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 nondisclosure 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. NY0752-93-0562-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 non05-3331 5
disclosure of information concerning his removal from the agency. We accordingly 

affirm. 

05-3331 6