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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 *Agency Officials’ Substantive and Procedural Errors and How  to Fix Them*
    Just as it may be unrealistic to expect that  most subordinates will never make an accidental misstep in following directions,  so too, proposing and deciding officials can err when performing the procedures  for implementing adverse actions.   However, most procedural mistakes by proposing and deciding officials  can be fixed.
    Some of the procedures to implement an adverse  action come from regulations, some from statutes, and some are the result of  court decisions about employees’ constitutional rights.  The procedure type can determine the  consequences for the agency’s failure to follow instructions.  For example, by statute, before removal, an  employee is entitled to notice and a period of not less than 7 days to  respond.  However, notice and a response  opportunity is also a right under the Supreme Court’s interpretation of the Due  Process Clause of the U.S. Constitution.  Because the notice and response rights are  “substance” owed to the person by the Government, they are “substantive  rights,” even though the substance in question is a specific activity.1  When a right is “substantive,” the individual  is entitled to have it, irrespective of how little influence that right may  have exercised on the Government’s decision to act.2  An adverse action that violates a substantive  right cannot stand.3
      In contrast, a procedural right has to do with  a set of processes – it is more about the system than it is about the person  using the system.  For example, the  statute for removing Federal employees states that the action will not take  place for 30 days.  This waiting period  is a “procedural right.”  When a  procedural right is violated, an adjudicator must perform an additional  analysis to determine the remedy.  This  is known as the harmful error test.4  Under this test, once the non-substantive  procedural error is found, for the action to be reversed, the appellant must  show that is likely that the error caused the agency to reach a conclusion  different from the one it would have reached in the absence or cure of the  error.5  For example, in *Hawkins v. Department of the Navy*, an agency erroneously shortened  the statutorily required notice period by 8 days.  The Board found that the underlying action  could be sustained (with compensation added for the missing 8 days) because the  employee was provided his substantive rights (adequate notice and the opportunity  to respond) and the procedural error (fewer days of notice than set forth in  statute) had no effect on the outcome – the employee would still have been  removed 8 days later.6
    When an agency makes a substantive error or a  harmful procedural error, the adverse action cannot, by law, be permitted to  stand.7  If an agency finds that it has erred, it need  not wait for an appeal to be filed or for MSPB to rule that the agency erred.  Prior to reaching a decision on a proposed  adverse action, agencies can rescind the proposal and begin a new,  constitutionally and procedurally correct action.8  An agency can also cancel an adverse action  on its own initiative after the action has taken effect.9
The Board is not permitted to cure the agency’s  errors during the adjudication process.10  However, if the Board cancels an action for  substantive or procedural errors, the agency can fix those errors by starting  over.  The Board has long held that an  agency can renew an adverse action based on charges brought in an earlier  proceeding where the adverse action in that proceeding was invalidated on  procedural grounds.11  Similarly, if a substantive right is  violated, the agency is free to take the action again, using a constitutionally  correct process that respects the employee’s substantive rights.12
Most procedural mistakes that agencies make can  be fixed if the officials just cancel what they have done and start over,  properly following the law:  the real  mistake is believing that procedural errors cannot be fixed.
1*Compare* *Cleveland Board of  Education v. Loudermill*, 470 U.S. 532, 546 (1985) *with* 5 U.S.C. § 7513.
      2*Cleveland Board of Education v. Loudermill*, 470 U.S. 532, 544 (1985)  (explaining that “the right to a hearing does not  depend on a demonstration of certain success”).
      3*Stone v. Federal  Deposit Insurance Corporation*, 179 F.3d 1368, 1377 (Fed. Cir. 1999).
      4 The statute (5 U.S.C.  § 7701(c)(2)(A)) and MSPB regulations (5 C.F.R. § 1201.4(r)) refer to this as a  harmful error.  The U.S. Court of Appeals  for the Federal Circuit has, at times, called the error lacking such harm as a  “harmless error” and the test as the “harmless error test.”
      5 5 C.F.R. § 1201.4(r).
      6*Hawkins v. Department of the Navy*, 49 M.S.P.R. 501, 503-04  (1991).  *See* *Diaz v. Department of the Air Force*, 63 F.3d 1107, 1109 (Fed. Cir. 1995) (holding that while the agency  failed to act within the statutorily mandated period for a performance-based  action under chapter 43 of title 5, because the error was procedural and not  substantive, the action could stand when the appellant failed to show how the  error caused the agency to reach a different conclusion than it would have  otherwise reached).
      7 5 U.S.C. § 7701(c)(2).
      8*Gonzalez v. Department of the Air Force*, 51 M.S.P.R. 646,  654, n.6 (1991) (observing that the agency was permitted to rescind its notice  of proposed action prior to reaching a decision and issue a new one); *Dejoy v. Department  of Health & Human Services*, 2 M.S.P.R. 577, 579-80 (1980)  (same).  *But 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).
      9 When an adverse action is unilaterally  canceled by an agency, the appellant must be returned as nearly as possible to  the status quo ante, the same as when the Board itself orders cancellation of  an adverse action.  An agency’s failure  to completely rescind an appealed action results in a retention of jurisdiction  over the underlying action by the Board.  *King v. U.S. Postal Service*,  73 M.S.P.R. 362, 366 (1997).
      10*Ward v. U.S. Postal  Service*,  634 F.3d 1274, 1278 (Fed. Cir. 2011) (explaining that “the Board erred in  concluding that it could ‘remedy the error’”).
      11*Litton v. Department of Justice*, 118 M.S.P.R. 626, ¶¶ 10-13 (2012)  (holding that after MSPB invalidated an adverse action on procedural grounds,  the agency’s decision to propose a new disciplinary action did not demonstrate  noncompliance with the Board’s orders, bad faith, or retaliation); *Steele v. General Services Administration*,  6 M.S.P.R. 368, 372 (1981).  *See* *Reynolds v.  United States*, 454 F.2d 1368, 1374 (Ct. Cl. 1972) (“It is not  unusual or wrongful for an agency to begin anew an adverse action based on  charges which were previously brought when the initial action was invalidated  on procedural grounds.”)
      12*Stone v. Federal  Deposit Insurance Corporation*, 179 F.3d 1368, 1377 (Fed. Cir. 1999).


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