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Newton v. Department of Army

March 05, 1999

MICHAEL L. NEWTON, PETITIONER,
v.
DEPARTMENT OF THE ARMY, RESPONDENT.



Before Mayer, Chief Judge, Rich, and Plager, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

DECISION

Michael Newton appeals from a decision of the Merit Systems Protection Board (MSPB or Board), No. SE-0752-95-0213-C-2, denying his petition for enforcement of a settlement agreement between himself and the Department of the Army (Army). We affirm.

BACKGROUND

Based on an investigation and report by the Army's Criminal Investigations Division (CID), the Army removed Mr. Newton from his position as a Management Analyst in 1995, alleging that he submitted false claims for a living quarters allowance. He appealed his removal to the MSPB. Prior to the MSPB hearing, the parties entered into a settlement agreement. Under the agreement, Mr. Newton agreed to voluntarily resign, and the Army agreed to, inter alia, purge at least some of its files of references to the original allegations against Mr. Newton.

After resigning from the Army, Mr. Newton submitted a petition for enforcement to the MSPB, seeking to compel the Army to purge its records of references to his original removal and associated investigation in locations outside of Korea. The Army admitted that copies of the CID investigation report were at CID headquarters at Fort Belvoir, Virginia and the Army's Central Clearance Facility (CCF) at Fort Meade, Maryland, but argued that it had not agreed to purge documents at any location other than Korea. The disputed language concerning the Army's obligation to purge documents is in the following clause of the agreement (emphasis added):

The agency will purge from the records of management and from the Seoul Civilian Personnel Office and the Office of the Civilian Personnel Director, United States Forces Korea, all documents connected with Appellant's removal. Such documents shall include, but not be limited to, the CID investigation, notice of proposed removal, reply to proposed removal and decision to remove. Appellant shall be provided with a neutral reference which states only his dates of employment, positions held, rates of pay, and that he was performing at a satisfactory level at the time of his resignation. All inquiries from prospective employers shall be directed to the Seoul Civilian Personnel Office, and information disclosed shall be limited to the contents of the neutral reference referred to above. The Seoul Civilian Personnel Office shall maintain a copy of this agreement in the Appellant's personnel file for purposes of enforcement of this agreement. The terms of this agreement shall not be disclosed by the Seoul Civilian Personnel Office to prospective employers of the Appellant.

The MSPB administrative Judge agreed with the Army's interpretation of the clause, stating that:

The settlement agreement is specific as to what must be purged and the locations from which it must be purged. Although the term "records of management," standing alone, could be broadly construed to include all agency files, the addition of the phrase "and from the Seoul Civilian Personnel Office and the Office of the Civilian Personnel Director, United States Forces Korea" establishes that the range of facilities required to purge their records of the criminal investigation report and references to the removal was more limited. If "records of management" was intended to include all records of the agency, there would be no need to separately name the civilian personnel offices. Thus, I conclude that the term "records of management," as used in this settlement agreement, is limited to the records of the appellant's supervisory chain, rather than the Department of the Army as a whole.

The administrative Judge distinguished this case from King v. Department of the Navy, 130 F.3d 1031 (Fed. Cir. 1997), in which we interpreted a settlement agreement containing the phrase "remove all reference to the removal action from her Official Personnel File" as requiring the Navy to purge documents from files at the Office of Personnel Management and Defense Finance and Accounting Service. We stated that to construe the phrase otherwise would frustrate King's goal of obtaining a fresh start. The administrative Judge stated that to reach the same result as King would be to give Mr. Newton more than he bargained for. He was well aware that other agency components maintained records of his alleged fraudulent activity, and he could have sought inclusion of those other components in the settlement agreement, as he did with the civilian personnel facilities. While the Court (sic) in King found it highly unlikely that the parties bargained for purging of only local personnel records, that is precisely what was done here.

Mr. Newton appeals.

DISCUSSION

This court's general standard of review of decisions of the MSPB is limited. We affirm a Board 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. See Frederick v. Department of Justice, 73 F.3d 349, 351-52 (Fed. Cir. 1996) (quoting 5 U.S.C. ยง 7703(c) and noting that substantial evidence requirement is met if reasonable mind might accept evidence on record as adequate to support the Conclusion reached). The interpretation of a settlement agreement is a question of law. ...


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