Because the alleged prohibition would be contrary to public policy, Mr. Kavanagh requests that this court declare the entire settlement agreement illegal and unenforceable under our precedent. See Fomby-Denson v. Dep't of the Army, 247 F.3d 1366 (Fed. Cir. 2001). The government responds that the plain terms of the settlement agreement contradict Mr. Kavanagh and do not require him to engage in any illegal activity.

The Board concluded that, even if the agency had revealed Salazar's false statements to the government in violation of a confidentiality provision, "as a matter of public policy, an agreement between an agency and a former employee in settlement of an appeal from an adverse action cannot be construed as barring the United States from making criminal referrals based on the underlying conduct." Decision at 4 (citing Fomby-Denson v. Dep't of the Army, 247 F.3d 1366, 1377-78 (Fed. Cir. 2001)). Salazar timely appealed.

"To declare a contract unenforceable on public policy grounds, ... courts must first determine that the public policy at issue is ‘well defined and dominant.’ " Fomby – Denson v. Dep't of Army, 247 F.3d 1366, 1375 (Fed.Cir.2001) (quoting W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983) ). Here, the question is whether there is a robust public policy against the enforcement of contracts that purport to prevent individuals from voluntarily providing information concerning alleged criminal conduct to law enforcement authorities.

Plaintiffs Motion at 1. In a post-oral argument memorandum, Plaintiff does cite toFomby-Denson v. Dept. of the Army, 247 F.3d 1366 (Fed. Cir 2001) for the proposition that the court may consider evidence submitted after an agency proceeding is concluded. In Fomby-Denson, the Merit Systems Protection Board denied the plaintiffs request for enforcement of a settlement agreement related to her termination from the Army.

In interpreting settlement agreements, we apply general principles of contract law and enforcement. Fomby-Denson v. Dep't of the Army, 247 F.3d 1336, 1372 (Fed. Cir. 2001). The materiality of any contract breach is a mixed question of law and fact.

For example, district courts will not enforce settlement agreements that are contrary to law or public policy. See Hurd v. Hodge , 334 U.S. 24, 34–35, 68 S.Ct. 847, 92 L.Ed. 1187 (1948) ; Oscanyan v. Arms Co. , 103 U.S. 261, 267–68, 26 L.Ed. 539 (1880) ; Fomby-Denson v. Dep’t of Army , 247 F.3d 1366, 1373–75 (Fed. Cir. 2001). Here, however, there is no contention that the Settlement Agreement or the relief sought by Serta Simmons is unlawful or contrary to public policy.

5 U.S.C. § 7703(c). We review the Board's construction of a settlement agreement de novo. Fomby-Denson v. Dep't of Army, 247 F.3d 1366, 1372 (Fed. Cir. 2001). We seek to implement the intent of the parties at the time the agreement was made.

Even without such a provision in the agreement, it would appear to be contrary to public policy for a government agency to attempt to contract out of an obligation required by federal law. See Fomby-Denson v. Dep't of the Army, 247 F.3d 1366, 1378 (Fed. Cir. 2001) (holding that a contract barring an agency from reporting criminal behavior would be against public policy). The only reasonable reading of the paragraph is that it creates an exception to any implied promise of non-disclosure as to any matter for which the law requires truthful responses.

See 5 U.S.C. § 7703(c); Lary v. U.S. Postal Serv., 472 F.3d 1363, 1366-67 (Fed. Cir. 2006). A settlement agreement is a contract, Tiburzi v. Dep't of Justice, 269 F.3d 1346, 1351 (Fed. Cir. 2001), and we review the Board's construction of a settlement agreement without deference, Fomby-Denson v. Dep't of the Army, 247 F.3d 1366, 1371 (Fed. Cir. 2001). Whether a breach of a contract is material is a mixed question of law and fact, but "[w]here, as here, the facts are undisputed, the determination of whether there has been material non-compliance with the terms of a contract . . . necessarily reduces to a question of law."

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 the Agreement should be interpreted to resolve the falsification dispute in his favor, stating "[t]he parties['] understanding of the settlement agreement was that no falsification took place in the current or prior year background investigations which would preclude the appellant from being found suitable for employment and performing the full and essential duties and responsibilities of a law enforcement officer."