Federal employees, the MSPB, and what to do if “the Man” won’t honor its word.

Summary: This article gives a very brief overview of what you can do if you are or were a federal employee, settled an MSPB appeal with the government, and are now concerned it is breaching its agreement. 

Say you’re a federal employee who, unfortunately, had to file an appeal with the Merit Systems Protection Board (“MSPB”).  Perhaps you were improperly reduced in grade, removed from your position, or you were subjected to a prohibited personnel practice.  A final hearing before an Administrative Law Judge (“ALJ”) with the MSPB may be the way to fix the situation.  Other times, before the hearing you and the federal agency you work(ed) for may be able to work out some deal to put an end to the situation, like them reinstating you, paying you lost wages, agreeing not to sabotage your career, or the like.

You might or might not have an attorney at that time.  That deal may be great on paper (and it should always be in writing!), but what happens if your employer refuses to do what it said it would do?  That sort of thing is not necessarily common, nor is it unheard of. Unfortunately, there are federal agencies that have problems with a culture of retaliation.

You need to know your options if the worst happens, and the government won’t do what it agreed to.  If you had a private employer, your course of action would usually be straightforward: file a breach of contract claim in state court.  But when your agreement is with the federal government, things are a lot more complicated.  This article is meant to give a brief overview of some options and pitfalls you might have in that situation.  The MSPB process can be head-spinning and complex. Other blog posts by our Firm have covered other aspects of the MSPB.

One option is when you agreed to allow the MSPB to “maintain jurisdiction” to enforce the settlement.  Usually if you and the government reached an agreement over your appeal with the MSPB, as part of the agreement you would agree to dismiss your appeal in exchange for the government doing something.  In that situation, the agreement should still state whether the MSPB maintains jurisdiction over the settlement.  Usually, the ALJ will ask for a clear answer on that before closing the case.

If the MSPB maintains jurisdiction, basically this means that if the government violates the agreement, you will need to quickly go back to the MSPB first with a “petition for enforcement.”  The MSPB may order the government to comply with the agreement, or it may rescind the settlement, basically ripping it up and letting you resume your original appeal with the MSPB.  You would likely have to return any money paid under the settlement in that case.  You might then go on to win or lose your case.  Obviously, you could be better or worse off in that situation.

There is a critical problem, the MSPB does not have the authority to award money damages for breach of contract.  This means that it may not be able to “make you whole” depending on exactly the nature of the government’s actions—for instance, if your boss disparaged you in violation of the agreement and cost you a new job.

A possibly better option may exist if the MSPB no longer has the case at all.  An 1887 law called the Tucker Act allows people to sue the federal government for breach of contract in a special court, the Court of Federal Claims.  That includes some settlements, including of MSPB claims.  Specifically, if the agreement is one that “could fairly be interpreted as contemplating money damages in the event of a breach,” the Tucker Act applies and, if the MSPB is no longer in the picture, you may be able to sue in the Court of Federal Claims.  Cunningham v. U.S., 748 F.3d 1172, 1176 (Fed. Cir. 2014).

Fortunately, most settlements of MSPB appeals ought to be covered—although an agreement that was only about non-monetary things, like a transfer, might not be.  And the Court of Federal Claims would not consider what happened that led to the underlying appeal, only the circumstances of the settlement and whether it was breached.  That is because the MSPB has an exclusive ability to hear those kinds of personnel disputes with federal agencies.  However, the Cunningham case above suggests that you may be able to go to the MSPB first and then go to the Court of Federal Claims if the MSPB cannot give “complete relief”—i.e., can’t solve the entire dispute.  Id. at 1181.  So even if you go to the MSPB first and they can’t fix it, you aren’t necessarily stuck.

It is important to keep things like this mind if you are settling an MSPB case, but that can be much easier if you have counsel.  If you need help with a current or potential MSPB appeal or are concerned about a settlement with the government, you should talk to an employment attorney like those at Rob Wiley, P.C.



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