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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 *Legal Sources for the Right to Notice and a Meaningful  Opportunity to Reply*
    Whether a proposed adverse action is a  suspension of 14 days or less, a suspension of more than 14 days, a demotion,  or a removal, the regulations issued by the Office of Personnel Management  (OPM), the relevant statutes, and the U.S. Constitution each contain guarantees  that the employee will have advance notice and a reasonable or meaningful  opportunity to reply.  But, each  guarantee works slightly differently in an overlapping manner.
    Statutes are a means by which Congress  can: (1) communicate to agencies  how they should comply with due process requirements that independently exist  in constitutional case law; and (2) communicate the extent to which  Congress wishes to provide additional rights not required by the  Constitution.  But, a statute’s omission  of a due process requirement in no way limits the Government’s obligation to  comply with that provision of the U.S. Constitution.
    **Constitutional  Right to a Meaningful Reply Opportunity:**
    The Supreme Court has held that, if the  Government opts to establish that it must have cause to take employment away from  an individual, then the employee is entitled to advance notice and a meaningful  opportunity to reply and explain – before the action is implemented – why the  agency should not act.1
    *Stone v.  Federal Deposit Insurance Corporation*and*Ward  v. U.S. Postal Service* illustrate the point that complying with  constitutional due process is a separate issue from complying with the law  because both address how agencies consider information and both are founded in  constitutional law.
    In *Stone*,  the agency proposed to remove the employee.   The deciding official then received two memoranda (one from the  proposing official and one from a different official that may have been  submitted separately) recommending the employee’s removal.  The memoranda were not shared with the  employee.  This is known in legal  parlance as an “*ex parte*” (one party)  communication, meaning one side to a controversy was heard by the  decision-maker without the other side being provided the opportunity to take  part in the discussion.
    On appeal to the U.S. Court of  Appeals for the Federal Circuit (“Federal Circuit”), the court held:
    Procedural  due process guarantees are not met if the employee has notice only of certain  charges or portions of the evidence and the deciding official considers new and  material information.  It 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.  An employee is entitled to  a certain amount of due process rights at each stage and, when these rights are  undermined, the employee is entitled to relief regardless of the stage of the proceedings.2  If the memoranda, which were not shared with  the employee, contained new and material information, then the employee’s  constitutional rights were violated and the action could not stand.3
    In *Ward v. U.S. Postal Service*, the Federal Circuit reiterated this  holding, criticizing the Board for limiting *Stone* to situations involving only the charges and not including discussions of the  appropriate penalty.  The court  explained:  “There is no constitutionally  relevant distinction between *ex parte* communications relating to the underlying charge and those relating to the  penalty.”  In both cases, if the  communications introduce new and material information, they “run astray of the  due process requirements of notice and an opportunity to be heard.”4
    **Statutory  Right to a Reasonable Reply Opportunity:**
    Chapter 75 (which can be used  for both performance- and conduct-based actions), states that the employee is  entitled to advance notice explaining the reason for the proposed action and a  “reasonable time” to reply orally and in writing.  For anything other than suspensions of 14  days or less, this time cannot be less than 7 days.5  Chapter 43, which is only  available for performance-based demotions and removals, also guarantees advance  notice and “a reasonable time to answer orally and in writing[.]”6  However, these chapter 75 and 43  rights are layered over the employee’s constitutional rights.  They are a means by which Congress has  explained the procedures agencies should use to give life to an employee’s  pre-existing rights to notice and response.   The right to a meaningful reply period would still exist without them.7
    **Regulatory Right to a  Reasonable Reply Opportunity:**
    OPM and agency regulations are  an additional layer of the process.  For  example, for suspensions of 14 days or less, the statute only states that the  reply period must be reasonable.   However, OPM’s regulations instruct that it cannot be less than 24  hours.  OPM’s regulations for adverse  actions taken under chapter 75 also instruct agencies that a notice of proposed  action must “inform the employee of his or her right to review the material  which is relied on to support the reasons for action given in the notice.”8  This helps give meaning to the  constitutional and statutory provisions for the reply period.  Agency regulations, policies, and collective  bargaining agreements may have further instructions on the period for an  employee to reply.  However, just as the  constitutional rights exist in the absence of statutory layers, the statutory  obligations for agencies would exist in the absence of regulations.  A regulation can enhance statutory and  constitutional rights, but it cannot overrule a statute any more than a statute  can overrule a constitutional right.
    **What  this Means for Agencies, OPM, and Congress:**
    Agency leaders can – and should  – consider how to make their own processes best address their agency’s unique  needs within the bounds set by the law.   In doing so, it is important to understand where the rules come from in  order to understand what can – and cannot – be changed.  The same holds true for OPM, which has the  authority to promulgate regulations to implement chapters 75 and 43.  Congress has greater flexibility, as it has  the power to change statutes.  But, in  the end, it too is bound by a higher authority – the U.S. Constitution.  Understanding where rules come from – and why  – can help Congress (and those seeking to persuade Congress to change the law)  to tailor the law to best advance the effectiveness and efficiency of the civil  service while comporting with the Constitution.9  1*See* *Cleveland Board of  Education v. Loudermill*, 470 U.S. 532, 542 (1985)(explaining that the opportunity to respond must be “appropriate  to the nature of the case”) (quoting*Mullane v. Central Hanover Bank & Trust Co.*, 339 U.S. 306, 313 (1950)); *Mathews v. Eldridge*, 424 U.S. 319,  333 (1976) (requiring that the reply opportunity be meaningful). For more on  due process, *see* U.S. Merit Systems  Protection Board, *What is Due Process in  Federal Civil Service Employment* (2015), available at www.mspb.gov/studies. 
  2*Stone v. Federal Deposit Insurance Corporation*, 179 F.3d 1368, 1376  (Fed. Cir. 1999).
  3 To determine if the  information was new and material, the Board was instructed to consider:  “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.”  *Id*.  at 1377.
 
 4*Ward v. U.S. Postal Service*, 634 F.3d 1274, 1280 (Fed. Cir.  2011).  If no substantive  (constitutional) rights were violated, then the Board must examine if  procedural rights set forth in statute or regulation were violated.  As explained in our article,Agency Officials’ Substantive and Procedural  Errors and How to Fix Them,****procedural errors are examined using a different test than substantive errors.  However, if an action is cancelled because of  the violation of a procedural or substantive right, the agency is free to take  the action again, using the correct process.
  5*Compare* 5 U.S.C. § 7503(b) *with* 5 U.S.C. § 7513(b).
  6 5 U.S.C. § 4303(b)(1).
    7*See* *Stone v. Federal Deposit  Insurance Corporation*, 179 F.3d 1368, 1375 (Fed. Cir. 1999) (explaining  that “§ 7513 and § 4303 [of title 5] do not provide the final limit on the  procedures the agency must follow in removing [an employee]”).
    8 5 C.F.R. §§  752.203(b), 752.404(b).
   9*See,* *e.g., Respondent’s  Brief, Helmann v. Department of Veterans Affairs* (No. 2015-3086) (Jun. 1, 2016),  at 35-44 (explaining that the Department of Justice had concluded that a  section of a bill intended to streamline certain adverse action cases involving  the Senior Executive Service violated the appointments clause of the  Constitution and should therefore be declared invalid).


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