Ronald E. Kavanagh v. Department of Health and Human Services

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
RONALD E. KAVANAGH,
Petitioner,
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent.
__________________________
2010-3133
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DC0752090253-I-2.
__________________________
Decided: November 4, 2010
__________________________
RONALD E. K AVANAGH , of Silver Spring, Maryland, pro
se.
ERIC P. BRUSKIN , Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,

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KAVANAGH v. HHS 2
JEANNE E. D AVIDSON , Director, and KENNETH M. D INTZER ,
Assistant Director.
__________________________
Before BRYSON , SCHALL, and PROST, Circuit Judges.
PER CURIAM.
Petitioner Ronald E. Kavanagh appeals from the final
decision of the Merit Systems Protection Board (“Board”)
denying his petition for review of the October 14, 2009
initial decision of the administrative judge dismissing his
claim based on a settlement agreement reached between
Mr. Kavanagh and the Department of Health and Human
Services (“HHS”). We affirm.
BACKGROUND
Mr. Kavanagh was employed by HHS as a pharma-
cologist working for the Food and Drug Administration
starting in August 1998. On August 15, 2008, HHS
issued a notice of proposed removal and subsequently
issued a decision on December 8, 2008 removing Mr.
Kavanagh from his position at HHS. The removal deci-
sion was based on charges of engaging in inappropriate
behavior and failure to follow supervisory instructions.
Mr. Kavanagh’s removal was effective as of December 15,
2008.
Mr. Kavanagh filed an Individual Right of Action ap-
peal to the Board alleging retaliation for whistleblowing
activity on January 15, 2009. On February 18, 2009, the
administrative judge granted Mr. Kavanagh’s request for
dismissal without prejudice to provide the parties an
opportunity to complete discovery. Mr. Kavanagh refiled
his appeal on May 15, 2009. The parties reached a set-
tlement in September 2009.

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KAVANAGH v. HHS 3
On September 28, 2009, the parties jointly submitted
a signed, written copy of the settlement agreement for
inclusion in the Board’s record. The administrative judge
determined that “the agreement is within the Board’s
jurisdiction under 5 U.S.C. §§ 7511-7513 and 7701, the
agreement is lawful on its face, the parties entered into
the agreement freely and understand its terms, and the
parties intended to have the agreement entered into the
record for enforcement by the Board.” Pet’r’s App. 1-2.
Thus, the appeal was dismissed.
On November 18, 2009, Mr. Kavanagh filed a petition
for review to the full Board requesting review of the
initial decision dismissing his appeal. Mr. Kavanagh
stated that the basis for his petition was his determina-
tion that the settlement agreement is unlawful and
should be reconsidered. Pet’r’s App. 78. The relevant
provision of the settlement agreement states that “[Mr.
Kavanagh] agrees that any potential complaint, griev-
ance, or any other matter stemming from his employment
with the Agency and arising prior to the effective date of
this agreement shall be covered and resolved by the terms
of this agreement.” Pet’r’s App. 164-65. The agreement
also includes confidentiality provisions, payment of Mr.
Kavanagh’s attorney fees, and additional consideration
including a $43,000 payment by HHS to Mr. Kavanagh.
On April 23, 2010, the Board denied Mr. Kavanagh’s
petition for review concluding that “there is no new,
previously unavailable, evidence and that the administra-
tive judge made no error in law or regulation that affects
the outcome.” Pet’r’s App. 6-7. Mr. Kavanagh appealed.
D ISCUSSION
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise

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KAVANAGH v. HHS 4
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). “[I]n order to set aside a settlement, an
appellant must show that the agreement is unlawful, was
involuntary, or was the result of fraud or mutual mis-
take.” Sargent v. Dep’t of Health & Human Servs., 229
F.3d 1088, 1091 (Fed. Cir. 2000).
This court’s review is limited to whether the Board
abused its discretion in affirming the administrative
judge’s dismissal of Mr. Kavanagh’s appeal based on the
settlement agreement, which turns on the question of
whether Mr. Kavanagh showed that the settlement
agreement was invalid. See Asberry v. U.S. Postal Serv.,
692 F.2d 1378, 1380 (Fed. Cir. 1982). Mr. Kavanagh
asserts numerous arguments on appeal, only one of which
is relevant. Namely, whether the Board correctly deter-
mined that the settlement agreement is valid, enforce-
able, and legal.
Mr. Kavanagh argues that the settlement agreement
is unlawful because (1) it requires him to conspire to
defraud the United States and (2) prevents him from
reporting his knowledge of circumstances and the actions
of others that allegedly constitute major fraud and felo-
nies against the United States. Specifically, Mr.
Kavanagh’s petition sets forth his knowledge “involv[ing]
agreements to conspire” in crimes against the United
States under 18 U.S.C. §§ 4, 286, 371, 1031, and 1035.
Pet’r’s App. 11, 71. Mr. Kavanagh’s argument appears to
rely on the settlement agreement provision requiring
“that any potential complaint, grievance, or any other
matter stemming from his employment with the Agency
and arising prior to the effective date of this agreement
shall be covered and resolved by the terms of this agree-

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KAVANAGH v. HHS 5
ment.” Pet’r’s App. 72. Mr. Kavanagh interprets this
provision of the agreement as unlawfully prohibiting him
from “reporting felonies and misdemeanors” to adminis-
trative agencies, judicial and law enforcement officials,
Congress, and the Office of the President. Id. Because
the alleged prohibition would be contrary to public policy,
Mr. Kavanagh requests that this court declare the entire
settlement agreement illegal and unenforceable under our
precedent. See Fomby-Denson v. Dep’t of the Army, 247
F.3d 1366 (Fed. Cir. 2001).
The government responds that the plain terms of the
settlement agreement contradict Mr. Kavanagh and do
not require him to engage in any illegal activity. The
government also asserts that to the extent certain provi-
sions of the settlement agreement are ambiguous, our
holding in Fomby-Denson requires only that those am-
biguous provisions be construed in accordance with public
policy. According to the government, Fomby-Denson does
not require nullification of the entire settlement agree-
ment in the presence of ambiguous terms or provisions.
We agree with the government and affirm the dis-
missal of Mr. Kavanagh’s appeal. The administrative
judge determined that HHS and Mr. Kavanagh freely
entered into a lawful settlement agreement with the
intent to have the agreement entered into the record
before the Board. Pet’r’s App. 1-2. On their face, the
agreement’s provisions do not require Mr. Kavanagh to
conspire to defraud the United States. To the extent the
agreement’s release and confidentiality provisions are
ambiguous as to whether Mr. Kavanagh may disclose
details regarding alleged crimes, public policy requires
that those provisions be construed such that his disclo-
sure rights are not abrogated in the event HHS seeks to
enforce the settlement agreement. Fomby-Denson, 247

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KAVANAGH v. HHS 6
F.3d at 1377-78 (“[C]ourts will not enforce contracts that
purport to bar a party . . . from reporting another party’s
alleged misconduct to law enforcement authorities for
investigation and possible prosecution.”) A potentially
ambiguous provision, however, does not automatically
render the entire settlement agreement unlawful and
does not require rescission of the entire agreement.1 Id.
at 1372, 1378 (construing ambiguous provisions of a
settlement agreement in accordance with public policy
rather than rescinding the entire agreement, as petitioner
sought).
There exists no reversible error in the administrative
judge’s determination requiring dismissal of Mr.
Kavanagh’s appeal upon entry of the settlement agree-
ment in the record. The Board’s determination denying
the petition for review because there was “no new, previ-
ously unavailable, evidence and that the administrative
judge made no error in law” is not arbitrary, capricious, or
an abuse of discretion and is not unsupported by substan-
tial evidence. We have reviewed Mr. Kavanagh’s other
arguments and consider them unpersuasive. Accordingly,
we affirm the decision of the Board.
COSTS
Each party shall bear its own costs.
AFFIRMED
1 Rescission of the settlement agreement would re-
quire rescission of all provisions, including required
payments by HHS to Mr. Kavanagh totaling more than
$43,000 directly to him and $18,000 in attorney fees. Mr.
Kavanagh has not offered to return these payments
despite his request that the court declare the settlement
agreement illegal and unenforceable.

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