This case involves a charge that the agency violated a last chance settlement agreement by not selecting the affected employee for various law enforcement positions for which she applied. (Slattery v. Department of Justice, C.A.F.C. No. 2009-3095, 1/6/10)
Slattery was a supervisory immigration officer, GS-12, who was arrested for the crime of obtaining money under false pretenses. The scheme involved buying expensive items and returning substitute cheaper items to get a full refund of the higher price. In the criminal case, she pleaded "nolo contendere," paid restitution, and performed community service. (Opinion p. 1)
The agency removed Slattery. During her appeal, the parties worked out a Negotiated Settlement and Last Chance Agreement." For reasons not explained in the court’s decision, under this agreement, the agency reinstated Slattery to a non-law enforcement position with back pay and attorney fees, subject to a 3-year probationary period during which she had to meet certain "last chance" provisions and to her agreement not to apply for any law enforcement or officer corps position within the agency for one year. (For those readers who want to see the actual terms of the agreement at issue in the case, see pp. 2-3 of the Opinion)
As soon as the one-year bar expired, Slattery began applying for law enforcement positions—24 in all. She was not selected. So she went back to the Merit Systems Protection Board to enforce the settlement agreement which she claimed the agency had breached by not giving her applications "good faith" consideration." (p. 3)
The Board concluded there was no breach in that "good faith" does not mean that the agency must select Slattery for any law enforcement position. Nor does the settlement agreement "include or imply a requirement that the agency must ignore her history in evaluating her application for a law enforcement or officer corps position." (p. 3, 5)
Ms. Slattery filed for review in the Federal Circuit Court of Appeals. The court has now issued an opinion that agrees with the MSPB. In short, says the court, the settlement agreement "does not require pretending that this history does not exist…for a mutual requirement of ‘good faith’ does not require concealing the truth." (p. 5)
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.