                   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.
                                     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



05-3331                                       3
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.




05-3331                                       4
                                     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-




05-3331                                     5
disclosure of information concerning his removal from the agency.   We accordingly

affirm.




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