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Developments at the MSPB: Settlements Easier to Enforce

Developments at the MSPB:  The MSPB's recent decision, Kitt v. U.S. Navy, 2011 MSPB 82 (September 2, 2011), granting a petition to enforce a settlement agreement, expressly overruled a twenty-year-old decision which had made it difficult to enforce an arguably imprecise settlement agreement.This decision represents a common-sense approach to the interpretation of settlement agreements.

In Kitt, a pro se litigant fell victim to poor drafting in a  settlement agreement under which the Navy agreed to reduce its proposed Removal to a 30-day suspension and a clean record.The actual wording  required the Agency to "change" the nature of Employee's Standard Form 50 . . . from Removal to a 30-days Suspension.Ms. Kitt believed that by agreeing to this language Navy agreed to expunge her record of all references to the proposed removal.She found out otherwise when the Agency turned her down for a security clearance a year later,in part because her records still reflected the proposed removal.Ms. Kit then filed a petition with the MSPB claiming the Navy breached the settlement.

The Administrative Judge who who heard Ms. Kitt's petition disagreed that there was a breach, holding that the settlement language requiring a "change" in her employment records was not specific enough to require the records be "expunged" of the removal, citing the case Cutrufello v. U.S. Postal Service, 56 M.S.P.R. 99 (1992).  On appeal, the full Board overruled Cutrufello.

Citing liberally to Webster's Dictionary for the meaning of "change," the Board concluded that when an agency agrees to "change" an action  from a removal to a suspension, the Agency was agreeing to remove any record of the appellant's removal.  The Board found the Navy in breach, and remanded Ms. Kitt's petition remanded so she can decide whether to enforce the agreement, or rescind the settlement and pursue her appeal on the merits.

Kitt is a good ruling for pro se litigants who may not have the sophistication to draft or agree to precisely-worded settlement agreements. This case is also a good example why able legal counsel helps employees avoid problems in pursuing MSPB appeals.   Competent employment counsel would likely have insisted that the settlement language specifically require an agency to "expunge" the proposed removal and on language mandatingthat any and all references to the proposed removal be removed from the OPF. 

If you are a Federal employee facing a similar adverse employment action, or needing assistance drafting a settlement agreement, you might want to schedule an "initial consultation" with one of Passman & Kaplan's attorneys.

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