NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

DAVID GALLOWAY, 

Petitioner, 

v. 

DEPARTMENT OF AGRICULTURE, 

Respondent. 

__________________________ 

2009-3279 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in AT0752061173-C-3. 

___________________________ 

Decided: October 13, 2010 

___________________________ 

DAVID GALLOWAY, of Tallahassee, Florida, pro se. 

JESSICA R. TOPLIN, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent. With her on 

the brief were TONY WEST, Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and PATRICIA M.

MCCARTHY, Assistant Director. 

__________________________ 
GALLOWAY v. AGRICULTURE 2

Before BRYSON, DYK, and MOORE, Circuit Judges. 

PER CURIAM. 

David Galloway petitions for review of a decision of 

the Merit Systems Protection Board, which held that the 

Department of Agriculture substantially complied with a 

settlement agreement arising from a prior dispute. We 

affirm. 

I 

Mr. Galloway worked as a Budget Analyst for the Department of Agriculture until he was removed from that 

position as of August 8, 2006. On September 13, 2006, 

Mr. Galloway appealed the removal action to the Merit 

Systems Protection Board. The parties resolved that 

dispute through a settlement agreement. Under that 

agreement, the agency agreed to pay Mr. Galloway 

$83,000 and agreed to change the official reason for his 

removal from misconduct to inability to perform the major 

functions of his position. The agency also agreed to assist 

Mr. Galloway in his application for disability retirement 

by submitting agency documentation to the Office of 

Personnel Management (“OPM”) “within five (5) workdays 

after receipt from [Mr. Galloway] or OPM” and by 

“promptly providing forms or information [Mr. Galloway] 

is not able to obtain from internet or other ready sources.” 

The settlement agreement provided that the agency’s 

assistance “will cease at the time a decision is rendered by 

OPM on [Mr. Galloway’s] application for disability retirement.” In return, Mr. Galloway withdrew his appeal 

before the Board as well as a formal complaint before the 

Equal Employment Opportunity Commission (“EEOC”). 

He also agreed to provide the agency with written notice 

of any alleged noncompliance with the settlement agreement “within 30 days of the date on which [Mr. Galloway] 
3 GALLOWAY v. AGRICULTURE

knew or should have know[n] of the alleged noncompliance.” On February 9, 2007, the Board approved the 

agreement, accepted it into the record for purposes of 

enforcement, and retained jurisdiction to ensure compliance with the agreement.1 

On September 5, 2007, OPM sent a letter to the 

agency stating that it had approved Mr. Galloway’s 

application for disability retirement. OPM added, however, that it needed to know the date of Mr. Galloway’s 

last day of pay and it needed the agency to submit “final 

retirement records through the regular retirement processing channels,” so that OPM “could send monthly 

interim annuity payments” and “complete final adjudication of the annuity.” In response, Cameron McCluskey, a 

Human Resource Specialist with the agency, sent an email to OPM dated September 5, 2007, which reported 

Mr. Galloway’s effective removal date but not Mr. Galloway’s last day of pay. That e-mail stated that OPM 

should contact Ms. McCluskey if it needed additional 

information. 

On May 1, 2008, a retirement benefits specialist with 

OPM sent an e-mail to Ms. McCluskey stating that OPM 

needed to know Mr. Galloway’s last day of pay. Ms. 

McCluskey obtained that information and conveyed it to 

OPM by telephone later that week. With that information, OPM activated Mr. Galloway’s annuity on May 15, 

2008, retroactive to his last day of pay on September 28, 

2005. 

 1 On April 26, 2007, Mr. Galloway filed a petition 

for enforcement of the settlement agreement on grounds 

not pertinent to this appeal. The Board ruled in favor of 

the agency, and Mr. Galloway did not seek review of that 

decision. 
GALLOWAY v. AGRICULTURE 4

Meanwhile, on February 25, 2008, Mr. Galloway filed 

a second petition for enforcement, which was captioned 

“AT-0752-06-1173-C-2.” In that petition, Mr. Galloway 

alleged that the agency had breached the settlement 

agreement by failing to submit his personnel records to 

OPM and that he had suffered “severe financial problems” 

as a result. On June 6, 2008, the administrative judge 

who was assigned to the case denied the petition for 

enforcement, finding that the agency was in compliance 

with the settlement agreement. In particular, the administrative judge found that Mr. Galloway had failed to 

notify the agency of the alleged breach, which constituted 

a material breach of the settlement agreement on his part 

and had the effect of relieving the agency of its obligations 

under the agreement. The administrative judge further 

stated that, even if Mr. Galloway had not breached the 

settlement agreement, the agency’s duty to assist under 

the settlement agreement had ended because OPM had 

rendered its decision on Mr. Galloway’s application for 

disability retirement. 

Mr. Galloway petitioned for review of that decision before the full Board on July 2, 2008. The full Board held 

that Mr. Galloway’s failure to notify the agency was not a 

material breach of the settlement agreement, because 

“the notice provision is not a matter of vital importance, 

which goes to the essence of the contract, and prior notice 

of an alleged breach was not the major benefit the agency 

received under the settlement agreement.” Galloway v. 

Dep’t of Agric., 110 M.S.P.R. 311, 317 (2008). The full 

Board also held that OPM’s September 5, 2007, letter did 

not release the agency from its duty to assist Mr. Galloway and that Mr. Galloway’s last day in pay was the type 

of information contemplated by the settlement agreement. 

While the agency stated in a pleading that it had reported 

Mr. Galloway’s last day in pay to OPM, the full Board 
5 GALLOWAY v. AGRICULTURE

noted that the agency had not submitted any evidence to 

support that assertion. Accordingly, the full Board remanded the case “in order [for the administrative judge] 

to resolve the disputed factual issue of whether the 

agency reported [Mr. Galloway’s] last day in pay to OPM.” 

Id. at 319. 

On remand, the case received a new caption, “AT0752-06-1173-B-1” (“the B-1 case”). On March 11, 2009, 

the administrative judge determined that the agency was 

in substantial compliance with the settlement agreement 

and denied Mr. Galloway’s petition for enforcement. 

While the administrative judge recognized that the 

agency had initially sent the wrong information to OPM, 

he found that the agency had made a good faith effort to 

comply with OPM’s request and that the agency’s mistake 

was not a material breach of the settlement agreement. 

Mr. Galloway filed a petition for review of the administrative judge’s decision in the B-1 case with the full Board on 

March 31, 2009. 

Before the full Board ruled in the B-1 case, Mr. Galloway filed a third petition for enforcement, which was 

captioned “AT-0752-06-1173-C-3” (“the C-3 case”). In that 

petition, Mr. Galloway argued that the agency had not 

complied with the settlement agreement because it “has 

not reimbursed him for the severe financial problems 

resulting from the agency’s failure to timely submit his 

personnel records to OPM.” The agency argued that Mr. 

Galloway’s claim in the C-3 case was barred by the doctrine of res judicata, based on the administrative judge’s 

ruling in the B-1 case that the agency’s untimely submission was not a material breach of the settlement agreement. The administrative judge held that res judicata 

was inapplicable because the B-1 case was pending before 

the full Board and therefore was not a final decision. 
GALLOWAY v. AGRICULTURE 6

Nevertheless, the administrative judge held that the law 

of the case doctrine precluded Mr. Galloway’s claim 

because the agency’s compliance had already been determined and because none of the exceptions to the law of 

the case doctrine applied to Mr. Galloway’s petition. As a 

result, the administrative judge dismissed Mr. Galloway’s 

C-3 petition on July 2, 2009. 

Shortly thereafter, on July 14, 2009, the full Board 

denied Mr. Galloway’s petition for review of the B-1 case 

in a final decision. On August 4, 2009, Mr. Galloway 

petitioned for review of the C-3 case before the full Board. 

Mr. Galloway then filed two petitions for review in this 

court, one for review of the B-1 case and one for review of 

the C-3 case. This court informed Mr. Galloway that an 

appellant cannot have an appeal pending before both this 

court and the Board for the same case. From the record, 

it appears that Mr. Galloway elected to pursue his appeal 

of the C-3 case before the Board, and on October 15, 2009, 

this court dismissed his appeal of the C-3 case for failure 

to pay the court’s docketing fee and for failure to file a 

discrimination statement as required by Fed. Cir. R. 

15(c). On October 27, 2009, the full Board denied Mr. 

Galloway’s petition for review of the C-3 case in a final 

decision. 

Even though the record suggests that Mr. Galloway 

intended to pursue the B-1 case before this court, Mr. 

Galloway paid the docketing fee for his appeal of the C-3 

case on December 29, 2009, but did not pay the docketing 

fee for his appeal of the B-1 case. As a result, this court 

processed Mr. Galloway’s submissions as pertaining to 

the C-3 appeal and reinstated that appeal on December 

29, 2009. On February 23, 2010, Mr. Galloway’s appeal of 

the B-1 case was dismissed for failure to pay the court’s 

docketing fee and for failure to file a discrimination 
7 GALLOWAY v. AGRICULTURE

statement. Mr. Galloway then wrote a letter to this court 

in which he expressed confusion over which appeal had 

been dismissed. On May 18, 2010, Mr. Galloway was 

informed that his appeal of the C-3 case remained open 

and his appeal of the B-1 case had been dismissed. In his 

informal brief, Mr. Galloway identifies the C-3 case as the 

decision under review, but his arguments address issues 

presented in the B-1 case, not the issues that the Board 

addressed in the C-3 case. 

II 

1. The government treats Mr. Galloway’s appeal as 

challenging only the Board’s decision in the C-3 case, and 

it argues that there is no error in the Board’s decision in 

that case. If the appeal were directed solely at that 

decision, we would agree. The issue of whether the 

agency was in compliance with the settlement agreement 

was resolved in the B-1 case, and in the later C-3 case Mr. 

Galloway failed to offer any persuasive reason for the 

Board to reach a different conclusion than it had previously reached in the B-1 case. See Griffin v. Office of 

Pers. Mgmt., 75 M.S.P.R. 263, 269-70 (1997). 

The record, however, suggests that Mr. Galloway intended to challenge the Board’s decision in the B-1 case. 

Even though Mr. Galloway’s docketing fee payment and 

informal brief refer to the C-3 case, we recognize that Mr. 

Galloway, a pro se appellant, may have mistakenly used 

the wrong case number in referring to the appeal he 

sought to prosecute. The requirement of filing a timely 

notice of appeal is jurisdictional, but it does not foreclose 

an appellant from proceeding simply because he has 

mistakenly used the wrong caption or docket number in 

prosecuting his appeal. See Sanabria v. United States, 

437 U.S. 54, 67 n.21 (1978) (“A mistake in designating the 
GALLOWAY v. AGRICULTURE 8

judgment appealed from is not always fatal, so long as the 

intent to appeal from a specific ruling can fairly be inferred by probing the notice and the other party was not 

misled or prejudiced.”); Trustees of the Construction 

Indus. & Laborers Health & Welfare Trust v. Hartford 

Fire & Ins. Co., 578 F.3d 1126, 1128 (9th Cir. 2009) 

(wrong docket number on notice of appeal not fatal); 

United States v. Grant, 256 F.3d 1146, 1150-51 (11th Cir. 

2001) (same); Marshall v. Hope Garcia Lancarte, Inc., 632 

F.2d 1196, 1197 (5th Cir. 1980) (same); Scherer v. Kelley, 

584 F.2d 170, 175 (7th Cir. 1978) (same). In this case, did 

Mr. Galloway expressed his intention, in correspondence 

with this court, to pursue his appeal in the B-1 case. In 

addition, his informal brief makes clear that he is contesting the merits of the administrative judge’s decision on 

his request for enforcement of the settlement agreement, 

which was the issue in the B-1 case, not the question 

whether his later enforcement petition was barred by law 

of the case, which was the issue in the C-3 case. Under 

these circumstances, we construe Mr. Galloway’s filings 

in this court as sufficient to constitute a valid petition for 

review of the B-1 case. 

2. On the merits, Mr. Galloway argues that the 

agency breached the settlement agreement because it 

failed to send his personnel records to OPM within the 

prescribed time period. He claims that the delay caused 

him to incur additional health care expenses, and he 

seeks an award of damages based on that loss. It is well 

settled, however, that the Board has no authority to 

award damages for breach of a settlement agreement and 

that it is limited to enforcing the agreement or directing 

that it be rescinded. Foreman v. Dep’t of the Army, 241 

F.3d 1349, 1352 (Fed. Cir. 2001); Smith v. Dep’t of the 

Army, 72 M.S.P.R. 676, 679 (1996). Thus, even if Mr. 

Galloway can prove that the agency committed a material 
9 GALLOWAY v. AGRICULTURE

breach of the settlement agreement, he is entitled only to 

have the agreement enforced or rescinded. Lutz v. U.S. 

Postal Serv., 485 F.3d 1377, 1380 n.2 (Fed. Cir. 2007); 

Wonderly v. Dep’t of the Navy, 68 M.S.P.R. 529, 

532 (1995). Mr. Galloway currently seeks to reopen his 

EEOC complaint, which was dismissed as part of the 

settlement agreement. Yet reopening the EEOC complaint can occur only if the settlement agreement is 

rescinded. Rescinding the agreement would undo all of 

the settlement terms, causing Mr. Galloway to lose any 

benefits he received under the agreement—including the 

$83,000 payment that the agency made to Mr. Galloway. 

See Mullins v. Dep’t of the Air Force, 79 M.S.P.R. 206, 

212 (1998) (explaining the effect of rescinding a settlement agreement and remanding “to permit the appellant 

to make an informed choice” whether to pursue rescission). 

The Board ruled that Mr. Galloway is not entitled to 

rescission of the settlement agreement because the 

agency substantially complied with the terms of the 

agreement. We conclude that substantial evidence supports the Board’s ruling. Mr. Galloway argues that the 

agency failed to forward his personnel records to OPM, 

which allegedly precluded him from receiving his full 

annuity and health insurance. However, the delay in 

forwarding the records in general appears not to have 

been the cause of the delay in OPM’s action; rather, 

OPM’s action was delayed solely because of the delay in 

sending OPM the information as to Mr. Galloway’s last 

day of pay. The record indicates that OPM has adjudicated Mr. Galloway’s annuity and that Mr. Galloway has 

received his retirement benefits. See A122 (e-mail from 

OPM to Mr. Galloway stating, “As soon as we have last 

day of pay confirmed by your employer, I should be able to 

do reinstatement and transfer in of your health insurance 
GALLOWAY v. AGRICULTURE 10

to the OPM Retirement System.”); A103 (timeline prepared by Mr. Galloway noting that, on May 14, 2008, 

“OPM sent me a letter [stating] that my application for 

disability retirement was completed”); Pet. Br. 7 (“On or 

about December 7, 2009, the Petitioner received a refund 

of $17,157.33 from the National Pay Center for payments 

he made for his health insurance.”). It is true that the 

information the agency initially provided to OPM did not 

include the last day of pay and that the omission delayed 

Mr. Galloway’s annuity determination. Nevertheless, the 

record shows that his annuity was made retroactive to his 

last day of pay, and that he has received all that he was 

entitled to. See Doiron v. U.S. Postal Serv., 68 M.S.P.R. 

170, 172 (1995) (the agency substantially complied with a 

Board order to give the appellant back pay, even though 

payment was delayed, because the appellant “has now 

been paid the amount to which he is entitled”). 

While the settlement agreement required the agency 

to provide any requested information within five working 

days, the delay in providing the information regarding 

Mr. Galloway’s last day of pay does not require rescission 

of the settlement agreement. First, it is clear that the 

primary benefits of the agreement for Mr. Galloway were 

receiving the lump sum payment and securing the 

agency’s assistance in order to obtain disability retirement benefits. The agency paid the lump sum, promptly 

responded to OPM’s requests, and provided both Mr. 

Galloway and OPM with contacts for any follow-up requests.2 Mr. Galloway subsequently received his full 

 2 We note that Mr. Galloway failed to report any alleged noncompliance to the Department of Agriculture as 

required by the settlement agreement. While we agree 

with the full Board that Mr. Galloway’s failure to notify 

the agency of its default was not a material breach of his 

obligations under the agreement, it nonetheless likely 
11 GALLOWAY v. AGRICULTURE

disability retirement benefits, retroactive to his last day 

of pay. While the settlement agreement contemplated a 

quick and accurate response from the agency, we agree 

with the Board that the agency’s mistake regarding the 

last day of pay was not a material breach because it did 

not “relate[] to a matter of vital importance, or go[] to the 

essence of the contract.” Thomas v. Dep’t of Housing & 

Urban Dev., 124 F.3d 1439, 1442 (Fed. Cir. 1997); see

Diehl v. U.S. Postal Serv., 82 M.S.P.R. 620, 624 (1999). 

The delay in providing that information did not significantly deprive Mr. Galloway of the benefit he reasonably 

expected from the agreement, see Corsiglia v. U.S. Postal 

Serv., 69 M.S.P.R. 5, 11 (1995), to the extent that it would 

justify allowing Mr. Galloway to rescind the agreement 

(even assuming that, given the choice, he would elect 

rescission and the accompanying surrender of the benefits 

he has received under the agreement). Therefore, we 

agree that the agency substantially complied with the 

settlement agreement and that the Board properly denied 

relief on Mr. Galloway’s petition for enforcement. 

AFFIRMED 

 

contributed to the delay in processing his retirement 

application, because if he had advised the agency of its 

error, it would have been alerted to the error sooner and 

presumably could have acted to correct it at that time. 

Mr. Galloway argues that the agency ignored “many 

opportunities to correct” its mistake. In support of that 

claim he points to several e-mails between himself and an 

OPM representative indicating that OPM was aware of 

the agency’s error. However, the e-mail exchanges with 

OPM do not show that the Department of Agriculture was 

aware of the error. To the contrary, the record shows that 

as soon as OPM contacted the Department of Agriculture 

and identified the error, the Department of Agriculture 

promptly corrected its mistake.