McCabe Settlement Agreement
McCabe Settlement Agreement
)
ANDREW G. MCCABE, )
)
Plaintiff, )
)
v. ) Civil Action No. 19-2399 (RDM)
)
MERRICK B. GARLAND, )
in his official capacity as )
ATTORNEY GENERAL OF THE )
UNITED STATES, et aL, )
)
Defendants. )
)
SETTLEMENT AGREEMENT
Plaintiff Andrew G. McCabe, by and through his undersigned counsel, and Defendants
Merrick B. Garland (in his official capacity as Attorney General of the United States, and including
his agents and successors in office), the U.S. Department of Justice ("DOJ"), the Federal Bureau
of Investigation ("FBI"), and Christopher A. Wray (in his official capacity as Director of the FBI,
and including his agents and successors in office) (collectively, "the Parties"), by and through
undersigned counsel, hereby enter into this Settlement Agreement (also "Agreement") and
RECITALS
WHEREAS, on August 8, 2019, Plaintiff filed the complaint (- Complaint") in the above-
captioned action ("Action") raising claims against Defendants under the First and Fifth
Amendments to the U.S. Constitution and, in the alternative, under 28 U.S.C. § 1361, and alleging,
inter alia, that Defendants unlawfully removed Plaintiff from the FBI and civil service and that
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WHEREAS, Defendants deny these claims and deny that they violated the Constitution or
any law, regulation, or policy when investigating and removing Plaintiff; and
WHEREAS, the Parties agree that Executive Branch officials outside the Department of
Justice and its components should not comment publicly on ongoing career civil service employee
disciplinary matters, except as provided by statute or regulation, so as not to create any appearance
WHEREAS, the Parties have engaged in arm's length negotiations through counsel
nor a concession by Plaintiff that his claims are not well-founded; and
WHEREAS, the Parties wish to resolve this dispute amicably, without the costs and
In consideration for the mutual promises and obligations in this Agreement, and with full
authority to enter into this Agreement, and intending to be bound thereby, the Parties agree to the
rescission of Plaintiff's removal from the FBI and the civil service and to the conferral upon
Plaintiff of the benefits specified herein. As detailed below, the FBI's records will be amended to
reflect that Mr. McCabe was employed continuously by the FBI from July 1996 until he retired on
March 19, 2018 as the FBI Deputy Director and a member of the Senior Executive Service, and to
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Defendants' Consideration to Plaintiff
rescind their removal of Plaintiff from the FBI and the civil service, and will rescind and vacate
former Attorney General Jefferson B. Sessions's March 16, 2018 removal decision ("DOJ
Removal Decision"), and the March 16, 2018 removal recommendation that was submitted to
2. The Parties agree that Plaintiff's electronic Official Personnel Folder will reflect
that he was employed continuously by the FBI from July 1996 until his retirement on March 19,
2018, as the FBI Deputy Director and a member of the Senior Executive Service ("SES"), after
3. Within 30 days of the execution of this Settlement Agreement, the government will
remove from Plaintiff's electronic Official Personnel Folder all documents that reflect or reference
his removal, and replace them with documents reflecting that Plaintiff was continuously employed
by the FBI until his retirement on March 19, 2018. Defendants will then provide to Plaintiff a
4. Plaintiff will be deemed to have retired from the FBI on March 19, 2018.
5. Plaintiff will be deemed to have separated from the FBI in good standing for the
6. Defendants will complete all actions necessary to ensure that Plaintiff will be
recorded as having entered the federal retirement system effective March 19, 2018, with an annuity
commencement date of April 1, 2018, see 5 U.S.C. § 8464(a)(1)(A), 5 C.F.R. § 842.208(b), and
will receive:
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a. a payment of a lump sum representing all retirement annuity payments, including
annuity supplement payments, that he would otherwise have received from the
April 1, 2018 annuity commencement date until the day before he is paid his first
regular monthly payment, which will be computed in accordance with all relevant
statutory and regulatory provisions, and which will not deduct or withhold any
amounts for benefits not received or for taxes not owed during the time period
b. prospectively from the date of his first regular monthly payment, through the
supplement payments, consistent with his March 19, 2018 retirement date;
c. the ability to enroll in the BCBS Standard Option Self and Family health insurance
coverage, which will take effect on the first day of the month his first regular
monthly annuity payment occurs after full execution of this Agreement; and
ii. retired FBI credentials, as are typically provided to retiring FBI Deputy
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7. Defendants agree to pay $539,348.15 to Plaintiff, pursuant to the Equal Access to
Justice Act, and in full settlement and satisfaction of all attorney's fees, costs, and expenses.
Payment shall be made to Plaintiff via electronic funds transfer to Arnold & Porter Kaye Scholer
LLP, as promptly as practicable, consistent with the normal processing procedures followed by
the Department of Justice and the Department of the Treasury, following the dismissal of the
above-captioned civil action. This provision does not constitute an admission that Defendants'
8. Compliance with all applicable federal, state, and local tax requirements shall be
the sole responsibility of Plaintiff. This Settlement Agreement is executed without reliance upon
any representation by any Defendant as to tax consequences, and Plaintiff is responsible for the
payment of all taxes that may be associated with payments related to this agreement. Further,
nothing in this Settlement Agreement waives or modifies federal, state, or local law pertaining to
taxes, offsets, levies, and liens that may apply to this Settlement Agreement or the settlement
proceeds, and this Settlement Agreement is executed without reliance on any representation by
9. Plaintiff, for himself and any heirs and personal representatives, fully and forever
releases and discharges Defendants (and their components, agents, officers and former officers,
and employees and former employees, either in their official or individual capacities) from any
and all claims, demands, and causes of action of every kind, nature, or description, whether known
or unknown, which Plaintiff may have had, may now have, or may hereafter discover arising out
of or in connection with any event complained of in or giving rise to the Complaint, including,
without limitation, events relating to Plaintiff's removal from the FBI and the civil service. In
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connection with such waiver and relinquishment, Plaintiff acknowledges that he is aware that he
different from those which he now knows, with respect to the matters released herein.
Nevertheless, it is the intention of Plaintiff through this release, with the advice of counsel, to settle
and release all claims of which he knew or should have known arising out of or in connection with
the events complained of in or giving rise to the Complaint, including, without limitation, events
relating to Plaintiff's removal from the FBI and the civil service, occurring prior to the date of this
Settlement Agreement.
10. Simultaneously with the execution of this Settlement Agreement, Plaintiff and
Defendants, by their attorneys, shall execute the Stipulation of Dismissal with Prejudice, which is
attached as Exhibit A to this Agreement. Within three (3) business days of the execution of the
Settlement Agreement, Plaintiff shall file with the Court the fully executed Stipulation of
Dismissal with Prejudice, thereby dismissing this Action with prejudice under Fed. R. Civ. P.
41(a)(1)(A)(ii).
Additional Provisions
11. This Settlement Agreement is not and shall not be construed as an admission by
any Defendant of the truth of any allegation or the validity of any claim asserted in this lawsuit, or
of any Defendant's liability therein. Furthermore, none of the terms of the Settlement Agreement
may be offered in evidence by any of the Parties in any civil or administrative action or proceeding
against another of the Parties, other than as necessary to consummate, implement, or enforce this
Settlement Agreement. The terms of this Settlement Agreement shall not be construed as an
admission by any Defendant that the consideration to be provided hereunder represents the relief,
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12. The terms and conditions of this Settlement Agreement may be enforced by
a. Upon the basis of an alleged breach of the Agreement by Defendants, Plaintiff may
file a Motion for Relief from a Judgment or Order pursuant to Fed. R. Civ. P.
60(b)(6) with the Court seeking relief from the dismissal entered pursuant to 11 10,
b. To the extent a motion asserted pursuant to ¶ 12(a), above, is consistent with the
requirements and limitations of this ¶ 12, and the requirements and limitations of
Fed. R. Civ. P. 60(b)(6), Defendants hereby agree not to oppose the filing of such
motion, but otherwise reserve any and all available defenses to such motion,
including without limitation any and all jurisdictional defenses and any right or
c. The exclusive procedure for bringing a claim to enforce the terms and conditions
i. Prior to filing any motion pursuant to ¶ 12(a), above, counsel for Plaintiff
mail, shall attach a fully executed copy of this Settlement Agreement, shall
specify precisely the basis for the alleged breach, shall describe with
claims, and shall state that Plaintiff intends to seek relief from the Court
through a motion filed under Fed. R. Civ. P. 60(b)(6) as set forth in ¶ 12(a),
above. Plaintiff shall not inform the Court of his allegation(s) at that time.
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ii. Defendants shall have a period of sixty (60) days after the receipt of such
between the Parties' counsel within the sixty (60) day period set forth in
12(c)(ii), above, or if, prior to the expiration of such sixty (60) day period,
counsel for Defendants advise counsel for Plaintiff that no further action
will be taken by Defendants, Plaintiff may seek relief from the Court as set
13. Each Party shall bear its own costs, fees, and expenses, except as provided in ¶ 7 of
this Agreement.
14. Plaintiff represents and warrants that he is the sole and lawful owner of all rights,
title and interests in and to every claim and other matter which Plaintiff purports to release herein,
and that he has not assigned or transferred, or purported or attempted to assign or transfer to any
person or entity any claims or other matters herein released. Plaintiff shall indemnify Defendants,
and any of Defendants' departments, components and current or former employees, whether in
their official or individual capacities, against, and defend and hold harmless from, any claims
arising out of or relating to any such assignment or transfer of any claims or other matters released
herein.
15. This Settlement Agreement contains the entire agreement between the Parties
hereto, and Plaintiff acknowledges and agrees that no promise or representation not contained in
this agreement has been made to him, and he acknowledges and represents that this Settlement
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Agreement contains the entire understanding between the Parties, and contains all terms and
conditions pertaining to the compromise and settlement of the disputes referenced herein. No
statement, remark, agreement, or understanding, oral or written, that is not contained herein shall
be recognized or enforced; nor does this Settlement Agreement reflect any agreed-upon purpose
other than the desire of the Parties to reach a full and final conclusion of the litigation and to resolve
instrument in writing, agreed to and signed by the Parties, nor shall any provision hereof be waived
17. This Settlement Agreement shall be binding upon and inure to the benefit of
Plaintiff and Defendants and their respective heirs, executors, successors, assigns, and personal
representatives, including any person, entity, department, or agency succeeding to the interests or
18. The Parties acknowledge that they have discussed this Settlement Agreement with
their respective counsel, who have explained these documents to them, and that they understand
all of the terms and conditions of this Settlement Agreement. The Parties further acknowledge
that they have read this Settlement Agreement, understand its contents, and execute this Settlement
Agreement of their own free acts and deeds. The undersigned represent that they are fully
19. Plaintiff hereby covenants that he will not commence against Defendants any
action, claim, suit, or administrative proceeding on account of any claim or cause of action that
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20. The following rules of construction apply to the Settlement Agreement:
with federal law. Nothing contained in this Settlement Agreement shall impose
would be inconsistent with federal statutes, rules, or regulations in effect at the time
of such performance.
21. Each person signing this Settlement Agreement represents and warrants that he or
she has full authority to execute the Settlement Agreement on behalf of himself or herself, or on
behalf of the party or entity on whose behalf he or she signs this Settlement Agreement.
22. This Settlement Agreement may be executed and delivered in counterparts. Each
counterpart, when executed, shall be considered one and the same instrument, which shall
comprise the Settlement Agreement, which takes effect on the date of execution.
24. This Agreement is effective on the date of the signature of the last signatory to the
Agreement.
* * * * *
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IN WITNESS WHEREOF, the Parties have executed this Agreement and/or caused this
BRIAN NETTER
Acting Assistant Attorney General
JUSTIN M. SANDBERG
Senior Trial Counsel
Howard N. Cayne (D.C. Bar. No. 331306) KYLA M. SNOW
Murad Hussain (D.C. Bar. No. 999278) GARRETT COYLE
Owen Dunn (D.C. Bar. No. 1044290) MICHAEL GERARDI
Nora G. Ellingsen (D.C. Bar No. 1685576) Trial Attorneys
Oluoma N. Kas-Osoka U.S. DEPARTMENT OF JUSTICE
Marissa Loya (D.C. Bar No. 1672681) Civil Division
Ryan D. White (D.C. Bar No. 1655918) Federal Programs Branch
ARNOLD & PORTER1CAYE SCHOLER LLP 1100 L Street, NW
601 Massachusetts Avenue, NW Washington, DC 20530
Washington, DC 20001-3743 Telephone: (202) 514-5838
Telephone: (202) 94,7-5000
Date:
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