A Settlement Agreement Bars an Appeal Challenging Removal

Before signing a settlement agreement before the Merit Systems Protection Board, it is critical to make sure one understands the impact as a recent court case teaches. (Kent v. Department of the Air Force (CAFC No. 2013-3034, nonprecedential, 4/5/13))

Kent, a GS-5 Voucher Examiner with Dobbins Air Reserve Base in Georgia, appealed his 2010 removal. While in front of the MSPB, the agency and Kent reached a settlement agreement after pressure and encouragement from the Administrative Law Judge.

Kent agreed to dismiss and “never reinstitute” his appeal as well as “any and all other claims” against the agency “arising from his civil employment at Dobbins Air Reserve Base….” And the agency agreed to wipe out the removal, allow Kent to resign with a clear record, provide a neutral employment reference, and pay Kent $25,000 to boot. (Opinion pp. 2-3)

All the usual words were in the settlement agreement that was approved by the MSPB judge, including the settlement was “freely and voluntarily entered into…the parties fully understand and accept [it]…and all had the chance to review it, read it, understand it, ask questions and consult with counsel before signing it. (p.  3)

Of course, as soon as he signed it and the AJ approved it, Kent appealed it, saying he had been coerced into signing it and the agency had “procured his acceptance…by fraud.” (p. 3)

The MSPB did not buy Kent’s arguments and refused to review the agreement. Kent took his case to the federal appeals court. He pinned his case on the argument that the Air Force coerced his agreement by giving him a matter of hours to accept and sign the agreement and thus he was effectively deprived of the chance to consult an attorney.

Finding “nothing improper” about the process, albeit a “short-lived one,” the court has refused to throw out the settlement. (p. 6)

Bottom line: Kent did not convince the court he had been coerced into signing and the settlement agreement removes his ability to challenge his removal.

Kent v. Air Force

© 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.

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