NOTE: This disposition is nonprecedential.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 Ju stice, 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 Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential.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 S ystems Protection B oard 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 D epartment of the Treasury’s Internal Revenue Service (“IRS”). Da vis 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 wa s tentatively selected for a Criminal Investigator (Special Agent) position within the IRS, cont ingent upon successful completion of a drug test and a background investigation. Accordi ng to a 1995 affidavit by the chief of the IRS Criminal Investigation Division, severa l issues identified during Davis’s backgroundinvestigation raised concerns, incl uding financial delinquencies and alleged misstatements on Davis’s federal employment applications concerning college degrees. As a result, Davis’s selection for the S pecial Agent position was withdrawn.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 fo r the position of Criminal Investigator (Special Agent) GS-1811, Grade 7.” The agreement contai ned specific provisions stating that Davis would be given his highest pr evious rate of pay, that he would not be reimbursed for relocation expenses, that he waiv ed all claims to attorney fees, and that he was required to satisfy all outstandi ng debts and judgments against him within six months. In addition, the Agr eement noted that Davis would be required to “satisfactorily complete all required training and satisfy a ll terms and conditions of employment as a Special Agent” and that the agreement “cont ain[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 c onfidentiality 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, includi ng Davis, who were pot ential witnesses in a

2008-3283 2criminal investigation t hat appeared to be headed for trial (“the criminal tax case”). 1 Relying in part on Davis’s alleged misstatem ents 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 t hat he would be reassigned to the intelligence section. After obtaining the necessary security clear ance, Davis began work in that section. Davis was ultimately not used as a wit ness in the criminal tax case, but discussions between the IRS and the U.S. Atto rney’s Office concerning Davis continued for several years. Although the IRS appar ently 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 t he 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 c onnection with a case wher e 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 IR S “breached the settlement agreement and intentionally misrepresented [Davis’s] prof essional 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 3Attorney’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 in itial 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 pr omoted from GS-7 to GS-13. The AJ determined that the 1996 Agreem ent “contains no confidentia lity clause” and that “no provision in the parties’ agreement . . . precludes the agency from transmitting information underlying the 1995 suitability det ermination 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 revi ew 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) arbitr ary, capricious, an abuse of di scretion, or otherwise not in accordance with law; (2) obtained without pr ocedures required by law, rule, or

2008-3283 4regulation having been followed; or (3) unsupport ed 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 IR S 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 preemployment 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 pr ovision 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 conf identiality provision to limit the ability of an agency to disclose to the U.S. Attorney’s Office information necessary to allow the prosecutors to fu lfill 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 t he Agreement should be interpreted to resolve the falsification dispute in his favor, stati ng “[t]he parties[’] underst anding of the settlement agreement was that no falsificat ion took place in the current or prior year background investigations which would preclude t he appellant from being found suitable for employment and performing the full and essent ial duties and responsibilities of a law enforcement officer.” No provision of the Ag reement states that in agreeing to rescind its negative suitability determinat ion, the IRS was additionally agreeing that the alleged falsifications had not occurred.

2008-3283 52008-3283 6 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 agreem ent when it later disclosed to another agency (the Office of Personnel Management) t hat 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 re moval was inconsistent with a settlement agreement provision requiring the IRS to use “best efforts” to assist Conant in obtaining disability retirement benefits from t he Office of Personnel Management. Id. The Agreement reached by Davis and the IR S contains no such provisions. Finally, Davis contends t hat the original 1995 suitability determination was procedurally deficient. The settlement agr eement 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-selecti on 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 r epresenting a final settlement of issues stemming from the negative suit ability 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.