Case No. 2024-1717 before the U.S. Court of Appeals for the Federal Circuit involved a settlement of a VA police officer’s challenge to his removal Image: Jonathan Weiss/Shutterstock.com
By: FEDweek StaffA federal appeals court has taken a more permissive view than the MSPB did regarding assertions by federal employees that an agency violated an agreement that settled a personnel dispute.
Case No. 2024-1717 before the U.S. Court of Appeals for the Federal Circuit involved a settlement of a VA police officer’s challenge to his removal. In that settlement, the VA committed to providing a neutral recommendation to any potential future employer, stating that the employee had resigned, and that it was the facility’s policy to provide only dates of employment and job title in an employment reference.
He later received a conditional job offer from DHS but that was revoked after the VA disclosed in his background investigation that it was providing only that limited information due to a binding legal agreement.
He then asserted in a “petition for enforcement” before the MSPB that the disclosure violated the agreement and caused him to lose his DHS employment opportunity. However, the MSPB rejected the request as filed too late, saying he had first learned of the disclosure more than a year earlier.
The court, though, stressed that unlike many situations in which there are fixed deadlines for filing appeals, a request to enforce a settlement agreement need only be filed with a “reasonable” time. It noted that it wasn’t until DHS revoked the conditional job offer, nearly a year after he first learned of the disclosure, “that he recognized that the disclosure had a harmful effect . . . it was not unreasonable for him to file his PFE only after he learned of the harm.”
While four months passed between when the job offer was withdrawn and the petition to the MSPB was filed that delay also was not unreasonable the decision said, since during that time he obtained legal counsel, who contacted the VA and filed the petition after receiving no response.
The court sent the case back to the MSPB for a decision on the merits and awarded costs to the former employee.
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