Just 12% of initial appeals not dismissed or settled resulted in a judge ordering a corrective action or overturning the agency’s decision altogether. It remains uncommon for employees who take their cases to a judge to win. Agencies have pursued those options to avoid the lengthy, and oftentimes costly, process of going before an MSPB administrative judge for a full hearing and decision.
Other settlements can reduce the magnitude of a punishment, such as changing a firing to a suspension. Some lawmakers and other stakeholders have criticized the process, arguing it allows misbehaving or poorly performing employees to receive new federal jobs without the hiring agency knowing about their prior conduct. Settlements often enable employees to resign in exchange for wiping the slate clean on their personnel records. Just five years ago, agencies and employees settled 61% of cases. Just 47% of initial appeals before the Merit Systems Protection Board-the quasi-judicial agency tasked with ensuring agencies follow civil service laws in their disciplinary actions and other decisions-that were not dismissed immediately ended in settlement, according to MSPB’s annual report for fiscal 2019, down from 51% in fiscal 2018 and 53% in fiscal 2017. Federal employees appealing firings, suspensions and other adverse actions taken against them by their agencies are increasingly going before a judge to make their cases, rather than taking a settlement offer from their employer.
