reserving question whether judicial resolution of constitutional claim must await completion of administrative proceedings on nonconstitutional claims
How later courts described this case
- reserving question whether judicial resolution of constitutional claim must await completion of administrative proceedings on nonconstitutional claims
Written by the judges who cited it.
The opinion
MacKINNON, Circuit Judge:
(concurring).
I join in the foregoing disposition of the case but would also hold that appellant is estopped to attack the settlement that resulted in his retirement since he has accepted the very valuable benefits of the settlement. The receipt of the benefits of the settlement which were acquired by inducing the Government to change its position on discharging Hatcher creates an equitable estoppel, an estoppel in pais, which denies him the right to plead or prove that his retirement was improper. 28 Am.Jur.2d, Estoppel and Waiver, §§ 26, 27, 33. Estop-pel may rest upon conduct and does not need an express written agreement. The Government gave up its right to discharge appellant for cause and allowed him to continue as an employee until he qualified for enhanced retirement benefits. This was in return for appellant’s dismissal of his original cause of action. In my view his acquisition of these enhanced retirement benefits and his refusal to surrender them estops him from attacking the settlement. He cannot keep the benefits he bargained for and at the same time attack the agreement that gave them to him. It would be grossly inequitable now to permit Hatcher to attack the contract that he is using to obtain regular retirement benefits. Id.