By John V. Berry, Esq., www.berrylegal.com
Federal employees whose cases are pending before the Merit Systems Protection Board (MSPB) have a number of options, in addition to litigating their cases to the hearing stage, in order to attempt to resolve their appeal. This article concerns the settlement process at the MSPB whereby federal employee - appellants and their federal agencies (Agencies) attempt to reach settlement prior to the MSPB hearing and decision stage.
The Settlement Process
The settlement process at the MSPB can start at any point in the life of an
individual MSPB case. Typically, it is good practice for an appellant to approach the Agency early in an attempt to resolve a case if settlement is a goal. Agency attorneys generally are assigned to MSPB cases about a week to 10 days after the MSPB appeal is first filed. Once the attorney assigned to the case for the federal agency involved is known, informal settlement talks can began.
Types of Settlement Options at the MSPB
When a federal employee’s case is filed at the MSPB, there are a number of different options to attempt settlement. The key to all of MSPB settlement programs is that both parties are in agreement to at least attempt to settle a matter. If one party is unwilling to mediate or attempt settlement in an MSPB case then these processes will not work.
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. As you can see, the MSPB has a number of venues available to facilitate settlement. There are distinctions between each kind of settlement venue and different strengths for each type:
(1) Informal Mediation with Agency Counsel – This is an informal process, usually at the start of an MSPB case, where the two attorneys assigned to the case discuss settlement proposals and attempt to resolve the appeal. Often times this can be the quickest process for attempting to resolve a case.
(2) The Mediation Appeals Program – In this type of settlement process, a mediator from the MSPB is assigned to encourage settlement. This is a more formal setting and usually conducted in person. This process can be helpful as parties are face to face with one another, with a mediator that is assigned to meet with and attempt to facilitate settlement.
(3) The Settlement Judge Program – This settlement process involves the assignment of another administrative judge, different from the one assigned to hear the case, in an attempt to help the parties facilitate settlement. Settlement judges usually conduct settlement meetings by telephone, as opposed to face to face meetings, in an attempt to settle these cases. These settlement judges can offer frank discusions about their thoughts on an individual case without having to later rule on the issues involved. A settlement judge is not connected to the ongoing litigation. We have found that the judges in this settlement process tend to be very flexible and helpful in attempting to resolve cases.
(4) The MSPB Settlement Program – In this type of settlement process, the MSPB judge assigned to hear the case at the hearing stage discusses settlement with the parties as case moves towards the hearing stage. The judge in this case is already familiar with the issues in the MSPB appeal and is well suited then to discuss the possibility of settlement in these types of cases. Typically, settlement discussions in this process occur at pre-determined times in a case (e.g. shortly after the case is assigned to the administrative judge or at the pre-hearing stage).
MSPB Approval of Settlement Agreements
Following a successful settlement agreement, the parties will submit the agreement to the administrative judge assigned to hear the case. The administrative judge will review and then (in most cases) accept the settlement agreement into the record for enforcement purposes if needed. Once accepted, the administrative judge will then dismiss the MSPB appeal as settled and the case will come to a conclusion.
Enforcement of Agreements
Although it rarely happens, following the execution of a settlement agreement, the MSPB has a mechanism to ensure that a settlement agreement that is placed in the record is adhered to. Typically, if this becomes an issue for a client, our first step is to contact Agency counsel in an attempt to quickly resolve the issue before seeking to enforce a previously agreed to settlement. Typically, this has not been an issue in cases that our firm has handled, but does provide protection for a federal employee that has decided to resolve their MSPB case through settlement.
Closing Thoughts on the Settlement Process at the MSPB
When attempting to settle a case at the MSPB it is important to have counsel representing the federal employee involved. Often times, this can make a difference in the ability to settle a case on favorable terms with the federal agency involved. This law firm represents federal employees in these types of MSPB cases and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation regarding MSPB cases and the settlement process.