Petition for review of the Merit Systems Protection Board in AT0752010756-C-1.
The opinion of the court was delivered by: Newman, Circuit Judge
Before MICHEL, Chief Judge, NEWMAN and DYK, Circuit Judges.
Opinion for the court filed by Circuit Judge NEWMAN. Dissenting opinion filed by Chief Judge MICHEL.
Ms. Rosemary O. Slattery requests review of the decision of the Merit Systems Protection Board ("MSPB" or "Board"), Slattery v. Dep't of Justice, No. AT-0752-01-0756-C-1 (M.S.P.B. Aug. 13, 2008) ("Board Op."), in which the Board held that the agency's*fn1 non-selection of Ms. Slattery for any of the law enforcement positions for which she applied was not a violation of the Negotiated Settlement and Last Chance Agreement ("NSLCA") between Ms. Slattery and the DHS. We affirm the Board's decision.
Ms. Slattery was employed by the INS as a supervisory immigration officer, GS-12, when she was arrested and charged with the crime of obtaining money under false pretenses through a scheme in which she purchased expensive items and returned substitute items of a lesser value in order to obtain a refund of the higher price. Ms. Slattery pleaded nolo contendere, paid restitution, and fulfilled the sentence of community service.
The agency first suspended and then removed Ms. Slattery from service. During her appeal of the removal, the parties entered into the NSLCA. Under the NSLCA, the agency agreed to reinstate Ms. Slattery to a non-law enforcement position with back pay and attorney fees, established a three-year probationary period during which she was required to comply with specified "Last Chance Provisions," and barred her from applying for any law enforcement or officer corps position within the agency for one year. The relevant paragraphs of the NSLCA include:
4. It is further agreed that Ms. Slattery will remain in this position with the Agency, and its successor component within the Department of Homeland Security ("DHS"), for a period of not less than one year from the date of this Agreement. During this year, Ms. Slattery is barred from applying for any law enforcement position or officer corps position within the DHS. Nothing in this agreement is intended to prevent Ms. Slattery from applying for another position with an Agency other than DHS. . . . .
11. This Settlement Agreement represents the full and complete agreement of, and shall be executed in good faith by, the parties hereto. No other promises shall be binding unless placed in writing and signed by both parties. . . . .
23. The duration of the Last Chance Provisions of this Settlement Agreement shall be three (3) years, which begins from the date this Agreement is fully executed. At the expiration of the three years, the Last Chance Provisions of this Agreement shall become null and void, and any reference to the indefinite suspension or removal action shall be removed from Ms. Slattery's Official Personnel File.
The NSLCA was entered into the MSPB record for enforcement purposes. After the one-year bar expired, Ms. Slattery applied for twenty-four positions in the agency in the area of law enforcement. She was not selected for any of them. Ms. Slattery then filed a petition with the MSPB to enforce the NSLCA, arguing that the agency breached the NSLCA by failing to give her applications "good faith" consideration. Ms. Slattery argued that she possessed superior qualifications for at least some of the positions for which she applied, and, therefore, the agency must have held her past criminal conduct against her. The MSPB found that Paragraph 11's requirement for "good faith" does not require that the agency select Ms. Slattery for any law enforcement position. Holding that "nothing in either cited provision, separately or together, requires that the appellant be selected for any position," the Board ruled that the agency did not breach the NSCLA. Board Op. at 3. This appeal followed.
The MSPB's decision shall be sustained on appeal 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. 5 U.S.C. §7703(c). A settlement agreement is a contract, and is reviewed, like all contracts, to ascertain its meaning including, if required to implement its purposes, determination of contractual intent and mutual understanding. See Conant v. Office of Pers. Mgmt., 255 F.3d 1371, 1376 (Fed. Cir. 2001); Greco v. Dep't of the Army, 852 F.2d 558, 560 (Fed. Cir. 1988). However, ...