Last summer, we posted a survey of Initial Decisions of the Merit Systems Protection Board (MSPB) over a 30-day period. You can read that post by clicking here.

That survey, though not entirely scientific, revealed that out of 52 non-retirement actions before the Board, the employee only prevailed (won after hearing) 2% of the time. That ratio is consistent with the trend before the Board over the past several years.

Given the unlikely odds of prevailing before the MSPB, in most cases, settlement is the best option for the employee-appellant. A settlement can offer the employee to accomplish things that they couldn’t accomplish in hearing. For example, in one recent settlement entered by one of our clients, an Agency agreed to pay the costs of depositions taken by the Appellant. Even if our client won on appeal, they would not have been reimbursed these costs because the MSPB has held that deposition costs are non-compensable in an attorney-fee petition.

In another example, an Agency agreed to give a positive letter of reference to an appellant as part of a much broader settlement package. Even if the employee won on appeal, no MSPB judge can order an Agency to give an employee or former employee a positive letter of reference. Having a positive letter of reference from a government supervisor, as opposed to a performance-removal on his record, helped this particular employee immensely in his search for a new (and better) job.

Because of the many possibilities for settlement before the MSPB, and because of the many dangers and risks associated with settling your MSPB Appeal, Mr. Attig intends to publish and sell a handbook on MSPB Settlements in the Fall/Winter of 2008. The Handbook will include a discussion of many of the most common settlement terms, tips for how to negotiate a settlement agreement, and samples/drafts of settlement agreements.

If you are interested in receiving an email or letter announcing the publication of the MSPB Settlement Handbook, please send an email to the Attig Law Firm, PLLC.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about the settlement in your MSPB appeal, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.