                 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
                                       04-3083

                                 HELEN L. PHILLIPS,

                                               Petitioner,

                                          v.

                         DEPARTMENT OF THE INTERIOR,

                                               Respondent.

                          ___________________________

                          DECIDED: April 6, 2005
                          ___________________________


Before CLEVENGER, RADER, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

      Helen L. Phillips petitions for review of the final decision of the Merit Systems

Protection Board, Docket No. DC-0752-98-0148-M-1, in which the Board upheld her

removal from her position as a park ranger with the National Park Service. We affirm.

                                           I

      Ms. Phillips was a temporary employee of the National Park Service in 1990

when she applied for a permanent position as a law enforcement park ranger. She

completed the Office of Personnel Management’s Standard Form 86 (SF-86),

“Questionnaire for Sensitive Positions,” as required for that position.    Ms. Phillips

answered “no” to item 25 of the SF-86, which asked “[h]ave you ever had a nervous
breakdown or have you ever had medical treatment for a mental condition?”               The

agency’s regulations state that an applicant for a law enforcement commission whose

background check produces “a history of . . . mental or emotional instability” shall be

disqualified.

       Ms. Phillips was selected for the law enforcement park ranger position. Seven

years later, however, she admitted during a deposition taken in connection with an

employment discrimination suit that she had been treated for depression prior to her

employment with the Park Service. She further admitted that her answer to item 25 on

the SF-86 was inaccurate. The Park Service subsequently issued a notice of removal,

charging Ms. Phillips with willful falsification of a document related to her attaining

employment. Ms. Phillips denied the charge, but the deciding official found the charge

sustained and removed her from her position.

       Ms. Phillips appealed her removal to the Merit Systems Protection Board. The

administrative judge assigned to Ms. Phillips’s case held a hearing and upheld the Park

Service’s decision to remove her. Ms. Phillips then petitioned to the full Board, which

denied her petition by a 2-to-1 vote. Ms. Phillips then petitioned for review by this court.

       In this court, Ms. Phillips argued, inter alia, that the penalty of removal exceeded

the maximum penalty permitted under the table of penalties in paragraph 30 of the

Interior Department’s Disciplinary Action Guide. Paragraph 30 has two clauses. The

first, paragraph 30(a), designates removal as the penalty when an employee makes a

falsification, misrepresentation, or omission of fact in connection with an application for

employment “[w]ith respect to a material fact or point which would have adversely

affected selection for appointment.” The second, paragraph 30(b), applies to a similar




04-3083                                      2
falsification, misrepresentation or omission of fact “[w]ith respect to a less important fact

or point which would not have adversely affected selection for appointment.” Paragraph

30(b) provides penalties for a first offense ranging from a reprimand to a five-day

suspension. Ms. Phillips argued that the phrase “adversely affected for selection” in

paragraph 30(a) required the Park Service to prove that she would not have been

selected for the park ranger position if she had given a truthful answer to item 25. In the

absence of a showing that a truthful answer would have resulted in her nonselection,

she contended, paragraph 30(b) of the table of penalties should apply, which would limit

the maximum penalty for her offense to a five-day suspension.

       This court vacated the Board’s decision and remanded for further proceedings.

We agreed with the government and the Board that an agency’s interpretation of its own

disciplinary guidelines is entitled to deference, but we noted that Park Service officials

did not make clear how the agency interpreted the disputed phrase in paragraph 30 of

the penalty guidelines in the Interior Department’s Disciplinary Action Guide.          See

Phillips v. Dep’t of the Interior, 1 Fed. Appx. 876, 878 (Fed. Cir. 2001). In particular, we

noted that the agency and its witnesses offered arguably inconsistent interpretations of

the guidelines. The agency argued in its brief in that case that paragraph 30(a) applied

because Ms. Phillips would not have been selected if she had answered truthfully. At

oral argument, however, the agency argued that paragraph 30(a) applied because the

agency would have inquired further into her mental suitability had Ms. Phillips answered

item 25 truthfully. In light of the lack of clarity about the agency’s own interpretation of

its guidelines, we remanded to the Board to “ascertain the proper construction of




04-3083                                      3
paragraph 30(a) and to make the findings necessary to determine whether Ms. Phillips’s

falsification falls within the scope of that provision.” Id.

          On remand, the administrative judge concluded that there was no further

available evidence on the question of the proper interpretation of the agency’s penalty

guidelines. The administrative judge also noted that there was no way to ascertain

whether a truthful answer to item 25 would have resulted in Ms. Phillips’s nonselection,

“because her false answer denied the agency the opportunity to delve into what clearly

was a legitimate, important, and highly relevant area of inquiry.”            Because of her

falsification, the administrative judge explained, “the agency was not able to make an

informed suitability decision about appellant’s law enforcement officer qualifications.”

The administrative judge also noted that under Ms. Phillips’s interpretation, paragraph

30(a) would apply only in the rare case in which the agency could demonstrate that a

truthful answer would have resulted in nonselection; the administrative judge concluded

that it was highly unlikely that the agency would have imposed such a restriction on

itself.    The “more logical and likely intended meaning” of paragraph 30(a), the

administrative judge explained, was the one offered by the agency: that paragraph 30(a)

applies “where the falsification concerned a significant matter about which there would

have been further inquiry had the applicant answered truthfully.” Under that standard,

the administrative judge found that the agency properly held paragraph 30(a) applicable

because if Ms. Phillips had answered item 25 truthfully, the agency would have inquired

into her mental suitability for the law enforcement position.

          On Ms. Phillips’s petition for review of the administrative judge’s decision, the full

Board upheld the agency’s interpretation of paragraph 30(a) as applying if the




04-3083                                         4
falsification adversely affected the selection process, even if the truthful answer would

not necessarily have resulted in a nonselection decision. If the agency had intended for

paragraph 30(a) to require a truthful answer to lead to a different selection decision, the

Board held, “it would have specified paragraph 30(a) to designate removal where a

falsification would have resulted in ‘non-selection’ for appointment, as opposed to

‘adversely affect’ selection for appointment.” The Board explained that item 25 did not

appear to have been “designed to directly impact an applicant’s selection based on a

positive response,” but instead was intended to give the agency an opportunity to

“investigate into a relevant area regarding the suitability requirement of mental and

emotional stability if a positive response is given.”     Based on that interpretation of

paragraph 30(a), the Board found that Ms. Phillips’s falsification of item 25 fell within the

scope of that penalty guideline.         The Board further found that under all the

circumstances, the removal penalty was within the bounds of reasonableness. This

appeal followed.

                                       DISCUSSION

       On appeal, Ms. Phillips makes three arguments as to why the Board’s decision

was erroneous. First, she argues that there is no evidence that the agency interpreted

paragraph 30(a) to apply when a truthful answer would have resulted in an inquiry into

suitability, rather than outright non-selection. Second, she argues that the interpretation

is inconsistent with the plain language of paragraph 30(a). Finally, she argues that any

ambiguity in paragraph 30(a) should be construed against the agency and resolved in

her favor.




04-3083                                      5
       Ms. Phillips’s first argument is that there is no evidence that the agency actually

interpreted paragraph 30(a) of the guideline to reach false statements that affect the

selection process but as to which a truthful answer would not necessarily result in

nonselection. We disagree. It is well settled that this court gives broad deference to an

agency’s interpretation of its own regulations. See Cathedral Candle Co. v. United

States Int’l Trade Comm’n, No. 04-1083, slip op. at 14-15 (Fed. Cir. Mar. 9, 2005); Am.

Express Co. v. United States, 262 F.3d 1376, 1382-83 (Fed. Cir. 2001); Krizman v.

Merit Sys. Prot. Bd., 77 F.3d 434, 439 (Fed. Cir. 1996). More importantly in the context

of this case, the “generous degree of deference” that is due to an agency’s

interpretation of its own regulations applies “even when that interpretation is offered in

the very litigation in which the argument in favor of deference is made.” Cathedral

Candle, slip op. 14, citing Auer v. Robbins, 519 U.S. 452, 461-62 (1997). In its brief and

at oral argument in this appeal, the Department of the Interior stated that it interpreted

paragraph 30(a) to require removal when the falsification would have denied the agency

the opportunity to investigate the applicant’s mental suitability for employment as a law

enforcement officer. In light of the standard applicable to agency interpretations of their

own regulations, including interpretations offered “in the very litigation in which the

argument in favor of deference is made,” we agree with the Board that the agency’s

interpretation of its own penalty guidelines is entitled to deference.

       Ms. Phillips argues that there is no evidence that the interpretation adopted by

the Board is actually the agency’s interpretation, and that the testimony of the agency

officials with regard to what would have happened if Ms. Phillips had answered item 25

truthfully is inconsistent. It is true that, as we noted in the first appeal, there is some




04-3083                                       6
apparent inconsistency in the testimony of different agency officials as to whether Ms.

Phillips would have been rejected for the park ranger position if she had provided

accurate information in response to item 25.          All of the agency officials testified,

however, that if Ms. Phillips had answered item 25 truthfully, the agency would have

conducted an investigation into her mental suitability for the position. The testimony of

the four agency officials is therefore consistent that a truthful answer would have

provoked a further inquiry into Ms. Phillips’s suitability, and that the falsification

therefore denied the agency an opportunity to investigate her mental suitability further.

Because the agency’s position is that paragraph 30(a) applies when a falsification

denies the agency the opportunity to investigate a matter material to selection, it is not

necessary for the agency to show under that interpretation that Ms. Philips would not

have been selected if she had answered item 25 truthfully.

       Ms. Phillips argues that the agency’s interpretation of paragraph 30(a) is

inconsistent with the plain language of that provision, which she contends requires that

the agency prove that the falsification in question would have led to the applicant’s

nonselection. We do not agree that the language of paragraph 30(a) compels that

interpretation. The regulation refers to a falsification with respect to a material fact

“which would have adversely affected selection for appointment.” That language is

susceptible to at least two plausible interpretations: that the falsification affected the

actual selection decision, i.e., that a truthful answer would have resulted in the

applicant’s nonselection; or that the falsification affected the selection process, i.e., that

the false answer deprived the agency of an opportunity to investigate a matter that was

important to the selection process.        We agree with the Board that the second




04-3083                                       7
interpretation, which the agency favors, is a reasonable interpretation of the regulatory

language.

       The reasonableness of the agency’s interpretation is buttressed by the fact that,

if Ms. Phillips’s interpretation of the regulation were correct, an applicant for a position

with the agency would have little or no disincentive to make false statements on the

employment application.     That is because, under Ms. Phillips’s interpretation, if the

falsification were discovered after the applicant was hired, the applicant would not be

subject to removal from the position unless the item in question was one as to which, if

the applicant had told the truth, the applicant would not have gotten the position in the

first place. In that setting, an applicant would have an incentive to withhold unfavorable

information because, even if the information came to light, concealing the information

could not make the applicant worse off, with respect to obtaining and retaining the

position, than disclosing the information. Moreover, we agree with the Board that if the

agency had meant to limit paragraph 30(a) to cases in which the falsification would have

led to non-selection, it seems likely that the regulation would have said so explicitly. We

therefore agree with the Board that the agency’s interpretation of its regulation is at

least as reasonable as Ms. Phillips’s interpretation.     And because the regulation is

subject to differing plausible interpretations, we are required to defer to the agency’s

reasonable interpretation. Krizman, 77 F.3d at 439.

       Finally, Ms. Phillips asserts, by analogy to the contract law principle of contra

proferentem, that any ambiguity in paragraph 30(a) should be construed against the

agency because the agency wrote the guidelines. Contract law principles, however, do

not apply in this case.     Instead, under the principle of deference to an agency’s




04-3083                                      8
interpretation of its own regulations, we defer to the agency’s interpretation unless “it is

plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand

Co., 325 U.S. 410, 414 (1945); see also James v. Office of Pers. Mgmt., 372 F.3d 1365,

1369 (Fed. Cir. 2004); Torrington Co. v. United States, 156 F.3d 1361, 1363-64 (Fed.

Cir. 1998).    Since the agency’s interpretation is neither plainly erroneous nor

inconsistent with the guidelines, we agree that the Board correctly adopted the agency’s

interpretation of paragraph 30(a) in upholding Ms. Phillips removal, and we therefore

affirm the Board’s decision.




04-3083                                      9
