Rosanne Woodroof v. Department of Commerce

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROSANNE WOODROOF,
Petitioner
v.
DEPARTMENT OF COMMERCE,
Respondent
______________________
2024-2139
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0432-15-05-85-C-1.
______________________
Decided: November 6, 2025
______________________
ROSANNE W OODROOF, Warrenton, VA, pro se.
M ATTHEW JUDE CARHART , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
W ILLIAM JAMES GRIMALDI, PATRICIA M. MC CARTHY, BRETT
S HUMATE .
______________________
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WOODROOF v. COMMERCE 2
Before M OORE, Chief Judge, TARANTO, Circuit Judge, and
CHUN, District Judge.1
PER CURIAM.
Rosanne Woodroof was employed by the Office of In-
spector General (OIG) at the U.S. Department of Com-
merce (agency) until the agency terminated her
employment in 2015. She appealed her removal to the
Merit Systems Protection Board (MSPB or Board). In
2016, she and the agency entered into a settlement agree-
ment, which included a confidentiality provision, and the
Board dismissed the appeal based on the agreement. In
2017, in a separate matter brought by another complainant
against Commerce, Ms. Woodroof testified as a witness
called by the complainant. At the hearing in that matter,
Ms. Woodroof answered questions about her pre-removal
performance-improvement (PIP) plan, and Commerce, on
cross-examination, asked her questions about those plans
and her removal.
In 2018, Ms. Woodroof petitioned the Board to enforce
the 2016 settlement agreement, arguing that the agency
violated the confidentiality provision during its cross-ex-
amination by asking questions regarding those topics. As
relevant to Ms. Woodroof’s appeal before us, Ms. Woodroof
also requested discovery and a status conference. The
Board’s administrative judge did not grant the two process
requests and denied Ms. Woodroof’s enforcement petition.
Woodroof v. Department of Commerce, No. DC-0432-15-
0585-C-1, 2019 WL 917395 (M.S.P.B. Feb. 19, 2019) (Initial
Decision); J.A. 12–18. The full Board vacated the Initial
Decision but also denied the petition for enforcement, find-
ing no material breach of the agreement based on a
1 Honorable John H. Chun, District Judge, United
States District Court for the Western District of Washing-
ton, sitting by designation.
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WOODROOF v. COMMERCE 3
provision permitting disclosure to the Board and on Ms.
Woodroof’s voluntary testimony about her PIPs. Woodroof
v. Department of Commerce, No. DC-0432-15-0585-C-1,
2024 WL 2796996, at *2 (M.S.P.B. May 30, 2024) (Final
Decision). On Ms. Woodroof’s petition for review to our
court, we now affirm.2
I
A
Ms. Woodroof began working at the agency as an audi-
tor in May 1987. J.A. 126, 259. In 2012, Ms. Woodroof’s
then-supervisor rated her performance as below accepta-
ble. J.A. 42, 99–100. In 2013, Ms. Woodroof filed a com-
plaint against the agency with the Equal Employment
Opportunity Commission concerning that rating, a suit she
and the agency settled that year (the 2013 settlement); and
later that year, she worked, without a PIP, on a short-term
project under supervision by two individuals different from
her 2012 supervisor. J.A. 39, 42, 44. In 2014, with Ms.
Woodroof no longer supervised by the short-term-project
2 Ms. Woodroof has moved in this court to supple-
ment the record with (1) testimony from the agency’s in-
spector general given at a congressional hearing in 2012
and (2) performance evaluations rendered before 2010.
ECF No. 30 at 1–5. The agency opposed. ECF No. 32. We
deny the motion for the reasons presented by the agency,
including the principle that “we . . . may [not] consider in
the first instance evidence not presented to the [adminis-
trative judge],” Hernandez v. Department of Air Force, 498
F.3d 1328, 1333 (Fed. Cir. 2007), and the absence of any
showing or apparent reason that the documents would ma-
terially bear on whether the agency breached the settle-
ment agreement’s confidentiality provision.
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WOODROOF v. COMMERCE 4
supervisors, the agency placed her on a PIP, and in March
2015, it terminated her employment. J.A. 126, 278.
The next month, Woodroof appealed her termination to
the Board, and in February 2016, she entered into a settle-
ment agreement with the agency, resulting in the Board’s
dismissal of her appeal. J.A. 38; J.A. 28–35 (settlement
agreement). The agency agreed to (1) pay Ms. Woodroof a
lump sum; (2) provide a neutral reference to potential em-
ployers; (3) revise certain paperwork to reflect that Ms.
Woodroof resigned for personal reasons; and (4) remove
from Ms. Woodroof’s official files, while retaining else-
where, all records mentioning or arising from her 2014 PIP
and 2015 termination. J.A. 30–32. The agreement con-
tained a confidentiality provision:
The parties agree that the terms of this Agreement
are to be kept confidential. Ms. Woodroof agrees
that she will not disclose or discuss the terms or
conditions of this agreement with any person, other
than the MSPB, her immediate family members,
her attorney(s), her tax professionals, individuals
conducting a background investigation or reinves-
tigation pertaining to Ms. Woodroof for an employ-
ment suitability determination, eligibility for a
national security position, or a security clearance,
and those OIG and Agency[, i.e., Commerce,] em-
ployees responsible for implementing the terms of
the Agreement, except as required by law, as nec-
essary to implement the terms of the Agreement,
or as ordered by a court or other body of competent
jurisdiction. The OIG agrees to treat this Agree-
ment in accordance with the Privacy Act, 5 U.S.C.
§ 552a.
J.A. 32. The settlement agreement also included a stand-
ard integration clause. J.A. 33.
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WOODROOF v. COMMERCE 5
B
In April 2017, the agency removed another employee,
Patricia Derr, who then appealed pro se to the Board. Derr
v. Department of Commerce, No. DC-0432-17-0511-I-1,
2017 WL 6270515 (M.S.P.B. Dec. 8, 2017). In October
2017, Ms. Derr asked Ms. Woodroof to be a witness at Ms.
Derr’s upcoming November 2017 hearing before the Board
because the same two supervisors of Ms. Woodroof’s 2013
short-term project later supervised Ms. Derr, not long be-
fore her 2017 termination. J.A. 39.
On direct examination during that hearing, Ms. Derr
asked Ms. Woodroof whether she had been put on a PIP in
2012 or 2013, and over the agency’s objection, Ms. Wood-
roof was allowed to answer questions on that subject. J.A.
260. See generally J.A. 259–91 (direct examination). Ms.
Woodroof soon clarified that the plan she was focusing on
was a 90-day plan beginning in March 2014. J.A. 262–63.
Ms. Woodroof, in support of Ms. Derr’s challenges, testified
that her own “PIP was unreasonable for many reasons[,
and] it became clear that the direction of the PIP was to
force [her] out,” and “what [she] was experiencing did not
appear to comply with the law.” J.A. 261. The presiding
judge made attempts to restrict Ms. Woodroof’s answers in
accordance with a key premise of allowing her to testify,
which was that her short-term-project supervisors later su-
pervised Ms. Derr. See J.A. 267–70; see J.A. 259 (striking
Ms. Derr’s question about Ms. Woodroof’s 2015 termina-
tion).
Agency counsel then cross-examined Ms. Woodroof.
J.A. 291–310. He asked whether her 2013 short-term-pro-
ject supervisors (the ones at issue in Ms. Derr’s case) were
the proposing or deciding officials for Ms. Woodroof’s re-
moval in 2015, and Ms. Woodroof said that they were not.
J.A. 295. Ms. Woodroof then mentioned a “settlement”—
seemingly the 2013 settlement, preceding her 2014 PIP—
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WOODROOF v. COMMERCE 6
and agency counsel referred to a “settlement agreement”
(perhaps the same one, perhaps the 2016 one):
AGENCY : And [a different supervisor] was your
supervisor of record from October 2009 until your
proposed removal; wasn’t she?
M S. W OODROOF: Of record, technically, not ac-
tual, of record.
Q: Sorry, I might have said supervisor, I mean sec-
ond line supervisor; is that correct?
A: Well, you keep saying of record. But the settle-
ment established an unusual relationship between
me and my supervisor. Technically [that supervi-
sor] was not supposed to be my supervisor. Accord-
ing to my EEO agreement she was not supposed to
–
Q: I am not asking you about a settlement agree-
ment; that is not admissible.
J.A. 295–96. The agency asked Ms. Woodroof several fur-
ther questions about her performance, about which super-
visor decided to terminate her employment, and who
supervised Ms. Woodroof during her 2012-evaluation pe-
riod and 2014 PIP. J.A. 298–99; J.A. 308–09. In so doing,
the agency introduced Ms. Woodroof’s 2012 evaluation into
evidence for impeachment purposes. J.A. 300–03.
C
On September 19, 2018, Ms. Woodroof petitioned the
Board to enforce the 2016 settlement agreement. J.A. 38–
49; J.A. 372. Ms. Woodroof alleged that the agency
breached the settlement agreement’s confidentiality provi-
sion by asking questions about her PIP and subsequent ter-
mination. J.A. 40–46. The agency responded that it did
not breach the confidentiality provision by its disclosures
in the Board proceeding in Ms. Derr’s case. J.A. 81–86. In
Ms. Woodroof’s Reply in support of her petition (first-page
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WOODROOF v. COMMERCE 7
date October 18, 2018; faxed and docketed October 19,
2018, see J.A. 91–104, 372), she made a discovery request
for a “written transcript [from Ms. Derr’s hearing] to re-
solve discrepancies and ensure complete and accurate un-
derstanding of the hearing.” J.A. 98–100.
Separately, Ms. Woodroof supplemented her Reply
with a document (first-page date October 15, 2018; faxed
and docketed October 19, 2018, see J.A. 120–24, 372) that
she described as a “pleading,” in which she alleged addi-
tional compliance problems unrelated to the asserted
breach of the confidentiality clause. J.A. 120–24. The
agency moved to strike that pleading, J.A. 141–44, and a
few days later, Ms. Woodroof clarified that she was making
only two discovery requests: (1) for “details underlying the
[agency]’s assertion(s) regarding the Privacy Act” and (2) “a
printed transcript” of the Derr hearing, J.A. 150–53. That
discovery was never formally exchanged.
In November 2018, the agency asked to schedule a sta-
tus conference, J.A. 197–99, and Ms. Woodroof agreed to
participate in one, J.A. 205–08, but no conference occurred.
In February 2019, the administrative judge (AJ) denied
Ms. Woodroof’s petition for enforcement. Initial Decision,
at 1–2; J.A. 12–13. The AJ determined that “accurately
answering questions about events that occurred during her
prior employment d[id] not disclose the terms of th[e set-
tlement a]greement” in violation of the confidentiality pro-
vision. Id. at 6 (internal quotations removed); J.A. 17. The
AJ concluded that the agency did not violate the Privacy
Act, or the confidentiality provision, because it did not ask
anything pertaining to the agreement itself. Id. at 4, 7; J.A.
15, 18.
Ms. Woodroof petitioned for the Board to review the
AJ’s decision. J.A. 237–49. On May 30, 2024, the Board
vacated the Initial Decision but denied both Ms. Woodroof’s
petition for review of the initial order and her petition for
enforcement of the 2016 settlement agreement. Final
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WOODROOF v. COMMERCE 8
Decision, at *1. The Board relied on the confidentiality par-
agraph of the agreement’s express exception for disclosures
to the Board. Final Decision, at *2 (citing Conant v. Office
of Personnel Management, 255 F.3d 1371, 1376 (Fed. Cir.
2001)). The Board also relied on the fact that Ms. Woodroof
“voluntarily chose to participate as a witness in her
coworker’s hearing and answered questions on direct ex-
amination relating to her PIP[.]” Id. For those reasons,
the Board ruled that “the agency’s conduct in questioning
[Ms. Woodroof] for the purpose of defending itself in litiga-
tion did not amount to a material breach of the agreement.”
Id.
Ms. Woodroof timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
II
We may set aside the Board’s decision here only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence[.]” 5
U.S.C. § 7703(c). We review the Board’s factual findings
for substantial-evidence support. Knox v. Department of
Justice, 125 F.4th 1059, 1064 (Fed. Cir. 2025). Substantial
evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion,” Consol-
idated Edison Co. v. National Labor Relations Board, 305
U.S. 197, 229 (1938), even if an opposite conclusion might
also be supportable, Consolo v. Federal Maritime Commis-
sion, 383 U.S. 607, 619–20 (1966). “Procedural matters rel-
ative to discovery and evidentiary issues fall within the
sound discretion of the board and its officials.” Curtin
v. Office of Personnel Management, 846 F.2d 1373, 1378
(Fed. Cir. 1988) (citations omitted). Challenges involving
such matters must include a showing that the error at is-
sue “caused substantial harm or prejudice.” Id. at 1379 (ci-
tations omitted).
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WOODROOF v. COMMERCE 9
A
We first address Ms. Woodroof’s contention that the
Board abused its discretion by not ordering a status confer-
ence or compelling discovery. That failure, Ms. Woodroof
alleges, ran afoul of 5 C.F.R. § 1201.183(a)(9), with the re-
sult that the Board relied on “inapplicable case law” to deny
her petition. Woodroof Opening Br. at 10–12. We need not
decide whether Ms. Woodroof did not properly present her
discovery requests, as the agency suggests. See Appellee’s
Br. at 21. It is sufficient for rejecting her procedural chal-
lenge that she has not shown how granting her discovery
requests or a status conference could have “affected the
outcome of [her] case,” the essential requirement for show-
ing substantial harm or prejudice. Curtin, 846 F.2d at
1378. Nor do we discern such harm or prejudice, given the
Board’s grounds for rejecting the enforcement petition.
More particularly, regarding discovery, Ms. Woodroof
asked for details about the agency’s theory of how it com-
plied with the Privacy Act during Ms. Derr’s hearing. J.A.
152. Ms. Woodroof did not, however, “identify which docu-
ments [s]he specifically [was requesting]” or how that in-
formation would have changed the Board’s conclusion.
Rueter v. Department of Commerce, 63 F.4th 1357, 1371–
73 (Fed. Cir. 2023); see Woodroof Opening Br. at 12. Alt-
hough Ms. Woodroof also sought a written transcript of her
testimony from Ms. Derr’s hearing, she acknowledges that
she had previously purchased one, the record includes a
transcript, and on this point as on others, she discusses
only the Initial Decision, not the Final Decision. Woodroof
Opening Br. at 11; Woodroof Reply Br. at 14; see J.A. 152–
53. Ms. Woodroof refers to discovery about her 2012 rating
and her supplemental pleading pertaining to compliance,
Woodroof Opening Br. at 12; see J.A. 152–53, but there is
no showing of prejudice on the only issue before the Board,
namely, material breach of the settlement agreement. She
conceded that “[her] attorney did not include the [2012] rat-
ings in [the] [s]ettlement [a]greement” and has not
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WOODROOF v. COMMERCE 10
indicated how her allegations in her second pleading per-
tained to the confidentiality provision. Woodroof Opening
Br. at 7, 12. Finally, regarding Ms. Woodroof’s request for
a status conference, she says, without further elaboration,
only that such a conference would have allowed the parties
to resolve all discovery disputes. Woodroof Reply Br. at 14.
That adds nothing to the prejudice analysis for the speci-
fied discovery requests.
We therefore reject Ms. Woodroof’s challenge regarding
procedure.
B
We also reject her challenge to the Board’s denial of her
petition for enforcement on its merits. The Board found
that the confidentiality provision of the 2016 settlement
agreement, which stated agency confidentiality commit-
ments and promised to treat the agreement in accordance
with the Privacy Act, 5 U.S.C. § 552a, contained a clear ex-
ception for disclosures to the Board and that the agency, in
its conduct at the Derr hearing was not a material breach.
Final Decision, at *2. The above-quoted language of the
confidentiality provision makes clear that the Board was
correct about the content of the provision. And, contrary to
Ms. Woodroof’s argument to us, see Woodroof Opening Br.
at 13–16; Woodroof Reply Br. at 7–11, we see no reversible
error in the Board’s findings that the record of the Derr
hearing—which was clearly before the Board (i.e., its AJ)—
does not show a material breach by the agency.
As to the non-Privacy Act constraints within the provi-
sion, it is sufficient to note that the agency statements at
issue were clearly made to the Board. That category of
statements is expressly excepted from those constraints.
In that crucial respect, the decision of this court in Conant,
255 F.3d at 1376, does not apply, as no such exception was
present in that case.
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WOODROOF v. COMMERCE 11
As to the Privacy Act promise, Ms. Woodroof has not
established a violation. Under 5 U.S.C. § 552a(b), the
agency cannot “disclose any record which is contained in a
system of records by any means of communication to any
person, or to another agency,” but that rule is subject to
express exceptions, § 552a(b)(1)–(13), and one of them is for
“routine use,” § 552a(b)(3)—which means, “with respect to
the disclosure of a record, the use of such record for a pur-
pose which is compatible with the purpose for which it was
collected,” § 552a(a)(7). The Board here relied on Ms.
Woodroof’s own voluntary testimony in the Derr proceed-
ing—which was to the effect that, through her 2014 PIP
plan, the agency had acted in bad faith and in seeming non-
compliance with law, moving in the direction of removing
here. Final Decision, at *2. That reasonable characteriza-
tion of Ms. Woodroof’s testimony is ample ground for deem-
ing the agency’s questions on cross-examination a use
compatible with the purpose of the record collection, which
includes providing an accurate account of agency dealing
with employees so that the agency can defend itself against
accusation of misconduct. Accordingly, we see no basis for
setting aside the Board’s holding that there was no mate-
rial breach of the settlement agreement’s promise to re-
spect the Privacy Act.
III
We have considered Ms. Woodroof’s other arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s final decision.
The parties shall bear their own costs.
AFFIRMED
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