Modrowski v. Department of Veterans Affairs ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEON J. MODROWSKI,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
______________________
2013-3087
______________________
Petition for review of the Merit Systems Protection
Board in No. CH0752980126-C-3.
______________________
Decided: October 11, 2013
______________________
LEON J. MODROWSKI, of Mokena, Illinois, pro se.
WILLIAM P. RAYEL, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director and DONALD
E. KINNER, Assistant Director.
______________________
2 MODROWSKI v. DVA
Before REYNA, MAYER, and TARANTO, Circuit Judges.
PER CURIAM.
Leon Modrowski petitions for review of a final deci-
sion of the Merit Systems Protection Board, which denied
his petition to enforce a settlement agreement with the
Department of Veterans Affairs on the ground that he did
not establish that the VA breached the agreement. We
affirm.
BACKGROUND
Until October 1997, Mr. Modrowski worked for the
Department of Veterans Affairs as a Senior Realty Spe-
cialist in the Chicago Regional Office. Mr. Modrowski’s
duties involved processing sales of VA-owned real estate.
That month, the agency removed Mr. Modrowski from his
job based on three charges stemming from the sale of two
VA-owned houses to his son-in-law. Mr. Modrowski
appealed to the Board, which, in June 1999, affirmed his
removal and sustained the agency on all charges.
In June 2001, this court reversed the Board on one
charge, while affirming on the others. Modrowski v. Dep’t
of Veterans Affairs, 252 F.3d 1344, 1346 (Fed. Cir. 2001).
The court remanded for reconsideration of the appropriate
penalty given the partial reversal. The agency decided
that the surviving charges still warranted removal. Mr.
Modrowski again appealed to the Board.
On July 1, 2002, Mr. Modrowski settled his Board ap-
peal with the agency. The settlement agreement, among
other things, retroactively reinstated Mr. Modrowski from
the October 1997 date of his initial removal to December
28, 1999. As of Mr. Modrowski’s December 28, 1999
effective retirement date, he qualified for a service annui-
ty under the Civil Service Retirement System, with the
settlement agreement specifically providing that his
agreement to resign “shall entitle [Mr. Modrowski] to
retroactive annuities under the CSRS.” Of significance to
MODROWSKI v. DVA 3
Mr. Modrowski’s current appeal, the settlement agree-
ment also required that “[w]ithin 30 days of the effective
date of this agreement, the [agency] shall expunge from
[Mr. Modrowski’s] records any reference to [his 1997
removal].” Twice before the present occasion, Mr. Mo-
drowski petitioned the Board to enforce the settlement
agreement; the Board dismissed both petitions in a single
decision. Modrowski v. Dep’t of Veterans Affairs, 97
M.S.P.R. 224 (2004).
Besides having worked for the VA, Mr. Modrowski is
an Army veteran who served during the Vietnam War.
His present petition to enforce the July 2002 settlement
agreement arises from his claim for disability compensa-
tion in the veterans-benefit system, a claim he filed with
the VA in 2009. In 2010, he sought a total-disability
rating, arguing that his disabilities were connected to his
Army service and prevented him from securing or per-
forming substantially gainful work. The VA denied his
claim of total disability but granted him a 60% rating for
one service-connected disability and a 10% rating for
another. Mr. Modrowski appealed the decision.
As the initial step in the appeal process under the
veterans-benefit statute, a VA Decision Review Officer
prepared “a summary of the law and evidence concerning”
Mr. Modrowski’s claim. That Statement of the Case,
dated January 25, 2011, included the following passage:
You were employed as a GS-12 senior realty spe-
cialist at the Chicago VA Regional Office and were
removed from your position in 1997. You ap-
pealed your removal, which was unsuccessful. A
settlement was reached which allowed you to re-
ceive a retirement annuity . . . with a “paper re-
tirement” date of December 28, 1999.
On November 17, 2011, Mr. Modrowski filed, with the
Merit Systems Protection Board, the current petition to
enforce the July 2002 settlement agreement, claiming
4 MODROWSKI v. DVA
that the reference to his 1997 removal in the Statement of
the Case violated the provision to expunge from his
records any reference to the 1997 removal. In response to
the petition, counsel for the agency, having reviewed the
file associated with Mr. Modrowski’s veterans-benefits
claim, declared that, besides the Statement of the Case,
the only other documents in the claim file that referred to
his 1997 removal were (1) a copy of a December 2005
opinion from this court obtained through the “vLex” legal
research website and (2) a June 2002 article from the
website of the Government Executive publication, entitled
“Management: When Employees Take the Fifth,” that was
accessed and printed on March 2, 2010.
The Board denied Mr. Modrowski’s petition to enforce
the July 2002 settlement agreement. The Board ex-
plained that it had already decided, in its 2004 denial of
Mr. Modrowski’s petitions to enforce the agreement, that
“the reference to ‘records’ in the agreement applied only to
[Mr. Modrowski’s] employment records,” other records not
being material to the agreement’s purpose of securing Mr.
Modrowski his retirement benefits and easing his search
for employment. Modrowski v. Dep't of Veterans Affairs,
CH-0752-98-0126-C-3, slip op. at 3-4 (M.S.P.B. Feb. 15,
2013). The Board reasoned that Mr. Modrowski did not
seek review of the 2004 ruling, which was therefore
precedential, and which established that any reference to
the 1997 removal in the veterans-benefit claim file was
either not a breach or, in any event, not a material
breach. Id. at 4. Consequently, the Board concluded, “the
agency is in compliance” with the July 2002 settlement
agreement. Id.
Mr. Modrowski timely petitioned for review by this
court under 5 U.S.C. § 7703. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
MODROWSKI v. DVA 5
DISCUSSION
A settlement agreement is a contract, with the inter-
pretation of its terms a question of law. See Greco v. Dep't
of the Army, 852 F.2d 558, 560 (Fed. Cir. 1988). As with
other contracts, the terms of a settlement agreement
should be interpreted to reflect “the intent of the parties
at the time they contracted, as evidenced by the contract
itself.” Id. In aid of interpretation, “if the principal
purpose of the parties is ascertainable it is given great
weight.” Restatement (Second) of Contracts § 202 (1981).
The parties here dispute how to interpret the follow-
ing provision from Mr. Modrowski’s July 2002 settlement
agreement reached during the appeal of his 1997 removal
to the Board:
Within 30 days of the effective date of this agree-
ment, the Department shall expunge from Appel-
lant’s records any reference to the removal
underlying this appeal.
Mr. Modrowski does not contend, and has no basis to
contend, that the agency failed, by the end of August
2002, to remove references to the 1997 removal from Mr.
Modrowski’s records. Instead, his challenge necessarily
rests on the broader assertion that the provision impliedly
imposes a further duty on the VA to keep any reference to
the 1997 removal from thereafter appearing in any other
records, including records in a non-employment file, in
this case a file involving his claim for benefits as a veter-
an, not as an employee. But the settlement agreement
does not fairly support that asserted implied obligation.
At least for purposes of this implied-duty assertion,
the Board’s reasoning is sound: the obligation regarding
“records” does not extend to disability-compensation
records. Mr. Modrowski’s interpretation, by focusing
exclusively on the term “records,” ignores the unmistaka-
ble purpose of the July 2002 settlement agreement—to
6 MODROWSKI v. DVA
resolve his status as an employee and, perhaps, ease his
future employment elsewhere. The first paragraph of the
agreement specifically provides that Mr. Modrowski
“waives and dismisses this case and any and all claims,
grievances, complaints or disputes against the [agency]
. . . that have been made or can be made concerning his
employment.” Each subsequent paragraph addresses
either his status as an employee or his litigation with the
agency over his 1997 removal from employment. Thus,
the Board did not rely on an incorrect view of the VA’s
contractual obligations in concluding that there was no
material breach of the 2002 settlement agreement in the
VA’s reference to the 1997 removal in the sharply differ-
ent context of Mr. Modrowski’s claim for benefits as a
veteran.
CONCLUSION
For the foregoing reasons, we affirm the decision of
the Board denying Mr. Modrowski’s petition to enforce his
July 2002 settlement agreement with the VA.
No costs.
AFFIRMED