In advising clients as to the strategy to adopt in litigating an appeal filed with the MSPB I ask the client how much risk the client is willing to accept in terms of continuing his or her career employed by the federal agency in question. The ability to live with risk relates to the decision whether the client is willing to try the case as compared to making every effort to settle the case. I inform the client the MSPB administrative judges are constrained by MSPB case law in adjudicating cases.
The administrative judges cannot take on the role of reviewing the reasonableness of the discipline imposed by management. The rational is that management employed by the agency has the knowledge and experience to impose reasonable discipline such that the administrative judge is entitled to reduce the discipline imposed only if the discipline appears to go beyond the bounds of reasonableness. If the client informs me he or she is unable to live with the risk and uncertainty of going to trial I direct my energies to discussing settlement with the agency’s attorney. The agency attorney’s role is one of analyzing the case and informing agency decision makers as to the possibility of the agency winning or losing at trial as well as advising whether it makes sense to settle the case. I often offer as an inducement to settling the case that the client will sign a last chance agreement in conjunction with agreeing to accept a lesser form of discipline, i.e. demotion, letter of warning.
The last chance agreement typically sets forth language giving the agency unilateral power to issue additional discipline if the agency declares the client violated the terms of the last chance agreement. A last chance agreement is often viewed by the client as onerous. I usually inform the client that while the terms appear harsh the result is the execution of the last chance agreement puts both sides on notice they should conduct themselves professionally so that neither party has to find themselves once again in an adversarial role in the workplace. Last chance agreements are an important tool in facilitating settlement.
I am able to regularly facilitate settlement working with the concept that a good settlement means both parties the agency and the client resolve the case by being somewhat dissatisfied with the settlement agreement. Settlement means, each side compromised. Compromise means each side did not get all one hoped to obtain by settling the case.