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Home
	   Studies
		   	 Adverse Actions: A Primer in Pieces
      Second-Hand News Can be Misleading
      The Adverse Action Process - A Flowchart
      Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences
      Different Types of Adverse Actions Use Different Rules
      Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
      Decision-Maker Must Listen and Have Power to Decide
      Connecting the Job and the Offense ("Nexus")
      Labels are Not Required, but if Used They Must be Proven
      Determining the Penalty
      How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
      Avoid Facilitating Prohibited Personnel Practices (PPPs)
      Agency Officials' Substantive and Procedural Errors and How to Fix Them
      Identifying Probationers and Their Rights
      The Limited Powers of the U.S. Merit Systems Protection Board
      Why Federal Employees Have the Right to a Hearing
      How a Hearing is Conducted
      Implementing or Challenging Initial Decisions
      Additional Resources
  Search and Site Index *Adverse Actions Process - A Flowchart*
When reading about various steps of the adverse  action process, it may be helpful to have a picture of where each step falls in  relation to the others.  Therefore, the  flowchart below provides the major steps in the process to take an adverse  action under chapter 75 of title 5 (the statute that authorizes an agency to  take an action to advance the efficiency of the service). 
 **Step  1:**  Agency official will collect evidence (*e.g.*,  witness statements, e-mails, copies of customers’ complaints, data  reports).  If appropriate, ask employee  for his/her side of the story before proceeding.1  (A one-sided collection of allegations may  not provide a full picture of events and even Inspector General investigations  can reach erroneous conclusions.)2   Proposing official will consider the evidence (which may be as simple as  just his or her own statement of something the official personally observed)  and will decide if he/she believes that an adverse action is warranted.3Down arrow
**Step  2:**  Proposing official will sign a written notice  of proposed action that includes: 
 Notice  of the law or regulation under which the action is being taken.4
   Clear  charge(s) and specification(s).5
   Who  the deciding official will be, how to contact him/her, the deadline to submit a  written reply, and the deadline to make an appointment for any oral reply.6
   Notice  that the employee can choose to have a representative (such as a private  attorney or union representative).7
   Information  on how the employee can obtain a copy of (or access to) the evidence.8
   Notice  of the proposed penalty and the factors the deciding official will consider  when determining the appropriate penalty.9Down arrow
 **Step  3:**  Deciding official will consider any reply  from the employee.10  If the  deciding official obtains new information, official will inform the employee of  the new information being considered and provide an opportunity to respond.11  The original proposal can be rescinded and a  new proposal issued if the agency deems it appropriate (*e.g.*, if the  deciding official determines that there are errors in the proposed action or  that action is warranted on a different basis).12Down arrow
 **Step 4:**  Deciding official will issue a written notice  of decision.  If the official elects to  implement a penalty with appeal or grievance rights, the notice will inform the  employee of his/her rights.13**Step  1:  Agency Official**1  5 U.S.C. § 552a(e)(2). The “specific nature of each case  shapes the practical considerations at stake that determine whether an agency  has fulfilled its obligation under the Privacy Act to elicit information  directly from the subject of the investigation to the greatest extent  practicable.” *Cardamone v. Cohen*, 241  F.3d 520, 528 (6th Cir. 2001). The Privacy Act does not require that an agency  seek information only from the person being investigated. “The Office of  Management and Budget (OMB) Guidelines promulgated with the Privacy Act provide  that, ‘when conducting an investigation into a particular person, third-party  sources may be contacted first when practical considerations, such as  confirming or denying false statements, require this or when the information  can only be obtained from third parties.’” *Carton  v. Reno*, 310 F.3d 108, 112 (2nd Cir. 2002).
2*See, e.g.,**Wallace v. Department  of Commerce*,  106 M.S.P.R. 23, ¶¶ 4, 20 (2007) (holding that despite an Office of the  Inspector General (OIG) report concluding that Wallace had improper involvement  in the hiring of her sister, the witnesses most closely involved in the hiring  action testified that Wallace had no involvement).  *See  also* Anthony Capaccio, “Inspector General Erred Boasting Hotline Found  Raytheon Defect,” Bloomberg (Dec. 15, 2015), available at https://www.bloomberg.com/news/articles/2015-12-30/inspector-general-erred-boasting-hotline-found-raytheon-defect (explaining that the  OIG erroneously claimed a report to its hotline forced the payment of $10.6  million when the contractor had fixed the issue on its own and at its own  expense); Elizabeth Dwoskin, “Revisiting the $16 Muffin,” *Bloomberg* (Sep. 29, 2011), available at https://www.bloomberg.com/bw/magazine/revisiting-the-16-muffin-09292011.html (explaining that the  OIG conceded that it erred because it reached a conclusion without being in  possession of all the facts). 3 5 U.S.C. § 7513 (authorizing an agency to impose an  adverse action that “will promote the efficiency of the service”).  *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); *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).**Step  2:  Proposing Official**4*Wilson v.  Department of Health and Human Services*, 770 F.2d 1048, 1055 (Fed. Cir.  1985) (holding that the agency cannot later use a law it did not invoke); *see Hanratty v. Federal Aviation  Administration*, 780 F.2d 33, 35 (Fed. Cir. 1985) (holding that MSPB cannot  re-characterize which law was used).5 The agency is required to state the reasons for the  proposed adverse action in sufficient detail to allow the employee to make an  informed reply.  *Plath v. Department of Justice*, 12 M.S.P.R. 421, 424 (1982).  But, nothing in law or regulation requires  that an agency affix a label to a charge of misconduct.  If an agency so chooses, it may simply  describe actions that constitute misbehavior in a narrative form, and have its  discipline sustained if the efficiency of the service suffers because of the  misconduct. But, if an agency chooses to label an act of misconduct, then it is  bound to prove the elements that make up the legal definition of that charge,  if there are any. *Otero v. U.S. Postal  Service*, 73 M.S.P.R. 198, 202 (1997).  *See, e.g.,* *Ludlum v. Department of Justice*, 278  F.3d 1280, 1283-84 (Fed. Cir. 2002) (explaining that “[l]ack of candor and  falsification are different, although related, forms of misconduct, and the  latter is not a necessary element of the former”); *King v. Nazelrod*, 43 F.3d 663, 665 (Fed. Cir. 1994) (explaining  that if an agency charges an employee with “theft,” the agency may be required  to prove the “intent to permanently deprive the owner of possession and use of  the property”);*Phillips v. General  Services Administration*, 878 F.2d 370, 373-74 (Fed. Cir. 1989) (explaining  that “insubordination by an employee is a willful and intentional *refusal* to obey an authorized order of a  superior officer which the officer is entitled to have obeyed” and that when an  employee does not refuse to obey but is merely late in obedience, the charge is  not supported) (emphasis in original, internal notations and citations  omitted).  Proposing and deciding  officials may find it beneficial to consult with a subject matter expert in the  human resources office or an agency attorney regarding the words used in the  charge, or any other relevant issue, but such consultation is not a statutory  requirement.  For more on labeling  charges, see our article, *Labels Are Not Required, but if Used They Must be Proven.*6 It is crucial that the agency be clear on the deadline  for an employee to provide a reply, and whether the reply must be *submitted* or *received* by a particular date, because if unclear language  regarding the dates leads to the agency’s failure to consider the reply, this  lack of consideration may constitute a due process violation.  *See,  e.g.,* *Massey v. Department of the  Army*, 120 M.S.P.R. 226, ¶¶ 8-10 (2013) (reversing the action on due process  grounds when the oral reply was never heard because of conflicting  interpretations of the agency’s instructions on the deadline for the oral reply,  which could have meant either make the reply by that date, or make the  appointment by that date).7 5 U.S.C. § 7513(b)(3).   The employee may be entitled to reimbursement for attorney fees under 5  U.S.C. § 7701(g)(1), but to obtain attorney fees an appellant must show that:  (1) he was the prevailing party; (2) he  incurred attorney fees pursuant to an existing attorney-client relationship;  (3) an award of fees is warranted in the interest of justice; and (4) the  amount of fees claimed is reasonable.  *Caros v. Department of Homeland Security*,  122 M.S.P.R. 231, ¶ 5 (2015).
8 5 C.F.R. §§ 752.203(b), 752.404(b).  *See* *Ward v. U.S. Postal Service*, 634 F.3d  1274, 1280 (Fed. Cir. 2011); *Stone v.  Federal Deposit Insurance Corporation*, 179 F.3d 1368, 1376-77 (Fed. Cir.  1999). 
 9*Ward v. U.S.  Postal Service*, 634 F.3d 1274, 1280 (Fed. Cir. 2011).

**Step  3:  Deciding Official Consideration**10*Hodges v. U.S.  Postal Service*, 118 M.S.P.R. 591, ¶ 6 (2012) (reversing the agency’s action  because the deciding official did not consider the employee’s response); *Alford v. Department of Defense*, 118  M.S.P.R. 556, ¶¶ 5-7 (2012) (same). *See* *Stone v. Federal Deposit Insurance  Corporation*, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999) (discussing the right  to a *meaningful* opportunity to  reply). 
11*See Stone v.  Federal Deposit Insurance Corporation*, 179 F.3d 1368, 1377 (Fed. Cir. 1999)  (explaining that new information is a due process violation when there is a  lack of “notice (both of the charges and of the employer’s evidence) and the  opportunity to respond”).  *But see Mathis v. Department of State*,  122 M.S.P.R. 507, ¶¶ 9-10 (2015) (explaining that a deciding official does not  violate an employee’s right to due process when he considers issues raised by  an employee in her response to the proposed adverse action or initiates an *ex parte* communication that only  confirms or clarifies information already contained in the record); *Grimes v. Department of Justice*, 122  M.S.P.R. 36, ¶¶ 11-13 (2014) (same).
12*See* *Dejoy v. Department of Health and Human  Services*, 2 M.S.P.R. 577, 580 (1980) (explaining that an agency may rescind  a notice of proposed action and issue a new one without running afoul of double  jeopardy).**Step  4:  Deciding Official Decision**
13 5 U.S.C. § 7513(b)(4); 5  C.F.R. § 1201.21.  *See* 5 U.S.C. § 7121(g) (instructing that an appellant “may elect  not more than one of the remedies” listed in the statute).


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