Your Honor I Object

Oral Settlement agreement binding on parties barring an exception

The case Haefele v. Department of the Air Force, decided May 12, 2008 by the MSPB, reinforces that a valid oral settlement agreement is enforceable unless the parties intended on the record that the agreement must be both reduced to a writing and be signed by both parties before it becomes valid.

1. In this case, the appellant appealed nonperformance by the agency to issue a 1-day suspension to be followed by appellant's resigning from service.  The MSPB concurred and gave the option of either accepting the original oral agreement with MSPB enforcement or re-instigating the appeal of her removal.
2. Appellant chose to reinstating her original appeal and it was so ordered.

The MSPB has the authority to enforce settlement agreements under:

• Perkins v. DVA, 105 M.S.P.R. 289 (2007).
• Richardson v. EPA, 5 M.S.P.R. 248.

The enforcement of settlement agreements has been held to be governed by contract law.  Please see Kinney v. DVA, 103 M.S.P.R. 602 (2006).

The Federal Circuit ruled that oral settlement agreements are enforceable unless the above exception holds true.

Please see Tiburzi v. DOJ, 269 F3d 1346 (Fed Cir 2001).

Note that even if the language of the oral agreement suggests that the agreement will be reduced to a writing, that the language is by itself inadequate to invalidate an otherwise valid agreement.  The record must show that the parties intended to be bound only after a writing is prepared and the agreement is signed.

Here, the MSPB noted that the 1-day suspension could be initiated without the appellant submitting a request for personnel action and further that no other signature was required by either party to the agreement.

Fun, Games and attorney fees at the MSPB

In the interesting case of Guerrero, Jr. v DVA, 2007 MSPB 133, the appellant successfully defeated his removal.  The charges were falsification of employment application and lack of meeting the standard for being a professional engineer.  With one dissent, the MSPB reversed the ALJ in that the agency did not prove intent to mislead by Guerrero in his application and resume materials.

The MSPB further ordered the agency to pay job search and attorney fees.  Back pay and restoration to his position was required.

Recently the appellant requested enforcement of the previous order for attorney fees.  While agreeing, the amount remains in dispute for at least two reasons:

1. A copy of the fee agreement with the attorney was not on record.
2. The normal hourly fee charged and the number of hours worked on the case by the attorney was not on the record.

For all those practicing attorneys out there looking to get their fees paid by the government in MSPB and most other instances related to Federal Employees, the above two enclosures are a MUST. 

I keep templates of these kinds of letters on my computer to ensure the correct form is followed.  Often, you will have lost money or be paid the equivalent of much less than normal for these kinds of cases, so be sure you have at least followed form to get payback as best you can. 

Federal employment is an interesting form of law practice given the difficulty of convincing ALJs (Article I judges) and the MSPB.  Not to mention the cost and logistics if the case bears appealing to the Federal Circuit.  So many times as in this appeal, the Chairman or 1 of the three members is in dissent- the votes often end up 2-1.

WPA not a blanket protection from removal

The Whistleblower Protection Act is not a blanket protection from removal or discipline for Federal employees even if what they report is not frivilous or at least is seen as reasonable.

The federal agency is not reprising against an employee claiming whistleblower status when the agency can show adequate cause which would sustain the discipline in the absence of the reported activity.

In the case King v. Department of Veterans Affairs, case 2008-3043, decided May 6, 2008, the Federal Circuit affirmed the MSPB decision to uphold the petitioner's removal.  The evidence presented was deemed sufficient and included the previous discipline imposed upon the employee in the record.

Whistleblower wins new hearing at MSPB

A Safety and Occupational Health Manager (SOHM) working for the DOE on nuclear weapons safety was awarded a new hearing at the MSPB which previously ruled lack of jurisdiction.

In the case, Johnston v MSPB, case number 2007-3167, March 3, 2008, Johnston had claimed repraisal in the form of counseling and restriction (redesignation) of duties after expressing serious concerns to agency officials about the planned reassignment of safety functions (nuclear weapons safety drills, etc) to individuals she deemed not qualified.  Her concerns were expressed in emails and specifically memorandums to the OIG.  A letter was also sent to Special Counsel.

The agency claimed the complaints were frivilous and without merit, and the MSPB decided it had no jurisdiction to hear the complaint.

The Federal Circuit, in reversing and remanding noted that there is a different standard between jurisdiction in MSPB cases and in winning a judgment under the WPA.  Employees need only show that their whistleblowing was reasonable under the circumstances whether or not an actual illegal or wasteful act occurred.  The standard of review is an objective one. See LaChance v White, 774 F3d 1378, 1381(Fed. Cir 1999).  The WPA statute at 5 U.S.C. 2302(b)(8)(A) prohibits agencies from taking adverse personnel actions when the criteria is met by the employee alleging wrongdoing.

The agency must show more than the mere contention that the complaint was frivilous to prevail.  The burden of proof, once the WPA is met shifts to the agency to prove by clear and convincing evidence that the action taken would have been taken in the absence of the protected complaint.

The court noted that the complaint had merit under the WPA for MSPB jurisdiction and remanded the case for determination.  The difficulty for the employee at that rehearing will stem from the early dismissal resulting in both a lack of discovery by the employee and the inability to view the agency record on the matter.  Nevertheless, the employee voice will be heard.  The Federal Circuit noted that the danger to public health in the area of nuclear weapons safety seems serious and was clear that the issue must be fully litigated in the public interest.  The alleged reprisal was sufficiently close in time after the employee complaint to meet the WPA standard.

I will be watching the MSPB record for their decision in the matter.