                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                      2008-3283

                                  DARYL F. DAVIS,

                                                          Petitioner,

                                           v.

                        DEPARTMENT OF THE TREASURY,

                                                          Respondent.


      Daryl F. Davis, of Pontiac, Michigan, pro se.

       Kent C. Kiffner, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Gregory G. Katsas, Assistant Attorney General; Jeanne E. Davidson,
Director; and Martin F. Hockey, Jr., Assistant Director.

Appealed from: Merit Systems Protection Board
                           NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit


                                        2008-3283

                                     DARYL F. DAVIS,

                                                              Petitioner,

                                             v.

                          DEPARTMENT OF THE TREASURY,

                                                              Respondent.

Petition for review of the Merit Systems Protection Board in CH0731960040-C-1.

                           ___________________________

                             DECIDED: January 9, 2009
                           ___________________________


Before RADER, SCHALL, and DYK, Circuit Judges.

PER CURIAM.

      Daryl F. Davis (“Davis”) petitions for review of a final order of the Merit Systems

Protection Board (“Board”) denying Davis’s petition for enforcement of a 1996

settlement agreement between Davis and the Department of the Treasury’s Internal

Revenue Service (“IRS”).     Davis v. Dept. of Treasury, No. CH-0731-96-0040-C-1

(M.S.P.B. May 5, 2008). We affirm.

                                     BACKGROUND

      On July 21, 1994, Davis was tentatively selected for a Criminal Investigator

(Special Agent) position within the IRS, contingent upon successful completion of a drug

test and a background investigation. According to a 1995 affidavit by the chief of the

IRS Criminal Investigation Division, several issues identified during Davis’s background
investigation   raised   concerns,   including   financial   delinquencies   and   alleged

misstatements on Davis’s federal employment applications concerning college degrees.

As a result, Davis’s selection for the Special Agent position was withdrawn. Davis

appealed his non-selection to the Board on October 16, 1995, seeking “[t]o be

appointed to the position,” and also filed an EEOC complaint. On January 18, 1996,

Davis and the IRS entered into a settlement agreement (“Agreement”) covering both the

Board and EEOC actions. In the Agreement, the IRS agreed to “cancel its negative

suitability determination and select Mr. Davis for the position of Criminal Investigator

(Special Agent) GS-1811, Grade 7.”       The agreement contained specific provisions

stating that Davis would be given his highest previous rate of pay, that he would not be

reimbursed for relocation expenses, that he waived all claims to attorney fees, and that

he was required to satisfy all outstanding debts and judgments against him within six

months. In addition, the Agreement noted that Davis would be required to “satisfactorily

complete all required training and satisfy all terms and conditions of employment as a

Special Agent” and that the agreement “contain[ed] all terms and conditions of the

settlement. No other terms or conditions shall be binding unless placed in writing and

signed by all of the parties.” The Agreement contained no confidentiality provision and

no provision expressly addressing Davis’s alleged misstatements on employment

applications. After the Agreement was entered into the Board’s record for enforcement

purposes, Davis was appointed as (and apparently remains) an IRS Special Agent.

       The administrative record indicates that at some point in 2003, the U.S.

Attorney’s Office for the Eastern District of Michigan requested that the IRS conduct a

Giglio review for four Special Agents, including Davis, who were potential witnesses in a




2008-3283                                2
criminal investigation that appeared to be headed for trial (“the criminal tax case”). 1

Relying in part on Davis’s alleged misstatements in his employment applications, the

IRS concluded that Davis had potential Giglio problems and so informed the

prosecutors. On December 4, 2003, Davis was informed by the IRS that his active

cases, other than those already at the U.S. Attorney’s Office for prosecution, would be

transferred to another agent and that he would be reassigned to the intelligence section.

After obtaining the necessary security clearance, Davis began work in that section.

      Davis was ultimately not used as a witness in the criminal tax case, but

discussions between the IRS and the U.S. Attorney’s Office concerning Davis continued

for several years.   Although the IRS apparently concluded that Davis had potential

Giglio problems, the U.S. Attorney’s Office declined to make an advance determination

that it could not use Davis as a witness because of a Giglio problem.          The U.S.

Attorney’s Office informed the IRS that it made Giglio determinations on a case-by-case

basis, and that it would not make a determination whether Davis was Giglio-impaired

unless it became necessary to do so in connection with a case where his testimony was

actually contemplated.

      On March 21, 2007, Davis filed a petition with the Board seeking enforcement of

the 1996 Agreement, contending that the IRS “breached the settlement agreement and

intentionally misrepresented [Davis’s] professional record” when on June 4, 2003, and

on numerous subsequent occasions the IRS communicated to the United States



      1
              Giglio v. United States, 405 U.S. 153-54, 154 (1972), recognized the
constitutional obligation of a prosecutor to disclose to the defendant evidence that
affects the credibility of a government witness. See Kahn v. Dep’t of Justice, 528 F.3d
1336, 1340 n.4 (Fed. Cir. 2008).



2008-3283                               3
Attorney’s Office, in responding to a Giglio review, that Davis had falsified his federal

employment application forms. For relief, Davis requested that the Board order the

agency “to remove and expunge all documentation . . . that makes reference to [Davis]

falsifying [his] pre-employment application forms.”

      An Administrative Judge (“AJ”) issued an initial decision on December 17, 2007.

The AJ found that Davis was appointed as a Special Agent pursuant to the Agreement

and that in the intervening years he had been promoted from GS-7 to GS-13. The AJ

determined that the 1996 Agreement “contains no confidentiality clause” and that “no

provision in the parties’ agreement . . . precludes the agency from transmitting

information underlying the 1995 suitability determination and Board appeal, including

the parties’ settlement agreement, to the local United States Attorney to assist him or

her in determining the scope, if any, of the appellant’s potential ‘Giglio impairment.’”

Finally, the AJ noted that the Agency had not actually proposed or taken an adverse

personnel action against Davis based on the information underlying its 1995 suitability

determination, but that if it did so in the future, Davis would be able to appeal that

action. Accordingly, the AJ denied Davis’s petition for enforcement.

      On May 5, 2008, Davis’s petition for review by the full Board was denied and the

AJ’s initial decision became the final decision of the Board. Davis timely petitioned this

court for review, and we have jurisdiction under 28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

      Our review of Board decisions is limited. We must affirm the decision of the

Board 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




2008-3283                                4
regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C.

§ 7703(c); see also Lary v. U.S. Postal Serv., 472 F.3d 1363, 1366-67 (Fed. Cir. 2006).

       On appeal, Davis argues that the IRS breached the 1996 Agreement by

“misrepresent[ing] the settlement agreement and [Davis’s] professional history with the

agency” by disclosing to the U.S. Attorney’s Office “that [Davis] falsified his pre-

employment application forms when his suitability for employment as a special agent

was being considered in 1995.”          We agree with the Board, however, that the

Agreement, which states that it contains “all terms and conditions of the settlement,”

contains no confidentiality provision that would prohibit the disclosure of issues

surrounding Davis’s employment applications or settlement to the U.S. Attorney’s

Office. In addition, we would be reluctant to construe a confidentiality provision to limit

the ability of an agency to disclose to the U.S. Attorney’s Office information necessary

to allow the prosecutors to fulfill their obligations under Giglio. Such an interpretation

would likely render the settlement provision unenforceable as contrary to public policy.

See Fomby-Denson v. Dep’t of Army, 247 F.3d 1366, 1375-78 (Fed. Cir. 2001).

       Davis also argues that the Agreement should be interpreted to resolve the

falsification dispute in his favor, stating “[t]he parties[’] understanding of the settlement

agreement was that no falsification took place in the current or prior year background

investigations which would preclude the appellant from being found suitable for

employment and performing the full and essential duties and responsibilities of a law

enforcement officer.” No provision of the Agreement states that in agreeing to rescind

its negative suitability determination, the IRS was additionally agreeing that the alleged

falsifications had not occurred.




2008-3283                                 5
      Davis additionally contends that the facts of this case are similar to Conant v.

Office of Personnel Management, 255 F.3d 1371 (Fed. Cir. 2001), in which the court

held that the IRS breached a settlement agreement when it later disclosed to another

agency (the Office of Personnel Management) that the petitioner had not voluntarily

resigned. Unlike the settlement in this case, however, the settlement agreement in

Conant specifically required the IRS to rescind its original removal such that the legal

record would reflect that Conant had resigned “for personal reasons.”         Id. at 1376.

Moreover, disclosure of the original removal was inconsistent with a settlement

agreement provision requiring the IRS to use “best efforts” to assist Conant in obtaining

disability retirement benefits from the Office of Personnel Management.          Id.   The

Agreement reached by Davis and the IRS contains no such provisions.

      Finally, Davis contends that the original 1995 suitability determination was

procedurally deficient. The settlement agreement Davis entered into, however, was by

its own terms a “full and complete settlement” of his claims stemming from the 1995

events surrounding his initial non-selection as a Special Agent, and any alleged

procedural irregularities that led to that negative suitability determination are no longer

relevant. Having entered into an agreement representing a final settlement of issues

stemming from the negative suitability determination in 1995, Davis may not now assert

alleged procedural defects through this petition for enforcement.

       Accordingly, we affirm the decision of the Board.

                                         COSTS
      No costs.




2008-3283                                6
