If at First You Don't Succeed…Keep on Appealing

By on February 4, 2008 in Court Cases, Current Events with 0 Comments

An unsuccessful applicant for a correctional officer position has failed in her effort to make the case that her nonselection constituted a breach by the Bureau of Prisons of a settlement agreement she had signed with the Office of Personnel Management. (Griffin v. Merit Systems Protection Board (C.A.F.C. No. 2007-3176 (nonprecedential), 2/4/08)

Ms. Griffin had been barred from federal employment due to a negative suitability determination by OPM. (Note that the court’s decision does not explain exactly what it is that led OPM to make the negative suitability determination in the first place.)

She had appealed the debarment to the Merit Systems Protection Board and ended up signing a settlement agreement with OPM. Under the agreement, Griffin withdrew her appeal. In return, OPM agreed to reduce the period of her debarment, and agreed that the reasons for Griffin’s debarment would “not be used as a basis for any future OPM suitability action unless evidence of conduct similar to the conduct described in the Decision Letter is disclosed in any future suitability investigation.” (Opinion p. 2)

When she later did not get selected for the Prisons position, Griffin assumed it had something to do with the previous suitability determination and petitioned MSPB to enforce the settlement agreement. She argued that the Bureau of Prisons was required to comply with the agreement she had made with OPM and could not make a negative suitability determination against her stemming from the same facts before OPM.

The administrative judge assigned to her appeal found that during the settlement negotiations with OPM, Griffin and her attorney tried but were not able to get two key provisions added to the agreement and that this had a direct bearing on her appeal. First, they tried to get language that would in effect erase the effects of the negative suitability determination once her debarment period expired. Second, they tried to get language that would apply the agreement to suitability determinations made by agencies other than OPM. However, OPM refused to agree to these suggested changes and Griffin signed the settlement agreement anyway. (p. 3)

As it turns out this negotiation history was instrumental in convincing the AJ that Griffin and her attorney were well aware that agencies other than OPM make suitability determinations. Moreover, the AJ found that Griffin had failed to show that BOP had indeed made a negative suitability decision or that such had led to not hiring her. Finally, the AJ concluded it was not a given that even if Griffin could have shown such facts, that this constituted a breach of the agreement with OPM. (p. 4)

Undaunted, Griffin took her case to the appeals court. But she fared no better there for pretty much the same reasons.

She tried to convince the court to “reform” her settlement contract to include essentially the same provisions that she had unsuccessfully tried to negotiate with OPM. The court did not buy her argument and had this to say about it: “The reformation that Ms. Griffin seeks would effectively amend the settlement agreement to include the very provisions that Ms. Griffin and her lawyer proposed but that OPM declined to accept.” The court went on to conclude that since the settlement agreement did not preclude OPM from disclosing to other agencies the circumstances underlying its determination and did not prevent other agencies from making their own suitability determinations, the MSPB’s decision to deny enforcement of the settlement agreement was proper. (p. 7)

The court also pointed out that it is “not clear that the BOP made a suitability determination” since the reason for her nonselection was not made part of the administrative record. Even so, nothing in the agreement precluded BOP from making a decision not to hire Griffin. (p. 8)

In short, Griffin has failed in her bid to overturn the BOP decision not to hire her.

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

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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.

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