPB erred in concluding that collateral estoppel 

applied on the facts of this case. Collateral estoppel exists 
7 WHITEMAN v. TRANSPORTATION

where: “(i) the issue previously adjudicated is identical 

with that now presented, (ii) that issue was actually 

litigated in the prior case, (iii) the previous determination 

of that issue was necessary to the end-decision then made, 

and (iv) the party precluded was fully represented in the 

prior action.” Morgan v. Dep’t of Energy, 424 F.3d 1271, 

1274-75 (Fed. Cir. 2005). 

Here, the first factor was not met. The district court 

addressed only whether Whiteman was entitled to a 

higher rate of pay due to the agency’s delay in considering 

her for the position, concluding that the case was moot 

because she had already received the priority consideration promised under the agreement. Priority consideration meant only that she was to be considered before any 

other applicant. The court determined that this requirement had been met because Whiteman was the only 

applicant to be considered and because she was in fact 

hired. Here, in contrast, the issue is not whether the FAA 

delayed in October 2003 in considering Whiteman, causing her to miss the opportunity for a higher salary, but 

whether after considering her the FAA delayed from 

January to April in 2004 in appointing her to the position, 

causing the loss of three month’s pay. This is an entirely 

different delay which was not at issue in the district court 

proceeding. Thus, the issue was not identical and was not 

previously litigated, and collateral estoppel does not 

deprive the MSPB of jurisdiction to reach the merits of 

Whiteman’s retaliation claim. 

B. 

Whiteman also contends that because the settlement 

agreement was the result of duress and coercion, the 

MSPB’s ruling that her pre-settlement claims were barred 

should be reversed. In attacking the settlement agreement, Whiteman bears a “heavy burden of proof that the 
WHITEMAN v. TRANSPORTATION 8

agreement was improperly obtained.” Tiburzi v. Dep’t of 

Justice, 269 F.3d 1346, 1355 (Fed. Cir. 2001) (internal 

quotation marks omitted). 

We have repeatedly held that the choice between two 

unattractive options does not render a decision to retire 

involuntary. E.g., Staats v. U.S. Postal Serv., 99 F.3d 

1120, 1124 (Fed. Cir. 1996); Schultz v. U.S. Navy, 810 

F.2d 1133, 1136 (Fed. Cir. 1987). In this case, the AJ 

found that 

[Whiteman’s] decision to enter into the settlement agreement, far from representing 

the involuntary acceptance of terms imposed 

by the agency, resulted instead from a considered choice among the following undesirable options: remaining in the Terminal 

Radar Approach Control (TRACON) facility, 

with restricted freedom, supervisory “monitoring,” and “no work”; accepting a transfer 

to a position in Waco, Texas, “a significantly 

smaller, less prestigious facility”; or entering 

into the settlement, pursuant to which, in 

addition to receiving restoration of various 

leave, removal of performance charges from 

her records, priority consideration for promotion to a supervisory position in the Dallas 

Fort Worth Tower, and payment of attorney 

fees, she received a reassignment from a controller position in TRACON to a controller 

position in the Tower, “a step backward in 

her career progression and conveniently preventing her from observing any further operational errors.” 

In its final order, the MSPB concluded that the AJ had 

“properly [found] that [Whiteman’s] execution of the 
9 WHITEMAN v. TRANSPORTATION

settlement agreement was a considered choice among 

undesirable options.” 

The MSPB’s finding is supported by substantial evidence. Whiteman’s declaration describes the Waco, Texas 

offer, which resulted from a mediation of her EEO complaint. The declaration also describes her option to continue working at TRACON, but in the control tower, not 

the radar room. Whiteman instead chose to settle. She 

acknowledged that she was represented by counsel and 

was satisfied with that representation. The settlement 

agreement stated that it “was the result of mutual consideration,” “was made freely and fairly and was not the 

result of duress or bad faith negotiations,” that Whiteman 

was “fully aware of the meaning of [the settlement 

agreement],” and that she would “receive no consideration 

beyond that recited in [the] Agreement.” In return for 

settling her claims, Whiteman was promised restoration 

of over 400 hours of leave, removal of performance 

charges from her records, priority consideration for promotion, and payment of attorney fees. Whiteman concedes that she received the promised priority 

consideration and, as a result, obtained a new position in 

the Dallas Fort Worth airport tower.3 See Pet’r’s Br. 8-9. 

We therefore conclude that substantial evidence supports 

the AJ’s assessment of Whiteman’s alternatives, and that 

the MSPB did not abuse its discretion in affirming on that 

basis. 

 3 Whiteman also acknowledged that she previously 

sought to enforce the settlement agreement in district 

court. This raises questions as to whether she is judicially estopped from contesting the agreement or has 

ratified the agreement; however, because we affirm the 

MSPB’s decision that the agreement was enforceable, we 

need not address these issues. 
WHITEMAN v. TRANSPORTATION 10

III. CONCLUSION

For the reasons set forth above, we reverse the judgment of the MSPB that it was without jurisdiction to hear 

Whiteman’s retaliation claim. We affirm its judgment 

that any of Whiteman’s claims existing prior to the settlement agreement have been waived. 

REVERSED-IN-PART AND AFFIRMED-IN-PART 

COSTS

Costs awarded to the Petitioner.