Kent v. Department of the Air Force

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KENNETH RAY KENT,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
______________________
2013-3034
______________________
Petition for review of the Merit Systems Protection
Board in No. AT0752100652-B-1.
______________________
Decided: April 5, 2013
______________________
KENNETH RAY KENT, of Denver, Colorado, pro se.
GREGG PARIS YATES, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Principal Deputy
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and STEVEN J. GILLINGHAM, Assistant Director.
______________________
2 KENNETH KENT v. AIR FORCE
Before RADER, Chief Judge, O'MALLEY, and WALLACH,
Circuit Judges.
PER CURIAM.
Kenneth Ray Kent petitions for judicial review of a fi-
nal order issued by the United States Merit Systems
Protection Board on September 27, 2012. The order
denied Kent’s petition to review an earlier decision that
dismissed the appeal of his removal from federal employ-
ment. For the reasons set out below, we affirm.
BACKGROUND
On April 16, 2010, the Department of the Air Force
(“Air Force”) removed Kenneth Ray Kent (“Kent”) from
employment based on a charge of improper conduct. Kent
had been working as a Voucher Examiner, GS-0540-05, in
the Individual Mobilization Augmentee Travel Pay Office
at Dobbins Air Reserve Base in Fair Oaks, Georgia.
Kent appealed the removal decision to the United
States Merit Systems Protection Board (“MSPB”) on May
4, 2010. In an initial decision dated September 1, 2010,
an MSPB administrative judge affirmed the Air Force’s
decision to remove Kent. Kent subsequently filed a
petition for review, and on September 19, 2011, the MSPB
vacated the initial decision and remanded the appeal to
allow the parties to submit evidence regarding a potential
violation of Kent’s due process rights. 1
Kent attended a hearing before an MSPB administra-
tive judge on January 10, 2012, where the administrative
judge encouraged him to engage in settlement discussions
with the Air Force. Kent and the Air Force engaged in
1 Kent contended he was not given access to evidence
considered by the Air Force in deciding to remove him,
thereby violating his rights under the Due Process Clause
of the Fifth Amendment.
KENNETH KENT v. AIR FORCE 3
settlement negotiations and ultimately entered into a
settlement agreement (“the Settlement Agreement” or
“Agreement”) on the day of the hearing. Under the terms
of the Settlement Agreement, Kent agreed to “withdraw
and never reinstitute” his appeal and to “withdraw any
and all other claims against the Department of the Air
Force . . . arising from his civil employment at Dobbins
Air Reserve Base.” In return, the Air Force agreed to
rescind Kent’s removal, allow Kent to resign with a clear
record, pay Kent $25,000.00, and provide a neutral refer-
ence. The Settlement Agreement also stated:
This Agreement was freely and voluntarily en-
tered into without threats, coercion or duress and
the parties fully understand and accept the terms
of this Agreement. All parties have been afforded
the opportunity to carefully review this Agree-
ment, read and raise questions about its meaning,
and consult with counsel or other representative
prior to signing.
App’x 23. The Agreement further provided: “PARTIES
ACKNOWLEDGE THAT THEY HAVE READ THIS
AGREEMENT, UNDERSTAND IT, AND ARE
VOLUNTARILY ENTERING INTO IT. PLEASE READ
THIS AGREEMENT CAREFULLY, IT CONTAINS A
RELEASE OF KNOWN AND UNKNOWN CLAIMS.”
App’x 24. On January 11, 2012, an MSPB administrative
judge issued an initial decision dismissing Kent’s appeal
based on the settlement between Kent and the Air Force.
Kent subsequently appealed the January 11, 2012 ini-
tial decision, contending, inter alia, that he was coerced
into signing the Settlement Agreement and that the Air
Force procured his acceptance of the Agreement by fraud.
On September 27, 2012, the MSPB issued a final order
denying Kent’s petition for review and affirming the
January 11, 2012 initial decision. Kent now appeals the
final order of the MSPB.
4 KENNETH KENT v. AIR FORCE
LEGAL STANDARD
We have jurisdiction over appeals from final orders of
the MSPB under 28 U.S.C. § 1295(a)(9). “The scope of our
review in an appeal from a decision of the [MSPB] is
limited.” Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307,
1311 (Fed. Cir. 2003). We may only set aside decisions by
the MSPB that are “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see also Briggs,
331 F.3d at 1311. The petitioner has the burden of estab-
lishing error in the MSPB’s decision. Harris v. Dep’t of
Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).
When parties enter into a settlement agreement that
fully resolves their dispute, there is no case or controversy
remaining over which the MSPB or this court have juris-
diction. Asberry v. U.S. Postal Serv., 692 F.2d 1378, 1380
(Fed. Cir. 1982). If a settlement agreement is “‘tainted
with invalidity, either by fraud . . . or by a mutual mis-
take under which both parties acted,’” however, this court
may set aside the MSPB’s decision not to vacate the
agreement. Id. (quoting Callen v. Pennsylvania R.R. Co.,
332 U.S. 625, 630 (1948)). To prove that a settlement
agreement is invalid because it was entered under duress,
a petitioner must show that “(1) [he] involuntarily accept-
ed [the settlement agreement’s] terms, (2) circumstances
permitted no other alternative, and (3) such circumstanc-
es were the result of . . . coercive acts.” Dureiko v. United
States, 209 F.3d 1345, 1358 (Fed. Cir. 2000). A party
attacking the validity of a settlement agreement “bear[s]
a properly heavy burden.” Asberry, 692 F.2d at 1380.
ANALYSIS
On appeal, Kent contends that he was coerced into
signing the Settlement Agreement. Kent asserts that he
attended a hearing before an MSPB administrative judge
KENNETH KENT v. AIR FORCE 5
on January 10, 2012, where the administrative judge
encouraged him to engage in settlement discussions with
the Air Force. Kent was not represented by counsel at the
hearing or during the settlement discussions that took
place that day. According to Kent, the Air Force, through
the administrative judge, indicated that it would with-
draw its offer to settle if Kent did not accept it on January
10, 2012. Kent alleges that, because of the deadline
imposed upon him, he was denied the opportunity to
consult with an attorney prior to accepting the Settlement
Agreement. Consequently, Kent asserts that, particularly
in light of the financial difficulty he had experienced
following his removal from employment, he had no choice
but to sign the Agreement.
None of Kent’s allegations indicates that Kent’s deci-
sion to settle with the Air Force was involuntary, that the
administrative judge coerced Kent into accepting the
Settlement Agreement, or that he was left with no other
alternative. The fact that Kent was not provided with an
attorney or afforded additional time to obtain counsel
does not indicate that Kent involuntarily settled his
dispute with the Air Force. Kent has not presented any
evidence that he was prevented from bringing counsel to
the hearing on January 10, 2012, or that, in the absence
of counsel, he was unable to understand the settlement
terms offered by the Air Force. Indeed, as noted, the
Agreement itself recites Kent’s full understanding of it.
While Kent asserts that his financial distress prompt-
ed him to accept the Settlement Agreement, that fact does
not establish that his acceptance of the Settlement
Agreement’s terms was involuntary. As this court has
observed, “[e]very loss of employment entails financial
hardship. If that alone were sufficient to establish eco-
nomic duress, no settlement involving it would ever be
free from attack. . . . [E]ven threatened financial disaster
is not sufficient.” Asberry, 692 F.2d at 1381.
6 KENNETH KENT v. AIR FORCE
Kent’s coercion argument fares no better. There is
nothing improper about an administrative judge convey-
ing the terms of a settlement offer to a party—including
the fact that the offer may be a short-lived one. And,
there is nothing improper about the Air Force’s decision to
place a deadline on their offer. See Parrott v. Merit Sys.
Prot. Bd., 519 F.3d 1328, 1335 (Fed. Cir. 2008) (“[T]he fact
that [the petitioner] had a relatively short period of time
to decide whether to sign the settlement agreement and
resign . . . did not render his resignation involuntary.”).
Other than the Air Force’s demand for a quick response
from him, Kent has not pointed to any other facts that
would support his claim of coercion. Kent’s “bare allega-
tion of coercion is not sufficient to set aside the parties’
settlement agreement.” Tiburzi v. Dep’t of Justice, 269
F.3d 1346, 1355 (Fed. Cir. 2001).
Finally, Kent has failed to establish that the circum-
stances were such that he was left with no alternative but
to agree to the Settlement Agreement. As the MSPB
correctly observed, Kent “remained free to refuse to sign
the [S]ettlement [A]greement and insist on a ruling by the
administrative judge.” App’x 4. Thus, because Kent has
not satisfied any of the criteria for establishing the inva-
lidity of the Settlement Agreement, we affirm the MSPB’s
decision refusing to set it aside.
In addition to challenging the validity of the Settle-
ment Agreement, Kent asserts that his removal from
employment was improper in light of evidence that he
presented to the MSPB prior to the remand order of
September 19, 2011. Because we agree with the MSPB’s
determination that the Settlement Agreement resolves
the employment dispute between Kent and the Air Force,
however, we lack jurisdiction to address Kent’s challenge
related to the propriety of his dismissal. See Asberry, 692
F.2d at 1380.
KENNETH KENT v. AIR FORCE 7
CONCLUSION
Because Kent has failed to demonstrate that his
agreement to settle with the Air Force was the product of
coercion, we affirm the final order of the MSPB.
AFFIRMED