What is Due Process in

Federal Civil Service Employment?

A Report to the President and the Congress of the United States

by the U.S. Merit Systems Protection Board 

May 2015

U.S. MERIT SYSTEMS PROTECTION BOARD

1615 M Street, NW

Washington, DC 20419-0001

The President

President of the Senate

Speaker of the House of Representatives

Dear Sirs:

In accordance with the requirements of 5 U.S.C. § 1204(a)(3), it is my honor to submit 

this U.S. Merit Systems Protection Board (MSPB) report, What is Due Process in Federal Civil Service 

Employment? This report explains the interactions between the U.S. Constitution and adverse 

personnel actions in a merit-based civil service. 

In the Civil Service Reform Act of 1978 (CSRA), Congress sought to ensure that agencies 

could remove poor performers and employees who engage in misconduct, while protecting the civil 

service from the harmful effects of management acting for improper reasons such as discrimination 

or retaliation for whistleblowing. Recently, Congress has expressed an increased interest in amending 

the CSRA, including those provisions that apply to adverse actions. 

To assist Congress in these endeavors, this report explains the current civil service laws 

for adverse actions and the history behind their formation. It also explains why the Constitution 

requires that any system to remove a public employee for cause must include: (1) an opportunity 

– before removal – for the individual to know the charges and present a defense; and (2) the ability

to appeal a removal decision before an impartial adjudicator. The report discusses why the 

circumstances of the case can determine whether the individual has been given the process that is “due” 

and how this enables the employing agency to act even more swiftly when there is reason to believe that 

a serious crime has been committed. The report also contains an appendix that clarifies any confusion 

about how the current civil service operates.

Due process is available for the whistleblower, the employee who belongs to the “wrong” 

political party, the reservist whose periods of military service are inconvenient to the boss, the 

scapegoat, and the person who has been misjudged based on faulty information. Due process is a 

constitutional requirement and a small price to pay to ensure the American people receive a meritbased civil service rather than a corrupt spoils system.

I believe that you will find this report useful as you consider issues affecting the Federal 

Government’s ability to maintain a high-quality workforce in a merit-based civil service.

Respectfully,

Susan Tsui Grundmann

U.S. Merit Systems Protection Board
 

Susan Tsui Grundmann, Chairman 

Mark A. Robbins, Member 

Office of Policy and Evaluation 

Director 

James M. Read 

Deputy Director 

James Tsugawa 

Project Manager 

Sharon Roth 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table of Contents 

Executive Summary ............................................................................................ i
 

Introduction ....................................................................................................... 1
 

Chapter One: Development of Federal Employee Rights ....................................3
 

The Spoils System ...........................................................................................3
 

The Pendleton Act of 1883...............................................................................5
 

The Lloyd-La Follette Act of 1912 ....................................................................5
 

The Veterans’ Preference Act of 1944............................................................... 7
 

President Kennedy’s Executive Order in 1962..................................................9
 

The Civil Service Reform Act of 1978 ...............................................................9
 

Chapter Two: Loudermill and Progeny ............................................................. 13
 

The Loudermill Case ..................................................................................... 13
 

Loudermill Applies to Federal Government ................................................... 18
 

Loudermill and Suspensions .........................................................................23
 

Chapter Three: The Statutory Procedures ........................................................ 27
 

Suspensions of 14 Days or Less...................................................................... 27
 

Suspensions of More than 14 Days, Demotions, and Removals ...................... 27
 

Chapter Four: Efforts to Modify the System .....................................................33
 

Government-Wide Modifications ...................................................................33
 

Agency-Specific Modifications.......................................................................36
 

Conclusion ........................................................................................................39
 

Appendix A: Clearing up the Confusion............................................................ 41
 

Appendix B: The Statutory Process Flowcharts ................................................45
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Executive Summary 

Recently, there has been extensive public discourse comparing the Federal civil 

service and employment in the private sector, particularly pertaining to adverse actions 

such as removals. The truth is that the adverse action laws are not entirely different. As 

with private sector employers, the Government may be sued for discrimination, 

violation of the rights of veterans to return to duty after military service, retaliation for 

protected whistleblowing activities, and for ignoring other laws applicable to the private 

sector that Congress has deemed necessary for the public good. However, it is also true 

that there are some rules about the process for removing employees that apply only to 

the Federal Government. As this report will explain in greater depth, the requirements 

of the U.S. Constitution have shaped the rules under which civil service agencies may 

take adverse actions, and the Constitution therefore must play a role in any responsible 

discourse regarding modifications to those rules. 

More than a century ago, the Government operated under a “spoils system” in 

which employees could be removed for any reason, including membership in a different 

political party than the President or publicly disclosing agency wrongdoing. The result 

of such a system was appointment and retention decisions based on political favoritism 

and not qualifications or performance. In response, Congress determined that there 

was a need for a career civil service, comprised of individuals who were qualified for 

their positions and appointed and retained (or separated) based on their competency 

and suitability. As a part of this system, Congress enacted a law stating that any adverse 

action must be taken for cause – meaning that the action must advance the efficiency of 

the service. 

Today, that law, as amended, is codified in chapter 75 of title 5. Under chapter 

75, an agency may implement an adverse action – up to and including removal – for 

such cause as will promote the efficiency of the service. Before an agency imposes a 

suspension for 14 days or less, an employee is entitled to: (1) an advance written notice 

stating the specific reasons for the proposed action; (2) a reasonable time to answer 

orally and in writing and to furnish affidavits and other documentary evidence in 

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Executive Summary 

support of the answer; (3) be represented by an attorney or other representative; and (4) 

a written decision and the specific reasons therefor at the earliest practicable date. 

Before an agency imposes a suspension for more than 14 days, a change to lower 

grade, reduction in pay, or a removal action, an employee is entitled to: (1) at least 30 

days’ advance written notice, unless there is reasonable cause to believe the employee 

has committed a crime for which a sentence of imprisonment may be imposed, stating 

the specific reasons for the proposed action; (2) a reasonable time, but not less than 7 

days, to answer orally and in writing and to furnish affidavits and other documentary 

evidence in support of the answer; (3) be represented by an attorney or other 

representative; and (4) a written decision and the specific reasons therefor at the earliest 

practicable date. The law also provides that for these more serious adverse actions, once 

the action has taken effect, the employee is entitled to file an appeal with the Merit 

Systems Protection Board. 

While a legislature can decide whether to grant property, the Constitution 

determines the degree of legal process and safeguards that must be provided before the 

Government may take away that property. The U.S. Supreme Court has repeatedly held 

that, when a cause is required to remove a public employee, due process is necessary to 

determine if that cause has been met. Neither Congress nor the President has the power 

to ignore or waive due process. 

Due process “couples” the pre- and post-deprivation processes, meaning that the 

more robust the post-deprivation process (i.e., a hearing before an impartial 

adjudicator), the less robust the process must be before the action occurs. However, at 

a minimum, due process includes the right to: (1) be notified of the Government’s 

intentions; and (2) receive a meaningful opportunity to respond before the action takes 

place. 

Congress has enacted the procedural rules described above to help ensure that 

adverse actions are taken in accordance with the Constitution and for proper cause. Due 

process – and the rules that implement it – are in place for everyone, not only for the 

few problem employees who will inevitably appear in any workforce of more than a 

ii WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

Executive Summary 

million individuals. Due process is there for the whistleblower, the employee who 

belongs to the “wrong” political party, the reservist whose periods of military service are 

inconvenient to the boss, the scapegoat, and the person who has been misjudged based 

on faulty information. Due process is a constitutional requirement and a small price to 

pay to ensure the American people receive a merit-based civil service rather than a 

corrupt spoils system. 

When considering any changes to the current statutes for adverse actions, it will 

be important for those involved in the debates to consider: (1) how best to achieve the 

goal of a merit-based civil service that has the respect of the American people, including 

those citizens that the Government hopes will answer the call to public service; and (2) 

the extent to which the new language of the statutes will comport with the Constitution 

as interpreted by the U.S. Supreme Court. 

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Executive Summary 

iv WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Introduction 

The issue of due process1 in Federal employment has received attention in recent 

years in the decisions of both the U.S. Merit Systems Protection Board (“MSPB” or “the 

Board”) and its reviewing court, the U.S. Court of Appeals for the Federal Circuit 

(“Federal Circuit”).2 The roots of due process are older than the Republic and are 

enshrined in the Constitution.3 In 1912, when Congress established by statute that civil 

service employees could not be removed except for just cause, it included a list of 

processes due to employees.4 Congress also was concerned about due process when it 

enacted the Civil Service Reform Act of 1978 (CSRA), which created the Board as a 

successor agency to the Civil Service Commission (CSC) and codified the procedures 

many agencies still use today to remove or discipline Federal employees.5 Due process’s 

deep roots in American jurisprudence, the Constitution, and more than a century of 

Federal civil service laws ensure that it is an issue that is fundamental to the question of 

Federal employee rights. The purpose of this report is to describe, in plain English, the 

1 Due process refers to the steps that the Government must take to ensure fairness before 

depriving a citizen of life, liberty, or property. As Chapter Two will explain in greater depth, 

due process is guaranteed by the U.S. Constitution and applies to public employment in which 

the Government has established that there must be a cause to remove or suspend an individual. 

See Gilbert v. Homar, 520 U.S. 924, 935-36 (1997) (suspension); Cleveland Board of 

Education v. Loudermill, 470 U.S. 532, 541 (1985) (removal). Due process “is flexible and calls 

for such procedural protections as the particular situation demands.” Gilbert, 520 U.S. at 930 

(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). 

2 See, e.g., Ward v. U.S. Postal Service, 634 F.3d 1274, 1279 (Fed. Cir. 2011) (holding that if 

a deciding official is given new and material information relevant to the charges or the penalty 

without providing the employee with an opportunity to respond, then the employee’s due 

process rights are violated); Gajdos v. Department of the Army, 121 M.S.P.R. 361, ¶¶ 18-25 

(2014) (arguing that Mathews v. Eldridge, 424 U.S. 319 (1976) established the standard to be 

used to determine due process rights); but see id., dissenting opinion of Vice Chairman 

Wagner, at ¶ 3 (asserting that the Board’s examination of an employee’s entitlement to due 

process should be governed by Cleveland Board of Education v. Loudermill, 470 U.S. 532 

(1985), not Mathews). 

3 Griffin v. Illinois, 351 U.S. 12, 16-17 (1956) (explaining that our constitutional guarantee 

of due process follows the tradition set forth in the Magna Carta). See Pacific Mutual Life 

Insurance Co. v. Haslip, 499 U.S. 1, 28-34 (1991) (Scalia, J., concurring) (describing the 

history of due process from the Magna Carta in 1215, to an English statute from 1354, to the 

American colonists’ understanding of the term in the late 18th century as expressed in their 

laws and state constitutions, to Supreme Court decisions reached thereafter). 

4 Lloyd-La Follette Act, 37 Stat. 555, Aug. 24, 1912. 

5 S. Rep. 95-969, at 40 (1978 U.S.C.C.A.N. 2723, 2762) (explaining that the CSRA’s “new 

procedures [were expected to] make it possible to act against ineffective employees with 

reasonable dispatch, while still providing the employee his due process rights”). 

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Introduction 

history of due process and the sources of due process rights in Federal employment to 

explain the past and provide a foundation to explore issues that may arise in the future. 

Appendix A contains a list of some perceptions about the civil service, accompanied by 

facts to clear up confusion about the system along with citations to allow further 

research and discovery for those who may be interested in correcting the record. 

Appendix B contains flowcharts showing how the adverse action system works. The 

materials contained in the appendixes are repeated in the back of the report on 

perforated sheets so that they can be removed and shared with others. 

2 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

Chapter One: Development of Federal Employee Rights 

Due process is the means by which the Government may lawfully deprive an 

individual of his or her life, liberty, or property.6 To explain why due process applies to 

Federal employment we begin with a discussion of why Federal employees have a 

property interest in their employment. 

The right to be removed only for just cause (and not arbitrarily or for a reason 

that is contrary to the public good) is distinct from due process. However, it is that right 

to just cause that gives the employee a property interest in the job, which triggers the 

constitutional requirement that the Government follow due process in the removal of 

that property interest. 

To many people, it may seem odd for the law to give a person a “right” to 

continue in a Federal job, the thinking being that the job belongs to the Government on 

behalf of the American people and the incumbent is merely the temporary holder of the 

position. The job exists to serve the public, not the particular person who happens to be 

filling it. Why, then, protect the individual’s right to keep the job? 

The right to be removed only for cause did not come about purely out of concern 

for the individual who desires to avoid unemployment. Rather, it was the result of 

thorough debate over how best to ensure that the individuals responsible for 

effectuating Federal laws – employees of the executive branch – were the right people 

for the jobs at hand. The requirement that there be just cause to remove an employee is 

the opposite side of the coin from the requirement that the appointment of the 

individual be justified by his or her fitness for service. Both ensure a merit-based 

system. 

The Spoils System 

Prior to 1883, incompetence and corruption flourished throughout the Federal 

Government, as individuals were appointed and retained (or separated) based upon 

6 U.S. Const. Amend. V. 

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Chapter One: Development of Federal Employee Rights 

political contributions rather than capabilities or competence.7 This was known as the 

“spoils system” because Federal positions were considered the spoils of war (elections 

being the war) available for distribution to supporters as payment for that support.8 In 

the words of Theodore Roosevelt (who served as a Civil Service Commissioner before 

becoming the 26th President), “[t]he spoils system was more fruitful of degradation in 

our political life than any other that could possibly have been invented. The spoilsmonger, the man who peddled patronage, inevitably bred the vote-buyer, the vote-seller, 

and the man guilty of misfeasance in office.”9 

Aside from the ethical standards of an individual who was likely to engage in the 

behaviors necessary to be selected in a spoils system, holding the position itself also did 

not encourage ethical behavior. In order to keep the appointment, an employee might 

use his office to grant favors to the leadership of the party in power. “Not only 

incompetence, but also graft, corruption, and outright theft were common.”10 George 

William Curtis, a proponent of a merit-based civil service, said that under the spoils 

system, “[t]he country seethe[d] with intrigue and corruption. Economy, patriotism, 

honesty, honor, seem[ed] to have become words of no meaning.”11 The system was so 

deeply corrupt that ultimately, a President was assassinated by a disappointed office 

7 Elrod v. Burns, 427 U.S. 347, 354 (1976) (explaining that “strong discontent with the 

corruption and inefficiency of the patronage system of public employment eventuated in the 

Pendleton Act”). President Andrew Jackson is famously credited with saying, "If you have a job 

in your department that can’t be done by a Democrat, abolish the job[.]” The Independent, 

“Andrew Jackson,” available at http://www.independent.co.uk/news/presidents/andrewjackson-1391112.html. See also U.S. Office of Personnel Management, Biography of an Ideal 

(2003), at 175-200. 

8 U.S. Office of Personnel Management, Biography of an Ideal (2003), at 184. 

9 Id. at 182-83. 

10 Id. at 183-84. 

11 Id. at 182. In 1871, George William Curtis was appointed by President Ulysses S. Grant to 

serve as chairman of the first Federal Civil Service Commission. The commission was unable to 

stop the use of patronage to fill positions and Curtis resigned. Ultimately, the commission’s 

funding was terminated and reform would not come until the Pendleton Act of 1883. New York 

Times, “On This Day,” available at 

https://www.nytimes.com/learning/general/onthisday/harp/1207.html. 

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Chapter One: Development of Federal Employee Rights 

seeker who believed that he was entitled to a Federal job based on the work he had done 

for his political party and had been denied this entitlement.12 

The Pendleton Act of 1883 

In 1883, Congress passed the Pendleton Act, which required that the classified 

civil service (meaning the Federal positions subject to the rules for merit that Congress 

had established) hire employees based on the “relative capacity and fitness of the 

persons examined to discharge the duties” in question, following “open, competitive 

examinations” of candidates.13 

However, retention of these capable individuals proved to be a different question. 

In the decades following the Pendleton Act, protections against removals varied based 

on the whims of the President in office. In 1896, President Grover Cleveland ordered 

that removals of Federal employees could not be made based on “political or religious 

opinions or affiliations” and penalties for “delinquency or misconduct” must be “like in 

character” for “like offenses[.]”14 In 1897, President William McKinley amended that 

rule to include that, “No removal shall be made from any position subject to competitive 

examination except for just cause and upon written charges filed with the head of the 

Department, or other appointing officer, and of which the accused shall have full notice 

and an opportunity to make defense.”15 

The Lloyd-La Follette Act of 1912 

Despite these rules, abuses remained. In 1912, when discussing the need to enact 

legislation to ensure that removals were consistent with merit, Senator Robert La 

Follette entered into the Congressional Record stories of myriad abuses, including that 

a “particularly efficient” employee who was recently promoted was fired a few weeks 

12 Biography of an Ideal at 199-201.
 

13 Pendleton Act of 1883, § 2.
 

14 Grover Cleveland, “Executive Order - Civil Service Rules,” Rule II, §§ 3, 6 (May 6, 1896),
 

available at http://www.presidency.ucsb.edu/ws/?pid=70805. 

15 United States v. Wickersham, 201 U.S. 390, 398 (1906) (quoting the Executive Order of 

July 27, 1897). 

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Chapter One: Development of Federal Employee Rights 

later for notifying the press of dangerous working conditions that had already caused 

the deaths of four people.16 One letter entered into the record alleged that reductions in 

grade and summary removals for reasons unrelated to job performance had caused the 

civil service to become “a laughing farce and a cruel mockery.”17 

In 1912, Congress enacted section 6 of the Lloyd-La Follette Act, which stated in 

part, 

That no person in the classified civil service of the United States shall be 

removed therefrom except for such cause as will promote the efficiency of 

said service and for reasons given in writing, and the person whose 

removal is sought shall have notice of the same and of any charges 

preferred [sic] against him, and be furnished with a copy thereof, and also 

be allowed a reasonable time for personally answering the same in writing; 

and affidavits in support thereof[.]18 

The Lloyd-La Follette Act included the right of the CSC to review a copy of the 

records related to the above, but expressly did not provide for the right to a hearing or 

examination of witnesses unless the management official effectuating the removal chose 

to provide them.19 

16 48 Cong. Rec. 10731 (Aug. 12, 1912). The passage of more than a century has not 

eliminated the need to ensure that removals are for cause and not for an improper reason such 

as retaliation for whistleblowing. See, e.g, Aquino v. Department of Homeland Security, 121 

M.S.P.R. 35 (2014). In Aquino, the appellant, a screener for the Transportation Security 

Administration (TSA), informed his fourth-level supervisor of actions by his first-level 

supervisor that he reasonably believed posed a substantial and specific danger to public safety 

in aviation. The supervisor then alleged that the appellant was inattentive to his duties and the 

appellant was removed on this basis. The appellant exhausted his remedies with the Office of 

Special Counsel and filed an individual right of action appeal with MSPB. Following a hearing, 

MSPB determined that the appellant’s supervisor learned of the appellant’s disclosure on the 

same day the appellant made his disclosure and that it was only a few days later that the 

appellant’s supervisor reported the appellant’s alleged misconduct to upper-level management. 

Additionally, MSPB determined that other employees, who committed offenses similar to the 

allegations against the appellant, but who were not whistleblowers, were not removed. MSPB 

therefore found that the appellant’s protected whistleblowing activity was a contributing factor 

in his removal and ordered the agency to cancel the removal action. Id. at ¶¶ 2-4, 14-31, 33. 

17 48 Cong. Rec. 10729 (Aug. 12, 1912). Senator La Follette alleged that following his 

inquiries into the state of the civil service, the Postal Service violated postal laws and subjected 

his mail to “an espionage that was almost Russian in its character[,]” opening and examining 

mail addressed to the senator sent by Postal Service employees. Id. 

18 37 Stat. 555 (Aug. 24, 1912). 

19 Id. 

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Chapter One: Development of Federal Employee Rights 

By the time World War II approached, the CSC had carved out a role for itself 

overseeing the removal process, but it was very limited. Agencies would give the CSC 

copies of a removal file only upon request by the CSC and only for the purpose of 

investigating procedural compliance with the statute. The CSC made it clear that 

neither it nor the courts would review whether there was sufficient cause for removal or 

any other “exercise of discretion by the appointing power[.]”20 

The Veterans’ Preference Act of 1944 

For veterans, this situation – in which the CSC would not look at whether the 

agency had cause for implementing a removal action – changed in 1944 with the 

enactment of the Veterans’ Preference Act (VPA). Under the VPA, preference-eligible 

veterans were allowed to file an appeal with the CSC for discharges, suspensions of more 

than 30 days, furloughs without pay, reductions in rank or compensation, or 

debarment.21 This right included furnishing affidavits in support of the individual and 

an entitlement to appear before the CSC, which would then issue its findings and 

recommendations.22 However, there was an important piece missing from the VPA of 

1944 as originally enacted; agencies were not specifically required to abide by the CSC’s 

decisions.23 A House Report explaining the need to add a legal requirement for agencies 

20 “The power of removal for unfitness remains in the appointing officer unimpaired by the 

restrictions of the civil-service law and rules. He is the judge of the qualifications of his 

subordinates, and the question whether such cause exists as requires a removal in the interests 

of the efficiency of the service is for him to determine. The judgment of the appointing officer 

as to whether or not the causes for removal are sufficient is not reviewable by the courts or by 

the Civil Service Commission, but the civil-service rules provide that the Commission shall 

have authority to investigate any alleged failure to follow the procedure required by statute or 

rule. Courts will not restrain or review the exercise of discretion by the appointing power, 

except to enforce statutory restrictions, and will not interfere in or review cases of alleged 

violation of executive rules and regulations relating to removals. An employee’s fitness, 

capacity, and attention to his duties are questions of discretion and judgment to be determined 

by his superior officers.” U.S. Civil Service Commission, Removal, Reduction, Suspension, and 

Furlough, Form 505 (Mar. 1937), at 1, 6-7. 

21 58 Stat. 387 (Veterans’ Preference Act of 1944) § 14. 

22 Id. 

23 See generally 58 Stat. 387 (Veterans’ Preference Act of 1944). The CSC was given the 

authority to “make and enforce appropriate rules and regulations” to effectuate the purpose of 

the VPA. Id. at § 19. However, the CSC’s decisions concerning the appeals process under the 

VPA were often “disregarded” by the employing agencies and departments. H. Rep. 80-1817 

(Committee on Post Office and Civil Service) (Apr. 16, 1948). 

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Chapter One: Development of Federal Employee Rights 

to comply with recommendations from the CSC stated, “It is obvious that the Veterans’ 

Preference Act is a nullity unless provision is made to make effective the decisions of the 

Civil Service Commission with respect to appeals processed by veterans and other 

employees under the provisions of the Veterans’ Preference Act.”24 The VPA was 

amended in 1948 to state that agencies were required to comply with CSC 

recommendations in appeals brought under the VPA.25 

While the VPA provided protections for preference eligibles, the system for those 

without preference remained in a state of disorder. A 1953 study conducted by a 

subcommittee of the Senate Committee on [the] Post Office and Civil Service described 

the adverse action review process afforded by the Lloyd-La Follette Act as 

“comparatively feeble[.]”26 The report stated that, “[e]veryone interviewed during the 

study has agreed that appeals and grievances policies and practices in the Federal 

Government as a whole are in a state of confusion. The legislative basis for the 

disposition of these matters is a patchwork of laws enacted at different times and for 

different purposes.”27 The subcommittee found that a lack of central direction from the 

CSC, varying levels of protection in different agencies based on individual agency 

policies, and the inability of employees in some agencies to get a hearing on matters as 

serious as removal actions, “tend[ed] to breed confusion and misunderstanding and to 

cause resentment, distrust, and exasperation on the part of employees and management 

alike.”28 

24 H. Rep. 80-1817 (Committee on Post Office and Civil Service) (Apr. 16, 1948). 

25 62 Stat. 575, Pub. L. No. 80-741 (Jun. 22, 1948). 

26 Senate Committee on Post Office and Civil Service, Appeals and Grievance Procedures in 

the Federal Government, 83 S. Doc. 33 (Mar. 20, 1953), at 7-8. 

27 Id. at 3-4. The laws and executive orders mentioned by the report included protections 

against discrimination and appeal rights for performance ratings and classification decisions. 

Id. at 8. 

28 Id. at 4-5. When it was left up to agencies to decide what protections to grant, the 

pattern was quite interesting – particularly given that the study occurred during the height of 

the Cold War. The greater the national security implications of an agency’s mission, the more 

inclined the agency seemed to be to protect employees from improper actions. Agencies with 

responsibilities for national defense and veterans, such as the Department of the Army, Mutual 

Security Agency, and the Veterans’ Administration, opted to “go beyond the letter of the law in 

establishing hearing procedures.” These agencies chose to give both hearing and appeal rights 

to non-veterans as well as veterans for adverse actions involving misconduct, poor 

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Chapter One: Development of Federal Employee Rights 

The House Committee on [the] Post Office and Civil Service reached similar 

conclusions regarding the inadequacies of the system in place in the 1950s, concluding 

that, 

In light of all of the circumstances, and recognizing that an increase in 

appeals before the Commission would result, there seems to be no sound 

ground for denying equal appeals rights to all Federal employees or for 

continuance of the present situation which in effect relegates the 

nonpreference Federal employee to the status of a second-class citizen, in 

comparison to preference employees, in certain classes of appeals from 

adverse personnel actions.29 

President Kennedy’s Executive Order in 1962 

On January 17, 1962, President John Kennedy addressed these problems by 

issuing an executive order to “extend to all employees in the competitive civil service 

rights identical in adverse action cases to those provided preference eligibles.”30 This 

included the right to appeal adverse agency decisions to the CSC.31 

The Civil Service Reform Act of 1978 

In 1978, Congress enacted the CSRA. “A leading purpose of the CSRA was to 

replace the haphazard arrangements for administrative and judicial review of personnel 

action[s], part of the outdated patchwork of statutes and rules built up over almost a 

performance, and malfeasance. Id. at 8. The Central Intelligence Agency and Atomic Energy 

Commission also would always grant a hearing before taking an adverse personnel action. Id. 

at 4. In contrast, the Department of Agriculture chose to deny hearings before removing an 

employee. Id. at 8. Still other agencies, such as the Department of Justice, chose to have no 

formal policy, so that procedures may have varied in similar cases within the same agency. Id. 

29 House Committee on Post Office and Civil Service, United States Civil Service 

Commission Report, 84 H. R. Rept. No. 1844 (Mar. 1, 1956), at 46. “Preference” employees are 

individuals entitled to preferential treatment in certain hiring and separation situations 

because of past military service. Levels of preference can vary, and the individual may be a 

veteran, spouse, widow, or mother, depending on the circumstances. For more information 

about veterans’ preference and how it operates, see U.S. Merit Systems Protection Board, 

Veteran Hiring in the Civil Service: Practices and Perceptions (2014), available at 

www.mspb.gov/studies. 

30 Executive Order 10988, Employee-Management Cooperation in the Federal Service, 

Jan. 17, 1962, § 14. 

31 Id. 

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Chapter One: Development of Federal Employee Rights 

century that was the civil service system.”32 In the CSRA, Congress recognized the 

importance of due process and an outside review procedure to ensure that adverse 

actions were merit-based and comported with constitutional requirements as 

established by Supreme Court decisions issued as of 1978.33 It codified the employee’s 

right to: (1) notice of the charges; (2) a reasonable opportunity to respond to the 

deciding official; and (3) an appeal to a neutral body after the adverse action takes 

effect.34 Congress also made it clear that agency actions would not be permitted to 

stand if they were the result of prohibited personnel actions, such as discrimination or 

retaliation for whistleblowing.35 

As discussed later in this report, some provisions of the CSRA have been 

modified over the years. But, the core protections (notice of the proposed action, a 

meaningful opportunity to respond, and a right to be heard by a neutral adjudicator) 

remain for most employees and have been expanded to encompass additional 

employees not originally covered by the CSRA.36 These core protections and the 

standards of proof to take an adverse action are discussed in greater depth in Chapter 

Three. 

Unfortunately, misunderstandings have occurred about how the adverse action 

laws operate. Appendix A contains a list of some perceptions that people may have 

about the ability of agencies to implement adverse actions and provides information to 

clear up the confusion. 

32 United States v. Fausto, 484 U.S. 439, 444 (1988) (internal punctuations and citations 

omitted). 

33 S. Rep. 95-969, at 19, 24, 51-52 (1978 U.S.C.C.A.N. 2723, 2741, 2746, 2773-74). 

34 5 U.S.C. §§ 7503, 7513, 7701-7703. The Lloyd-La Follette Act included the right to notice 

and an opportunity to respond, but was missing the important post-action review process by a 

neutral body to ensure that the action was in the interest of the efficiency of the service and 

had not been taken for an improper reason. See 37 Stat. 555 (Aug. 24, 1912). 

35 5 U.S.C. § 7701(c)(2). See, e.g., Sowers v. Department of Agriculture, 24 M.S.P.R. 492, 

494, 496 (1984) (ordering the cancellation of a removal action after the Board found that the 

record showed the agency manipulated circumstances to remove a whistleblower who was 

excellent in his post). 

36 See, e.g., Civil Service Due Process Amendments of 1990, Pub. L. No. 101-376, 104 Stat. 461. 

10 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

Chapter One: Development of Federal Employee Rights 

As this chapter has explained, the protections currently provided to Federal 

employees were the result of a slow evolution involving both congressional action and 

independent action by various Presidents through executive orders. These protections 

were provided because it became clear over time that a consistent review process for 

adverse actions was necessary for an effective merit-based system. 

However, as the next chapter explains, in 1985, the third branch of the 

Government – the judiciary – became involved in the matter and via its interpretation of 

the U.S. Constitution, it changed the ground rules under which the executive and 

legislative branches are permitted to operate the civil service. In Cleveland Board of 

Education v. Loudermill, 470 U.S. 532 (1985), the Supreme Court held that Congress 

(through statutes) or the President (through executive orders) can still grant 

protections to employees, but Congress and the President lack the authority to decide 

whether they will grant due process rights for those protections. Rather, according to 

the Supreme Court, the Constitution guarantees that if there must be a cause to remove 

the individual from his or her job, then there is automatically a due process requirement 

to establish that the cause has been met.37 

37 See Loudermill, 470 U.S. at 541. See also Eric Katz, “Lawmakers Threaten New Secret 

Service Chief's Job, Tell Him to Fire More Agents,” Govexec.com (Mar. 24, 2015), available at, 

http://www.govexec.com/defense/2015/03/lawmakers-threaten-new-secret-service-chiefs-jobtell-him-fire-more-agents/108298/?oref=govexec_today_nl, in which the Director of the 

Secret Service explained, “I am resolved to holding people accountable for their actions. . . But 

I want to make clear that I do not have the ability to simply terminate employees based solely 

on allegations of misconduct. This is not because I am being lenient, but because tenured 

federal government employees have certain constitutional due process rights which are 

implemented through statutory procedures.” 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 11 
 

 

Chapter One: Development of Federal Employee Rights 

12 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Two: Loudermill and Progeny 

Cleveland Board of Education v. Loudermill (“Loudermill”) is a landmark case 

that serves as the foundation for nearly any recent case involving the due process rights 

of public employees, including Federal employees.38 However, Loudermill did not 

happen in a vacuum and does not stand alone. It is consistent with the Supreme Court 

decisions about public employment that preceded it.39 Loudermill and its progeny 

uniformly provide that while governments decide whether employment with them will 

be at-will, once a government institutes the requirement that it must have a cause to 

take adverse actions, constitutional requirements will determine a minimum threshold 

for how those actions can occur. 

The Loudermill Case 

James Loudermill was employed by the Cleveland Board of Education in 1979­

1980. He was classified as a civil servant. Under Ohio state law in effect at the time, 

“[s]uch employees [could] be terminated only for cause, and [could] obtain 

administrative review if discharged.”40 

Prior to his appointment, Loudermill claimed that he had never been convicted of 

a felony, despite having been convicted of grand larceny more than a decade earlier. He 

was removed for dishonesty regarding his criminal history without being provided an 

38 While Loudermill originated as a challenge to a state law, the U.S. Supreme Court and the 

Federal Circuit have clearly and unequivocally held that the decision in Loudermill applies to 

actions taken against Federal employees. The issue is public employment, regardless of the 

level of government. See, e.g., Lachance v. Erickson, 522 U.S. 262, 266 (1998) (explaining that 

while the Loudermill holding of due process, particularly the right to notice and a meaningful 

opportunity to respond, applies to the Federal civil service, there is no right to lie in that 

response); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1375 (1999) 

(quoting and citing Loudermill extensively to explain a Federal employee’s due process right to 

present his or her side of the case). 

39 See, e.g., National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179, 192 (1988) 

(citing Loudermill and holding that when a state university acts to “impose a serious 

disciplinary sanction” on a tenured employee, it must comply with due process); Board of 

Regents of State Colleges v. Roth, 408 U.S. 564, 576-77 (1972) (describing three earlier 

decisions in which the Court held that due process rights applied to public employment). 

40 Loudermill, 470 U.S. at 535. 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 13 
 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Two: Loudermill and Progeny 

opportunity to respond to the charge or to challenge the decision to remove him.41 He 

appealed the removal decision to Ohio’s civil service commission. When the Ohio 

commission upheld the removal, Loudermill had the right to appeal that decision 

through the state courts. He opted to file a claim in Federal court instead, asserting that 

the Ohio statute under which he was removed was unconstitutional because it did not 

entitle him to respond to the charge against him before the removal took place.42 

The Federal district court determined that Loudermill had a property right in the 

position but “held that because the very statute that created the property right in 

continued employment also specified the procedures for discharge, and because those 

procedures were followed, Loudermill was, by definition, afforded all the process due.”43 

At about the same time, another Ohioan, Richard Donnelly, was removed from 

his position by the Parma Board of Education. While Donnelly was reinstated by the 

Ohio civil service commission (without back pay for the period in which he had been 

terminated), he also challenged the constitutionality of the same law “[i]n a complaint 

essentially identical to Loudermill’s[.]” Because of the similarities, the two cases were 

consolidated for appeal.44 They are jointly known as Loudermill. 

On appeal, the U.S. Court of Appeals for the Sixth Circuit found that both 

individuals had a property right to their positions. However, unlike the district court 

below, the Sixth Circuit found that “the compelling private interest in retaining 

employment, combined with the value of presenting evidence prior to dismissal, 

outweighed the added administrative burden of a pre-termination hearing” and that 

Loudermill and Donnelly had therefore been “deprived of due process.”45 

41 Id. 

42 Id.
 

43 Id. at 536.
 

44 Id. at 536-37.
 

45 Id. at 537 (punctuation added).
 

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Chapter Two: Loudermill and Progeny 

The Supreme Court granted certiorari for both cases.46 The question of whether 

the appellants had a property interest in their jobs was disposed of quickly. The court 

noted that the individuals, by statute, were “entitled to retain their positions during 

good behavior and efficient service, [and] could not be dismissed except for 

misfeasance, malfeasance, or nonfeasance in office[.]”47 The Court agreed with the 

district and appellate courts below that by limiting the circumstances under which the 

positions could be taken away, the statute gave the employees property rights in their 

positions.48 

While not disputing the existence of the property right, the Parma Board of 

Education argued that the same law that granted the property right also provided the 

conditions under which the property in question (the job) could be taken away. This 

was known as the “bitter with the sweet” approach because the law simultaneously gave 

the property in question and enabled the state to take it away on its own terms.49 

In response to this claim, the Court determined that, “[t]he point is 

straightforward: the Due Process Clause provides that certain substantive rights – life, 

liberty, and property – cannot be deprived except pursuant to constitutionally adequate 

procedures. The categories of substance and procedure are distinct.” In other words, a 

statute can give the substance – namely the property right – but the fact that it has done 

so does not necessarily mean that it can freely limit the procedures by which that right 

can be taken away.50 

46 Certiorari refers to an order from an appellate court to a lower court instructing it to 

deliver a case so that it may be reviewed. Most cases heard by the Supreme Court are the 

results of it granting requests that it issue such orders, causing it to be referred to as “granting 

certiorari” – meaning that the court has indicated it will agree to review a case. Black’s Law 

Dictionary (10th ed. 2014). 

47 Loudermill, 470 U.S. at 538-39 (internal punctuation omitted). 

48 Id. 

49 Id. at 539-40. 

50 Id. at 541. Property rights in continued employment may come from statutes or from 

other commitments made by the governmental entity. See, e.g., Roth, 408 U.S. at 576-77 

(describing a case, Connell v. Higginbotham, 403 U.S. 207, 208 (1970), which held that an 

employment contract with a clearly implied promise of continued employment was sufficient to 

establish the property right); Leary v. Daeschner, 228 F.3d 729, 741-42 (6th Cir. 2000) 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 15 
 

 

 

 

 

 

 

 

 

 

 

 

Chapter Two: Loudermill and Progeny 

The Court held that, 

Property cannot be defined by the procedures provided for its 

deprivation any more than can life or liberty. The right to due 

process is conferred, not by legislative grace, but by constitutional 

guarantee. While the legislature may elect not to confer a property 

interest in public employment, it may not constitutionally authorize 

the deprivation of such an interest, once conferred, without 

appropriate procedural safeguards.51 

The Court explained that, “once it is determined that the Due Process Clause 

applies, the question remains what process is due. The answer to that question is not to 

be found in the Ohio statute.”52 Rather, it comes from the Federal Constitution.53 

The Loudermill Court explained that the “root requirement” of the Due Process 

Clause is that “an individual be given an opportunity for a hearing before he is deprived 

of any significant property interest. This principle requires some kind of a hearing prior 

to the discharge of an employee who has a constitutionally protected property interest in 

his employment.”54 

One reason for this due process right is the possibility that “[e]ven where the 

facts are clear, the appropriateness or necessity of the discharge may not be; in such 

cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is 

likely to be before the termination takes effect.”55 The Court was emphatic that “the 

right to a hearing does not depend on a demonstration of certain success.”56 

The Court recognized that public employers might not want to keep an employee 

on the job during the pre-termination process. However, its recommended solution was 

(holding that a contract, such as a collective bargaining agreement, may create a property 

interest). 

51 Loudermill, 470 U.S. at 541 (internal punctuation omitted). 

52 Id. (internal punctuation and citation omitted). 

53 Id. 

54 Id. at 542 (internal punctuation and citations omitted). The Court also stated that, “this 

rule has been settled for some time now.” Id. 

55 Id. at 543. 

56 Id. at 544. 

16 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Two: Loudermill and Progeny 

that, “in those situations where the employer perceives a significant hazard in keeping 

the employee on the job, it can avoid the problem by suspending with pay.” Removal 

without a pre-termination process is not an option.57 Rather, an employee with a 

property right in the position must be given “notice and an opportunity to respond.”58 

While the decision in Loudermill explained that pre-termination procedures are 

required, it also made it clear that the constitutionality of termination procedures does 

not depend solely on the pre-termination process. The Court stated that its holding was 

heavily dependent on “the provisions in Ohio law for a full post-termination hearing.”59 

The two issues (pre- and post-termination procedures) are “coupled” when looking at 

the question of whether due process has been given.60 

The “nature of the subsequent proceedings” can determine whether the pretermination proceedings were adequate.61 When applying this rule, courts have 

emphasized the need to look at the “totality” of the procedures.62 For example, in 

Farhat v. Jopke, 370 F.3d 580, 597 (6th Cir. 2004), the court held that Loudermill does 

not demand that the pre-termination opportunity to respond take place before a neutral 

and impartial decision-maker when impartiality is provided by a “post-termination 

proceeding where bias and corruption are ferreted out.”63 However, while “the nature 

of subsequent proceedings may lessen the amount of process that the state must provide 

57 Id. at 544-45. 

58 Id. at 546. 

59 Id. at 545-48. 

60 Id. at 547-48. 

61 Id. at 545. Because of this coupling, the constitutionality of the process as a whole may 

depend on the constitutionality of various stages of the process, including which party bears 

the burden of proof. The Supreme Court has held that for a deprivation of life, liberty, or 

property, a statute that presumes guilt without “a fair opportunity to repel” that presumption 

violates the due process clause. Manley v. State of Georgia, 279 U.S. 1, 6 (1929). See also 

Speiser v. Randall, 357 U.S. 513, 524 (1958) (explaining that in both criminal and civil cases, 

the burden of proof cannot be “unfairly” shifted to the defendant). 

62 West v. Grand County, 967 F.2d 362, 368 (10th Cir. 1992). 

63 Farhat, 370 F.3d at 597. See Clements v. Airport Authority of Washoe County, 69 F.3d 

321, 332-33 (9th Cir. 1995) (holding that if post-termination proceedings are overseen by 

individuals who harbor malice for the employee’s whistleblowing activities, the process will fail 

to meet the due process requirements). 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 17 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Two: Loudermill and Progeny 

pre-termination, subsequent proceedings cannot serve to eliminate the essential 

requirement of a pre-termination notice and opportunity to respond.”64 

Loudermill Applies to the Federal Government 

Public employers – whether state or Federal – are covered by the due process 

guarantees of the U.S. Constitution.65 For this reason, a decision by a Federal court 

pertaining to due process in state employment can be instructive when the holding is 

reached as a result of the Federal Constitution. However, a decision reached by the U.S. 

Supreme Court is more than instructive – it is an instruction.66 When the Supreme 

Court reaches a conclusion based on the requirements of the Federal Constitution, that 

holding should be considered when setting laws, regardless of whether the legislature in 

question is state or Federal. While Loudermill was a decision involving a state 

employer, both the Supreme Court and the Federal Circuit have explicitly 

recognized that the Constitutional due process rights described in 

Loudermill apply to the Federal civil service.67 

The two most well-settled (and well-known) issues in all of American 

jurisprudence are quite simple: “An act of congress repugnant to the constitution 

cannot become a law” and it is “emphatically the province and duty” of the judiciary to 

interpret laws and the Constitution.68 As a result, any decisions by the Supreme Court 

64 Clements, 69 F.3d at 332. 

65 While the Federal Government is covered by the Fifth Amendment and the states by the 

Fourteenth Amendment, the effect is the same. See Hampton v. Mow Sun Wong, 426 U.S. 88, 

100 (1976) (explaining that, “when there is no special national interest involved, the Due 

Process Clause has been construed as having the same significance as the Equal Protection 

Clause”); Block v. Hirsh, 256 U.S. 135, 159 (1921) (explaining that, “[t]he national government 

by the Fifth Amendment to the Constitution, and the states by the Fourteenth Amendment, are 

forbidden to deprive any person of ‘life, liberty, or property, without due process of law’”). 

66 The Supreme Court is the highest court for cases involving claims brought under the 

Federal Constitution and for claims arising under Federal civil service laws. See 28 U.S.C. 

§ 1254 (granting the Supreme Court jurisdiction to review cases from the courts of appeals); 

28 U.S.C. § 1295(a)(9) (granting jurisdiction over MSPB decisions to the Federal Circuit). 

67 Erickson, 522 U.S. at 266 (citing Loudermill when explaining the due process rights of a 

Federal civil servant in his employment); Stone, 179 F.3d at 1375-76 (holding in the context of 

Federal employment that the “process due a public employee prior to removal from office has 

been explained in Loudermill”). 

68 Marbury v. Madison, 5 U.S. 137, 138, 177 (1803). See Richmond Medical Center for 

Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009) (holding based on Marbury that, “where 

18 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Two: Loudermill and Progeny 

involving constitutional interpretations – including decisions regarding public 

employment – are binding on Congress and the President. While a Supreme Court 

decision based on its interpretation of a law may be overruled by the enactment of a new 

law, a decision based on the Constitution cannot.69 A decision based on an 

interpretation of the Constitution can only be altered through a new decision by the 

Supreme Court or a constitutional amendment.70 

There are two significant cases relying on Loudermill that have highlighted the 

extent to which the Constitution requires an opportunity to respond before an adverse 

action can be effectuated: (1) Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 

2011); and (2) Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 

1999). They are sometimes referred to jointly by the label “Ward/Stone” because of the 

extent to which they share a common legal concept – namely, that if a deciding official is 

exposed to information affecting the outcome of his decision-making process without 

the employee being told of the information and given the opportunity to present a 

defense against it, then any opportunity to respond is fundamentally flawed and will fail 

to meet the constitutional requirements of Loudermill.71 

In Stone, a removal case, the deciding official received two ex parte 

communications: one from the proposing official and one from a second official who 

a legislature oversteps its bounds and issues a law repugnant to the constitution, it is void and 

must be struck down by the courts”) (internal punctuation omitted); Berkowitz v. United 

States, 340 F.2d 168, 173 (1st Cir. 1965) (holding that a court may find that “Congress could 

not have intended what its words appear to say” if the alternative is to hold that the court 

“cannot give effect to what was said because it is repugnant to the Constitution”). See also U.S. 

Supreme Court at www.supremecourt.gov/about/constitutional.aspx (explaining that,“[w]hen 

the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions 

can be altered only by the rarely used procedure of constitutional amendment or by a new 

ruling of the Court”). 

69 Compare Dickerson v. United States, 530 U.S. 428, 432 (2000) (explaining that “a 

constitutional decision of this Court may not be in effect overruled by an Act of Congress”) 

(punctuation omitted) with Mansell v. Mansell, 490 U.S. 581, 588 (1989) (explaining that 

Congress could “overcome” an earlier decision by the Court involving statutory interpretation 

by enacting new legislation). 

70 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 66 (1996). 

71 Ward, 634 F.3d at 1280; Stone, 179 F.3d at 1377. 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 19 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Two: Loudermill and Progeny 

also advocated for Stone’s removal.72 Stone was not informed of the communications or 

their content prior to the effectuation of his removal.73 He appealed his removal to 

MSPB, asserting that these communications harmed his due process rights.74 The 

administrative judge assigned to the case held that there was no statute or regulation 

prohibiting such communications, and the Board denied the appellant’s petition for 

review.75 Stone then filed an appeal to the Federal Circuit.76 

On appeal, citing Loudermill, the court stated: 

We begin by noting that [Stone’s] property interest is not defined 

by, or conditioned on, Congress’ choice of procedures for its 

deprivation. In other words, [title 5] § 7513 and § 4303 do not 

provide the final limit on the procedures the agency must follow in 

removing Mr. Stone. Procedural due process requires “that certain 

substantive rights – life, liberty, and property – cannot be deprived 

except pursuant to constitutionally adequate procedures.”77 

The court held that “[i]t is constitutionally impermissible to allow a deciding 

official to receive additional material information that may undermine the objectivity 

required to protect the fairness of the process. Our system is premised on the 

procedural fairness at each stage of the removal proceedings.”78 Accordingly, the case 

was remanded to the Board with instructions that if the Board found that the 

communications involved new and material information, the action would have to be 

reversed and the employee provided with a constitutionally correct removal 

procedure.79 

The factors that the Board was instructed to consider when determining if 

information was new and material included: 

72 Stone, 179 F.3d at 1372-73. An ex parte communication is a communication between one 

party and the decision-maker where the other party is not present and not given the 

opportunity to present his or her side of the argument. 

73 Id. 

74 Id. at 1373. 

75 Id. at 1371. 

76 Id. 

77 Id. at 1375 (internal citation to Loudermill omitted).
 

78 Id. at 1376 (emphasis added).
 

79 Id. at 1377.
 

20 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Two: Loudermill and Progeny 

whether the ex parte communication merely introduces 

‘cumulative’ information or new information; whether the employee 

knew of the error and had a chance to respond to it; and whether 

the ex parte communications were of the type likely to result in 

undue pressure upon the deciding official to rule in a particular 

manner. Ultimately, the inquiry of the Board is whether the ex 

parte communication is so substantial and so likely to cause 

prejudice that no employee can fairly be required to be subjected to 

a deprivation of property under such circumstances.80 

These are commonly referred to as the Stone factors or the Stone test. 

In Ward, the appellant was removed for improper conduct arising out of a 

conflict with his supervisor in which she perceived the appellant’s behavior as 

threatening and disobedient.81 Before reaching a decision on the penalty, the deciding 

official spoke with three supervisors and one manager who discussed other alleged 

incidents involving similar behavior by Ward.82 Ward was not informed of these 

conversations.83 The deciding official later admitted that the repeated pattern of 

belligerent conduct described in the conversations led him to conclude that Ward could 

not be rehabilitated by a lesser penalty and that removal was therefore necessary.84 

On appeal, the Board held that the deciding official’s use of this ex parte 

information was improper but concluded that, because the ex parte communication 

involved the penalty and not the charges, it could remedy the error by doing its own 

penalty analysis.85 The Board then held removal was appropriate.86 

Ward appealed this decision to the Federal Circuit, which held that the Board 

erred in its conclusion that an impropriety involving the penalty did not raise the same 

constitutional issues as an impropriety involving charges.87 The court held that the 

distinction was “arbitrary and unsupportable” because “[t]here is no constitutionally 

80 Id. 

81 Ward, 634 F.3d at 1276. 

82 Id. at 1277. 

83 Id. at 1278. 

84 Id. at 1277.
 

85 Id.
 

86 Id. 

87 Id. at 1280. 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 21 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Two: Loudermill and Progeny 

relevant distinction between ex parte communications relating to the underlying charge 

and those relating to the penalty.”88 The Board was instructed that it could not excuse a 

constitutional violation as a harmless error.89 

The court remanded the case to the Board with the instruction to apply the Stone 

factors to determine whether new and material information had been introduced to the 

process without the appellant being granted the opportunity to respond.90 If this had 

occurred, then, as with Stone, the appellant would be entitled to a new, constitutionally 

correct procedure.91 

The court also reminded the Board that, “[a]s Stone recognized, the Due Process 

Clause only provides the minimum process to which a public employee is entitled prior 

to removal. Public employees are, of course, entitled to other procedural protections 

afforded them by statute, regulation, or agency procedure.”92 The Board was instructed 

that, if it found the constitutional requirements had been met, then it was to examine 

any procedural errors involving statutes or regulations and conduct a “proper” analysis 

to determine if such errors were harmful.93 A harmful error is one in which the outcome 

was affected by the agency’s failure to follow required procedures.94 The court 

reminded the Board that, by statute, if there were harmful errors in the agency’s 

process, the agency could not prevail.95 Thus, even if the Board concluded that the 

removal itself was reasonable, it did not have the authority to cure an agency’s 

procedural errors.96 

88 Id.
 

89 Id.
 

90 Id.
 

91 Id.
 

92 Id. at 1281 (internal citations and punctuation omitted).
 

93 Id. at 1282.
 

94 Id. at 1281-82.
 

95 Id.
 

96 Id.
 

22 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Two: Loudermill and Progeny 

Loudermill and Suspensions 

In the Federal context, there has not been extensive discussion of the types of 

actions to which the property right extends because the statute pertaining to the 

procedures for removing civil service employees, 5 U.S.C. chapter 75, also applies those 

same procedures to lengthy suspensions and demotions. However, the Supreme Court 

has addressed the interaction between its Loudermill decision and situations in which 

the penalty is a suspension rather than a removal. 

In Gilbert v. Homar, 520 U.S. 924 (1997), a policeman employed by the State of 

Pennsylvania was suspended without pay without first receiving notice and a period to 

reply. The suspension was triggered by his arrest and the filing of charges for a drug 

felony.97 

When deciding whether there would be a due process right to advanced notice 

and an opportunity to reply in such cases, the Court noted that it had previously held 

that due process “is flexible and calls for such procedural protections as the particular 

situation demands.”98 When “a State must act quickly, or where it would be impractical 

to provide [a] predeprivation process, [a] postdeprivation process satisfies the 

requirements of the Due Process Clause.”99 The Court held that “[a]n important 

government interest, accompanied by a substantial assurance that the deprivation is not 

baseless or unwarranted, may in limited cases demanding prompt action justify 

postponing the opportunity to be heard until after the initial deprivation.”100 

The Court applied its test from Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (a 

benefits case), to explain the factors to consider in determining whether sufficient due 

97 Gilbert, 520 U.S. at 926-27. For purposes of this case, the Court assumed the individual 

had a property right without actually deciding that the property right existed. Id. at 929. Cf. 

Tarkanian, 488 U.S. at 192 (holding in the context of a case involving a suspension that acted 

as a demotion that, when a state actor “decides to impose a serious disciplinary sanction upon 

one of its tenured employees, it must comply with the terms of the Due Process Clause of the 

Fourteenth Amendment to the Federal Constitution”). 

98 Gilbert, 520 U.S. at 930 (quoting Morrissey, 408 U.S. at 481). 

99 Id. at 930. 

100 Id. at 930-31 (quoting Federal Deposit Insurance Corporation v. Mallen, 486 U.S. 230, 

240 (1988) (emphasis added). 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 23 
 

 

 

 

 

 

 

 

 

 

 

 

Chapter Two: Loudermill and Progeny 

process has been granted in the employment context. The three factors are: “First, the 

private interest that will be affected by the official action; second, the risk of an 

erroneous deprivation of such interest through the procedures used, and the probable 

value, if any, of additional or substitute procedural safeguards; and finally, the 

Government’s interest.”101 

For the private interest factor, the Court reiterated its holdings from other cases 

that the length and finality of the property deprivation should be considered when 

assessing the process that an individual is due and concluded that a suspension may be 

a relatively minor deprivation compared to a removal “[s]o long as the suspended 

employee receives a sufficiently prompt postsuspension hearing[.]”102 

For the state interest factor, the Court noted that a police officer holds a position 

of “great public trust and high public visibility” and that felony charges are serious. 

Therefore, the state had a strong interest in the matter.103 

For the last Mathews factor, the risk of an erroneous action, the Court noted that 

the purpose of a pre-suspension hearing would be to determine if there was adequate 

evidence of the misconduct and found that the arrest and filing of charges against the 

individual provided an adequate safeguard. Therefore, the Court concluded that the 

individual’s constitutional right to due process was not violated when he was suspended 

without advanced notice.104 

However, in Gilbert, the Court noted that the charges against the individual were 

dropped on September 1st, yet the suspension continued without a hearing until 

September 18th. The Court held that, “[o]nce the charges were dropped, the risk of 

erroneous deprivation increased substantially[.]”105 Accordingly, it remanded the case 

101 Gilbert, 520 U.S. at 931-32 (quoting Mathews, 424 U.S. at 335).
 

102 Gilbert, 520 U.S. at 932.
 

103 Id.
 

104 Id. at 933-34.
 

105 Id. at 935.
 

24 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

Chapter Two: Loudermill and Progeny 

to the court of appeals to determine whether, under the facts of the case, the hearing was 

sufficiently prompt to satisfy the requirements of due process.106 

In other words, because due process is situationally dependent, as situations 

evolve, the minimum level of process that the Constitution requires can change. One of 

the dangers of skirting too closely to the minimum amount may be the employer finding 

itself on the wrong side of that line. The situationally dependent nature of due process 

may also pose a challenge for the establishment of rigid rules. For example, what 

constitutes a “meaningful” opportunity to reply may be different in a simple case as 

opposed to one with highly complex issues or difficult to access evidence. Chapter Three 

will discuss in greater depth the opportunity to reply. 

106 Id. at 935-36. 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 25 
 

 

Chapter Two: Loudermill and Progeny 

26 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

Chapter Three: The Statutory Procedures 

Suspensions of 14 Days or Less 

By statute, before an agency imposes a suspension for 14 days or less, an 

employee is entitled to: 

(1) an advance written notice stating the specific reasons for the proposed action; 

(2) a reasonable time to answer orally and in writing and to furnish affidavits and 

other documentary evidence in support of the answer; 

(3) be represented by an attorney or other representative; and 

(4) a written decision and the specific reasons therefor at the earliest practicable 

date.107 

Appendix B contains a flow chart illustrating this process. The law does not give 

appellate jurisdiction to MSPB for such actions unless another statute applies, such as 

MSPB’s jurisdiction over cases alleging whistleblower retaliation or discrimination 

based on military service or obligations.108 

Suspensions of More than 14 Days, Demotions, and Removals 

Before an agency imposes a suspension for more than 14 days, a change to lower 

grade, reduction in pay, or a removal action, an employee is entitled to: 

(1) at least 30 days’ advance written notice, unless there is reasonable 

cause to believe the employee has committed a crime for which a 

sentence of imprisonment may be imposed, stating the specific reasons 

for the proposed action; 

(2) a reasonable time, but not less than 7 days, to answer orally and in 

writing and to furnish affidavits and other documentary evidence in 

support of the answer; 

(3) be represented by an attorney or other representative; and 

107 5 U.S.C. § 7503. The U.S. Office of Personnel Management has issued regulations stating 

that the employee’s period to reply to a proposed suspension of 14 days or less cannot be less 

than 24 hours. 5 C.F.R. § 752.203(c). 

108 See, e.g., Johnson v. U.S. Postal Service, 85 M.S.P.R. 1, ¶ 11 (1999) (finding MSPB had 

jurisdiction under the Uniformed Services Employment and Reemployment Rights Act of 1994 

(USERRA) for a 7-day suspension when the appellant alleged that he was denied leave and 

instead was charged with absence without leave (AWOL) for periods during which he served on 

military reserve duty, leading to him being suspended for AWOL); Hupka v. Department of 

Defense, 74 M.S.P.R. 406, 411 (1997) (finding MSPB had jurisdiction over an appeal of a 5-day 

and a 4-day suspension where the appellant alleged retaliation for whistleblowing and 

exhausted his administrative remedies). 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 27 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Three: The Statutory Procedures 

(4) a written decision and the specific reasons therefor at the earliest 

practicable date.109 

Additionally, “[a]n agency may provide, by regulation, for a hearing which may be 

in lieu of or in addition to the opportunity to answer” and “[a]n employee against whom 

an action is taken under this section is entitled to appeal to the Merit Systems Protection 

Board under section 7701 of this title.”110 Appendix B contains a flow chart illustrating 

this process. 

While a conduct-based adverse action must comport with the rules set forth in 

chapter 75 of title 5, agencies may take a performance-based demotion or removal 

action under: (1) the rules specific to performance-based actions set forth in chapter 43 

of title 5; or (2) the rules for general demotions and removals set forth in chapter 75.111 

Both chapters have similar requirements for providing an employee with notice 

of a proposed action and a meaningful opportunity to respond.112 However, the 

standard of proof differs.113 If MSPB is asked to adjudicate an appeal, “the decision of 

the agency shall be sustained” if the agency’s case is supported by a preponderance of 

the evidence, unless the agency opts to use the procedures set forth in 5 U.S.C. § 4303, 

in which case it must be supported by substantial evidence.114 Substantial evidence 

means that a reasonable person could have reached the agency’s conclusion, while a 

109 5 U.S.C. § 7513(b). 

110 5 U.S.C. § 7513(c)-(d). 

111 See Lovshin v. Department of the Navy, 767 F.2d 826, 834 (Fed. Cir. 1985) (explaining 

that either chapter may be used for performance-based actions); U.S. Merit Systems Protection 

Board, Addressing Poor Performers and the Law (2009), available at www.mspb.gov/studies 

(discussing performance-based actions under the two different sets of rules). 

112 Under 5 U.S.C. § 4303, an employee “is entitled to: (1) 30 days’ advance written notice of 

the proposed action which identifies the specific instances of unacceptable performance by the 

employee on which the proposed action is based and the critical elements of the employee’s 

position involved in each instance of unacceptable performance; (2) be represented by an 

attorney or other representative; (3) a reasonable time to answer orally and in writing; and 

(4) a written decision” that specifies the instances of unacceptable performance and that has 

been “concurred in” by an official at a higher level than that of the proposing official. 5 U.S.C. 

§ 4303(b)(1) (punctuation and numbering modified). 

113 5 U.S.C. § 7701(c)(1).
 

114 Id.
 

28 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Three: The Statutory Procedures 

preponderance of the evidence means that the evidence shows a charge is more likely to 

be true than not.115 

If an action is taken under chapter 75 of title 5, then the agency must also prove 

that managerial judgment has been properly exercised within “tolerable limits of 

reasonableness.”116 This means that the penalty was not clearly excessive; 

disproportionate to the sustained charges; or arbitrary, capricious, or unreasonable.117 

A penalty will be found unreasonable if it is “so harsh and unconscionably 

disproportionate to the offense that it amounts to an abuse of discretion[.]”118 

The tolerable limits of reasonableness standard applies to an agency’s chapter 75 

action. For actions taken under chapter 43, the Federal Circuit has held that an agency 

has “discretion to select one of only two penalties, demotion or removal, for 

unacceptable employee performance. That discretion is not unfettered. It is measured 

by the mandated performance appraisal system.”119 Accordingly, MSPB does not review 

chapter 43 penalties.120 

However, under either chapter 43 or chapter 75, the agency’s decision will not be 

sustained if: (1) there was a harmful error in the application of the agency’s procedures; 

(2) the action was based on a prohibited personnel practice (such as discrimination or 

retaliation for whistleblowing); or (3) the decision was otherwise not in accordance with 

115 A preponderance of the evidence is that degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a contested 

fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2). Substantial evidence is the 

degree of relevant evidence that a reasonable person, considering the record as a whole, might 

accept as adequate to support a conclusion, even though other reasonable persons might 

disagree. This is a lower standard of proof than preponderance of the evidence. 5 C.F.R. § 

1201.56(c)(1). For an in-depth discussion of the rules for agencies to take performance-based 

adverse actions, see U.S. Merit Systems Protection Board, Addressing Poor Performers and the 

Law (2009), available at www.mspb.gov/studies. 

116 Douglas v. Veterans Administration, 5 M.S.P.R. 280, 302 (1981); see Norris v. Securities 

and Exchange Commission, 695 F.3d 1261, 1266 (Fed. Cir. 2012). 

117 Douglas, 5 M.S.P.R. at 284. 

118 Villela v. Department of the Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984) (quoting 

Power v. United States, 531 F.2d 505, 507 (1980)). 

119 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1564 (Fed. Cir. 1985). 

120 Id. 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 29 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Three: The Statutory Procedures 

the law.121 These are known as “affirmative defenses.” To prevail on an affirmative 

defense, the appellant must prove it by a preponderance of the evidence.122 

As explained above, for performance- and conduct-based adverse actions, the law 

permits an agency to effectuate an action 30 days after it proposes the action. If the 

agency has reasonable cause to believe the employee has committed a serious crime, the 

action can take effect in as little as 7 days. The employee must be told the charges and 

proposed penalty and have a reasonable opportunity to respond. If the employee wants 

an attorney, he or she is entitled to have one at his or her own expense.123 When a 

decision has been reached, the employee is entitled to be told in writing the reason for 

that decision. This is all that the law requires.124 

Responsible agencies may take the time to conduct investigations before 

proposing actions in order to feel confident that they can prove their charges and that 

the penalty does not constitute an abuse of discretion. They may determine that it is 

reasonable to offer an employee more than the statutory bare minimum of time to 

submit a response to the charges. These are choices that agencies make – and often for 

good reasons. Agencies should want to ensure that their charges are true and that 

information that may prove otherwise comes to their attention before they remove an 

employee. As the Secretary of the Department of Veterans’ Affairs, Robert McDonald, 

stated in an interview on 60 Minutes, when asked whether employees who lie and put 

themselves before veterans should be fired: “Absolutely. Absolutely. But we’ve got to 

make it stick.”125 

The statute, as currently constructed, was designed to comport with the 

Constitution so that agencies could make their actions “stick.” It balances the 

importance of speedy action with the constitutional right of an employee to respond and 

121 5 U.S.C. § 7701(c)(2); see 5 U.S.C. § 2302(b) (listing the prohibited personnel practices).
 

122 5 C.F.R. § 1201.56.
 

123 Marsheck v. Department of Transportation, 15 M.S.P.R. 423, 425 (1983).
 

124 5 U.S.C. § 7513.
 

125 CBS News, “Cleaning up the VA,” Nov. 9, 2014, transcript available at
 

http://www.cbsnews.com/news/robert-mcdonald-cleaning-up-the-veterans-affairs-hospitals/. 

30 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

Chapter Three: The Statutory Procedures 

show the agency that it has wrongly charged or will wrongly penalize him or her. Any 

amendments to the statute should do the same. It would not serve the public interest 

for agencies to take actions that violate the Constitution or that fail to advance the 

efficiency of the service. 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 31 
 

 

Chapter Three: The Statutory Procedures 

32 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Four: Efforts to Modify the System 

While MSPB is a successor agency to the CSC and was given adjudicatory 

responsibilities that had belonged to the CSC, the law that established MSPB also 

provided a new statutory framework to protect employee rights and the merit systems. 

This chapter describes some of the changes that have taken place in the adverse action 

system following its initial establishment in the CSRA and the role of due process in 

those changes. 

When reviewing case law, it is important to recognize that the rules have been 

subjected to some modifications since the CSRA and that many changes applied only to 

specific agencies, while others were Government-wide.126 Additionally, some (but not 

all) of the agency-unique changes were later repealed in part or whole. Therefore, 

individuals with an interest in this area should be careful when reviewing older cases 

and cases involving agency-specific rules. 

Government-Wide Modifications 

There have been a number of modifications to the civil service adverse action 

processes since 1978; however, many of these changes were unique to a single agency. 

Some modifications were by statute and others by case law. The modifications that had 

an effect on the entire civil service include: (1) the Civil Service Due Process 

Amendments of 1990 (DPA), Pub. L. No. 101-376, 104 Stat. 461 (which changed 

important rules for excepted service (“ES”) employees); (2) McCormick v. Department 

of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002) (overruling previous holdings regarding 

competitive service (“CS”) probationary period employees and the legal definition of 

126 The definition of “employee” in the competitive excepted services has evolved since the 

CSRA as a result of both new statutes and case law. The history is complex, as we explained in 

our 2006 report, Navigating the Probationary Period After Van Wersch and McCormick, 

available at www.mspb.gov/studies. Today, the answer as to whether a CS or ES individual is 

an employee often – but not always – revolves around whether the individual has completed a 

trial or probationary period. As explained in our earlier discussion of the Pendleton Act, 

Congress desired that there be a period in which an individual must prove himself or herself on 

the job before an appointment is finalized. Until that has occurred, generally, the individual is 

not yet an employee with a property right in such employment. Navigating the Probationary 

Period After Van Wersch and McCormick discusses some exceptions to this general rule. 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 33 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Four: Efforts to Modify the System 

“employee”); and (3) Van Wersch v. Department of Health & Human Services, 197 F.3d 

1144 (Fed. Cir. 1999) (discussing the legal definition of “employee” in the ES). 

The DPA, which granted appeal rights to most ES employees, is particularly 

instructive because of the deliberateness with which it was enacted. In United States v. 

Fausto, 484 U.S. 439 (1988), the question before the Court was what remedies were 

available to an ES employee who had been suspended wrongly.127 The Court held that 

the CSRA had created “a comprehensive system for reviewing personnel action[s] taken 

against federal employees. Its deliberate exclusion of [ES employees] from the 

provisions establishing administrative and judicial review for [a 30-day suspension] 

prevents [a] respondent [in Fausto’s situation] from seeking review in the Claims Court 

under the Back Pay Act.”128 

Congress objected to this result, which would have left ES employees without 

adequate protection from improper adverse actions, and passed the DPA, which was 

explicitly intended to provide ES employees with the right to challenge adverse 

actions.129 The House Post Office and Civil Service Committee described the need for 

the bill as “urgent” in light of the Fausto decision.130 It also noted that ES veterans had 

appeal rights to MSPB under the VPA of 1944 (discussed in Chapter One) and that: 

Permitting veterans in excepted service positions to appeal to the Merit 

Systems Protection Board when they face adverse actions has not crippled 

the ability of agencies excepted from the competitive service to function. 

127 Fausto was removed by his agency. He appealed that action to MSPB, which concluded it 

lacked jurisdiction over his appeal because he was in the excepted service. He then filed a 

grievance with his agency, which determined he should not have been removed and mitigated 

the action to a 30-day suspension. He then filed an appeal of that suspension with the U.S. 

Court of Claims, which concluded it lacked jurisdiction. He appealed that decision to the 

Federal Circuit, which held that while MSPB lacked jurisdiction over the case under the CSRA, 

the Claims Court did have jurisdiction under the Tucker Act. (The Tucker Act grants the 

Claims Court “jurisdiction to render judgment upon any claim against the United States 

founded upon the Constitution.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017 (1984) 

(punctuation modified)). The Claims Court then reached the merits of the case, found the 

suspension should not have occurred, and ordered back pay. The Government petitioned the 

Supreme Court for certiorari on the question of the Claims Court’s jurisdiction over an 

excepted service employee’s Tucker Act claim. Fausto, 484 U.S. at 442-43. 

128 Fausto, 484 U.S. at 455. 

129 Pub. L. No. 101-376; H.R. Rep. 101-328, at 4 (1990 U.S.C.C.A.N. 695, 698). 

130 H.R. Rep. 101-328, at 4 (1990 U.S.C.C.A.N. 695, 698). 

34 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Four: Efforts to Modify the System 

Therefore, the committee see[s] no problem with extending these 

procedural protections to certain other employees in the excepted 

service.131 

Congress determined that ES employees “should have the same right to be free 

from arbitrary removal as do competitive service employees.”132 After discussions with 

the Office of Personnel Management (OPM), the law was crafted to require a longer 

waiting (trial) period for ES employees to obtain appeal rights in recognition of 

differences in how they are appointed.133 President George H.W. Bush, who as a former 

Director of Central Intelligence was in a unique position to understand the need to 

balance security concerns and management prerogatives with fair treatment of 

employees, signed the bill into law on August 17, 1990.134 

The DPA was intended to reverse the effect of Fausto and put ES employees 

under MSPB’s protection to the same extent as CS employees.135 However, there are 

some adverse actions, such as suspensions of 14 days or less, which cannot be appealed 

to MSPB under ordinary circumstances.136 The DPA did not address these actions.137 

131 H.R. Rep. 101-328, at 3 (1990 U.S.C.C.A.N. 695, 697). 

132 H.R. Rep. 101-328, at 4 (1990 U.S.C.C.A.N. 695, 698). 

133 Van Wersch, 197 F.3d at 1149 (quoting 136 Cong. Rec. 20365, 20366 (1990)). Certain 

agencies also were explicitly excepted from the provisions of the bill, primarily either because a 

different law already addressed their specific workforces (e.g., Foreign Service, Central 

Intelligence Agency, General Accounting Office, and Veterans Health Services and Research 

Administration); or because their missions were deemed too sensitive to permit a broadening 

of employees’ appeal rights (e.g., Federal Bureau of Investigation and National Security 

Agency). See H.R. Rep. 101-328, at 5 (1990 U.S.C.C.A.N. 695, 699) for a more complete list of 

agencies excepted from the DPA and the reasons for those exceptions. 

134 136 Cong. Rec. H11769-04 (message from the President), 1990 WL 275299. 

135 H.R. Rep. 101-328, at 3-4 (1990 U.S.C.C.A.N. 695, 697-98). 

136 MSPB may have jurisdiction over whistleblower retaliation claims even if it would not 

otherwise have jurisdiction over the employee or adverse action in question. See, e.g., Hupka, 

74 M.S.P.R. at 411 (holding that MSPB has jurisdiction over an appeal of a 5-day and a 4-day 

suspension where the appellant alleged retaliation for whistleblowing and exhausted his 

administrative remedies); O’Brien v. Office of Independent Counsel, 74 M.S.P.R. 192, 195, 197, 

208 (1997) (holding that MSPB has jurisdiction over an appeal from a temporary employee in 

the excepted service if the individual is a whistleblower who experienced retaliation and has 

exhausted his administrative remedies). Similarly, USERRA can provide MSPB jurisdiction 

over suspensions that are too brief to otherwise meet the requirements for MSPB’s adverse 

action jurisdiction. See, e.g., Johnson, 85 M.S.P.R. 1, ¶ 11 (finding USERRA jurisdiction over a 

7-day suspension when the appellant alleged that he was denied leave and instead was charged 

with absence without leave (AWOL) for periods during which he served on military reserve 

duty, leading to him being suspended for AWOL). 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 35 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Four: Efforts to Modify the System 

As a result, chapter 75’s subchapter I sets forth rules involving the necessary cause and 

procedures for short suspensions in the competitive service without discussing any such 

rules for the excepted service. 

Unlike the DPA, the changes to the civil service brought about by the Federal 

Circuit’s decisions in Van Wersch and McCormick appear to be the result of poor 

statutory construction rather than congressional intent. In both Van Wersch and 

McCormick, the Federal Circuit determined that there was a “compelling case” to be 

made that Congress intended that individuals on new appointments who had previous 

Federal service would be treated as probationers who do not have finalized 

appointments and are therefore not entitled to the full panoply of rights given to 

employees. However, the court concluded that, because of the way in which the law was 

structured, CS and ES individuals in a probationary or trial period could be entitled to 

the procedural rights set forth in title 5 chapter 75 if the individuals met certain 

conditions regarding length of service.138 In other words, through its possibly 

unintentional word choices, Congress gave due process rights to individuals whose right 

to the property – the appointment – had not yet been finalized.139 

Agency-Specific Modifications 

Post-CSRA agency-specific changes to the civil service rules tend to be most 

noteworthy for their short duration. Some (but not all) have been enacted only to be 

repealed by a later Congress. Such actions can have their own complications. An 

example of this is the 1996 Department of Transportation and Related Agencies 

137 See Pub. L. No. 101-376. 

138 See McCormick, 307 F.3d at 1341-42; Van Wersch, 197 F.3d at 1152. Section 

7511(a)(1)(A) of title 5 lists who may be considered an employee for purposes of appeal rights 

and uses the word “or” to separately list two different qualifying criteria. This use of “or” can 

be found in the original text of the CSRA and is likely a result of an attempt to mimic the 

regulations of the CSC. However, moving the words out of the surrounding context from the 

Code of Federal Regulations caused a change in their meaning. The criteria was originally 

structured as a list of individuals who could not be considered employees with procedural and 

appeal rights, but the CSRA structured the law as a list of individuals who were covered. In 

this way, what had once been criteria for excluding an individual from coverage ceased to have 

that effect. Compare CSRA, Pub.L. No. 95–454, 92 Stat. 1111 with 5 C.F.R. § 752.103 (1978). 

139 Congress has not chosen to enact legislation to overrule the decisions in Van Wersch or 

McCormick. 

36 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Four: Efforts to Modify the System 

Appropriations Act (“DOT Act”), Pub. L. No. 104–50, 109 Stat. 436 (1995) and the 

Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“Ford Act”), 

Pub. L. No. 106–181, 114 Stat. 61 (2000).140 

The DOT Act removed the Federal Aviation Administration (FAA) from MSPB 

jurisdiction and the relevant statutes and rules, and the Ford Act mostly put it back. 

MSPB jurisdiction was restored to what it had been before the DOT Act, but the Ford 

Act did not address any changes to MSPB’s Government-wide jurisdiction that occurred 

after the DOT Act and did not specify the rules that the Board was to apply when 

exercising its reinstated jurisdiction.141 According to the Federal Circuit, Congress 

enacted the Ford Act because it was “[d]issatisfied with the DOT Act’s foreclosure of 

appeal rights to the Board[.]”142 Employees of the Transportation Security 

Administration (TSA) also fall under the FAA system.143 These systems can have some 

140 Another example of an agency-specific law that was later repealed is the National 

Security Personnel System (NSPS). NSPS was authorized by Congress for the Department of 

Defense (DoD) in the National Defense Authorization Act (NDAA) for FY 2004 and repealed in 

the NDAA for FY 2010. See U.S. Government Accountability Office, DOD Is Terminating the 

National Security Personnel System, but Needs a Strategic Plan to Guide Its Design of a New 

System, GAO-11-524R, Apr. 28, 2011, at 1-2. This imposition and repeal of a personnel system 

also created some adverse action issues. See, e.g., Ellis v. Department of the Navy, 117 

M.S.P.R. 511, ¶¶ 6-8 (2012) (explaining why a cumulative effect of personnel actions gave some 

employees adverse action appeal rights over the manner in which they were moved from an 

NSPS pay system back to the GS pay system, while others did not have appeal rights). 

141 See Roche v. Merit Systems Protection Board, 596 F.3d 1375, 1378-82 (Fed. Cir. 2010) 

(explaining the history of the two Acts and the extent to which Board jurisdiction was restored 

without specifying the rules that the Board was to apply when exercising that jurisdiction); 

Belhumeur v. Department of Transportation, 104 M.S.P.R. 408, ¶¶ 5-12 (2007) (explaining 

that because the Veterans Employment Opportunity Act (VEOA) was enacted in 1998 and the 

Ford Act of 2000 reinstated the jurisdiction that the Board had in 1996, the Board lacked 

VEOA jurisdiction for the FAA). See also Gonzalez v. Department of Transportation, 568 F.3d 

1369, 1370 (Fed. Cir. 2009) (explaining that the Ford Act did not restore the Back Pay Act for 

FAA employees). 

142 Roche, 596 F.3d at 1378. 

143 Coradeschi v. Department of Homeland Security, 439 F.3d 1329, 1332 (Fed. Cir. 2006). 

Because the FAA is within the Department of Transportation and the TSA is within the Department 

of Homeland Security, some cases that list either of those departments as a party to a case may follow a 

different set of rules than other cases within those same departments. TSA screeners are particularly 

in their own category, with the Board unable to hear appeals from TSA screeners alleging 

violations of laws such as USERRA, the Whistleblower Protection Act (WPA), VEOA, suitability 

determinations under 5 C.F.R. part 731, employment practices appeals under 5 C.F.R. part 300, 

and the Board’s review of agency regulations under 5 C.F.R. part 1203. Spain v. Department of 

Homeland Security, 99 M.S.P.R. 529 (2005), aff’d sub nom., Spain v. Merit Systems 

Protection Board, 177 F. App’x 88 (Fed. Cir. 2006). 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 37 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Four: Efforts to Modify the System 

seemingly odd quirks when compared to the rest of the civil service because some laws 

interact with each other, and the Ford Act did not fully return the FAA system to all of 

the laws related to the civil service. As a result, the employment laws pertaining to FAA 

and the TSA have some missing bits and pieces.144 

As noted earlier, one of the main reasons for the enactment “of the CSRA was to 

replace the haphazard arrangements for administrative and judicial review of personnel 

action[s], part of the outdated patchwork of statutes and rules built up over almost a 

century that was the civil service system.”145 In the 40 years since the CSRA was 

enacted, the addition of various pieces has made the civil service increasingly complex to 

manage, as once again, a patchwork of statutes and rules must find a way to work 

together in concert.146 

144 See Gonzalez, 568 F.3d at 1370 (explaining that the Ford Act did not restore the Back 

Pay Act for FAA employees); Mitchell v. Department of Homeland Security, 104 M.S.P.R. 682, 

¶ 5 (2007) (explaining that because the TSA Administrator had not modified the FAA personnel 

system, the Board could not order back pay or interest for the employee); Belhumeur, 104 

M.S.P.R. 408, ¶¶ 5-12 (explaining that because VEOA was enacted in 1998 and the Ford Act of 

2000 put back the jurisdiction that the Board had in 1996, the Board lacked VEOA jurisdiction 

for the FAA). 

145 Fausto, 484 U.S. at 444 (internal punctuations and citations omitted). 

146 See U.S. Merit Systems Protection Board, Veteran Hiring in the Civil Service: Practices 

and Perceptions (2014), available at www.mspb.gov/studies (discussing the variety of laws 

enacted to support the hiring of veterans and how complicated a situation can become when 

they interact with other hiring laws and regulations). 

38 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Conclusion 

There are good reasons why public employers must ensure that actions are taken 

to advance the efficiency of the service and not for improper motives. These 

requirements mean that certain procedural rules must be followed. But, in the words of 

Supreme Court Justice William Douglas, “[i]t is procedure that spells much of the 

difference between rule by law and rule by whim or caprice. Steadfast adherence to 

strict procedural safeguards is our main assurance that there will be equal justice under 

law.”147 

Prior to the 1960s, the Federal Government obtained a wealth of experience 

showing what can happen in the absence of such rules and with the supremacy of 

capriciousness. As the chapter titled Development of Federal Employee Rights 

illustrated, Congress found the results both unpleasant and unproductive. 

It has been said that: “No better instrument has been devised for arriving at 

truth than to give a person in jeopardy of serious loss notice of the case against him and 

opportunity to meet it. Nor has a better way been found for generating the feeling, so 

important to a popular government, that justice has been done.”148 However, providing 

an individual with the opportunity to respond does not always prevent improper actions 

from occurring. Agencies have taken adverse actions that are unsupported by the 

evidence.149 Adverse actions for prohibited reasons, such as discrimination or 

retaliation for whistleblowing activities, still occur.150 

147 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 179 (1951) (Douglas, J., 

concurring). In that same decision, Justice Felix Frankfurter wrote: “Man being what he is 

cannot safely be trusted with complete immunity from outward responsibility in depriving 

others of their rights. At least such is the conviction underlying our Bill of Rights. That a 

conclusion satisfies one’s private conscience does not attest its reliability. The validity and 

moral authority of a conclusion largely depend on the mode by which it was reached. Secrecy is 

not congenial to truth-seeking and self-righteousness gives too slender an assurance of 

rightness.” Id. at 171 (Frankfurter, J., concurring). 

148 Id. at 171-72 (Frankfurter, J., concurring). 

149 See, e.g., Prouty v. General Services Administration, 122 M.S.P.R. 117, ¶¶ 35-38 (2014) 

(explaining that under the current statute, supervisors and executives can be held to high 

standards for proven charges, but the removal actions at issue could not be sustained because 

the agency had abandoned its duty to produce evidence in support of its charges); Kenyon v. 

Department of the Navy, 57 M.S.P.R. 258, 261-62 (1993) (holding that the appellant was 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 39 
 

 

 

 

 

 

 

 

 

 

 

 

 

Conclusion 

The system remains imperfect, but the current statutes, containing a pretermination opportunity to respond, coupled with a post-termination review of agency 

decisions, have enabled the Government to provide the public with a merit-based civil 

service with due process under the law. Merit-based actions are required for an effective 

and efficient civil service. Due process is required to ensure that: (1) merit is truly the 

basis of the system; and (2) the system comports with the requirements of the U.S. 

Constitution. As with any set of laws, there is likely room for improvement. But, as long 

as merit is part of the system, due process will remain a required element. 

entitled to attorney fees because the agency deliberately chose not to produce any evidence or 

argument supporting its removal action or its subsequent decision to cancel the removal after 

the employee filed an appeal). 

150 See, e.g., Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197, ¶¶ 8-23, 41-42 

(2011) (finding that the employee’s protected disclosures to members of Congress and an Office 

of the Inspector General were contributing factors in his removal and ordering that the removal 

be cancelled); Spahn v. Department of Justice, 93 M.S.P.R. 195, ¶¶ 40, 42(2003) (finding that, 

where misconduct was proven but the penalty was a result of sex-based discrimination, the 

penalty imposed must be the same as that given to similarly-situated members of the other 

sex); Creer v. U.S. Postal Service, 62 M.S.P.R. 656, 663-64 (1994) (ordering the cancellation of 

a removal action that was the result of sex-based discrimination); Johnson v. Defense Logistics 

Agency, 61 M.S.P.R. 601, 607-10 (1994) (ordering the cancellation of a removal action where 

the unrebutted testimony, including that of the agency’s deciding official, showed a pattern of 

racial discrimination). See also U.S. Office of Special Counsel, Annual Report to Congress for 

Fiscal Year 2013, at 19, available at www.osc.gov (discussing cases in which OSC obtained 

corrective action for whistleblowers who experienced retaliation). 

40 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix A: Clearing up the Confusion
 

Perception Reality 

It is impossible to fire a 

Federal employee. 

From FY 2000-2014, over 77,000 full-time, permanent, 

Federal employees were discharged as a result of 

performance and/or conduct issues.151 

There are no legal barriers to 

firing an employee in the 

private sector. 

Many of the laws that apply to removing employees in 

the Federal civil service also apply to private sector 

employment or have a similar counterpart, such as the 

Civil Rights Act of 1964 (Title VII – Equal Employment 

Opportunity), and the Uniformed Services Employment 

and Reemployment Rights Act of 1994 (USERRA), both 

of which permit private sector employees to pursue 

litigation.152 

An agency must pay a salary to 

an employee who has been 

removed until any appeal has 

been resolved. 

An employee does not continue to receive a salary once 

removed. If the action is found to have been 

unwarranted, then reinstatement and back pay may be 

awarded. But, there is no pay while removed.153 

151 Analysis of data from U.S. Office of Personnel Management, Central Personnel Data File 

(CPDF), FY 2000-FY 2014. Discharge data includes the removal of probationers and those in a 

trial period for reasons involving conduct and/or performance. It does not include discharges 

from some agencies that use unique coding, such as the more than 10,000 separation actions 

that occurred within the TSA in this period, because the coding system does not permit us to 

determine the reasons for those separations. 

152 See 38 U.S.C. §§ 4301-4333 (USERRA); Civil Rights Act of 1964, Pub. L. No. 88-352, 78 

Stat. 241, § 706(e)-(g) (authorizing discrimination litigation in Federal courts). Congress has 

also enacted other laws to protect private sector employees. See, e.g., Family Medical Leave 

Act of 1993 (FMLA), Pub. L. No. 103-3, 107 Stat. 6, § 107 (authorizing civil actions and 

damages); Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 

124 Stat. 1376, § 748 (authorizing a cause of action for discrimination against whistleblowers); 

http://www.whistleblowers.gov/ (explaining that Congress has enacted 22 laws to protect 

employees from retaliation for reporting occupational safety hazards). 

153 See 5 U.S.C. § 5596 (b)(1)(A). But see 5 U.S.C. § 1214(b)(1) (authorizing the Office of the 

Special Counsel (OSC) to request that the Board order a stay of a personnel action if there are 

reasonable grounds to believe the action is the result of a prohibited personnel practice). 

MSPB records indicate that OSC requests for such stays are very rare. From FY 2004-2014, 

OSC filed 65 requests for a stay, 86% of which were granted. Appellants also may request a 

stay under more limited circumstances. See 5 U.S.C. § 1221(c). 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 41 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix A: Clearing up the Confusion 

Perception Reality 

Agency leaders have no 

authority to serve as proposing 

or deciding officials in title 5 

adverse actions. 

Title 5 empowers the agency to take an adverse action. 

If agency leadership chooses to delegate the proposal or 

decision authority to lower levels, then it cannot 

interfere with the decision-making process of those 

delegees. But, prior to the assigned decision-maker’s 

involvement in a particular case, current statutes permit 

delegations to be abandoned or modified by the agency 

at will.154 

If an employee is suspected of 

a crime, the agency cannot fire 

the employee for the same 

underlying conduct until the 

criminal matter is resolved. 

The agency is permitted to remove the employee 

without waiting for criminal charges to be filed. If the 

removal is appealed to MSPB and criminal charges are 

filed, then MSPB may stay its proceedings until the 

criminal matter is resolved if, under the facts of the 

particular case, it is necessary in the interest of justice. 

However, the individual remains removed without pay 

during that period.155 

154 Goeke v. Department of Justice, 122 M.S.P.R. 69, ¶ 23 (2015) (explaining that the agency 

opted to delegate to a non-supervisory career official the authority to propose adverse actions, 

even though no external law, rule, or regulation required any delegation of the agency’s 

disciplinary power. Such a delegation can be abandoned or modified prospectively by the 

agency at will; but, once adopted and until modified, it must be enforced); see Boddie v. 

Department of the Navy, 827 F.2d 1578, 1580 (Fed. Cir. 1987) (explaining that a new official 

can be substituted only if the substitution occurs before the assigned official considers the 

charges); Ward v. U.S. Postal Service, 634 F.3d 1274, 1279 (2011) (prohibiting ex parte 

communications); 5 U.S.C. § 7513 (authorizing an “agency” to impose an adverse action). 

155 Wallington v. Department of the Treasury, 42 M.S.P.R. 462, 465 (1989). See, e.g., 

Raymond v. Department of Army, 34 M.S.P.R. 476, 478 (1987) (appellant removed and MSPB 

appeal dismissed without prejudice to refiling because of investigation by U.S. Attorney); 

Green v. U.S. Postal Service, 16 M.S.P.R. 203, 206 (1983) (staying a removal appeal at MSPB 

pending completion of the ongoing criminal investigation by the U.S. Attorney’s Office). Civil 

proceedings may be frozen pending the resolution of a criminal prosecution. Afro-Lecon, Inc. 

v. United States, 820 F.2d 1198, 1204 (Fed. Cir. 1987). However, the law has specific 

provisions to make it possible to fire an employee reasonably suspected of a crime for which 

imprisonment may be imposed even faster than an employee whose actions are not likely to 

result in imprisonment. 5 U.S.C. § 7513(b)(1). Additionally, the Board has held that an 

employee is not entitled to back pay for any period of an indefinite suspension based on an 

indictment, regardless of the outcome of the criminal charges, if the indictment was proper 

when effected. Jarvis v. Department of Justice, 45 M.S.P.R. 104, 108 (1990); see Wiemers v. 

Merit Systems Protection Board, 792 F.2d 1113, 1116 (Fed. Cir. 1986) (holding that a reversal of 

a conviction did not entitle an employee to back pay for a suspension based on alleged criminal 

activity). 

42 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix A: Clearing up the Confusion 

Perception Reality 

The removal of a Senior 

Executive Service (SES) 

employee is delayed by the 

appeals process. 

If a career156 SES employee is removed for “misconduct, 

neglect of duty, malfeasance, or failure to accept a 

directed reassignment or to accompany a position in a 

transfer of function[,]” then the individual may appeal 

the action to MSPB, but the appeal can be filed only 

after the removal has taken effect.157 

If the individual is removed for “less than fully 

successful executive performance[,]” then the individual 

is entitled to an informal hearing by MSPB. The request 

for the hearing may be filed before the removal action, 

but, the law specifically states that the removal need 

not be delayed pending a hearing.158 

Thus, whether an action is taken for performance or 

conduct, the appeals process before the Board does not 

require any delay in the removal of the individual or in 

the termination of pay and benefits to that individual. 

If an agency proposes an 

action such as a suspension 

and then learns the situation is 

more serious than it knew, it 

cannot propose a more serious 

action instead. 

While an employee cannot be punished twice for the 

same event,159 an agency may withdraw a notice of 

proposed suspension and replace it with a notice of 

proposed removal.160 

156 The MSPB appeals process only applies to non-probationary career appointees and those 

who met the definition of employee prior to placement in the SES. See 5 U.S.C. §§ 7541, 7543. 

157 5 U.S.C. § 7543. Section 707 of the Veterans Access, Choice, and Accountability Act 

(VACAA), Pub. L. No. 113-146, 128 Stat 1754, which established a different process for the 

removal of SES members in the Department of Veterans Affairs (DVA), provided that, “the 

Secretary determines the performance or misconduct of the individual warrants such removal.” 

See 38 U.S.C. § 713. However, under both the traditional SES system and the VACCA system, 

there is no requirement to delay the effective date of the termination and cessation of pay and 

benefits pending appeal. Rather, under the traditional system, any appeal of an action for 

“misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to 

accompany a position in a transfer of function” cannot take place until after the action takes 

effect, as it is the taking of the action which provides MSPB with its jurisdiction. 

158 5 U.S.C. § 3592(a). But see 5 U.S.C. §§ 3592(b)(2), 4314(b)(3) (the right to request a 

hearing under section 3592(a) does not apply to any senior executive removed for receiving 

unsatisfactory annual appraisals). 

159 Wigen v. U.S. Postal Service, 58 M.S.P.R. 381, 383 (1993) (an agency cannot impose 

disciplinary or adverse action more than once for the same instance of misconduct). 

160 Brough v. Department of Commerce, 119 M.S.P.R. 118, ¶¶ 10, 13 (2013). The agency 

must comply with its own internal rules for issuing notices of proposed action. See Canary v. 

U.S. Postal Service, 119 M.S.P.R. 310, ¶¶ 11-12 (2013) (holding that the substitution of a new 

deciding official violated the agency’s procedures under the circumstances of the case). 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 43 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix A: Clearing up the Confusion 

Perception Reality 

If, during the adverse action 

process, the agency 

accidentally fails to provide 

the employee with all of his or 

her constitutional rights, the 

agency loses the ability to take 

an adverse action. 

An agency can correct the procedural problem and still 

take the action. For example, if the deciding official 

learns ex parte information, then the agency can issue a 

new notice of proposed action that includes the new 

information.161 If an action takes effect before the 

procedural issue is identified, and the action is reversed 

by MSPB on constitutional grounds, then the agency is 

free to take the action again, this time properly following 

all the rules.162 

Supervisors are rarely 

punished compared to nonsupervisors. 

In order to be promoted to higher-level grades – 

including supervisory positions – employees often must 

show successful performance and conduct over time. 

Because past conduct and performance are among the 

best predictors of future conduct and performance, 

length of service and grade-level tend to have a 

relationship to the rate at which individuals experience 

adverse actions. However, an analysis of appealable 

adverse action data shows that a supervisor is no less 

likely to experience an adverse action than a 

non-supervisor of similar age, seniority and grade.163 

Case law explicitly states that agencies are permitted to 

hold supervisors to a higher standard than nonsupervisory employees.164 

161 See Dejoy v. Department of Health & Human Services, 2 M.S.P.R. 577, 580 (1980) 

(holding that an agency may cancel a proposed removal and substitute a new notice of 

proposed removal). 

162 See Ward, 634 F.3d 1274, 1279 (2011) (explaining that if there is a due process violation, 

the appellant “is automatically entitled to an ‘entirely new’ and ‘constitutionally correct’ 

removal proceeding”); Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 8 (2012) (explaining 

that the appellant is entitled to a new proceeding). 

163 Analysis of data from CPDF, FY 2005-2013, full-time, permanent employees 

experiencing a suspension of more than 14 days, change to lower grade, or removal for cause. 

164 See, e.g., Gebhardt v. Department of the Air Force, 99 M.S.P.R. 49, ¶ 21 (2005), aff’d, 

180 F. App’x 951 (Fed. Cir. 2006) (holding that “[s]upervisors may be held to a higher standard 

of conduct than non-supervisors because they hold positions of trust and responsibility”); 

Myers v. Department of Agriculture, 88 M.S.P.R. 565, ¶ 34 (2001), aff’d, 50 F. App’x 443 (Fed. 

Cir. 2002) (holding that an “agency has a right to expect a higher standard of conduct from 

supervisors than from nonsupervisory employees”). 

44 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix B: The Statutory Process Flowcharts 

Suspensions of 14 Days or Less (5 U.S.C. § 7503, 5 C.F.R. § 752)
 

Step One: Analysis 

 Identify issues. 

 Investigate to ascertain facts and collect evidence. 

Step Two: Action 

 Agency: Propose the personnel action in writing including what 

action is proposed and why (charges and penalty). Inform the 

employee of any information that may be considered by the 

deciding official. 

 Agency: Provide the employee with a reasonable opportunity to 

respond to proposed action (no less than 24 hours). 

 Optional for Employee: Respond to the notice of proposed action. 

 Agency: Consider the evidence and employee response (if any) 

before reaching a decision on the charges and penalty. 

 Agency: Notify the employee in writing of the decision, effective 

date, and any complaint or grievance rights. 

Step Three: Review 

 Optional for Employee: File a discrimination complaint (EEOC 

procedures) or grievance (collective bargaining agreement or 

administrative grievance procedures). 

 Agency: Respond to the complaint or grievance. For example, in 

an arbitration proceeding, establish that the evidence supports the 

charges and the penalty was reasonable. 

 Employee: If asserting an affirmative defense, provide evidence to 

support that defense. 

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 45
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix B: The Statutory Process Flowcharts 

Removals, Demotions, Suspensions of Over 14 Days and Furloughs for 

30 Days or Less (5 U.S.C. § 7513) 

Step Two: Action 

 Agency: Propose the personnel action in writing including what 

action is proposed and why (charges and penalty). Inform the 

employee of any information that may be considered by the 

deciding official. 

 Agency: Provide the employee with a reasonable opportunity to 

respond to proposed action (no less than 7 days). 

 Optional for Employee: Respond to the notice of proposed action. 

 Agency: Consider the evidence and employee response (if any) 

before reaching a decision on the charges and penalty. 

 Agency: Notify the employee in writing of the decision, effective 

date, and any appeal, grievance, or complaint rights. Action may 

not take place less than 30 days from proposal date unless there is 

cause to believe the employee committed a crime for which 

imprisonment may be imposed. 

Step Three: Review 

 Optional for Employee: File an appeal (MSPB), discrimination 

complaint (EEOC procedures), or grievance (collective bargaining 

agreement procedures). 

 Agency: Respond to the appeal, complaint or grievance. For 

example, in an MSPB proceeding, establish that the evidence 

supports the charges and the penalty was reasonable. 

 Employee: If asserting an affirmative defense, provide evidence to 

support that defense. 

Step One: Analysis 

 Identify issues. 

 Investigate to ascertain facts and collect evidence. 

46 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT? 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Adverse Employment Actions in the Federal Civil Service: The Facts 

Perception Reality 

It is impossible to fire a Federal 

employee. 

From FY 2000-2014, over 77,000 full-time, permanent, Federal employees were discharged 

as a result of performance and/or conduct issues.1 

There are no legal barriers to firing 

an employee in the private sector. 

Many of the laws that apply to removing employees in the Federal civil service also apply to 

private sector employment or have a similar counterpart, such as the Civil Rights Act of 1964 

(Title VII – Equal Employment Opportunity), and the Uniformed Services Employment and 

Reemployment Rights Act of 1994 (USERRA), both of which permit private sector employees 

to pursue litigation.2 

An agency must pay a salary to an 

employee who has been removed 

until any appeal has been resolved. 

An employee does not continue to receive a salary once removed. If the action is found to 

have been unwarranted, then reinstatement and back pay may be awarded. But, there is no 

pay while removed.3 

Agency leaders have no authority 

to serve as proposing or deciding 

officials in title 5 adverse actions. 

Title 5 empowers the agency to take an adverse action. If agency leadership chooses to 

delegate the proposal or decision authority to lower levels, then it cannot interfere with the 

decision-making process of those delegees. But, prior to the assigned decision-maker’s 

involvement in a particular case, current statutes permit delegations to be abandoned or 

modified by the agency at will.4 

If an employee is suspected of a The agency is permitted to remove the employee without waiting for criminal charges to be 

crime, the agency cannot fire the filed. If the removal is appealed to MSPB and criminal charges are filed, then MSPB may stay 

employee for the same underlying its proceedings until the criminal matter is resolved if, under the facts of the particular case, it 

conduct until the criminal matter is necessary in the interest of justice. However, the individual remains removed without pay 

is resolved. during that period.5 

Supervisors are rarely punished 

compared to non-supervisors. 

In order to be promoted to higher-level grades – including supervisory positions – employees 

often must show successful performance and conduct over time. Because past conduct and 

performance are among the best predictors of future conduct and performance, length of 

service and grade-level tend to have a relationship to the rate at which individuals experience 

adverse actions. However, an analysis of appealable adverse action data shows that a 

supervisor is no less likely to experience an adverse action than a non-supervisor of similar 

age, seniority and grade.6 Case law explicitly states that agencies are permitted to hold 

supervisors to a higher standard than non-supervisory employees.7 

If an agency proposes an action 

such as a suspension and then 

learns the situation is more serious 

than it knew, it cannot propose a 

more serious action instead. 

While an employee cannot be punished twice for the same event,8 an agency may withdraw a 

notice of proposed suspension and replace it with a notice of proposed removal.9 

If, during the adverse action 

process, the agency accidentally 

fails to provide the employee with 

all of his or her constitutional 

rights, the agency loses the ability 

to take an adverse action. 

An agency can correct the procedural problem and still take the action. For example, if the 

deciding official learns ex parte information, then the agency can issue a new notice of 

proposed action that includes the new information.10 If an action takes effect before the 

procedural issue is identified, and the action is reversed by MSPB on constitutional grounds, 

then the agency is free to take the action again, this time properly following all the rules. 11 

The removal of a Senior Executive 

Service (SES) employee is delayed 

by the appeals process. 

If a career12 SES employee is removed for “misconduct, neglect of duty, malfeasance, or 

failure to accept a directed reassignment or to accompany a position in a transfer of 

function[,]” then the individual may appeal the action to MSPB, but the appeal can be filed 

only after the removal has taken effect.13 

If the individual is removed for “less than fully successful executive performance[,]” then the 

individual is entitled to an informal hearing by MSPB. The request for the hearing may be 

filed before the removal action, but, the law specifically states that the removal need not be 

delayed pending a hearing.14 

Thus, whether an action is taken for performance or conduct, the appeals process before the 

Board does not require any delay in the removal of the individual or in the termination of pay 

and benefits to that individual. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1 Analysis of data from U.S. Office of Personnel Management, Central Personnel Data File (CPDF), FY 2000-FY 2014. Discharge 

data includes the removal of probationers and those in a trial period for reasons involving conduct and/or performance. It does not 

include discharges from some agencies that use unique coding, such as the more than 10,000 separation actions that occurred within 

the Transportation Security Administration (TSA) in this period, because the coding system does not permit us to determine the reasons 

for those separations. 

2 See 38 U.S.C. §§ 4301-4333 (USERRA); Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, § 706(e)-(g) (authorizing 

discrimination litigation in Federal courts). Congress has also enacted other laws to protect private sector employees. See, e.g., Family 

Medical Leave Act of 1993 (FMLA), Pub. L. No. 103-3, 107 Stat. 6, § 107 (authorizing civil actions and damages); Dodd-Frank Wall 

Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376, § 748 (authorizing a cause of action for discrimination 

against whistleblowers); http://www.whistleblowers.gov/ (explaining that Congress has enacted 22 laws to protect employees from 

retaliation for reporting occupational safety hazards). 

3 See 5 U.S.C. § 5596 (b)(1)(A). But see 5 U.S.C. § 1214(b)(1) (authorizing the Office of the Special Counsel (OSC) to request that the 

Board order a stay of a personnel action if there are reasonable grounds to believe the action is the result of a prohibited personnel 

practice). MSPB records indicate that OSC requests for such stays are very rare. From FY 2004-2014, OSC filed 65 requests for a stay, 

86% of which were granted. Appellants also may request a stay under more limited circumstances. See 5 U.S.C. § 1221(c). 

4 Goeke v. Department of Justice, 122 M.S.P.R. 69, ¶ 23 (2015) (explaining that the agency opted to delegate to a non-supervisory 

career official the authority to propose adverse actions, even though no external law, rule, or regulation required any delegation of the 

agency’s disciplinary power. Such a delegation can be abandoned or modified prospectively by the agency at will; but, once adopted and 

until modified, it must be enforced); see Boddie v. Department of the Navy, 827 F.2d 1578, 1580 (Fed. Cir. 1987) (explaining that a new 

official can be substituted only if the substitution occurs before the assigned official considers the charges); Ward v. U.S. Postal Service, 

634 F.3d 1274, 1279 (2011) (prohibiting ex parte communications); 5 U.S.C. § 7513 (authorizing an “agency” to impose an adverse 

action). 

5 Wallington v. Department of Treasury, 42 M.S.P.R. 462, 465 (1989). See, e.g., Raymond v. Department of Army, 34 M.S.P.R. 

476, 478 (1987) (appellant removed and MSPB appeal dismissed without prejudice to refiling because of investigation by U.S. 

Attorney); Green v. U.S. Postal Service, 16 M.S.P.R. 203, 206 (1983) (staying a removal appeal at MSPB pending completion of the 

ongoing criminal investigation by the U.S. Attorney’s Office). Civil proceedings may be frozen pending the resolution of a criminal 

prosecution. Afro-Lecon, Inc. v. United States, 820 F.2d 1198, 1204 (Fed. Cir. 1987). However, the law has specific provisions to make 

it possible to fire an employee reasonably suspected of a crime for which imprisonment may be imposed even faster than an employee 

whose actions are not likely to result in imprisonment. 5 U.S.C. § 7513(b)(1). Additionally, the Board has held that an employee is not 

entitled to back pay for any period of an indefinite suspension based on an indictment, regardless of the outcome of the criminal 

charges, if the indictment was proper when effected. Jarvis v. Department of Justice, 45 M.S.P.R. 104, 108 (1990); see Wiemers v. 

Merit Systems Protection Board, 792 F.2d 1113, 1116 (Fed. Cir. 1986) (holding that a reversal of a conviction did not entitle an employee 

to back pay for a suspension based on alleged criminal activity). 

6 Analysis of data from CPDF, FY 2005-2013, full-time, permanent employees experiencing a suspension of more than 14 days, 

change to lower grade, or removal for cause. 

7 See, e.g., Gebhardt v. Department of the Air Force, 99 M.S.P.R. 49, ¶ 21 (2005), aff’d, 180 F. App’x 951 (Fed. Cir. 2006) (holding 

that “[s]upervisors may be held to a higher standard of conduct than non-supervisors because they hold positions of trust and 

responsibility”); Myers v. Department of Agriculture, 88 M.S.P.R. 565, ¶ 34 (2001), aff’d, 50 F. App’x 443 (Fed. Cir. 2002) (holding 

that an “agency has a right to expect a higher standard of conduct from supervisors than from nonsupervisory employees”). 

8 Wigen v. U.S. Postal Service, 58 M.S.P.R. 381, 383 (1993) (an agency cannot impose disciplinary or adverse action more than 

once for the same instance of misconduct). 

9 Brough v. Department of Commerce, 119 M.S.P.R. 118, ¶¶ 10, 13 (2013). The agency must comply with its own internal rules for 

issuing notices of proposed action. See Canary v. U.S. Postal Service, 119 M.S.P.R. 310, ¶¶ 11-12 (2013) (holding that the substitution of 

a new deciding official violated the agency’s procedures under the circumstances of the case). 

10 See Dejoy v. Department of Health & Human Services, 2 M.S.P.R. 577, 580 (1980) (holding that an agency may cancel a 

proposed removal and substitute a new notice of proposed removal). 

11 See Ward, 634 F.3d at 1279 (explaining that if there is a due process violation, the appellant “is automatically entitled to an 

‘entirely new’ and ‘constitutionally correct’ removal proceeding”); Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 8 (2012) 

(explaining that the appellant is entitled to a new proceeding). 

12 The MSPB appeals process only applies to non-probationary career appointees and those who met the definition of employee 

prior to placement in the SES. See 5 U.S.C. §§ 7541, 7543. 

13 5 U.S.C. § 7543. Section 707 of the Veterans Access, Choice, and Accountability Act (VACAA), Pub. L. No. 113-146, 128 Stat 1754, 

which established a different process for the removal of SES members in the Department of Veterans Affairs (DVA), provided that, “the 

Secretary determines the performance or misconduct of the individual warrants such removal.” See 38 U.S.C. § 713. However, under 

both the traditional SES system and the VACCA system, there is no requirement to delay the effective date of the termination and 

cessation of pay and benefits pending appeal. Rather, under the traditional system, any appeal of an action for “misconduct, neglect of 

duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function” cannot take place 

until after the action takes effect, as it is the taking of the action which provides MSPB with its jurisdiction. 

14 5 U.S.C. § 3592(a). But see 5 U.S.C. §§ 3592(b)(2), 4314(b)(3) (the right to request a hearing under section 3592(a) does not 

apply to any senior executive removed for receiving unsatisfactory annual appraisals). 
Suspensions of 14 Days or Less (5 U.S.C. §7503, 5 C.F.R. §752)

Step One: Analysis

• Identify issues. 

• Investigate to ascertain facts and collect evidence. 

Step Two: Action

• Agency: Propose the personnel action in writing including 

what action is proposed and why (charges and penalty). 

Inform employee of any information that may be considered 

by the deciding official.

• Agency: Provide the employee with a reasonable 

opportunity to respond to proposed action (no less than 24 

hours). 

• Optional for Employee: Respond to notice of proposed 

action.

• Agency: Consider the evidence and employee response (if 

any) before reaching a decision on the charges and penalty. 

• Agency: Notify the employee in writing of the decision, 

effective date, and any complaint or grievance rights. 

Step Three: Review

• Optional for Employee: File a discrimination complaint 

(EEOC procedures) or grievance (collective bargaining 

agreement or administrative grievance procedures).

• Agency: Respond to the complaint or grievance. For 

example, in an arbitration proceeding, establish that the 

evidence supports the charges and the penalty was 

reasonable.

• Employee: If asserting an affirmative defense, provide 

evidence to support that defense.
Removals, Demotions, Suspensions of Over 14 Days and 

Furloughs for 30 Days or Less (5 U.S.C. §7513) 

Step Two: Action

• Agency: Propose the personnel action in writing including 

what action is proposed and why (charges and penalty). 

Inform employee of any information that may be considered 

by the deciding official.

• Agency: Provide the employee with a reasonable 

opportunity to respond to proposed action (no less than 7

days). 

• Optional for Employee: Respond to notice of proposed 

action.

• Agency: Consider the evidence and employee response (if 

any) before reaching a decision on the charges and penalty. 

• Agency: Notify employee in writing of the decision, effective 

date, and any appeal, grievance, or complaint rights. Action 

may not take place less than 30 days from proposal date 

unless there is cause to believe the employee committed a 

crime for which imprisonment may be imposed.

Step Three: Review

• Optional for Employee: File an appeal (MSPB), 

discrimination complaint (EEOC procedures), or grievance 

(collective bargaining agreement procedures).

• Agency: Respond to the appeal, complaint or grievance. For 

example, in an MSPB proceeding, establish that the evidence 

supports the charges and the penalty was reasonable.

• Employee: If asserting an affirmative defense, provide 

evidence to support that defense.

Step One: Analysis

• Identify issues. 

• Investigate to ascertain facts and collect evidence. 

What is Due Process in

 Federal Civil Service Employment?

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Washington, DC 20419

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