This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
Our lawyers represent and defend federal employees in appeals pending before the Merit Systems Protection Board (MSPB). While litigation through the MSPB hearing process is one potential avenue, many cases are resolved more efficiently through settlement, which is a faster, more cost-effective resolution in such cases. Federal employees have several options for settling cases at the MSPB, each with its own structure. Settlements at the MSPB frequently involve disciplinary cases.
Settlement Options at the MSPB
Settlements at the MSPB typically arise in the context of appeals filed by federal employees challenging adverse actions taken by their employing agencies. These actions may include removals, suspensions over 14 days, demotions, or other personnel decisions. A successful settlement requires mutual agreement between the employee and the Agency. The settlement process cannot proceed without cooperation on both sides. For this reason, it is key to explore settlement options early in the litigation process.
The available settlement options at the MSPB include: (1) Informal Mediation with Agency Counsel; (2) the Mediation Appeals Program; (3) the Settlement Judge Program and (4) the MSPB Settlement Program.
- Informal Mediation with Agency Counsel– This is often the quickest method of attempting to settle a case. Typically, at the start of an MSPB case, counsel for both parties may engage in informal discussions to exchange settlement proposals. In many cases, early informal negotiations and communications can lead to favorable outcomes.
- Mediation Appeals Program– This occurs in a more formal setting and is typically conducted in person. A mediator from the MSPB, who serves as a neutral third party, is assigned to encourage and facilitate settlement. This seems to be the more common way of attempting to settle MSPB cases these days.
- Settlement Judge Program– An administrative judge or other mediator, who is not assigned to adjudicate the case, is appointed to assist the parties in resolving the matter. In an attempt to settle such cases, settlement judges typically conduct settlement discussions remotely. As the settlement judge is not involved in the litigation of the case, they can provide candid, unbiased feedback, which can be very helpful in attempting to reach a settlement.
- MSPB Settlement Program– The MSPB judge assigned to hear the case at the hearing stage discusses settlement with the parties. As the judge is already familiar with the legal issues involved, they are well suited to discuss the possibility of settlement in these cases and identify potential areas for compromise. Settlement discussions in this process typically occur at pre-determined times in a case, such as at the pre-hearing stage or shortly after the case is assigned to the administrative judge.
Approval of Settlement Agreements
When a settlement agreement has been met, parties will submit the agreement to the administrative judge for review. If the settlement agreement is lawful, clear, and voluntarily entered into, the judge will issue an order dismissing the appeal as settled. Then, the agreement will be entered into the official MSPB record for enforcement purposes.
Enforcement of Settlement Agreements
MSPB has a mechanism to ensure that a settlement agreement that is placed in the record is adhered to. Though somewhat rare, if this becomes an issue for a client, the first step is to contact Agency counsel in an attempt to quickly resolve the issue before seeking to enforce a previously agreed to settlement. However, if resolution cannot be achieved, the MSPB has the authority to investigate and order compliance with the agreement.
Our law firm represents and advises federal employees in various employment law matters. If you need legal assistance regarding a federal employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
