Get good legal help for appeal

A recent decision by the Merit Systems Protection Board points out the necessity of good legal representation when attempting to appeal an adverse action.

The case involved a postal employee who was fired for being absent without leave one time too many. USPS removed this employee Nov. 10, 1994, for "irregular" attendance. The employee appealed his removal to the MSPB. On Feb. 28, 1995, the parties entered into a last-chance settlement agreement. This arrangement called for USPS to hold off on the employee's removal for a year, during which the employee was to meet certain obligations, including satisfactory attendance.

On May 19, 1995, before the expiration of the one-year period, USPS removed the employee, claiming he had violated the last-chance agreement by being absent from work on more than three unscheduled occasions. He again appealed his removal to the MSPB, contending that USPS had breached the settlement agreement. The employee and USPS entered into a second settlement agreement Sept. 11, 1995. Under the terms of that agreement, the employee withdrew his appeal and resigned from his position, but he remained free to apply for reinstatement. The second settlement was not formally "entered into the record" with the MSPB, but the MSPB was notified of the agreement. As a result, on Oct. 3, 1995, the MSPB dismissed the appeal.

Six months later the employee requested re-instatement. USPS denied his request. He then petitioned the MSPB for enforcement of the September 1995 agreement. The administrative judge raised a question regarding the MSPB's jurisdiction over the petition and ordered the former USPS employee to prove that his action fell within the MSPB's jurisdiction. In response, he submitted evidence in support of his contention that USPS breached the settlement agreement. In an order dated April 25, 1995, the administrative judge noted that the MSPB generally does not have the authority to enforce a settlement agreement if the parties do not enter the agreement into the MSPB's record for enforcement purposes. The administrative judge clarified, however, that even if the parties do not enter an agreement into the record, the MSPB has jurisdiction to consider an appeal if the petitioner challenges the validity of the agreement. Accordingly, the administrative judge gave the former employee an opportunity to "raise a nonfrivolous, factual claim that the agreement was either involuntary or was the result of fraud or mutual mistake." If he could meet this condition, then the administrative judge would consider the appeal.

In response, the former USPS employee submitted evidence in support of his claim that USPS "had no intention of honoring the agreement."

That didn't meet the conditions stipulated by the administrative judge. As a result, the judge ruled that the worker had failed to establish that the settlement agreement was invalid, and the judge dismissed the appeal.

This presented the former employee with a dilemma: If the MSPB cannot consider an appeal because it lacks the authority to do so, what does one do? The only course of action was to take his case to the U.S. Court of Appeals. And that's what he did.

He did not have much luck with the court, which said that the MSPB correctly dismissed the petition for lack of jurisdiction. The MSPB does not retain jurisdiction to enforce a settlement agreement if the parties do not enter the agreement into the MSPB record.

Although this sounds like nothing more than a formality, it appears that in matters of law, one must dot all the i's and cross all the t's.

The MSPB regulations are clear. They read as follows:

(i) If the parties offer the agreement for inclusion into the record and if the judge approves the agreement, it will be made a part of the record, and the MSPB will retain jurisdiction to ensure compliance with the agreement.

(ii) If the agreement is not entered into the record, the MSPB will not retain jurisdiction to ensure compliance.

The only exception to the above rule is that "a party may challenge the validity of a settlement agreement resulting in the withdrawal of an appeal, even when the agreement is not entered into the MSPB's record for enforcement purposes, if the party believes that the agreement is unlawful, was involuntary or was the result of fraud or mutual mistake."

The court noted that the former USPS employee had ample opportunity to raise a claim before the MSPB that the settlement agreement was invalid and support such a claim with appropriate factual allegations and evidence. He failed to make such a claim or offer supporting evidence.

This case underscores the value of solid legal representation. It certainly looks as though the employee did not receive good legal counsel, neither when his settlement agreement was not "entered" with the MSPB nor when presented with an opportunity by the administrative judge.

Meanwhile, the court sustained the MSPB's conclusion that the former employee failed to make a "nonfrivolous showing" that the settlement agreement was invalid. Accordingly, because the settlement agreement was not entered into the MSPB's record, the MSPB properly dismissed the petition for enforcement for lack of jurisdiction.

(Citation: U.S. Court of Appeals for the Federal Circuit, 98-3089, Tyrone Coleman v. United States Postal Service. Decided June 5, 1998.)

-- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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