Continuing in our series on “10 Ways to Lose an MSPB Appeal”, today we will discuss a common way to shoot yourself in the foot. Ignore a reasonable settlement offer.
A common misconception about settlement is that it means you are giving in. This is not true. Settlement is a way for two parties to put a dispute behind them by finding some middle ground. The Agency won’t get everything it wants, and the Appellant usually won’t get everything he/she wants. Many times, though, if you approach settlement properly, you can make a pretty good deal for yourself.
Here’s how to approach settlement negotiations in theMerit Systems Protection Board (MSPB). Take a sheet of paper, and draw two columns. Mark the first column “Full Relief” and write down everything that the MSPB can award you if you prevail in your case. Mark the second column “Total Loss”, and write down everything you will get if you lose your appeal; this is usually a big Zero.
This has given you the range of settlement you have in your case. Any settlement offer that falls in between the two is reasonable, and you should consider it. Whether or not you accept it depends on a lot of factors: the actual strength of your case (what a neutral third-party thinks, not what you think), the hassle and headaches of litigation, your goals in taking on an Agency, and whether or not the offer achieves those goals.
One point that a lot of litigants forget is this: There is nothing that says that you have to go all the way to hearing to prove your point, or accomplish what you set out to accomplish. But you must know what it is you are trying to accomplish. Whether you want to preserve your retirement benefits, want a clean record, or just want back-pay plus interest, it is vital to know, from the beginning, what it is you would like to get out of litigation.
Very few people can really comprehend the physical, emotional, psychological and professional strain and stress of litigation until they are too far into the process. By that time, the opportunity to get what they wanted has usually passed. Every time I talk to a potential new client, I ask this question: “If I could give you what you wanted right now to make you walk away from litigation, what would it be?” After refining that goal to something that is achievable, our Firm sets out to get you that result as quickly as possible.
Finally, nobody says you have to accept a settlement offer – and our Firm will not settle a case without a client’s agreement. We will give you a candid assessment of the offer, tell you whether it’s good, bad or average, whether we think you can do better at hearing, and advise you whether or not to accept the offer.
All we ask is that you give serious consideration to every reasonable offer the Agency makes. Many times, but not always, the earliest offer is the best offer.
If you are not sure of the pros and cons of the Agency’s settlement offer, contact an attorney who has experience with federal employees and the MSPB. If you don’t, you may find yourself without any chair when the music stops, particularly if you thought your case wasn’t as strong as you thought it was.
We’ll review your case and settlement offer, and if necessary and possible, we can help you negotiate your deal and sometimes negotiate a better deal.