MSPB: Enforcement of Settlement Agreements made during an MSPB Appeal

When a Federal Employee negotiates a settlement of an MSPB appeal, he or she is entitled to the benefit bargained for in the agreement. A recent MSPB case illustrates how the MSPB Administrative Judge and the MSPB Full Board review settlement agreements entered into by Parties. Felch v. Navy, 2009 MSPB 160 (August 24, 2009).

First, the MSPB should look to the law of contracts in interpreting settlement agreements. (N.B. – Contract law interprets contracts by first looking to the contract itself. If the words are clear, then interpretation is rather straightforward. If there is ambiguous language, then the law of contracts provides a litany of interpretative tools, which are too detailed to go into here).

For the MSPB, the words of a settlement agreement are of paramount importance. The MSPB will look to the four corners of the document to determine the Parties’ intent. What does all that mean in reality? Here are a couple examples:

1) When a Settlement Agreement in an MSPB appeal provides for only the expungement of adverse action-related documents from an Appellant’s OPF, the Federal Circuit has construed that provision to provide for expungement of those documents from “all personnel records that are officially kept.” King v. Dept. of Navy, 130 F.3d 1031 (Fed. Cir. 1997).

2) When an Agency settled an MSPB appeal by promising to rescind the federal employee’s removal and issue a PS-50 indicating that she had resigned. The MSPB found that this provision is actually a promise by the agency to destroy all removal-related documents, erase “removal” and all reasons for such removal from the Appellant’s record with the Agency, and leave the PS-50 as the only document recording the end of her employment with the Agency. Principe v. USPS, 100 MSPR 66 (2005); Conant v. OPM, 255 F.3d 1371 (Fed. Cir. 2001).

3) When an Agency agreed, in an MSPB settlement agreement to use its “best efforts” to “effectuate” the federal employee’s disability retirement, the MSPB found that the Agency was precluded from disclosing any removal-related information to the OPM. Conant v. OPM, 255 F.3d 1371 (Fed. Cir. 2001).

4) Though an agreement did not specifically address the Agency’s obligations about communicating with third-parties (i.e., State unemployment board) , the MSPB found that the Agency must eliminated all references to the suspension and notice of proposed removal from the Appellant’s professional record with the Agency. The Agency could not disclose information about these matters to any third party, including a State Unemployment Insurance Board. Felch v. Dept. of the Navy, 2009 MSPB 160 (August 24, 2009).

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

If you believe that your Agency has breached a settlement agreement before the MSPB, or if you need help drafting language for an MSPB settlement agreement, or if you are a Federal employee with an MSPB matter, please contact the MSPB lawyers at the Law Office of Eric L. Pines, PLLC. Lawyers at the Law Office of Eric L. Pines represent Federal Employees before the MSPB, the EEOC, OPM and OWCP in all fifty (50) states in the country.