Richard Soler v. Department of the Treasury

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3331
RICHARD SOLER,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
__________________________
DECIDED: February 9, 2006
__________________________
Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and LINN, Circuit
Judge.
PER CURIAM.
Richard Soler (“Soler”) seeks review of the final decision of the Merit Systems
Protection Board (“Board”) that denied his petition for enforcement of a settlement
agreement with the Department of the Treasury (“agency”). See Richard Soler v. Dep’t
of the Treasury, No. NY-0752-93-0562-C-3 (M.S.P.B. July 28, 2005) (“Final Decision”).
Because the Board correctly concluded that Soler released the agency from the non-
disclosure provisions of the settlement agreement, we affirm.

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BACKGROUND
In 1993, the agency terminated Soler from his employment as a revenue agent
based upon charges and findings that he filed a false income tax return and made false
statements. Soler appealed his removal to the Board. Soler and the agency settled the
action with an agreement that was made of record by the Board for enforcement
purposes. Under the settlement agreement, the agency agreed not to release the
information about Soler’s removal unless he applied for a job with a taxing authority or
applied to practice before the Internal Revenue Service (“IRS”). Further, the agency
agreed to give a neutral reference in response to inquiries from potential employers.
More specifically, the settlement agreement provided, inter alia, that:
2. The Agency agrees to rescind [Soler’s] termination,
including the June 24, 1993 letter of proposed termination
and the August 20, 1993 letter of decision. . . .
4. The Agency agrees to remove from [Soler’s] Official
Personnel Folder (OPF) any and all materials and
reference(s) which document the termination action, the
allegations, the charges and/or investigation into [Soler’s]
activities; and to amend [Soler’s] OPF to reflect that he
resigned voluntarily from his position for personal reasons,
effective September 3, 1993, including any information on
[Soler’s] Standard Form 50 and any other form in the OPF
which recites the reasons for [Soler’s] leaving his
employment with the Agency. . . .
6. [Soler] agrees not to seek or apply for future employment
with the Department of the Treasury, Internal Revenue
Service, or any other taxation authority, including, but not
limited to, the New York State Department of Taxation and
the New York City Department of Finance. In the event
[Soler] does apply for employment with any taxation
authority, the Agency will have the right to inform the
prospective employer of the charges set forth in the June 24,
1993 letter of proposed adverse action which formed the
basis fo the Agency’s termination action against [Soler]. . . .
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8. [Soler] acknowledges that the Agency will maintain
separate from Soler’s OPF, copies of the June 24, 1993
letter of proposed adverse action, the August 20, 1993
termination letter and the evidence supporting the charges in
the June 24, 1993 letter for use in the event that [Soler]
either applies for employment with any taxing authority or
applies for enrollment to practice before the Internal
Revenue Service as set forth in paragraphs 6 and 7 of this
Agreement.
9. Except as specifically set forth in paragraphs 6, 7 and 8
of this Agreement, the Agency agrees that responses to
inquiries from potential employers, including other
governmental agencies, which are directed to the Agency’s
Personnel Office concerning [Soler’s] IRS employment, will
be limited to Soler’s length of service, last job title, grade and
salary, and that he voluntarily resigned effective September
3, 1993 for personal reasons. [Soler] agrees to advise
potential employers, other than those enumerated at
paragraph 6 hererin, to contact the Personnel Office of the
IRS Brooklyn District office for references.
In 2003, Soler signed a SF-86 Form, including an Authorization For Release Of
Information (“Release Authorization”), in connection with his application for employment
as a customs inspector with the Department of Homeland Security. The Release
Authorization provided, in relevant part, that:
I Authorize custodians of such records and other sources of
information pertaining to me to release such information
upon request of the investigator, special agent, or other duly
accredited representative of any Federal agency authorized
above regardless of any previous agreement to the contrary.
(emphasis added).
In 2004, after having been found unsuitable for the customs inspector position by
the Department of Homeland Security, Soler filed a petition to enforce the settlement
agreement, alleging that the IRS did not purge his official personnel file and claiming
that damaging information about him had reached federal agencies. In an initial
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decision, the Board denied Soler’s petition for enforcement without explictly addressing
whether the IRS had failed to purge Soler’s personnel file, based upon its determination
that he had waived the agency’s obligations under the settlement agreement by
granting the Release Authorization. Richard Soler v. Dep’t of the Treasury, No. NY-
0752-93-0562-C-3 (M.S.P.B. Nov. 24, 2004) (“Initial Decision”). The Initial Decision
became the Final Decision of the Board on May 28, 2005, after the Board denied
Soler’s petition for review for failure to meet the criteria for review set forth at 5 C.F.R. §
1201.115.
Soler timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
A. Standard of Review
Pursuant to 5 U.S.C. § 7703(c), this court must affirm the Board’s decision unless
it is: (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. Chase-Baker v. Dep’t of
Justice, 198 F.3d 843, 845 (Fed. Cir. 1999). Whether a waiver has occurred is a legal
question based upon underlying facts. Caterpillar Inc. v. Sturman Indus., Inc., 387 F.3d
1358, 1368 (Fed. Cir. 2004); Sandler v. AII Acquisition Corp., 954 F.2d 382, 384 (6th
Cir. 1992). The legal conclusions of the existence and scope of a waiver are reviewable
de novo. Sandler, 954 F.2d at 384.
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B. Analysis
The question before us is whether Soler’s execution of the Release Authorization
waived his right under the settlement agreement to prevent the agency from disclosing
information concerning Soler’s prior employment. A waiver is an “intentional
relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304
U.S. 458, 464 (1938). “A party may waive any provision, either of a contract or of a
statute, intended for his benefit.” Shutte v. Thompson, 82 U.S. 151, 159 (1872); see
also Millmaster Int’l, Inc. v. United States, 427 F.2d 811, 814 (C.C.P.A. 1970).
Under the express terms of the settlement agreement, the agency contractually
agreed to not divulge information about his removal unless he applied for a job with a
taxing authority or applied to practice before the IRS and to give a neutral reference to
prospective employers. It is undisputed that Soler signed the Release Authorization,
the terms of which authorized the release of his prior employment records, “regardless
of any previous agreement to the contrary.” Soler does not allege, and there is no
evidence to suggest, that Soler did not enter into the Release Authorization freely and
voluntarily or that the Release Authorization did not reflect his intent to free the
government from the prior restriction on disclosure. By executing the Release
Authorization, Soler waived his contractual right under the settlement agreement to hold
the agency to its prior undertaking not to disclose information concerning his removal.
See Shutte, 82 U.S. at 159.
For the foregoing reasons, we discern no error in the Board’s conclusion that the
Release Authorization effected a waiver of the agency’s obligations regarding the non-
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disclosure of information concerning his removal from the agency. We accordingly
affirm.
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