Going to Court To Ensure Privacy?

By on October 12, 2005 in Current Events with 0 Comments

For those readers interested in the enforceability of settlement agreements in adverse action cases, you may want to take a look at Barkett v. Department of Commerce, C.A.F.C. No. 05-3137, October 6, 2005. This recent Federal Circuit decision sustains the MSPB’s refusal to enforce a settlement agreement.

Mr. Barkett was a criminal investigator with the Bureau of Industry and Security, part of the Commerce Department. He was removed for failing to complete a mandatory law enforcement firearms training program.

He appealed to the MSPB and the parties settled the case. The settlement agreement was read into the Board’s record for enforcement purposes, and later a signed document was executed. In short, Mr. Barkett agreed to resign from the agency and submit an SF 52 to that effect. For its part the agency agreed to rescind the removal action and purge his personnel folder, carry him on a leave without pay status until his resignation took effect on the specified date, process his resignation papers, and provide limited information on Mr. Barkett in response to any future employment inquiries. (Opinion, pp. 1-2)

Mr. Barkett ended up filing an enforcement petition with the MSPB. He argued that the agency had failed to timely sign and implement the written document. The agency argued that Mr. Barkett had failed to submit the SF 52 documenting his resignation as was required by the agreement.

The MSPB sided with the agency on this one. The administrative judge denied the enforcement petition, ruling that the agency had not violated the settlement agreement. He also noted that Mr. Barkett had himself violated the agreement by failing to submit his resignation paperwork. (Barkett v. Dep’t of Commerce, No. DC-075203-0610-C-1, slip op. at 6 (M.S.P.B. Mar. 23, 2004)).

The decision became final when the Board denied the petition for review. (p. 3) The appeals court held that the oral settlement agreement is binding on the parties, particularly when, as here, the terms are read into the record. (p. 3)

Noting that Mr Barkett concedes that he did enter into the agreement, and that he had not complied with its terms, the court found that Mr. Barkett’s arguments were unpersuasive: “Given that the settlement agreement does not specify a time frame within which the Agency must implement its obligations, any delay on the part of the Agency in fulfilling these obligations cannot constitute a breach of the settlement agreement.” (p. 4)

It’s always interesting to see an individual take a dispute like this to court, particularly where there had been sensitivity to the kind of information that the agency could give out to prospective employers. The settlement agreement was specific in making sure that only certain information on Mr. Barkett’s employment could be given out. Yet, by taking the case to the court, it is now guaranteed that there is a public record of many of the details of the case, including the fact that the agency had taken adverse action against him. The court decision is not citable as precedent, but it is nevertheless a matter of public record.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.