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May 2023

Settlement Agreements at the MSPB - Some Considerations

By John V. Berry,

Merit Systems Protection Board (MSPB) appeals, for the most part, ultimately result in settlement agreements. This means that a federal employee that has brought the MSPB appeal forward and the federal agency have come to an agreement that will resolve the appeal.  There are a number of different types of potential settlement resolutions in MSPB appeals, and these vary significantly on a case by case basis.  The types of settlements available also depend on a number of factors, such as strength of case, complexity of the appeal, and discovery efforts. 

What Types of Potential Settlement Options are Available at the MSPB

There are a number of potential settlement options available at the MSPB.  These include, but are not limited to settlements where an individual personnel action is mitigated (i.e. a termination is reduced to a suspension), where an individual’s disciplinary record may be cleared, where backpay may be agreed to or there could be an agreement for the repayment of attorney fees.  There are too many different types of settlement provisions to list for purposes of this article, but there are often many different types of potential solutions to a MSPB case through settlement. 

Some other examples of potential settlement proposals include clean paper agreements, employment references, recommendation letters, provisions relating to retirement benefits, provisions relating to unemployment compensation, confidentiality clauses, resignation agreements, reduction in disciplinary penalties agreements, reassignments, performance rating agreements, leave agreements, etc.

The general key to resolving an MSPB case through settlement is to start to attempt to negotiate as early as possible in the process with the assistance of an attorney while at the same time litigating your matter seriously before the MSPB. 

How the Settlement Agreement Process Works

Generally, settlement agreements at the MSPB are worked out between the parties following
the initial filing of the federal employee’s MSPB appeal.  Either side begins the process by proposing a settlement offer to the other side.  Eventually, when the initial terms of the settlement agreement are agreed to in principle, either the appellant’s counsel or the counsel for the federal agency involved begins the process of drafting the proposed written agreement.  At this stage, the parties will go back and forth until the final agreement is agreeable to both sides and then signed. 

The MSPB Role in the Settlement Process

Generally, when the parties conclude a signed settlement agreement, either the appellant or the agency submits the agreement to the MSPB administrative judge assigned to the case.  The administrative judge will review the agreement and determine whether it meets the MSPB standards for acceptance into the record.  Generally, these are accepted into the record quickly by the administrative judge who then dismisses the MSPB case as settled.   

Contact Us

When attempting to settle an MSPB case with a federal agency it is important to have counsel. 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 MSPB cases and can be contacted at (703) 668-0070 or to arrange for an individual consultation regarding MSPB cases and the settlement process.