primer news flowchart challenging differences Rules Sources Notice meaningful reply listen decide connecting determining situated facilitating substantive procedural probationers 

hearing implementing similarities resources

A Report to the President 

and the Congress of the United States 

by the U.S. Merit Systems Protection Board 

December 2016

Adverse Actions:

A Compilation of Articles
This report was submitted to Congress in 2016. Some aspects of the law may have changed in the 

intervening years. Readers are strongly encouraged to consult updated statutes, regulations, and case law. 
U.S. Merit Systems Protection Board

1615 M Street, NW

Washington, DC 20419-0001

December 5, 2016

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, Adverse Actions: A Compilation of Articles. These 

articles provide summary descriptions of constitutional provisions, court decisions, statutes, regulations, 

and agency practices regarding the discipline or removal of Federal employees in the competitive and 

excepted civil services.

This report differs from other MSPB reports; it does not contain recommendations for legislative or 

executive action. Instead, the report focuses on providing a foundation to inform debate and decisions 

about how adverse actions operate in order to aid the legislative and executive branches in their future 

endeavors. 

Each article addresses one aspect of the civil service system. It is our hope that this format will enable 

readers to locate and easily review relevant information, particularly as Congress prepares to consider laws 

intended to affect specific elements of the civil service system. The report also describes how each element 

fits into the larger whole.

As you consider ways to improve the management of the Federal workforce, the Board is ready to assist in 

any manner that is permitted by our authorizing statutes. We look forward to answering questions you 

may have, now or in the future. 

 Respectfully,

 

 Susan Tsui Grundmann

Adverse Actions:

A Compilation of Articles

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

by the U.S. Merit Systems Protection Board

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

Publication Production

Vernetta Johnson

A Report by the U.S. Merit Systems Protection Board A Report by the U.S. Merit Systems Protection Board

Table of Contents

A Primer in Pieces............................................................................................................................ 1

Second-Hand News Can be Misleading........................................................................................... 3

The Adverse Action Process - A Flowchart ...................................................................................... 5

Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences... 9

Different Types of Adverse Actions Use Different Rules............................................................... 15

Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply.......................... 19

Decision-Maker Must Listen and Have Power to Decide..............................................................23

Connecting the Job and the Offense.............................................................................................. 25

Labels are Not Required, but if Used They Must be Proven ......................................................... 29

Determining the Penalty ............................................................................................................... 33

How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty.............. 37

Avoid Facilitating Prohibited Personnel Practices (PPPs)............................................................. 41

Agency Official’s Substantive and Procedural Errors and How to Fix Them........................... 43

Identifying Probationers and Their Rights................................................................................... 45

The Limited Powers of the U.S. Merit Systems Protection Board................................................. 49

Why Federal Employees Have the Right to a Hearing .................................................................. 53

How a Hearing is Conducted......................................................................................................... 55

Implementing or Challenging Initial Decisions............................................................................ 59

Additional Resources..................................................................................................................... 63

A Report by the U.S. Merit Systems Protection Board 1

A Primer in Pieces

By statute, in addition to its adjudication responsibilities, the U.S. Merit Systems Protection Board (MSPB) 

is responsible for conducting studies of the civil service “from time to time.” We are expected to use 

our expertise and judgment to determine what issues are suitable topics in light of our limited resources 

and the work already being done by others (e.g., Government Accountability Office, academia, nonprofit organizations). Every few years, when crafting a new research agenda, we ask stakeholders and the 

public what they would like to see us study. At the September 2014 Sunshine Act meeting for our last 

agenda, several speakers asked that we issue an explanation of how the adverse action process works. After 

considering that input, along with recent Congressional interest in the matter, and with what we felt we 

could contribute given our statutory responsibilities, the Board approved the inclusion of this project in our 

published research agenda.

However, once we began assembling the content, it became evident that a brief, single report might not 

be the best way to present that information. Simply stated, such a report could not be “brief.” There 

were too many different audiences who would have different uses for the information and presenting the 

information in a way that could be used by all resulted in the sort of lengthy document that often makes 

confusing topics even more confusing. 

Instead, we decided upon a new approach. Frequently, an MSPB studies report tries to tell each reader 

an entire story. For this project, we decided to tell many different readers their piece of the story. For 

instance, a proposing official may find that he or she is more interested in an article describing decisions 

that proposing officials must make, than in articles about what might happen after the action leaves that 

official’s control. Conversely, a deciding official may want to focus on articles addressing his or her own 

responsibilities. Agency leaders, on the other hand, may find particularly helpful the sections that address 

agency culture, holding managers responsible, or ensuring actions do not result from the commission of 

prohibited personnel practices (PPPs) (as the statute assigns to leaders the responsibility for the prevention 

of PPPs). A member of Congress considering new legislation may be interested in articles covering which 

parts of the disciplinary process are based on constitutional law (and thus are hard to change), which parts 

of the process come from statute (and thus are most within the power of Congress), which parts of the 

process are regulatory (and thus are within the power of the Office of Personnel Management), and which 

parts of the process have been added by agencies (and thus are more likely to respond to agency action 

than to new legislation). Employees may be especially interested in articles discussing their rights and 

how to exercise those rights. Finally, academicians, the media, unions, and others each may find different 

articles more interesting or relevant based on their particular interests. 

So, instead of a single, comprehensive report, we have drafted a series of articles. Think of it as an all-youcan-eat buffet that is always open and always free. You can come back to the server any time you like, 

select which dishes you are in the mood to ingest, and leave as much or as little on the plate as you like. 

This format will allow you to: (1) print out your own copies to mark up and take notes; (2) bookmark 

parts you will want to read again; (3) e-mail weblinks to others you think might be interested; (4) send 

an article to your human resources (HR) advisor with questions or comments connected to a situation 

you are facing; and (5) focus on specific education modules appropriate for your workforce. The material 

is designed to be bite-sized and suitable for different tastes, and MSPB encourages you to add your own 
222 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

A Primer in Pieces

seasonings afterward. Read one article, a group of articles, or read them all. Simply put, please use this 

material in the manner most helpful to you. 

Of course, as a quasi-judical Federal agency, we are compelled to add a bit of fine print. This report 

addresses the system for the competitive and excepted services. The Senior Executive Service (SES) follows a 

slightly different process. (For more on the SES system, see our 2015 report, What is Due Process in Federal 

Civil Service Employment). Additionally, under 5 U.S.C. § 1204(h), we are prohibited from issuing advisory 

opinions. This means we can tell you, the reader, things that MSPB or a court have already decided, but 

cannot tell you what we or the courts might do with a set of facts that have not yet been presented for 

adjudication. These articles are product of MSPB’s studies function, they are not adjudication decisions to 

be directly cited. If a section is relevant to a matter you are facing, please look at the cases and statutes being 

cited and work directly from those sources. Additionally, these articles are not a substitute for legal advice or 

advice from your HR staff, but they can help inform those conversations. 
A Report by the U.S. Merit Systems Protection Board 3

Second-Hand News Can be Misleading

It may seem ironic to warn readers – in a series of articles discussing and summarizing cases – that they 

should be leery of placing too much trust in articles that purport to describe cases. Yet, this article is 

about precisely that. While journalists and analysts – and MSPB attorneys – writing about employment 

cases can serve an important function in reaching an audience and drawing their attention to issues, the 

information is only as reliable as the second-hand author makes it. The best way to know for certain what 

a case says is to read it yourself. If that is not practical, then get your information from the most reliable 

source you can and be careful about assuming that a source is reliable. You might be surprised at how 

often seemingly “reliable” sources at best, get things wrong, and at worst, mischaracterize issues. 

For example, recently, Congressional and media attention was given to a case in which the Environmental 

Protection Agency (EPA) attempted to remove an employee who allegedly was a sex offender who 

had violated his probation regarding a charge of indecency with a child. The EPA proposed and then 

implemented the removal action, and the employee subsequently filed an appeal with MSPB. In the 

initial decision, the administrative judge overturned the action after determining it was necessary in 

accordance with long-established law. The media was later filled with stories of outrage, including stories 

of frustration by members of Congress, that MSPB would – for some inexplicable reason – think it was 

appropriate to have child molesters in the civil service. (Hint: when something seems to defy logic, that 

can be a warning sign that the story may be either wrong or incomplete.) 

In the EPA case, the agency’s sole charge for removal was “unauthorized absence” – not abuse of a child, 

violation of probation, or other criminal conduct.1 This pivotal fact was not raised in the testimony before 

Congress, nor did it appear in most media reports about the case. There also did not seem to be any 

discussion of the fact that, before the removal, the agency sought to indefinitely suspend the employee on 

the basis of a reasonable belief that the employee committed a crime for which he could be imprisoned. 

That suspension was also appealed. In both the initial decision, and on review, the Board held that, 

consistent with established case law, the agency was permitted to place the employee on indefinite 

suspension until the criminal proceedings were resolved.2 What the Board may have done in a review of 

the initial decision for the removal case – where only absence was charged – cannot be known, because the 

agency and appellant chose to settle the case before Board review could occur.3

One of the many risks that come with assuming that a second-hand source has the news right –

particularly when dealing with civil service laws, rules, and regulations – is that it may affect how agencies 

and employees view their own rights and options. If all a person were to read was media accounts, he or 

she might walk away thinking Federal agencies are regularly forced to employ child molesters who violate 

1Taylor M. Sharpe v. Environmental Protection Agency, Docket No. DA-0752-14-0187-I-1, Initial Decision (Sept. 22, 2014).

2 Taylor M. Sharpe v. Environmental Protection Agency, Docket No. DA-0752-14-0034-I-1 (Feb. 27, 2015). As the Board noted in its 

decision, the U.S. Court of Appeals for the Federal Circuit has held that any continuation of a suspension after criminal charges are 

resolved is a separate appealable action. Id. at ¶ 8.

3 Taylor M. Sharpe v. Environmental Protection Agency, Docket No. DA-0752-14-0187-I-1, Non-Precedential Final Order (Mar. 20, 2015).
444 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Second-Hand News Can be Misleading

probation and the agencies can do nothing about it. We cannot say what might have happened at MSPB if 

the agency had tried to remove this employee for a probation violation, abuse of a child, or other criminal 

activity, because – as stated above – the agency did not use any of those charges in the removal action 

appealed to MSPB and MSPB is only allowed to consider the charges presented to it.4 Nevertheless, the 

Board has an extensive history of sustaining removals for egregious off-duty misconduct, including (but not 

limited to) sexual abuse of children.5 This fact, of course, was not included in the media reports covering 

this event. 

The incomplete story of what happened in the EPA’s case is just one example of misunderstandings about 

adverse actions that have been circulated in recent years. As part of our 2015 report, What is Due Process 

in Federal Employment, we created a list of misperceptions and corrections about the adverse action system 

because so many inaccurate statements had been given a gloss of credibility that it could have posed an 

obstacle to having conversations about what the system really is and why. Understanding this “what” and 

“why” is crucial to managers and employees being able to use the system and to Congress being able to 

successfully modify it if Congress deems modifications appropriate. 

Throughout our series of articles about adverse actions, it will be necessary for brevity to summarize cases 

and their holdings. This can be a valuable introduction to subjects and a useful tool for users of the system 

and others with an interest in it. But, readers should keep the healthy skepticism that is so important when 

looking at what others say about cases. Focus on why a case had a particular outcome. Do not assume how 

your own set of facts might be viewed based on a few sentences describing one aspect of other cases. These 

articles are a starting place to help readers form a picture of how the system operates and to identify what 

pieces they want explore in greater depth on their own. Media articles and conversations with people who 

have used the system can certainly be helpful in learning about the process, but we encourage you to dig 

deeper in order to fully understand an issue. If something sounds odd, ask a follow-on question or do some 

research of your own. Why? Because whether you are a member of Congress, a first-line supervisor in the 

field, or an employee seeking help, there may be some very inaccurate information reaching you. 

4 Dupont v. Department of the Navy, 33 M.S.P.R. 122, 126 (1987) (explaining that the Board will not consider other or lesser offenses 

when the agency did not charge the appellant with such offenses). Cf. Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990) 

(explaining that the Board cannot “split a single charge of an agency into several independent charges and then sustain one of the newlyformulated charges, which represents only a portion of the original charge. If the agency fails to prove one of the elements of its charge, 

then the entire charge must fall.”)

5 See, e.g., Graham v. U.S. Postal Service, 49 M.S.P.R. 364, 367 (1991) (finding that removal was a reasonable penalty for off-duty sexual 

abuse of a 14-year-old girl); Allred v. Department of Health and Human Services, 23 M.S.P.R. 478 (1984) (sustaining a removal for off-duty child 

molestation), aff’d, 786 F.2d 1128 (Fed. Cir. 1986); Doe v. National Security Agency, 6 M.S.P.R. 555 (1981) (determining that removal was 

warranted for off-duty incestuous behavior with a minor child), aff’d sub nom. Stalans v. National Security Agency, 678 F.2d 482 (4th Cir. 1982). 

Cf. Hayes v. Department of the Navy, 15 M.S.P.R. 378, 381 (1983) (determining that removal was reasonable for off-duty assault and battery of a 

10-year-old child), aff’d, 727 F.2d 1535 (Fed. Cir. 1984).
A Report by the U.S. Merit Systems Protection Board 5

The Adverse Action 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.a (A one-sided collection of allegations may not provide a full picture of events and 

even Inspector General investigations can reach erroneous conclusions.)b 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.c

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.d

• Clear charge(s) and specification(s).e

• 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.f

• Notice that the employee can choose to have a representative (such as a private attorney or 

union representative).g

• Information on how the employee can obtain a copy of (or access to) the evidence.h

• Notice of the proposed penalty and the factors the deciding official will consider when 

determining the appropriate penalty.i

STEP 3

Deciding official will consider any reply from the employee.j If the deciding official obtains new 

information, official will inform the employee of the new information being considered and 

provide an opportunity to respond.k 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).l

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.m
666 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

The Adverse Action Process - A Flowchart

Step 1: Agency Official

a

 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).

b 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 http://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 http://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). 

c

 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

d 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).

e

 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. 

f

 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).
A Report by the U.S. Merit Systems Protection Board A Report by the U.S. Merit Systems Protection Board 7

The Adverse Action Process - A Flowchart

g

 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).

h

 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).

i Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011). 

Step 3: Deciding Official Consideration

j 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). 

k 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). 

l 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

m 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).
88 Adverse Actions: A Compilation of Articles
A Report by the U.S. Merit Systems Protection Board 9

Performance-Based Actions under Chapters 43 

and 75 of Title 5 – Similarities and Differences

There are two different statutes that authorize an agency to demote or remove an employee for 

performance-based reasons: (1) 5 U.S.C. § 4303 (which can only be used for failure in a critical 

performance element); and (2) 5 U.S.C. § 7513 (which can be used for performance or conduct that harms 

the efficiency of the service). 

This choice of chapters may be confusing for laypeople, as chapter 75 is typically thought of in the context 

of misconduct, since that is the section of the statute for misconduct-based actions. However, agencies are 

permitted to take a performance-based action under either statute, provided they comply with the process 

for the chapter they select. It is very important that the agency put the employee on notice of which law is 

being used – and for which charges – prior to taking the action, as it usually cannot later re-characterize an 

action into one taken under a different law and MSPB has been told it cannot do so for the agency.1

As explained in our 2009 report, Addressing Poor Performers and the Law, the decision by management 

regarding which section of the law to use for a performance-based action tends to vary greatly by agency 

and by the nature of the work being performed. Some officials may opt for chapter 75 because they 

prefer not to have a formal performance improvement period (a requirement in chapter 43), while others 

may opt for chapter 43 because of its lower standard of proof or the ability to impose a penalty that is not 

subject to outside review once the agency has proven the performance failure. Agencies may also layer 

their own, internal, requirements on actions under either chapter that may cause that chapter to become a 

less appealing option for management. For example, at least one agency requires that management offer 

an informal performance improvement period before implementing a formal performance improvement 

period.

Below is a table showing where the two chapters share common practices and where they differ.

Chapter 43 Chapter 75

Critical Element Agency must prove the performance 

deficiency is in a critical element.2

Agency is not required to prove 

the performance deficiency 

is in a critical element.3

Efficiency of the Service Agency is not required to prove that 

the adverse action will promote 

the efficiency of the service.4

Agency must prove that the adverse action 

will promote the efficiency of the service.5

Burden of Proof

Action must be supported by substantial 

evidence. This means that a reasonable 

person might find the evidence supports 

the agency’s finding regarding the 

poor performance, even though other 

reasonable persons might disagree.6

Action must be supported by a 

preponderance of the evidence. This means 

that a reasonable person would find the 

evidence makes it more likely than not 

that the agency’s findings regarding 

the poor performance are correct.7
10101010 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Performance-Based Actions under Chapters 43 and 75 of Title 5 – Similarities and Differences

Chapter 43 Chapter 75

Establishment 

of Performance 

Expectations

When the employee’s performance in one 

or more critical elements is unacceptable, 

the employee will: (1) be notified of the 

deficiency; (2) be offered the agency’s 

assistance to improve; and (3) be warned 

that continued poor performance could 

lead to a change to lower grade or 

removal.8

 (This is commonly referred 

to as the PIP, an abbreviation for both 

performance improvement plan and also 

for performance improvement period.)

The extent to which an employee is on 

notice of the agency’s expectations is a 

factor in determining the appropriateness 

of the penalty.9 Also, an agency cannot 

require that an employee perform better 

than the standards that have been 

communicated to the employee.10

Recency of Events

A change to a lower grade or a removal 

action cannot be based on performance 

that is more than 1-year old at the time 

of the issuance of the proposal notice.11

While there is no requirement that an 

action be proposed within a particular 

period of time, unexplained excessive 

delays can have a negative effect 

upon the agency’s ability to prove the 

action is proper and warranted.12

Advance Notice The agency must provide a notice of proposed action and a reasonable 

opportunity to reply 30 days before any action can be taken.13

Content of 

Advance Notice

The notice must state the specific 

instances of poor performance that 

are the basis for the action and also the 

critical performance element involved.

14

The notice must state the specific 

instances of poor performance that 

are the basis for the action.15

Deciding Official

Must be a person higher in the 

chain of command than the person 

who proposed the action.16

The deciding official does not have to be 

a person higher in the chain of command 

than the person who proposed the action.17
A Report by the U.S. Merit Systems Protection Board A Report by the U.S. Merit Systems Protection Board 11

Performance-Based Actions under Chapters 43 and 75 of Title 5 – Similarities and Differences

Chapter 43 Chapter 75

Agency Decision

Agency must issue a final decision within 

an additional 30 days of the expiration 

of the 30 days advance notice period.18

Agency is under no particular time 

constraint, other than there cannot be 

a delay so extensive that it constitutes 

an error that harms the employee.19

Decline Following 

Improvement

If the employee’s performance improves 

during the PIP, and remains acceptable 

for 1 year, a new PIP is necessary before 

taking an action under this chapter.

20

There is no obligation to offer a period 

of improvement at any point.21

Penalty Mitigation

Once the agency meets the requirements 

to take an action, MSPB cannot

reduce the agency’s penalty.22

After finding that the agency meets the 

requirements to take a chapter 75 action, 

MSPB may reduce the agency’s penalty 

if that penalty is unreasonable.23

Douglas Factors The Douglas factors are not used.24

The agency must consider the relevant 

Douglas factors when reaching a 

decision on the appropriate penalty.25

Affirmative Defenses

The agency action will not be sustained if the employee was harmed by the 

agency’s failure to follow procedures or if the agency decision was reached 

as a result of the commission of a prohibited personnel practice.26

Merit Principles Merit principles must be adhered to in all performance-based actions.27
12121212 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Performance-Based Actions under Chapters 43 and 75 of Title 5 – Similarities and Differences

1 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); Lovshin v. Department of the Navy, 767 F.2d 826, 843 (Fed. Cir. 1985). Lovshin

specifically stated that the agency using chapter 43 could use “an alternative” or “additional” charge under chapter 75. The Board 

does not have any precedential decisions in which an agency proposed a removal simultaneously using both chapters 43 and 75 

with one expressed as the alternative to the other. As 5 U.S.C. § 1204(h) prohibits the Board from issuing advisory opinions we 

will not use this opportunity to resolve that question, only note that Lovshin uses both “alternative” and “additional” as words to 

describe the agency’s options.

2

 5 U.S.C. § 4301(3).

3

 “Case law does not require that a specific standard of performance be established and identified in advance for the 

appellant in an action brought under chapter 75; rather, it simply requires that, when an agency takes an action for unacceptable 

performance under chapter 75, it prove that its measurement of the appellant’s performance was both accurate and reasonable.” 

Moore v. Department of the Army, 59 M.S.P.R. 261, 265 (1993).

4 Lovshin v. Department of the Navy, 767 F.2d 826, 834 (1985). 

5

 5 U.S.C. § 7513(a). The action must be taken “only for such cause as will promote the efficiency of the service.”

6

 5 U.S.C. § 7701(c)(1)(A). Substantial evidence means “[t]he 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.” 5 C.F.R. § 1201.4(p). When enacting the Civil Service Reform Act of 1978 (CSRA), the conference report indicates 

this lower burden of proof was used “because of the difficulty of proving that an employee’s performance is unacceptable.” H.R. 

Conf. Rep. 95-1717, 139.

7

 5 U.S.C. § 7701(c)(1)(b). Preponderance of the evidence means “[t]he 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. § 1201.4(q).

8

 5 C.F.R. §§ 432.104, 432.105(a).

9 Fairall v. Veterans Administration, 844 F.2d 775, 776 (1987); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). 

This means that if the agency did not express a performance expectation to the employee (in performance standards or by other 

means), the lack of notification would be considered as a mitigating factor when deciding if the agency’s action was appropriate. 

Fairall v. Veterans Administration, 33 M.S.P.R. 33, 45-46 (1987). 

10 Shorey v. Department of the Army, 77 M.S.P.R. 239, 244 (1998).

11 5 U.S.C. § 4303(c)(2)(a).

12 See Baldwin v. Department of Veterans Affairs, 109 M.S.P.R. 392, ¶ 15 (2008) (reiterating that a charge may be dismissed if 

an agency’s delay in proposing the adverse action is unreasonable and prejudicial to the appellant). An unexplained delay may 

create the appearance that the agency did not consider the conduct serious or chose to act for an improper reason. Compare Brown 

v. Department of the Treasury, 61 M.S.P.R. 484, 492 (1994) (holding that it was a mitigating factor when the agency did not propose 

disciplinary action until 11 months after it learned about the incident) with Cates v. Department of Agriculture, 24 M.S.P.R. 468, 471 

(1984) (holding that a 1-year delay in proposing the removal action, resulting in the proposal occurring shortly after the appellant 

filed his grievance, was not proof of retaliation when the agency adequately explained the reasons for the delay), aff’d, 776 F.2d 

1065 (Fed. Cir. 1985).

13 For chapter 75 actions, the agency may effectuate the removal in less than 30 days if there is reasonable cause to believe 

the employee has committed a crime for which a prison sentence may be imposed. 5 U.S.C. § 7513(b)(1) and (2). 

14 5 U.S.C. § 4303(b)(1)(a)(i) and (ii).

15 An agency must give the employee a notice containing the charges as well as an explanation of its evidence and provide 

the employee an opportunity to respond. A failure to take any of these steps will result in the action being reversed on the basis 

that it violates the employee’s minimum due process rights. Greene v. Department of Health and Human Services, 48 M.S.P.R. 161, 

166 (1991); see also Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985); Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 

680-81 (1991).

16 5 U.S.C. § 4303(b)(1)(D)(ii). Technically, for a chapter 43 action, the term is that a higher-level official must “concur” in 

the action, not that the “deciding” official must be at a higher level. See Franco v. Department of Health and Human Services, 

32 M.S.P.R. 653, 657 (1987). However, when practitioners speak of this role, the term “deciding official” is often used for both 

chapter 75 and chapter 43 actions.
A Report by the U.S. Merit Systems Protection Board A Report by the U.S. Merit Systems Protection Board 13

Performance-Based Actions under Chapters 43 and 75 of Title 5 – Similarities and Differences

17 The decision will be valid if it has “the knowledge and approval of an official with termination authority.” This power 

to terminate is derived from the power to appoint. Vandewall v. Department of Transportation, 55 M.S.P.R. 561, 564 (1992). In a 

chapter 75 action, “it is well settled that the proposing and the deciding official may be the same person.” Davis v. Department of 

Transportation, 39 M.S.P.R. 470, 478 (1989). See also Cross v. Veterans Administration, 16 M.S.P.R. 429, 431 (1983); Belanger v. Department 

of Transportation, 16 M.S.P.R. 304, 309 (1983).

18 5 U.S.C. § 4303. An extension of an additional 30 days is possible for any one of six purposes described at 

5 C.F.R § 432.105(a)(4)(i)(B). An extension for any other purpose must be obtained from the Office of Personnel Management 

(OPM) under the procedures specified at 5 C.F.R. § 432.105(a)(4)(i)(C). 

19 See 5 U.S.C. § 7701(c)(2)(A); Day v. Department of Housing and Urban Development, 50 M.S.P.R. 680, 682 (1991). In Day, 

the appellant claimed the agency action should be invalidated because of a 4-month delay between the issuance of the notice of 

proposed removal and the removal decision. MSPB held that the appellant failed to show he was harmed by the agency’s delay, 

and thus the action would not be invalidated on those grounds. 

20 5 C.F.R § 432.105(a)(2).

21 “The requirement of prior notification of deficient performance necessary to a chapter 43 removal is conspicuously and 

purposely absent from” the criteria to take a chapter 75 action. Fairall v. Veterans Administration, 844 F.2d 775, 776 (1987). 

22 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567-68 (Fed. Cir. 1985), cert. denied, 475 U.S. 1108 (1986). 

23 Id. 

24 The Douglas factors come from a case (Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981)) that lists what a 

deciding official should consider when determining the appropriate penalty to address problems with an employee. Because the 

Douglas factors are used to determine if an agency’s penalty should be mitigated, and a chapter 43 penalty cannot be mitigated, the 

Douglas factors are not used for chapter 43 actions. Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1565-66 (Fed. Cir. 1985), 

cert. denied, 475 U.S. 1108 (1986). 

25 See Cunningham v. U.S. Postal Service, 112 M.S.P.R. 457, ¶ 6 (2009) (explaining that if an agency imposes a removal action 

under a zero tolerance policy without giving bona fide consideration to the appropriate Douglas factors, its penalty determination 

is not entitled to deference); Hilliard v. U.S. Postal Service, 111 M.S.P.R. 634, ¶ 7 (2009) (holding that an agency’s failure to consider 

relevant Douglas factors of which it was aware warrants an award of attorney fees), aff’d, 403 F. App’x 504 (Fed. Cir. 2010); Halper 

v. U.S. Postal Service, 91 M.S.P.R. 170, ¶ 7 (2002) (explaining that a failure to consider all of the relevant Douglas factors will result in 

the adjudicator performing the assessment using the Douglas factors and modifying the penalty if necessary). 

26 5 U.S.C. § 7701(c)(2).

27 Lovshin v. Department of the Navy, 767 F.2d 826, 840-41 (1985) (explaining that “Congress intended that merit principles 

must be adhered to by agencies in all performance-based actions” and “Congress itself designed a statutory framework which 

implements merit principles in connection with chapter 75 actions”). 
1414 Adverse Actions: A Compilation of Articles
A Report by the U.S. Merit Systems Protection Board 15

Different Types of Adverse Actions 

Use Different Rules

Removals, demotions, and suspensions of Federal employees are “adverse actions.”6 A removal action 

terminates the employment of an individual. A demotion action is also known as a reduction in grade or 

a reduction in pay.7 While removals, demotions, and suspensions can occur under chapter 75 of title 5 of 

the U.S. Code, removals and reductions in grade may also be implemented under chapter 43.8 The agency 

chooses which law to use for the circumstances before it, and then must comply with the conditions for 

acting under that particular law. For more on the differences between using chapter 75 versus chapter 

43, see our article titled, Performance-Based Actions under Chapters 43 and 75 of Title 5 – Similarities and 

Differences. 

A suspension is the placing of an employee, for disciplinary reasons, in a temporary status without 

duties and pay.9 It is important to note that the word “disciplinary” has a broader definition in law 

than in common use. For example, as explained in the section below discussing indefinite suspensions, 

a suspension does not have to occur “for the purpose of punishment,” although it does need to have a 

valid purpose that advances the efficiency of the service.10 Unlike removals and reductions in grade, 

a suspension can only be taken under chapter 75 and not chapter 43. There are different types of 

suspensions and the standards or procedures for each may differ. 

Suspensions of 14 days or less:

When an agency seeks to suspend an employee for 14 days or less the employee has certain rights, some of 

which are provided by statute and some by Office of Personnel Management (OPM) regulation.

1. By statute, the employee is entitled to “an advance written notice stating the specific 

reasons for the proposed action[.]” OPM’s regulation adds that the employee will also be 

told of his or her right to review the material that the agency is relying upon.

2. By statute, the employee is entitled to “a reasonable time to answer orally and in writing 

and to furnish affidavits and other documentary evidence in support of the answer[.]” 

OPM’s regulation adds that this period to reply cannot be less than 24 hours.

6 A furlough of 30 days or less (which typically occurs for budgetary reasons) is also conducted under the rules for adverse 

actions. However, a longer furlough, removal due to a reduction in force (RIF), or demotion due to a RIF is not an “adverse action” 

and is conducted under the rules set forth in 5 C.F.R. part 351. Salo v. Department of Defense, 122 M.S.P.R. 417, ¶ 6 (2015) (explaining the 

difference in rules for furloughs and removals); 5 U.S.C. § 7512 (explaining that a RIF is not considered an adverse action).

7 Title 5 of the U.S. Code distinguishes between a reduction in grade and a reduction in pay, while stating that both are adverse 

actions. Fouks v. Department of Veterans Affairs, 122 M.S.P.R. 483, ¶ 7 (2015); see 5 U.S.C. § 7512.

8 Compare 5 U.S.C. § 4303(a) (authorizing agencies to impose removals and reductions in grade for unacceptable performance) with

5 U.S.C. § 7502 (authorizing agencies to impose suspensions for 14 days or less) and 5 U.S.C. § 7512 (authorizing agencies to impose 

removals, suspensions of over 14 days, reductions in grade, and reductions in pay). 

9 Tyndall v. Department of the Navy, 5 M.S.P.R. 194, 196 (1981). 

10 Thomas v. General Services Administration, 756 F.2d 86, 88 (Fed. Cir. 1985).
16161616 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Different Types of Adverse Actions Use Different Rules

3. By statute, the employee is entitled to “be represented by an attorney or other 

representative[.]” OPM’s regulation adds that the representative cannot have a conflict of 

interest or be an employee who is needed for “priority work assignments[.]”

4. By statute, the employee is entitled to “a written decision and the specific reasons therefor 

at the earliest practicable date.” OPM’s regulation adds that the employee also must be 

notified of any grievance rights.11

Neither the statute nor OPM regulations specifically state the standard of proof to be used in such 

suspensions.12 However, agency policies or collective bargaining agreements (CBAs) may address matters on 

which the statute and OPM regulations are silent (such as the standard of proof) or add additional employee 

protections.

Suspensions of more than 14 days:

When an agency seeks to suspend an employee for more than 14 days, the employee again has certain rights, 

some of which are provided by statute and some by OPM regulation.

1. By statute, the employee is entitled to “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[.]” 

OPM’s regulation adds that, “under ordinary circumstances, an employee whose removal or 

suspension, including indefinite suspension, has been proposed will remain in a duty status 

in his or her regular position during the advance notice period.”13 

2. By statute, the employee is entitled to 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[.]” OPM’s regulation adds that, if the employee is still working, the “agency 

must give the employee a reasonable amount of official time to review the material relied 

on to support its proposed action, to prepare an answer orally and in writing, and to secure 

affidavits[.]”

3. By statute, as with shorter suspensions, the employee is entitled to “be represented by an 

attorney or other representative[.]” OPM’s regulation adds that, as with shorter suspensions, 

the representative cannot have a conflict of interest or be an employee who is needed for 

“priority work assignments[.]”

11 5 U.S.C. § 7503; 5 C.F.R. § 752.203. A suspension of 14 days or less is generally not appealable to MSPB, but there are exceptions 

to this rule. For example, MSPB may have jurisdiction over claims that an otherwise unappealable suspension was taken in retaliation for 

whistleblowing activity or was a result of the employee’s performance of military service. 

12 5 U.S.C. § 7503; 5 C.F.R. part 752. 

13 5 U.S.C. § 7513; 5 C.F.R. § 752.404(b)(3). If the employee poses a threat to safety, the agency mission, or to Government property, 

agency options include, but are not limited to, assigning the employee to duties where he or she does not pose the same risk. Administrative 

leave may also be an option; however, both houses of the U.S. Congress have expressed interest in limiting the use of such leave to 14 days. 

See 114th Congress, S. 2450 and H.R. 4359. 
A Report by the U.S. Merit Systems Protection Board A Report by the U.S. Merit Systems Protection Board 17

Different Types of Adverse Actions Use Different Rules

4. By statute, as with shorter suspensions, the employee is entitled to “a written decision and 

the specific reasons therefor at the earliest practicable date.” Similar to the provision for 

shorter suspensions, OPM’s regulation adds that the employee also must be notified of any 

appeal or grievance rights.14

Indefinite Suspensions

An indefinite suspension means placing an employee in a temporary status without duties and pay for 

an indeterminate period of time. To sustain an indefinite suspension, the agency must show that: (1) it 

imposed the suspension for an authorized reason; (2) the suspension has an ascertainable end (an event that 

will trigger the conclusion of the suspension); (3) the suspension bears a relationship (nexus) to the efficiency 

of the service; and (4) the penalty is reasonable.15

The Board, and its reviewing court, have approved the use of indefinite suspensions in three limited 

circumstances:

1. When the agency has reasonable cause to believe an employee has committed a crime for 

which a sentence of imprisonment could be imposed – pending the outcome of the criminal 

proceeding or any subsequent agency action following the conclusion of the criminal 

process.

2. When the agency has legitimate concerns that an employee’s medical condition makes his 

continued presence in the workplace dangerous or inappropriate – pending a determination 

that the employee is fit for duty.

3. When an employee’s access to classified information has been suspended and the employee 

must have such access to perform his job – pending a final determination on the employee’s 

access to classified information.16

For more on suspensions based upon reasonable cause to believe that an employee has committed crime for 

which he or she may be imprisoned, see our special topic issue, Indefinite Suspensions and Potentially Criminal 

Behavior: Using Reasonable Cause to Act.

When an indefinite suspension lasts for more than 14 days, it becomes subject to the same procedural 

requirements as other suspensions of more than 14 days (see above).17

14 5 U.S.C. § 7513; 5 C.F.R. § 752.404.

15 Hernandez v. Department of the Navy, 120 M.S.P.R. 14, ¶ 6 (2013).

16 Sanchez v. Department of Energ y, 117 M.S.P.R. 155, ¶ 10 (2011); Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318,

 ¶ 13 (2010). In Gonzalez, the Board explained that an agency cannot indefinitely suspend an employee merely because there is an 

administrative investigation into the employee’s conduct. Rather, the agency must establish that one of the three above criteria has been 

met. Id. at ¶¶ 23, 25, 28.

17 Harding v. Department of Veterans Affairs, 115 M.S.P.R. 284, ¶ 13 (2010), aff’d, 451 F. App’x 947 (Fed. Cir. 2011); Harris v. Department of 

Treasury, 10 M.S.P.R. 581, 583 (1982).
18181818 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Different Types of Adverse Actions Use Different Rules

Constitutional Due Process Issues and Harmful Procedural Errors:

In addition to the protections provided by statute and regulations, Federal employees have constitutional due 

process rights regarding adverse actions.18 However, it is difficult to set forth any hard-and-fast rule about 

the form those rights will take and at what point in the process they must occur because the U.S. Supreme 

Court has explained that “due process, unlike some legal rules, is not a technical conception with a fixed 

content unrelated to time, place and circumstances. Due process is flexible and calls for such procedural 

protections as the particular situation demands.”19 In other words, what is due depends on the circumstances 

of the case. 

An agency also must comply with its own regulations and procedures.20 As explained in our article, Agency 

Officials’ Substantive and Procedural Errors and How to Fix Them, an error regarding a substantive right (such 

as the right to respond to a proposed action and have that response considered) results in a cancelation of the 

action while a less substantive error (such as violation of an agency procedure) would be examined to see if 

the violation affected the agency’s decision to implement the action. 

18 McGriff v. Department of the Navy, 118 M.S.P.R. 89, ¶ 28 (2012) (explaining how the Board analyzed U.S. Supreme Court decisions to 

conclude that Federal employees have due process rights for suspension actions). 

19 Gilbert v. Homar, 520 U.S. 924, 930-31 (1997) (internal punctuation and citations omitted). To determine due process in a suspension 

action, the Board will weigh three factors: (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of 

the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the 

Government’s interest. McGriff v. Department of the Navy, 118 M.S.P.R. 89, ¶ 27 (2012) (citing Gilbert v. Homar, 520 U.S. 924, 131-32 (1997)). 

For more on due process, see U.S. Merit Systems Protection Board, What is Due Process in Federal Employment? (2015).

20 McGriff v. Department of the Navy, 118 M.S.P.R. 89, ¶ 37 (2012).
A Report by the U.S. Merit Systems Protection Board 19

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.21

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 

21 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).
202020 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply

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.22

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.23

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.”24 

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.25 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[.]”26 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.27 

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 

22 Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999).

23 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.

24 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.

25 Compare 5 U.S.C. § 7503(b) with 5 U.S.C. § 7513(b). 

26 5 U.S.C. § 4303(b)(1). 

27 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]”). 
A Report by the U.S. Merit Systems Protection Board A Report by the U.S. Merit Systems Protection Board 21

Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply

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.”28 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.29

28 5 C.F.R. §§ 752.203(b), 752.404(b).

29 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). 
2222 Adverse Actions: A Compilation of Articles
A Report by the U.S. Merit Systems Protection Board 23

Decision-Maker Must Listen

and Have Power to Decide

For adverse actions, the law does not expect the deciding official to come to the case entirely without 

knowledge or opinions. In fact, in an action taken under chapter 75 of title 5, the proposing and the 

deciding official may be the same person, although the statute requires that a chapter 43 action have the 

concurrence of an official at a higher level than the one who proposed it.30 (For more on the differences 

between chapters 43 and 75, see Performance-Based Actions under Chapters 43 and 75 of Title 5 – 

Similarities and Differences.)

A deciding official’s awareness of background information concerning the appellant, his concurrence in the 

desire to take an adverse action, or his predisposition to impose a severe penalty does not disqualify him 

from serving as a deciding official on due process grounds.31 Due process requires notifying the employee 

of what the official will consider, not that the official be a blank slate.32

However, due process does require that the official: (1) consider the employee’s response; and (2) be able 

to render a decision based upon that response. For example, due process is not met if the official fails to 

read the written reply.33 Similarly, to be constitutional, the reply period cannot be an empty formality 

in which the employee speaks while no one with the power to affect the outcome listens.34 The deciding 

official must be able to invoke his or her discretion as to whether the proposed penalty is warranted.35 

The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and 

in a meaningful manner.”36 Processes that do not offer a meaningful opportunity can run afoul of the 

Constitution. 

30 Davis v. Department of Transportation, 39 M.S.P.R. 470, 478 (1989); see also Cross v. Veterans Administration, 16 M.S.P.R. 429, 431 (1983); 

Belanger v. Department of Transportation, 16 M.S.P.R. 304, 309 (1983). 5 U.S.C. § 4303(b)(1)(D)(ii).

31 Lange v. Department of Justice, 119 M.S.P.R. 625, ¶ 9 (2013); see Diehl v. Department of the Army, 118 M.S.P.R. 344, ¶¶ 5–14 (2012); 

McGriff v. Department of the Navy, 118 M.S.P.R. 89, ¶¶ 24–33 (2012).

32 But see Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 13 (2011) (holding that it was a due process violation when the deciding 

official, who knew the appellant’s history from his role in a prior disciplinary action involving her, considered the appellant’s past 

misconduct as an aggravating factor as part of his penalty analysis without informing her that it would be considered and giving her an 

opportunity to discuss it).

33 Hodges v. U.S. Postal Service, 118 M.S.P.R. 591, ¶ 6 (2012); Alford v. Department of Defense, 118 M.S.P.R. 556, ¶¶ 5-7 (2012).

34 See, e.g., Lange v. Department of Justice, 119 M.S.P.R. 625, ¶ 23 (2013) (finding unconstitutional an agency decision where the deciding 

official admitted she lacked the power to cancel or mitigate the action no matter what the employee’s response might say).

35 Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶¶ 27-28 (2014).

36 Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
2424 Adverse Actions: A Compilation of Articles
A Report by the U.S. Merit Systems Protection Board 25

To implement a suspension, demotion, or removal for misconduct, the agency must be able to show 

that the action was “for such cause as will promote the efficiency of the service.”37 This is often referred 

to as “nexus” – meaning that the agency must show a connection between the employee’s conduct or 

performance and “the work of the agency, i.e., the agency’s performance of its functions.”38

For some offenses, such as absence without approved leave (AWOL), the nexus is considered self-evident.39 

Many offenses that take place in the workplace will have a connection to that workplace and thus the 

work of the agency performing its functions.40 However, nexus can occur with off-duty as well as on-duty 

behavior. 

The Board has recognized three methods by which the agency may meet its burden of establishing a nexus 

linking an employee’s off-duty misconduct with the efficiency of the service: (1) a rebuttable presumption 

of nexus may arise in certain egregious circumstances; (2) the agency may show, by a preponderance of the 

evidence, that the misconduct at issue has adversely affected the employee’s or co-workers’ job performance 

or the agency’s trust and confidence in the employee’s job performance; and (3) the agency may show, by 

a preponderance of the evidence, that the misconduct interfered with or adversely affected the agency’s 

mission.41

However, agencies must be careful when explaining that the conduct is egregious because what one person 

might find clearly egregious, another may not. This is particularly true when considering the impact of 

off-duty conduct on one’s Federal employment status. For example, in Doe v. Department of Justice, the 

agency determined that the employee’s off-duty behavior, videotaping sexual encounters with women 

without their consent, appeared to have violated state laws and was so egregious that nexus should be 

presumed. However, the agency erred in its assumptions about legality, as in that particular state, the 

conduct was not illegal. Nevertheless, the Board initially upheld the removal action, finding there was 

nexus between the conduct and the efficiency of the service because the conduct in question was “clearly 

dishonest.”42

On appeal, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) noted its prior holdings 

that “misconduct that is private in nature and that does not implicate job performance in any direct and 

37 5 U.S.C. §§ 7503; 7513.

38 Doe v. Department of Justice, 565 F.3d 1375, 1379 (Fed. Cir. 2009).

39 Bryant v. National Science Foundation, 105 F.3d 1414, 1417 (Fed. Cir. 1997) (explaining that “the nexus between the charged offense 

and the efficiency of the service is automatic when the charged offense is AWOL”).

40 See, e.g., Washington v. Department of Agriculture, 22 M.S.P.R. 374, 376 (1984) (holding that there is a clear nexus between an employee 

falsifying his time and attendance record and the efficiency of the service); Winner v. Department of the Air Force, 10 M.S.P.R. 177, 178 (1982) 

(holding that nexus was clear when the charged conduct concerned violation of agency rules). 

41 Scheffler v. Department of the Army, 117 M.S.P.R. 499, ¶ 10 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). 

42 Doe v. Department of Justice, 103 M.S.P.R. 135, ¶¶ 6-13 (2006).

Connecting the Job and the Offense ("Nexus")
26262626 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Connecting the Job and the Offense ("Nexus")

obvious way is often insufficient to justify removal from a civil service position.”43 Because the employee’s 

conduct was not illegal in the state where it occurred, the conduct could not be presumed to be dishonest. 

The court therefore remanded the case back to MSPB with the instruction to “articulate and apply a 

meaningful standard” to establish nexus between the conduct of the employee and the efficiency of the 

service.44

In contrast, the Federal Circuit has repeatedly upheld Board decisions finding that proven sexual abuse 

of a child was so egregious that it creates a presumption of nexus. For example, in Williams v. General 

Services Administration, the appellant pled guilty to a charge of sexual assault on a child and received a 

2-year deferred sentence. The Board found, and the court upheld, that nexus could be presumed based on 

the nature and gravity of the appellant’s criminal misconduct. In Graybill v. U.S. Postal Service, the court 

found that the Board had not erred in finding a presumption of nexus where the appellant had pled guilty 

to charges of sexual misconduct involving his minor stepdaughter. In Hayes v. Department of the Navy, a 

presumption of nexus was also found where the appellant was convicted of assault and battery of a 10-year 

old girl.45

While egregiousness often speaks for itself, damage to management’s trust in the employee resulting 

from non-egregious conduct will require more explanation by management. For example, in Beasley v. 

Department of Defense, an employee pled guilty to the crimes of aggravated assault and petit larceny. The 

agency officials explicitly told the Board they could not trust the employee in light of this criminal conduct, 

because the employee would have opportunities to commit theft at work and there were approximately 200 

people who could be injured if the employee became violent at work. The Board found that management’s 

articulated connection between the offenses and their inability to trust the employee in the workplace 

established the required nexus to support a removal action, even though there was “no showing” that her 

conduct directly interfered with the agency’s mission.46 

Similarly, in its review of an arbitration case, the Federal Circuit was presented with an employee’s removal 

after conviction for intent to distribute cocaine. The agency asserted that the conviction cast serious doubt 

on the employee’s judgment and trustworthiness in a position where an error could put lives at risk. The 

court held that because “an agency’s reasonable loss of trust and confidence” can establish nexus, and given 

43 Doe v. Department of Justice, 565 F.3d 1375, 1380 (Fed. Cir. 2009). The court explained that: “Without a predetermined 

standard – e.g., the legality of the conduct – to clarify when the agency may and may not investigate the personal relationships of its 

employees, it is conceivable that employees could be removed for any number of ‘clearly dishonest’ misrepresentations, from those made to 

preserve the sanctity of a romantic relationship to cheating in a Friday night poker game. The danger here is twofold; federal employees are 

not on notice as to what off-duty behavior is subject to investigation and the government could use this overly broad standard to legitimize 

removals made for personal or political reasons. A clear articulation of a standard is therefore essential to the government’s ability to 

reasonably and legitimately remove an agent for off-duty conduct relating to personal relationships.” Id. at 1381. 

44 Id. MSPB was also instructed to revisit the penalty in light of the lack of criminality in the conduct. Id. at 1383.

45 Williams v. General Services Administration, 22 M.S.P.R. 476 (1984), aff’d, 770 F.2d 182 (Fed. Cir. 1985) (Table); Graybill v. U.S. Postal 

Service, 782 F.2d 1567 (Fed. Cir. 1986); Hayes v. Department of the Navy, 15 M.S.P.R. 378 (1983), aff’d, 727 F.2d 1535 (Fed. Cir. 1984). See Allred v. 

Department of Health & Human Services, 786 F.2d 1128 (Fed. Cir. 1986). 

46 Beasley v. Department of Defense, 52 M.S.P.R. 272, 275 (1992).
A Report by the U.S. Merit Systems Protection Board A Report by the U.S. Merit Systems Protection Board 27

Connecting the Job and the Offense ("Nexus")

the trustworthiness needed for the position, the conviction combined with management’s assertions that 

trust had been lost established the required nexus.47 

The third method to establish nexus, the conduct’s adverse effect on the mission, can be applied to a mission 

as broad as that of the agency or as narrow as that of the job. For example, in Masino v. United States, the 

court found presumed nexus for a customs officer who used marijuana when off-duty in light of the role of 

his agency in preventing marijuana from entering the country.48 In Brown v. Department of the Navy, the 

off-duty conduct was not criminal. Rather, the employee engaged in an adulterous relationship with the 

wife of a marine serving abroad. However, the purpose of the employee’s job with the Morale, Welfare, and 

Recreation Department was to plan activities to enhance the morale of military personnel. Because his offduty conduct was antithetical to the mission of his job, it could be used to justify his removal.49 

The reason why a particular adverse action will help the civil service operate better will vary by case. But, 

for the agency to implement an action under chapter 75 of title 5, the connection between the offense and 

the civil service must be present and agencies should be prepared to explain it. 

47 Brook v. Corrado, 999 F.2d 523, 527 (Fed. Cir. 1993).

48 Masino v. United States, 589 F.2d 1048, 1056 (Ct. Cl. 1978). See Gibbs v. Department of the Treasury, 21 M.S.P.R. 646 (1984) (holding that 

because there is a clear connection between the Internal Revenue Service’s mission and citizens paying their taxes, an IRS employee’s failure 

to pay his taxes met the test for nexus).

49 Brown v. Department of the Navy, 229 F.3d 1356, 1360-61 (Fed. Cir. 2000). 
2828 Adverse Actions: A Compilation of Articles
A Report by the U.S. Merit Systems Protection Board 29

Nothing in law or regulation requires that an agency attach a label to a charge of misconduct. If it so 

chooses, the agency may simply describe the actions that constitute misbehavior in a narrative form and 

have its discipline sustained if the efficiency of the service suffers because of the misconduct.50 

If, however, the agency chooses to use a label, that label must be proven. The U.S. Court of Appeals for 

the Federal Circuit has held that an agency must prove every element of a charge, including intent if that 

is an element. For example, if an agency uses the label of “theft” as its charge, then the agency must prove 

that the employee “intended to permanently deprive the owner of possession” of the item in question.51 In 

contrast, an agency is not required to prove intent as part of a charge of unauthorized possession of the 

property.52 Similarly, “[i]nsubordination 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.”53 In contrast, a charge 

of failure to obey orders does not require proof of intent.54

Proving elements can become particularly complex if the agency uses a label that has a specific meaning 

in a statute or is defined in more than one place. Take, for example, the label of “sexual harassment.” 

Such harassment can be defined in an agency policy as well as policy issued by the Equal Employment 

Opportunity Commission, and either (or both) of those definitions may vary from what a person drafting 

or reading the charges may think of as “sexual harassment.” This can result in a situation where an agency 

that uses the term “sexual harassment” in a charge may be required to prove that the conduct meets a 

formal definition, regardless of whether that was the drafting official’s intent. For example, in Booker v. 

Department of Veterans Affairs, neither the notice of proposed action nor notice of decision defined the 

phrase “sexual harassment.” As a result, the agency was required to meet the Title VII definition because 

of the content of its agency’s policy which referenced Title VII.55

However, it is not necessary for the agency to use the term sexual harassment at all. In Morrison v. 

National Aeronautics & Space Administration, the Board affirmed the agency’s penalty of a reassignment 

and 35-day suspension for loading sexually explicit material on a Government computer and exposing 

individuals in the work environment to that material. The appellant asserted that the agency had not

50 Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 202 (1997).

51 King v. Nazelrod, 43 F.3d 663, 666-67 (Fed. Cir. 1994).

52 Culley v. Defense Logistics Agency, 60 M.S.P.R. 204, 212 (1993) (finding that the intent to permanently deprive is not an element of 

unauthorized possession); Castro v. Department of Defense, 51 M.S.P.R. 506, 510 (1991) (explaining that the intent to permanently deprive is 

not an element of unauthorized removal of property).

53 Phillips v. General Services Administration, 878 F.2d 370, 373 (Fed. Cir. 1989) (emphasis and internal notes omitted). 

54 Eichner v. U.S. Postal Service, 83 M.S.P.R. 202, 205 (1999); Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 555–57 (1996). 

55 Booker v. Department of Veterans Affairs, 110 M.S.P.R. 72, ¶ 5 (2008).

Labels are Not Required, 

but if Used They Must be Proven
303030 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Labels are Not Required, but if Used They Must be Proven

proven that sexual harassment occurred, but the Board held that the conduct did not need to rise to the 

level of sexual harassment for the Board to sustain the agency’s action as the charges that the agency used – 

loading and displaying the material – were proven.56

In Brim v. U.S. Postal Service, the agency charged the appellant with sexual harassment, but also charged 

conduct unbecoming a Postal Service employee based on the same behavior.57 A charge of “conduct 

unbecoming,” much like a charge of “improper conduct,” has no specific elements of proof; it is established 

by proving that the employee committed the acts alleged in support of the broad label.58 The Board found 

that the Postal Service did not prove sexual harassment, but that because the unbecoming conduct in 

question – sexually explicit comments within earshot of other employees – was proven and was unacceptable 

in the workplace, a 30-day suspension was permissible under the second charge.59 

In Brim, the agency opted to have two separate charges. That is something an agency is permitted to do, 

but also something that the agency must do if it wishes to have more than one charge to be independently 

examined. MSPB is under clear instructions from the Federal Circuit that it is not permitted to split a 

charge and then sustain one of the newly created charges. MSPB can only assess what it is given – not make 

repairs to the underlying case.60

This same rule applies to undefined labels used in specifications. For example, in Thomas v. U.S. Postal 

Service, the agency asserted in a specification that the appellant “continually subjected” another employee 

“to demeaning, sexually derogative comments.” The agency did not describe “continually” and the events 

later submitted as evidence, while serious, did not occur with the necessary frequency or duration to meet 

the dictionary’s definition of “continual.” Accordingly, while the Board sustained two other specifications 

related to specific events of inappropriate touching on specific days, it was not able to sustain the 

specification regarding comments because the agency had opted to use the word “continually” without 

56 Morrison v. National Aeronautics & Space Administration, 65 M.S.P.R. 348, 352, 357-58 (1994). See Cisneros v. Department of Defense, 

83 M.S.P.R. 390, ¶¶ 5-7, 17-20 (1999) (holding that the agency proved its charge of “conduct unbecoming a Federal employee” when it 

described the employee’s physical acts and statements that had a sexual component), aff’d, 243 F.3d 562 (Fed. Cir. 2000). See Uske v. U.S. 

Postal Service, 60 M.S.P.R. 544, 561-63 (1994) (sustaining the agency’s decision to remove an employee for “conduct prejudicial to the Postal 

Service” when the employee hired a prostitute to pose nude in the workplace, arranged for the photographs to be published in a magazine, 

and informed others in the workplace of what he had done), aff’d, 56 F.3d 1375 (Fed. Cir. 1995).

57 Brim v. U.S. Postal Service, 49 M.S.P.R. 494, 496–99 (1991).

58 Canada v. Department of Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010).

59 Brim v. U.S. Postal Service, 49 M.S.P.R. 494, 496–99 (1991).

60 Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990). However, charges will be merged when proof of either charge 

is automatically proof of the other charge. Mann v. Department of Health & Human Services, 78 M.S.P.R. 1, 7 (1998). The fact that a charge has 

been merged into another does not mean that the duplicative charge is not sustained or that the appellant’s misconduct somehow becomes 

less serious by virtue of the merger. However, MSPB must examine whether the penalty is reasonable for the merged charge. Shiflett v. 

Department of Justice, 98 M.S.P.R. 289, ¶ 12 (2005).
A Report by the U.S. Merit Systems Protection Board A Report by the U.S. Merit Systems Protection Board 31

Labels are Not Required, but if Used They Must be Proven

any details to shed light on what it meant for something to be continual and the evidence did not meet the 

dictionary’s definition of that word.61

An agency will be required to prove it is more likely than not that the conduct in question occurred, 

regardless of whether the agency opts for a label for that conduct.62 However, if the agency chooses to use a 

label, it will be required to prove that label as well as the underlying conduct. The more elements there are 

in that label, the more elements there are for the agency to prove.

61 Thomas v. U.S. Postal Service, 116 M.S.P.R. 453, ¶¶ 6-7 (2011). While the sustained charges may have otherwise supported removal, 

the case was remanded to an MSPB regional office to address whether the agency violated the appellant’s constitutional due process rights 

regarding the process by which it reached its penalty. Id. at ¶¶ 9-13. 

62 5 U.S.C. § 7701(c)(1)(b); 5 C.F.R. § 1201.4(q).
3232 Adverse Actions: A Compilation of Articles
A Report by the U.S. Merit Systems Protection Board 33

Determining the Penalty

The rules for determining the penalty, and the ability of MSPB to review that penalty, depend on the 

statute being used by the agency to authorize the adverse action. As instructed by the U.S. Court of 

Appeals for the Federal Circuit (“Federal Circuit”), MSPB has no role in evaluating an agency’s chosen 

penalty for a case proven under chapter 43 of title 5 (the chapter for demotions and removals based upon 

failure in a critical performance element).63

The language of chapter 75 (the chapter for taking actions to protect the efficiency of the service, which 

can include performance or conduct cases) does not explicitly provide that MSPB will determine if the 

penalty is reasonable under the circumstances of the case. However, prior to the enactment of the Civil 

Service Reform Act of 1978 (CSRA), the Board’s adjudicatory functions were performed by the Civil 

Service Commission (CSC). The CSC reviewed the reasonableness of penalties. After enactment of the 

CSRA, the Board concluded that it was expected to assess penalties as its predecessor agency had done.64

The Board examined past court rulings and CSC decisions regarding penalties and then summarized them 

into twelve (12) factors that it would look at to determine if a penalty was unreasonable. These factors are 

collectively known as the Douglas factors for the case that articulated them and they are still in use today.65 

“It is well established that the Board’s jurisdiction [for chapter 75 cases] includes the authority to review 

the agency’s penalty determination using the factors articulated in Douglas v. Veterans Administration.”66

The Douglas factors are:

(1) The nature and seriousness of the offense, and its relation to the employee’s duties, 

position, and responsibilities, including whether the offense was intentional or technical or 

inadvertent, or was committed maliciously or for gain, or was frequently repeated; 

(2) The employee’s job level and type of employment, including supervisory or 

fiduciary role, contacts with the public, and prominence of the position; 

63 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1567 (Fed. Cir. 1985). Additionally, the Board cannot review the 

reasonableness of a penalty that is set by law. See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. 502, 508 (1994) (holding that because 

31 U.S.C. § 1349(b) requires a suspension of not less than one month for the use of a Government vehicle for other than an official 

purpose, and the appellant’s actions were closely analogous, it would be “inappropriate” for the Board to scrutinize whether the agency’s 

penalty of a 30-day suspension was warranted). 

64 “It cannot be doubted, and no one disputes, that the Civil Service Commission was vested with and exercised authority to 

mitigate penalties imposed by employing agencies. Nor can it be doubted that the federal courts have regarded that authority as properly 

within the Commission’s power.” Douglas v. Veterans Administration, 5 M.S.P.R. 280, 290 (1981).

65 Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981).

66 Archuleta v. Hopper, 786 F.3d 1340, 1352 (Fed. Cir. 2015). See U.S. Postal Service v. Gregory, 534 U.S. 1, 5 (2001) (noting that “the 

agency bears the burden of proving its charge by a preponderance of the evidence” and that, “[u]nder the Board’s settled procedures, 

this requires proving not only that the misconduct actually occurred, but also that the penalty assessed was reasonable in relation to it”); 

Lachance v. Devall, 178 F.3d 1246, 1256 (Fed. Cir. 1999) (holding that “the Board inherited mitigation authority in misconduct actions 

from the old Civil Service Commission”).
34343434 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Determining the Penalty

(3) The employee’s past disciplinary record; 

(4) The employee’s past work record, including length of service, performance on the 

job, ability to get along with fellow workers, and dependability; 

(5) The effect of the offense upon the employee’s ability to perform at a satisfactory 

level and its effect upon supervisors’ confidence in the employee’s ability to perform 

assigned duties; 

(6) Consistency of the penalty with those imposed upon other employees for the 

same or similar offenses; 

(7) Consistency of the penalty with any applicable agency table of penalties; 

(8) The notoriety of the offense or its impact upon the reputation of the agency; 

(9) The clarity with which the employee was on notice of any rules that where 

violated in committing the offense, or had been warned about the conduct in 

question; 

(10) Potential for the employee’s rehabilitation; 

(11) Mitigating circumstances surrounding the offense such as unusual job tensions, 

personality problems, mental impairment, harassment, or bad faith, malice or 

provocation on the part of others involved in the matter; and 

(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in 

the future by the employee or others.67

When applying these factors, the “determination of an appropriate penalty is a matter committed primarily 

to the sound discretion of the employing agency. The Board’s role is not to insist that the balance be struck 

precisely where the Board would choose to strike it if the Board were in the agency’s shoes in the first 

instance.”68 Instead, the question is whether “managerial judgment has been properly exercised within the 

tolerable limits of reasonableness.”69 

67 Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).

68 Norris v. Securities and Exchange Commission, 675 F.3d 1349, 1355 (Fed. Cir. 2012) (internal citations and punctuation omitted).

69 Douglas v. Veterans Administration, 5 M.S.P.R. 280, 302 (1981).
A Report by the U.S. Merit Systems Protection Board A Report by the U.S. Merit Systems Protection Board 35

Determining the Penalty

The Federal Circuit has instructed that:

When the Board sustains all of an agency’s charges the Board may mitigate the agency’s 

original penalty to the maximum reasonable penalty when it finds the agency’s original 

penalty too severe. When the Board sustains fewer than all of the agency’s charges, 

the Board may mitigate to the maximum reasonable penalty so long as the agency has 

not indicated either in its final decision or during proceedings before the Board that it 

desires that a lesser penalty be imposed on fewer charges.70

The Federal Circuit, interpreting decisions by the U.S. Supreme Court, has also held that, as a matter of due 

process, in actions taken under 5 U.S.C. § 7513, the agency must notify the employee of the factors it will 

consider regarding the penalty and provide the employee with the opportunity to respond.71 As explained in 

our article, Agency Officials’ Substantive and Procedural Errors and How to Fix Them, because this is a matter 

of constitutional due process rights, an agency’s failure to provide notice and a meaningful opportunity to 

respond regarding the penalty is a violation of the employee’s substantive rights. A chapter 75 action with 

such a violation must be canceled, although the agency will be free to start over and take a constitutionally 

correct action.72

70 Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. 527, ¶ 8 (2003); Zayer v. 

Department of Veterans Affairs, 90 M.S.P.R. 51, ¶ 8 (2001).

71 Ward v. U.S. Postal Service, 634 F.3d 1274, 1282 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. 

Cir. 1999).

72 Ward v. U.S. Postal Service, 634 F.3d 1274, 1279 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. 

Cir. 1999).
3636 Adverse Actions: A Compilation of Articles
A Report by the U.S. Merit Systems Protection Board 37

How Employees Become Similarly Situated for 

Purposes of an Adverse Action Penalty

The Board has long held that in order to ensure that penalties are reasonable, same or similar offenses 

should be treated in a similar manner.73 To establish that penalties are disparate, an appellant must show 

that the charges and the circumstances surrounding the charged behavior are substantially similar to those 

of a comparator employee.74 Proof that the proffered comparator was in the same work unit, with the same 

supervisor, and was subjected to the same standards governing discipline can help an appellant to make an 

initial showing that the charges and the circumstances surrounding the charged behavior are substantially 

similar.75 However, these are factors to be considered, not hard-and-fast mathematical calculations.76 

If an appellant makes an initial showing that there is enough similarity to lead a reasonable person to 

conclude that the agency treated similarly situated employees differently, then the agency must prove 

that it had a legitimate reason for the difference in treatment between employees.77 Board case law 

demonstrates how important it is for the agency to be prepared to articulate before MSPB the reasons why 

the case at issue is different from the comparator cases.78

One factor that can weigh heavily is the type of position that is held by the employees being compared. 

For example, it is well established that law enforcement officers can be held to a higher standard of 

73 Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981). 

74 Archuleta v. Department of the Air Force, 16 M.S.P.R. 404, 407 (1983). A discrimination claim of disparate treatment is an affirmative 

defense and is a separate matter from an allegation of disparate penalties. Munoz v. Department of Homeland Security, 121 M.S.P.R. 483, ¶ 14 

(2014). When an appellant asserts an affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e–16, the adjudicator 

first will examine whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor 

in the contested personnel action. Such a showing is sufficient to establish that the agency violated 42 U.S.C. § 2000e–16, thereby 

committing a prohibited personnel practice under 5 U.S.C. § 2302(b)(1). If the appellant meets his burden, the adjudicator then will 

inquire whether the agency has shown by preponderant evidence that the action was not based on the prohibited personnel practice, i.e., 

that it still would have taken the contested action in the absence of the discriminatory or retaliatory motive. If the adjudicator finds that 

the agency has made that showing, its violation of 42 U.S.C. § 2000e–16 will not require reversal of the action. Savage v. Department of the 

Army, 122 M.S.P.R. 612, ¶ 51 (2015).

75 Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 6 (2010).

76 For example, while the fact that two employees are supervised by different individuals may sometimes justify different penalties, 

an agency may be required to explain why differing chains of command would justify different penalties. Boucher v. U.S. Postal Service, 

118 M.S.P.R. 640, ¶ 22 (2012).

77 Ellis v. U.S. Postal Service, 121 M.S.P.R. 570, ¶ 11 (2014). If the circumstances cited by the agency justify a harsher penalty on the 

appellant than on the comparator(s), but do not justify the penalty imposed by the agency on the appellant, the Board will mitigate the 

penalty to the maximum reasonable penalty. Id. 

78 See, e.g., Portner v. Department of Justice, 119 M.S.P.R. 365, ¶ 21 (2013) (explaining that the agency did not offer a sufficient 

explanation for the significantly harsher penalty given to the appellant versus that given to the comparator); Boucher v. U.S. Postal Service, 

118 M.S.P.R. 640, ¶ 24 (2012) (concluding that the agency failed to offer a persuasive explanation for why penalties should differ 

between the appellant and a comparator); Woebcke v. Department of Homeland Security, 114 M.S.P.R. 100, ¶¶ 21-22 (2010) (holding that the 

administrative judge acted properly when concluding that the agency failed to prove by preponderant evidence that there was a legitimate 

reason for a difference in how similar offenses were punished); Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶¶ 16-17 (2010) 

(discussing the deciding official’s testimony regarding how this case was different from a comparator case). 
38383838 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty

conduct than other federal employees.79 Similarly, agencies are entitled to hold supervisors to a higher 

standard than non-supervisors because they occupy positions of trust and responsibility.80 However, even the 

ability to hold certain positions to higher standards is not always dispositive. Every case will be considered 

on its own merits.

For example, in Chavez v. Small Business Administration, the appellant claimed that his penalty was too 

harsh because an allegedly comparable employee was not as severely disciplined. However, the Board 

found that differing penalties were justified because: (1) a two year lapse in time between the impositions 

of penalties weakened the comparison; (2) the employees were disciplined by different agency officials and 

worked in separate chains of command within the agency; (3) the employees had different responsibilities; 

and (4) the appellant was found to have committed additional offenses not committed by the comparator 

employee.81

In Davis v. U.S. Postal Service, the Board found differing penalties were permissible, in part because an 

agency is permitted to provide evidence that the penalty previously implemented for a similar offense was 

too lenient. In Davis, a non-supervisory employee made extremely hostile statements to a supervisor. The 

employee was removed and filed an appeal in which he claimed disparate penalties because a manager 

who also made hostile remarks in the workplace was not removed. The agency then provided MSPB 

with evidence that the appellant’s unacceptable conduct, unlike that of the manager, placed employees 

in fear for their safety. Moreover, the agency specified that the appellant’s unacceptable conduct violated 

the agency’s zero tolerance policy, unlike that of the manager. The agency also showed that the manager 

had approximately 29 years of service with the agency, in contrast to the appellant’s 6 years of service. 

Additionally, the deciding official credibly testified that, had he been the official for the comparator case, 

he would have removed that employee as well. By presenting this evidence to the Board and explaining 

its reasons, the agency proved that it had a legitimate reason for the difference in treatment between these 

employees and the Board sustained the removal.82

In contrast, in Williams v. Social Security Administration, it appeared that the agency was more lenient with 

an employee who perpetrated a tax fraud than it was with an employee who, in the words of the court, 

“merely had participated in it.” The employee who committed the lesser offense had “worked for six years 

since the misconduct and done an excellent job. . . [with] no problems” prior to the agency implementing 

the penalty. The court explained that, “[w]hile the fact that two employees are supervised under different 

chains of command may sometimes justify different penalties, in this case” that alone would not be adequate 

justification for disparate treatment. The court noted that while the Government’s counsel later tried to 

79 Watson v. Department of Justice, 64 F.3d 1524, 1530 (Fed. Cir. 1995); Phillips v. Department of the Interior, 95 M.S.P.R. 21, ¶ 16 (2003), aff’d, 

131 F. App’x 709 (Fed. Cir. 2005).

80 Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010). See 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).

81 Chavez v. Small Business Administration, 121 M.S.P.R. 168, ¶¶ 21-24 (2014).

82 Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶¶ 2-4, 9, 8-9, 14-16 (2013).
A Report by the U.S. Merit Systems Protection Board A Report by the U.S. Merit Systems Protection Board 39

How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty

justify the agency’s actions, in the “record before the Board, which is the only record we have” the agency 

did not explain the justification for treating the lesser offense more seriously.83

The Board has set forth a list of 12 factors to be considered when determining a penalty,84 and the more 

these factors differ, the more the situations may not be as similar as they appear at first glance. Decades 

of case law show that just because two cases have some commonalties does not mean that the agency will 

be unable to explain why they are different, justifying different penalties. But, if an action is appealed 

to MSPB, agencies may be required to make those explanations and submit a record showing that when 

penalties differ, it is because the situations were not similar after all. 

Agencies may encounter situations in which officials consistently provided greater leniency in the past 

than the agency wishes to permit in the future for similar offenses. In such cases, the primary distinction 

between new offenses and the comparator cases would be a change in agency policy rather than differences 

in the employees or the offenses. The Board has explained that an agency can implement more stringent 

penalties in the future than it has in the past, provided that it notifies its employees of the change in policy.85 

Many agencies also use a table of penalties to explain general ranges of discipline that the agency considers 

appropriate for various offenses to provide some consistency within the agency. As with other agency 

policies, tables of penalties can be modified. 

Agency officials are not rendered powerless by what other officials have done in the past when the new 

officials properly communicate with their workforces, explaining any policy changes. Policy changes may 

not even be required, if the agency finds its actions warranted by the unique conditions of individual cases 

and officials are prepared to explain why new situations have different circumstances. Whether it is setting 

forth new policy to the workforce or explaining the reasons why individual circumstances are not similar, 

agency communications are crucial to addressing differences in penalties.

83 Williams v. Social Security Administration, 586 F.3d 1365, 1368-69 (Fed. Cir. 2009). The court remanded Williams back to the Board 

to permit further development of the record regarding the agency’s actions. However, in general, once the record closes, no additional 

evidence or argument will be accepted unless it is new and material and the party submitting it shows that, despite due diligence, the 

evidence or argument was not readily available before the record closed. 5 C.F.R. §§ 1201.114(k), 1201.115(d). It is therefore extremely 

important that the agency initially develop the record properly. (Decisions of the U.S. Court of Appeals for the Federal Circuit are 

controlling authority for the Board, whereas other circuit courts’ decisions are persuasive, but not controlling, authority. Fairall v. Veterans 

Administration, 33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987)).

84 Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981). 

85 Parker v. Department of the Navy, 50 M.S.P.R. 343, 354-55 (1991); Tucker v. Veterans Administration, 11 M.S.P.R. 131, 132–33 (1982). See 

Social Security Administration v. Mills, 73 M.S.P.R. 463, 473 (1996) (holding that the appellants “were notified in advance” of the agency’s 

policy), aff’d, 124 F.3d 228 (Fed. Cir. 1997) (Table). 
4040 Adverse Actions: A Compilation of Articles
A Report by the U.S. Merit Systems Protection Board 41

Avoiding Facilitating Prohibited 

Personnel Practices (PPPs)

Proposing and deciding officials are not permitted to take an action for prohibited reasons, such as 

retaliation for whistleblowing activity or for discriminatory motives (including not only “traditional” 

discrimination (e.g., race or sex), but also discrimination based on military service, political party, or 

off-duty conduct that does not affect the efficiency of the service). Moreover, officials – no matter how 

pure their own motives – have the responsibility to ensure that the action has not been corrupted by 

someone else in the process who has a prohibited motive. 

The Supreme Court has held, in the context of a statute protecting service members from anti-military 

animus, that “if a supervisor performs an act motivated by anti-military animus that is intended by the 

supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate 

employment action, then the employer is liable[.]”86 This is known as the “cat’s paw” approach to liability, 

so named for a fable in which a cat is tricked by a monkey into sticking the cat’s paw into a flame to seize 

some food. The cat gets his paw injured while the monkey, who persuaded the cat to act, escapes with all 

the food and no injuries.87 In the employment context, an innocent official can get burned if someone 

with animus tricks the official into taking a personnel action.

The law instructs the Board that if a decision is based on any PPP, the agency’s decision cannot be 

sustained.88 The Board and its reviewing court have held that the cat’s paw approach applies to this 

instruction. Even if the official with animus officially recuses himself or herself from preparing the 

charges or issuing the final decision, if that official is involved in any manner that taints the process, the 

action cannot be sustained.89

The cat’s paw theory for determining if an action is corrupted by the commission of a PPP (or other 

prohibited purpose such as anti-military animus) is one of many reasons why it is so important for 

decision-makers to listen carefully to an employee’s reply to the notice of proposed action. Listening 

to – or reading – an employee’s response to the proposed action is a due process requirement; but, truly 

paying attention to it is an opportunity for the agency to learn if it has been tricked into sticking a paw 

into the fire. Whether the deciding official is trying to comply with the Constitution, confirm that the 

employee is not a scapegoat, avoid the cat’s paw, or some other purpose, there are a lot of different ways in 

which ensuring that the adverse action response period is meaningful can prevent the agency from getting 

burned.

86 Staub v. Proctor Hospital, 562 U.S. 411, 422 (2011).

87 Id. at 415, n.1.

88 5 U.S.C. § 7701(c)(2)(B).

89 See Sullivan v. Department of the Navy, 720 F.2d 1266, 1269, 1276 (Fed. Cir. 1983) (holding that despite the official recusing 

himself, “his dominant role in the case throughout the proceedings” infused the action with the improper motive, thereby rendering 

the personnel action unsustainable); Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶¶ 20-21 (2014) (holding that when a 

supervisor with a retaliatory animus alleges misconduct by an employee but does not serve as the proposing or deciding official, if the 

agency uses that allegation as the basis for proposing and implementing an adverse action, then the action itself has retaliation as the 

basis and the agency must prove by clear and convincing evidence that it would have taken the same action in the absence of the animus).
42424242 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Avoid Facilitating Prohibited Personnel Practices (PPPs)

For a discussion of the meaning of the individual PPPs and the extent to which employees perceive them, see 

our report, Prohibited Personnel Practices: Employee Perceptions.

90

90 U.S. Merit Systems Protection Board, Prohibited Personnel Practices: Employee Perceptions (2011), available at www.mspb.gov/studies. See

Prohibited Personnel Practices Frequently Asked Questions, available at http://www.mspb.gov/ppp/ppp.htm#faq.
A Report by the U.S. Merit Systems Protection Board 43

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.91 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.92 An adverse action that 

violates a substantive right cannot stand.93

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.94 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.95 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.96 

91 Compare Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985) with 5 U.S.C. § 7513. 

92 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”).

93 Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999).

94 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.” 

95 5 C.F.R. § 1201.4(r).

96 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).

Agency Officials’ Substantive and 

Procedural Errors and How to Fix Them
444444 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Agency Officials’ Substantive and Procedural Errors and How to Fix Them

When an agency makes a substantive error or a harmful procedural error, the adverse action cannot, by law, 

be permitted to stand.97 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.98 An agency can also 

cancel an adverse action on its own initiative after the action has taken effect.99 

The Board is not permitted to cure the agency’s errors during the adjudication process.100 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.101 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.102 

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. 

97 5 U.S.C. § 7701(c)(2).

98 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).

99 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). 

100 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’”). 

101 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.”)

102 Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999).
A Report by the U.S. Merit Systems Protection Board 45

Identifying Probationers and Their Rights

A probationary period takes place in the competitive service. The term “trial period” is often used to 

describe a similar period in the excepted service. However, in both cases, the purpose is to provide the 

agency with the opportunity to assess if the employee will be an asset to the Government prior to the 

finalization of the appointment.103

For individuals in the competitive service outside the Department of Defense, the probationary period is 

one year. The National Defense Authorization Act of 2016 extended this period to a minimum of 2 years 

for the Department of Defense.104 For the excepted service, the trial period can vary, but is often either 

one or two years.105 In general, most probationers and individuals in a trial period will have very limited 

procedural and appeal rights. 

Limited Rights of Probationers

The limited rights of probationers in the competitive service are derived from regulations issued by the 

U.S. Office of Personnel Management (OPM). Because the very nature of the excepted service is that it is 

excepted from the ordinary rules of the competitive civil service, OPM tends to provide fewer regulations 

that apply to the excepted service. However, agencies may provide their own regulations and policies 

governing such employment.106

When a probationer (in the competitive service) is removed for “conditions arising before appointment,” 

the individual is entitled to the following:

(1) “[A]dvance written notice stating the reasons, specifically and in detail, for the 

proposed action.”107

103 For a discussion of the purpose and use of the probationary and trial periods, see U.S. Merit Systems Protection Board, The 

Probationary Period: A Critical Assessment Opportunity (2005), at 34. 

104 5 C.F.R. § 315.802(a). But see 10 U.S.C. § 1599e (stating that for employees of the Department of Defense, “the appointment of a 

covered employee shall become final only after such employee has served a probationary period of two years. The Secretary concerned 

may extend a probationary period under this subsection at the discretion of such Secretary. . . [S]ection 7501(1) and section 7511(a)(1)(A)

(ii) of title 5 shall be applied to such [an] individual by substituting ‘completed 2 years’ for ‘completed 1 year’ in each instance it appears”). 

105 See, e.g., Lopez v. Department of the Navy, 108 M.S.P.R. 384, ¶ 2 (2008) (1-year trial period); Kursar v. Department of Transportation, 

102 M.S.P.R. 306, ¶ 2 (2006) (1-year trial period); 5 C.F.R. § 362.303(f) (“The duration of the Recent Graduates appointment in the 

excepted service is a trial period.”)

106 See National Treasury Employees Union v. Horner, 854 F.2d 490, 492 (D.C. Cir. 1988) (explaining that “a variety of more flexible 

and informal procedures – some established by OPM and others developed by individual agencies – are used to recruit and select new 

employees into the excepted service”).

107 5 C.F.R. § 315.805(a).
46464646 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Identifying Probationers and Their Rights

(2) “[R]easonable time for filing a written answer to the notice of proposed adverse 

action and for furnishing affidavits in support of his answer. If the employee answers, 

the agency shall consider the answer in reaching its decision.”108

(3) Notification “of the agency’s decision at the earliest practicable date. The agency 

shall deliver the decision to the employee at or before the time the action will be made 

effective. The notice shall be in writing, inform the employee of the reasons for the 

action, inform the employee of his right of appeal to the Merit Systems Protection 

Board (MSPB), and inform him of the time limit within which the appeal must be 

submitted[.]”109

These rights do not come directly from a statute. Rather, they can be traced back to regulations 

promulgated by the Civil Service Commission (CSC) in 1968.110 OPM has chosen to keep these rights in its 

own regulations.111

In contrast, if a probationer is removed for reasons of performance or conduct during the probationary 

period, the agency “shall terminate his services by notifying him in writing as to why he is being separated 

and the effective date of the action.” There is no right to a notice of proposed termination.112 These 

procedures can also be traced to the CSC’s 1968 regulations.113 If the termination is for reasons that 

arose both before and after the probationary appointment, then the process for “conditions arising before 

[finalized] appointment” is used.114 

A probationer then has, again by regulation, limited appeal rights to MSPB.115 If the probationer was 

terminated for reasons arising before the probationary appointment, the probationer “may appeal on the 

ground that his termination was not effected in accordance with the procedural requirements” set forth in

5 C.F.R. § 315.805.116

If the termination occurs for reasons arising either before or after the probationary appointment, and the 

termination is not required by statute, then the probationer can appeal the action if he or she alleges that it 

108 5 C.F.R. § 315.805(b).

109 5 C.F.R. § 315.805(c).

110 33 Fed. Reg. 172 at 12402, 12422 (Sep. 4, 1968).

111 5 C.F.R. § 315.805.

112 5 C.F.R. § 315.804.

113 33 Fed. Reg. 172 at 12402, 12422 (Sep. 4, 1968).

114 5 C.F.R. § 315.805.

115 5 C.F.R. § 315.806. See Stokes v. Federal Aviation Administration, 761 F.2d 682, 684-85 (Fed. Cir. 1985) (explaining that while a 

probationer has no statutory right of appeal, by regulation MSPB will consider probationer appeals when the probationer alleges the action 

was the result of partisan politics or marital status discrimination).

116 5 C.F.R. § 315.806(c). 
A Report by the U.S. Merit Systems Protection Board A Report by the U.S. Merit Systems Protection Board 47

Identifying Probationers and Their Rights

“was based on partisan political reasons or marital status.”117 In such a case, the appellant must first make 

an allegation of marital status discrimination supported by factual assertions. If the appellant makes such a 

facially non-frivolous allegation, the probationer has a right to a hearing at which he or she must support the 

allegation with a showing of facts which would, if not controverted, require a finding that the agency action 

was motivated by marital status discrimination. If, and only if, the appellant makes the required showing in 

support of that allegation, and the agency is unable to successfully controvert that factual showing, MSPB 

will proceed to determine the merits of the case, i.e., whether the agency has articulated and supported a 

nondiscriminatory reason for its action, and whether the probationary employee has shown that reason to be 

mere pretext.118

Probationers and Trial Period Individuals with More Rights

As explained in our 2007 report, Navigating the Probationary Period After Van Wersch and McCormick, the 

U.S. Court of Appeals for the Federal Circuit has held that Congress’s word choices when phrasing 5 U.S.C. 

§ 7511 resulted in certain probationary and trial period individuals having due process, procedural, and 

appeal rights even though it was unlikely that Congress intended this result.119

If an individual in the competitive service “has completed 1 year of current continuous service under other 

than a temporary appointment limited to 1 year or less[,]” then the person may have full procedural and 

appeal rights even when in a probationary period.120 Similarly, if an individual in the excepted service “has 

completed 2 years of current continuous service in the same or similar positions in an Executive agency 

under other than a temporary appointment limited to 2 years or less[,]” then the person may have full 

procedural and appeal rights while in a trial period.121 Some individuals may have “preference” as a result 

of military service, although not everyone with military service has preference.122 Individuals eligible for 

preference will obtain procedural and appeal rights after one year “of current continuous service in the same 

or similar positions” in the excepted service.123

117 5 C.F.R. § 315.806(b).

118 Burton v. Department of the Air Force, 118 M.S.P.R. 210, ¶ 8 (2012) (summarizing the court’s holding in Stokes v. Federal Aviation 

Administration, 761 F.2d 682, 686-87 (Fed. Cir. 1985)).

119 Van Wersch v. Department of Health and Human Services, 197 F.3d 1144, 1151 (Fed. Cir. 1999) (holding that while the legislative history 

supported the Government’s argument regarding what Congress intended the law should achieve, the court was instead required to follow 

the “language that emerged when Congress actually took pen to paper”). See U.S. Merit Systems Protection Board, Navigating the Probationary 

Period After Van Wersch and McCormick (2007), at 12-13. 

120 5 U.S.C. § 7511(a)(1)(A).

121 5 U.S.C. § 7511(a)(1)(C).

122 For more on the complexities of preference based on military service, including preference derived from the service of family 

members, see U.S. Merit Systems Protection Board, Veteran Hiring in the Civil Service: Practices and Perceptions (2014), at 7-8. See also, U.S. Office 

of Personnel Management, VetGuide, available at https://www.opm.gov/policy-data-oversight/veterans-employment-initiative/vet-guide/. 

123 5 U.S.C. § 7511(a)(1)(B).
48484848 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Identifying Probationers and Their Rights

Our 2005 report, The Probationary Period: A Critical Assessment Opportunity, recommended to Congress 

and OPM changes that they could implement to make the probationary period more meaningful and 

effective as an assessment opportunity.124

124 U.S. Merit Systems Protection Board, The Probationary Period: A Critical Assessment Opportunity (2005), at 34. 
A Report by the U.S. Merit Systems Protection Board 49

The Limited Powers of the 

U.S. Merit Systems Protection Board

MSPB “is a creature of limited authority, enjoying and exercising only the powers vested in it by 

Congress.”125 Congress has chosen to authorize two courts in particular to review MSPB’s actions to 

ensure MSPB acts within its limitations. These are: (1) The U.S. Court of Appeals for the Federal Circuit 

(“Federal Circuit”); and (2) The U.S. Supreme Court when reviewing decisions reached by the Federal 

Circuit.126 When one of these courts tells MSPB what the law intends for MSPB to do, MSPB must follow 

the court’s instructions. It is this process of judicial review that ensures MSPB’s actions are not arbitrary, 

capricious, or contrary to law (including the laws that give MSPB its limited authorities). Under limited 

circumstances, other courts may have authority over a particular case under MSPB’s jurisdiction.127 MSPB 

cannot disregard an opinion from a court with authority over it any more than it can disregard a clear 

statute.128

Where Congress’s words are clear, they must be followed. Where the words are unclear, MSPB must do 

its best to determine what Congress wished MSPB to do. For example, the statute does not explicitly 

discuss MSPB’s power to mitigate an unreasonable penalty taken by an agency under 5 U.S.C. § 7513 or 

5 U.S.C. § 4303. The Federal Circuit has interpreted the legislative history for each section to mean that 

Congress intended MSPB should do so for actions taken under section 7513 but not section 4303.129 The 

will of Congress binds MSPB, and the Federal Circuit can tell MSPB what Congress wills for such actions, 

because 5 U.S.C. § 7703 places MSPB’s adverse action decisions under the jurisdiction of that court. 

Every year, the Board and its administrative judges (AJs) issue thousands (and on rare occasions tens of 

thousands) of adverse action appeal decisions affecting the lives of employees. Most of these cases garner 

little if any attention beyond those who are a party to the case at hand. But, on occasion, there have been 

decisions that trigger outrage at the perceived errors of the Board. In truth, the Federal Circuit does tell 

MSPB every year that it has gotten some cases wrong. But, from FY 2005 to FY 2015, MSPB averaged

125 Singleton v. Merit System Protection Board, 244 F.3d 1331, 1336 (Fed. Cir. 2001). See Guardians Ass’n v. Civil Serv. Comm’n of City of New 

York, 463 U.S. 582, 614 (1983) (“An administrative agency is itself a creature of statute”); Thompson v. Merit Systems Protection Board,

421 F.3d 1336, 1337 (Fed. Cir. 2005) (“The Board’s jurisdiction is strictly limited to that provided by statute, rule, or regulation”); 

Strausbaugh v. Government Printing Office, 111 M.S.P.R. 305, ¶ 6 (2009) (explaining that while the Board’s statutory authority to hear appeals 

from probationers is quite limited, the jurisdiction granted by OPM regulation is broader). 

126 5 U.S.C. § 7703; 28 U.S.C. § 1254. 

127 See, e.g., Kloeckner v. Solis, 133 S. Ct. 596, 600 (2012) (holding that if MSPB dismisses, on procedural grounds, an appeal involving 

allegations of discrimination, the correct court for judicial review is not the Federal Circuit, but rather a district court); 

5 U.S.C. § 7703(b)(1)(B) (authorizing, for a limited time, the use of courts of appeal other than the Federal Circuit for judicial review of 

whistleblowing cases). 

128 See, e.g., McCormick v. Department of the Air Force, 98 M.S.P.R. 201,¶¶ 6-22 (2005) (Dissenting and Concurring Opinion of Suzanne 

T. Marshall) (explaining extensively why she disagreed with the majority opinion issued by the Federal Circuit in McCormick v. Department 

of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002), but agreeing that because the Board is bound by the precedential holdings of that court, 

the Federal Circuit’s instructions must be obeyed). 

129 Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1566 (Fed. Cir. 1985).
5050 Adverse Actions: A Compilation of Articles

The Limited Powers of the U.S. Merit Systems Protection Board

a 92% affirmation rate at the Federal Circuit for adverse action cases – a record of success most baseball 

players would envy.130

Agencies are also frequently successful in appeals before MSPB – albeit not quite as often as MSPB before 

the Federal Circuit. In that same period, for adverse action cases that were not dismissed,131 on initial 

appeal, agencies opted to settle 68% of the cases, and of those cases that were not settled, only 4% were 

mitigated and 15% were reversed, while more than 80% of agency adverse action decisions were upheld.

Appeal Settlement:

As explained in our report, Clean Record Settlement Agreements and the Law, public policy encourages 

settlement.132 An agency and an employee may mutually agree to resolve their differences before an appeal 

is even filed. However, if an appeal is filed with MSPB, before accepting a settlement agreement into 

the record for enforcement purposes, the AJ must determine if: (1) the agreement is lawful on its face; 

(2) the parties freely entered into it; (3) the parties understood its terms; (4) the parties intended for it to be 

enforced; and (5) the subject matter of the appeal is within MSPB’s jurisdiction.133 If these criteria are met, 

it is not the role of MSPB to object to the parties’ mutually acceptable agreement. In fact, parties are free to 

reach an agreement on their own and have the case dismissed as withdrawn without entering the agreement 

into MSPB’s record for enforcement.134

Penalty Mitigation:

As explained in our article, Determining the Penalty, the Board has the responsibility to ensure that 

management has selected a reasonable penalty. There are 12 factors that will be assessed to determine if 

management has acted within these limits. One of these factors is the consistency of the penalty with those 

imposed upon other employees for the same or similar offenses. 

As explained in our article, How Employees Become Similarly Situated for Purposes of an Adverse Action 

Penalty, agencies can hinder their ability to support their penalty if they: (1) have a pattern of tolerating 

such conduct and have not announced that it will not be accepted in the future; or (2) fail to explain why 

130 Data is for cases brought under chapters 75 or 43 of title 5 and excludes furlough cases. This affirmation rate is relatively consistent 

with the rate at which the Federal Circuit affirms Board decisions under all of its combined areas of jurisdiction. 

131 The most common reasons for a case to be dismissed include a lack of MSPB jurisdiction and the appellant filing an untimely 

appeal. 

132 U.S. Merit Systems Protection Board, Clean Record Settlement Agreements and the Law (2013), at 57. See McDermott, Inc. v. AmClyde, 

511 U.S. 202, 215 (1994) (explaining that “public policy wisely encourages settlements”); Pagan v. Department of Veterans Affairs, 170 F.3d 1368, 

1372 (Fed. Cir. 1999) (stating that “[s]ettlement agreements may serve a useful purpose in terminating disputes without the necessity for 

further administrative or judicial proceedings”).

133 Spidel v. Department of Agriculture, 113 M.S.P.R. 67, ¶ 6 (2010). See Fomby-Denson v. Department of the Army, 247 F.3d 1366, 1378 

(Fed. Cir. 2001) (explaining that if a settlement agreement prohibited the disclosure of a crime, it would be contrary to public policy and 

unenforceable in most circumstances); Mansfield v. National Mediation Board, 103 M.S.P.R. 237, ¶ 21 (2006) (in which the Board declined to 

accept a settlement agreement in which it was “plain that the parties [were] attempting to misuse [a Government] program for a purpose for 

which it was not intended” resulting in “a combination of pay and benefits not authorized by law”).

134 See, e.g., Chapman v. Tennessee Valley Authority, 67 M.S.P.R. 246 (1995); Cranfield v. Tennessee Valley Authority, 44 M.S.P.R. 384, 389 (1990).
A Report by the U.S. Merit Systems Protection Board 51

The Limited Powers of the U.S. Merit Systems Protection Board

two employees who seem to be similar are, in fact, so different that disparate penalties are appropriate. This 

can result in mitigation of offenses that would not be tolerated elsewhere because the law instructs that 

actions (including penalties) cannot be arbitrary or capricious.135 The Federal Circuit has held that the 

reasonableness of a penalty may be suspect when a lesser offense is treated more harshly than a more serious 

offense.136

Action Reversal:

Sometimes MSPB must instruct agencies to cancel an adverse action entirely, even if the offense seems 

completely outrageous and the charges may appear true. If an agency’s action violated an employee’s 

constitutional rights, then MSPB is required to reverse it, no matter how offensive the underlying conduct.137 

If the agency failed to follow statutory or regulatory procedures, and this failure caused a different outcome, 

then MSPB is instructed by statute and the Federal Circuit to reverse the action.138 The Board is also 

not permitted to sustain any action if the adverse action “decision was based on any prohibited personnel 

practice described in section 2302(b)” of title 5.139 

Summary:

MSPB can do only what it has been authorized by law to do. This can result in some cases having outcomes 

that observers might conclude are undesirable. However, nothing in the statute instructs MSPB that it is 

empowered to create the most desirable outcome. Rather, MSPB must assemble established constitutional 

law, statutes, regulations, and case decisions and apply that body of law to the facts presented to it. The 

Board lacks the power to change the facts given to it (such as the charges and evidence) or the laws that it 

has been told to apply. 

135 Schapansky v. Department of Transportation, 735 F.2d 477, 486 (Fed. Cir. 1984). 

136 Williams v. Social Security Administration, 586 F.3d 1365, 1368 (Fed. Cir. 2009).

137 Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999). 

See, e.g., Thomas v. U.S. Postal Service, 116 M.S.P.R. 453, ¶ 5 (2011) (sustaining the AJ’s finding that the appellant inappropriately touched a 

female employee in her private areas but holding that if the action violated the employee’s constitutional rights as explained in Ward, it 

would be necessary to reverse the agency’s action and order the agency to restore the appellant until he is afforded a “new constitutionally 

correct removal procedure”).

138 Diaz v. Department of the Air Force, 63 F.3d 1107, 1109 (Fed. Cir. 1995) (citing 5 U.S.C. § 7701(c)(2)(A)).

139 5 U.S.C. § 7701(c)(2). For more on substantive and procedural errors, see our article, Agency Officials’ Substantive and Procedural Errors 

and How to Fix Them.
5252 Adverse Actions: A Compilation of Articles
A Report by the U.S. Merit Systems Protection Board 53

Why Federal Employees Have 

the Right to a Hearing

When drafting the current adverse action system, Congress chose to provide employees with the right 

to a third-party, post-action review process of suspensions of more than 14 days, demotions, or removal 

actions. The agency responsible for conducting these reviews is the U.S. Merit Systems Protection Board 

(MSPB).140 When appearing before MSPB, the agency has the responsibility to prove its case.141 Congress 

also chose to provide judicial review of MSPB decisions.142 

By statute, employees are entitled to “a hearing for which a transcript will be kept” and to be represented 

by an attorney or other chosen representative.143 The statute also provides that the Board (the three 

presidentially appointed, Senate confirmed members), or an employee designated by the Board to hear 

such cases, “shall make a decision after receipt of the written representations of the parties to the appeal 

and after opportunity for a hearing” if the appellant exercises that right.144

The U.S. Court of Appeals for the Federal Circuit has determined that when Congress granted this right 

to a hearing, “Congress took its cue from the Supreme Court’s decision in Arnett v. Kennedy. . . Congress 

in the [Civil Service] Reform Act substantially adopted the procedure approved by the Court and charged 

the Board with the job of protecting the rights of employees.”145 This process for granting a post-action 

hearing, as well as the right to judicial review, is also consistent with later decisions by the Supreme Court 

regarding the due process rights of public sector employees.146

Thus, these statutory provisions may be an example of language chosen by Congress to provide the 

Government with instructions on the particular manner in which Congress wants the Government to 

comply with constitutional requirements that exist independently from the statute itself. After all, the 

statute gives the right to a hearing only to employees (whose constitutional rights are at stake), but 

140 5 U.S.C. §§ 7513(d), 4303(e).

141 5 U.S.C. § 7701(c)(1).

142 5 U.S.C. § 7703(a)(1). 

143 5 U.S.C. § 7701(a).

144 5 U.S.C. § 7701(b)(1).

145 Callahan v. Department of the Navy, 748 F.2d 1556, 1558-59 (Fed. Cir. 1984) (internal citations and punctuation omitted). (Arnett

was the predecessor case to Loudermill in effect at the time the relevant statutes were enacted.) 

146 In Cleveland Board of Education v. Loudermill, the Supreme Court explained that the reason why the Court found that due process in 

that case only required notice and an opportunity to respond before removal rested “in part on the provisions in Ohio law for a full posttermination hearing.” This post-termination hearing included not only “a full administrative” process but also “judicial review.” Board of 

Education v. Loudermill, 470 U.S. 532, 546 (1985). For a more in-depth discussion of due process rights, see U.S. Merit Systems Protection 

Board, What is Due Process in Federal Civil Service Employment (2015).
54545454 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Why Federal Employees Have the right to a Hearing

is silent concerning the right of agencies to obtain a hearing. The current system may not be the only 

constitutionally permissible approach, but it is consistent with past decisions by the Supreme Court and is 

the system that has been accepted by the Supreme Court in multiple decisions.147

147 See, e.g., Elgin v. Department of the Treasury, 132 S. Ct. 2126, 2130-31 (2012) (describing the right to appeal an adverse action to MSPB 

and obtain judicial review of MSPB’s decision); U.S. Postal Service v. Gregory, 534 U.S. 1, 5-7 (2001) (explaining the roles of MSPB and its 

reviewing court); United States v. Fausto, 484 U.S. 439, 443 (1988) (explaining that the statutory framework for an adverse action offers in 

“great detail the protections and remedies applicable to such action, including the availability of administrative and judicial review”). Cf. 

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).
A Report by the U.S. Merit Systems Protection Board 55

The Administrative Judge

When an employee files an appeal with MSPB, the hearing official is usually an administrative judge 

(AJ), but can be an administrative law judge (ALJ). ALJs are selected for – and removed from – their own 

positions under a different set of rules than AJs in order to ensure that the ALJs can operate with a greater 

level of independence.148 Some types of cases are required, by statute, to use an ALJ.149 In other cases, a 

regulation establishes the use of the ALJ because the agency issuing the regulation exercised the discretion 

given to it by a statute to set forth the rule that an ALJ would be used.150 Nearly all adverse action cases – 

whether taken under chapter 43 or 75 of title 5 – are heard by an AJ not an ALJ. For ease of discussion, 

we will refer to the hearing official as an AJ, even though in some rare cases it may be an ALJ performing 

the duties. The AJ has the responsibility to create MSPB’s official record of the case, conduct the hearing, 

and issue a decision.151

Pre-Hearing Activities

The appellant is not required to ask for a hearing in order to have the appeal decided upon by the AJ. 

When the appellant believes the written record contains all the necessary information, the appellant can 

waive the right to a hearing and ask for a decision based on that written record.152

Prior to the hearing – or issuance of the decision if a hearing is not held – the parties will engage in 

discovery and the AJ will hold a conference with the parties.153 While these activities are performed 

in accordance with MSPB regulations, they are consistent with the general practices performed in civil 

litigation. In other words, MSPB has tailored the process to its responsibilities under chapter 77 of title 5 

and the constitutional due process requirements for the interests at stake. MSPB’s process bears a strong 

148 See 5 C.F.R. § 930.201-211 (explaining the ALJ employment rules). In contrast, an AJ employed by MSPB is subject to the same 

regulations and statutes for selection and removal as other MSPB attorneys (such as those who represent MSPB before the courts and 

those who advise Board members on cases where the Board renders its own decision). Unlike an ALJ, the term “administrative judge” is 

a job title describing duties, not a separate class of employee.

149 See, e.g., 5 U.S.C. § 1215(a)(2)(c) (statute granting the employee the right to appear before the Board or an ALJ in a disciplinary 

action brought by the Office of Special Counsel). 

150 See, e.g., 5 C.F.R. § 1201.13 (MSPB regulation establishing that cases involving MSPB employees will be heard by an ALJ with 

limited Board review because of the Board’s commitment to reducing its influence in a case where it may inherently have a potential 

interest in the outcome).

151 5 C.F.R. § 1201.41.

152 Ahlberg v. Department of Health and Human Services, 804 F.2d 1238, 1243 (Fed. Cir. 1986). An appellant may only waive his right 

to a hearing by clear, unequivocal, or decisive action. Further, the waiver must be an informed one. An appellant’s waiver of the right 

to a hearing is informed when he has been fully apprised of the relevant adjudicatory requirements and options in his case. Campbell v. 

Department of Defense, 102 M.S.P.R. 178, ¶ 5 (2006).

153 Discovery is the process by which each party requests evidence from the opposing party. If a party refuses to provide 

information requested in discovery, the other party may ask the AJ to compel the refuser to produce the information. MSPB’s discovery 

rules and processes are located at 5 C.F.R. § 1201.71-.75.

How a Hearing is Conducted
56565656 Adverse Actions: A Compilation of Articles

How a Hearing is Conducted

resemblance to the activities that take place under the Federal Rules for Civil Procedure in a Federal district 

court, but does have distinct differences.154 

During the pre-hearing conference, the AJ will, among other things: (1) explain MSPB’s procedures to the 

parties; (2) facilitate discovery; (3) identify, narrow, and define the issues; (4) obtain stipulations; (5) discuss 

the possibility of settlement; (6) rule on witnesses; and (7) rule on exhibits.155

The AJ has wide discretion to exclude witnesses if the AJ determines their testimony would be irrelevant, 

immaterial, or repetitious.156 The AJ has similar authority to rule on the admission of exhibits and other 

evidence.157 In order to obtain reversal of an initial decision on the ground that the AJ abused his discretion 

regarding witnesses or the admission of evidence, the petitioning party must show on review that relevant 

evidence, which could have affected the outcome, was disallowed.158 For more on the process for reviewing 

initial decisions, see Implementing or Challenging Initial Decisions.

154 See Spezzaferro v. Federal Aviation Administration, 807 F.2d 169, 172, n.1 (Fed. Cir. 1986) (noting that “MSPB proceedings are not 

governed by the Federal Rules of Civil Procedure”); Tinsley v. Office of Personnel Management, 34 M.S.P.R. 70, 75 (1987) (explaining that the 

Board regards the Federal Rules of Civil Procedure as instructive, rather than controlling).

155 An exhibit is a document entered into the record as evidence. Physical objects (such as a weapon or drugs) will typically not be 

admitted into the record, and instead a description stipulated by the parties will be used. See U.S. Merit Systems Protection Board, Judge’s 

Handbook, Ch. 10 § 14(g). 

156 Bowen v. Department of the Navy, 112 M.S.P.R. 607, ¶ 17 (2009), aff’d, 402 F. App’x 521 (Fed. Cir. 2010).

157 See Wagner v. Environmental Protection Agency, 51 M.S.P.R. 337, 353 (1991) (explaining that even if the AJ erred in accepting the 

appellant’s exhibits, the agency has not shown how its substantive rights were prejudiced, and thus there was no need to resolve whether the 

AJ had, in fact, erred), aff’d, 972 F.2d 1355 (Fed. Cir. 1992).

158 Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 12 (2013); Jezouit v. Office of Personnel Management, 97 M.S.P.R. 48, ¶ 12 (2004), 

aff’d, 121 F. App’x 865 (Fed. Cir. 2005). See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory 

error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision).
A Report by the U.S. Merit Systems Protection Board 57

How a Hearing is Conducted

Assessing the Evidence

Regulations and case law grant the hearing official extensive discretion in managing the case.159 However 

this discretion is not unlimited.160 The actions of the AJ cannot be “arbitrary, capricious, not in accordance 

with the law or in contravention of procedures required by law, rule or regulation.”161

To ensure that the AJ’s decisions are not arbitrary, the AJs must follow certain guidance in assessing the 

evidence. For example, when assessing the credibility of a witness, the AJ must use the Hillen factors, so 

named for the case in which the Board instructed:

To resolve credibility issues, an administrative judge must first identify the factual 

questions in dispute; second, summarize all of the evidence on each disputed 

question of fact; third, state which version he or she believes; and, fourth, explain in 

detail why the chosen version was more credible than the other version or versions 

of the event. Numerous factors. . . must be considered in making and explaining 

a credibility determination. These include: (1) the witness’s opportunity and 

capacity to observe the event or act in question; (2) the witness’s character; (3) 

any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; 

(5) the contradiction of the witness’s version of events by other evidence or its

consistency with other evidence; (6) the inherent improbability of the witness’s

version of events; and (7) the witness’s demeanor.162

Once the AJ has applied the Hillen factors, great deference is given to the AJ’s conclusions about witness 

credibility when those conclusions are based on an assessment of witnesses’ demeanor. The U.S. Court 

of Appeals for the Federal Circuit (“Federal Circuit”) has instructed that, once the Board chooses to use 

its regulations to delegate the power to conduct the hearing to an AJ, “the MSPB is not free to overturn 

159 Among other things, AJs have the discretion to: grant additional time for discovery; grant a hearing request when the law does not 

automatically provide for one if the AJ deems it appropriate to resolve the case; determine the location for hearings; determine if the public 

should have access to the hearing; reject or grant motions to compel for discovery; determine the number of technical advisors that may 

participate; rule on the presence of any security officers in the hearing room; permit oral or written closing statements; retain withdrawn 

exhibits; decide if names in the public record should be sanitized to protect personal privacy; seal a file or portion thereof; and request 

interlocutory appeal decisions from the Board. (When names are sanitized, it is often to protect innocent third parties. For example, if an 

employee is fired for reasons related to an allegation of molesting a child who is a relative, then naming the offender in the case title has 

the side effect of also putting the victim’s identity in the public record. Such cases will use the name “Doe” in lieu of the employee’s actual 

name. The victim’s names in the initial decision may be replaced by initials or other letters or numbers that would protect the person from 

public identification. Similarly, a portion of a file may be sealed to protect the confidentiality of certain documents. An interlocutory 

appeal occurs when there is an issue of law (unrelated to the merits of the case) and confirming the AJ correctly interpreted the law will 

materially advance the further administration of the case. The AJ has discretion to certify the question and situations warranting such 

certifications are rare.) For more on how AJs perform their duties, see U.S. Merit Systems Protection Board, Judge’s Handbook. 

160 See, e.g., Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012) (holding “that it is an abuse of discretion to 

categorically exclude all witnesses offered to testify as to evidence” of a relevant issue); Chudson v. Environmental Protection Agency, 17 F.3d 380, 

385 (Fed. Cir. 1994) (holding that the AJ abused her discretion by not permitting the appellant to elicit testimony from two individuals with 

personal knowledge relevant to the issue under appeal and a third witness who had expert testimony to offer).

161 Tiffany v. Department of the Navy, 795 F.2d 67, 70 (Fed. Cir. 1986) (citing 5 U.S.C. § 7703).

162 Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987).
58585858 Adverse Actions: A Compilation of Articles

How a Hearing is Conducted

an administrative judge’s demeanor-based credibility findings merely because it disagrees with those 

findings.”163 The court held that this limitation on the Board comes “from a fundamental notion of 

fairness[.]”164

This does not prevent the Board from correcting findings by the AJ that are incomplete, inconsistent 

with the weight of the evidence, or do not reflect the record as a whole.165 Similarly, when a decision is 

based upon facts and not the demeanor witnessed by the AJ, “the Board is free to re-weigh the evidence 

and substitute its judgment for that of one of its administrative judges.”166 This authority to re-weigh the 

evidence and reach a different conclusion applies to all issues in the case, including jurisdiction, charges, and 

penalties.167

In order to enable the Board and its reviewing court to review the decision reached by the AJ, the AJ’s 

decision on the case is required to include, among other things: (1) the AJ’s findings of fact and conclusions; 

and (2) the reasons for those findings and conclusions.168 This document is known as the “initial decision” 

because it is subject to further review. To learn more about the process for reviewing the initial decision, see

Implementing or Challenging Initial Decisions. 

163 Haebe v. Department of Justice, 288 F.3d 1288, 1299 (Fed. Cir. 2002). See, e.g., Leatherbury v. Department of the Army, 524 F.3d 1293, 

1306 (Fed. Cir. 2008) (finding “that the Board failed to give the AJ the deference required by Haebe and impermissibly reversed the AJ’s 

credibility determination”).

164 Cf., International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (explaining that to be Constitutional, the exercise of jurisdiction over 

a party cannot “offend ‘traditional notions of fair play and substantial justice.’”)

165 Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004). But see 38 U.S.C. § 713 (removing from the Board the authority to 

review a decision reached by an AJ for a case involving an SES employee in the Department of Veterans Affairs when title 38 is used to take 

the action).

166 Long v. Social Security Administration, 635 F.3d 526, 530 (Fed. Cir. 2011) (citing Leatherbury v. Department of the Army, 524 F.3d 1293, 

1304 (Fed. Cir. 2008)).

167 See Tierney v. Department of Justice, 717 F.3d 1374, 1378 (Fed. Cir. 2013) (explaining that, with the exception of credibility 

determinations, “[t]he Board is generally free to substitute its judgment for that of the AJ”). 

168 5 C.F.R. § 1201.111(b)(1)-(2).
A Report by the U.S. Merit Systems Protection Board 59

Implementing or Challenging 

Initial Decisions

An initial decision (ID) issued by an administrative judge (AJ) will state if MSPB has jurisdiction, and if 

jurisdiction is found, the ID will contain conclusions regarding nexus, charges, and penalties – known as 

an assessment of the “merits” of the case.169 Among other possibilities, an ID on the merits can state that 

some charges were sustained but not others. It can state that a penalty was warranted, but not a penalty 

as harsh as the agency initially implemented. It can support the agency’s action entirely. It can order the 

entire action cancelled. 

Depending upon what the ID says, the parties each have decisions to make. If both are satisfied with the 

outcome, then they comply with the orders set forth in the ID (such as the action standing entirely, being 

mitigated, or being canceled) and the matter is concluded. But, what if one or both parties disagree with 

the ID in part or whole? 

For the appellant, the questions are then: (1) whether to seek further review; (2) if seeking review, for what 

issues; and (3) if seeking further review, from whom? (An appellant can file a petition for review (PFR) 

with the Board, or file for judicial review with the U.S. Court of Appeals for the Federal Circuit (“Federal 

Circuit”) without first coming to the Board). 

For the agency, the questions are: (1) whether to seek further review (with the Board PFR as the only 

avenue); (2) if seeking review, for what issues; and (3) what to do about the instructions in the ID in the 

meantime?

Filing for Review with the Board

Either party that disagrees with the ID can file a PFR with the three-member Board.170 MSPB’s 

regulations explain the process for the parties to follow.171 Regardless of whether the agency or appellant 

files the PFR first, the second party will be given the opportunity to respond. If the second party did not 

prevail on one or more issues below, that party may also file a PFR (called a “cross-PFR”). 

As explained in How a Hearing is Conducted, the three-member Board has the authority to re-weigh the 

evidence and reach a different conclusion regarding nearly every aspect of the case, including jurisdiction, 

charges, and penalties.172

169 If MSPB lacks jurisdiction, the process ends with that determination and there is no analysis of the merits of the charges, 

penalty, or nexus. See Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000) (explaining that “without jurisdiction, 

neither the Board nor this court is empowered to decide the merits of a case”).

170 The three members of the Board are nominated by the President and confirmed by the Senate. No more than two can adhere 

to the same political party. It takes two members agreeing with each other to decide a case. If there are less than two members in 

agreement (which can happen when the Board is not fully staffed), the initial decision stands as the final decision of the U.S. Merit 

Systems Protection Board. 

171 5 C.F.R. § 1201.114. MSPB’s regulations can be found on its website at http://www.mspb.gov/appeals/appeals.htm.

172 See Tierney v. Department of Justice, 717 F.3d 1374, 1378 (Fed. Cir. 2013) (explaining that, with the exception of credibility 

determinations, “the Board is generally free to substitute its judgment for that of the AJ”).
60606060 Adverse Actions: A Compilation of Articles Adverse Actions: A Compilation of Articles

Implementing or Challenging Initial Decisions

On PFR, the Board will look at the issues raised by the parties, but can also address other issues in the ID 

that it identifies on its own. If the parties do not file a PFR, the ID becomes final on a date set forth in the 

ID. At that time, the Board has the option to reopen the appeal on its own and reexamine any issue in the 

case. However, the Board typically opts not to exercise this power absent extraordinary circumstances. 

Filing for Review with the Federal Circuit 

If the agency does not file a PFR, then the appellant has the option to file an appeal directly with the 

Federal Circuit once the ID becomes final, bypassing the PFR process.173 The appellant can also use the 

PFR process and, if dissatisfied with the PFR result, then proceed to seek judicial review from the Federal 

Circuit.174

In contrast, the agency cannot appeal directly to the Federal Circuit at any stage. The only review 

opportunity available directly to the agency is the PFR to the Board. However, acting for the Government, 

the Director of the Office of Personnel Management (OPM) (represented by the Department of Justice) may 

file a petition for judicial review with the Federal Circuit. OPM must first determine, “in the discretion of 

the Director, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel 

management and that the Board’s decision will have a substantial impact on a civil service law, rule, 

regulation, or policy directive.”175 If OPM did not intervene in the case before the Board, OPM must first 

petition the Board to reconsider its decision and obtain a denial of that petition before OPM can proceed to 

the Federal Circuit.176

Interim Relief

What happens to an employee pending resolution of the PFR? If the ID upholds the agency’s action, then 

the action remains in effect. For example, a removed employee remains removed. However, 

5 U.S.C. § 7701(b)(2) instructs that if the ID is in the employee’s favor, the employee will obtain the granted 

relief immediately in most circumstances. This means that if an employee has been removed, the employee 

will be returned to work. The AJ has the discretion to determine that granting such relief immediately is not 

appropriate under the circumstances, but the default is that the ID will take effect.177 

173 In a few types of adverse action cases, the appeal would go to a different court than the Federal Circuit. Appeals from actions 

taken under the following provisions: Section 717(c) of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e-16(c)); section 15(c) of 

the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. § 633a(c)); and section 15(b) of the Fair Labor Standards Act 

of 1938, as amended (29 U.S.C. § 216(b)) would go to the appropriate U.S. district court. See 5 U.S.C. § 7703(b)(2); 5 C.F.R. § 1201.175. 

Additionally, if the appeal was filed as an individual right of action, and not as an adverse action appeal, the provisions of 5 U.S.C. § 7703(b)

(1)(B) would apply.

174 5 U.S.C. § 7703(a)(1). 

175 5 U.S.C. § 7703(d)(1).

176 Id. 

177 King v. Jerome, 42 F.3d 1371, 1373-74 (Fed. Cir. 1994); 5 U.S.C. § 7701(b)(2)(A)(i). 
A Report by the U.S. Merit Systems Protection Board A Report by the U.S. Merit Systems Protection Board 61

Implementing or Challenging Initial Decisions

This does not mean that an agency is required to place in the work unit an employee that the agency believes 

would be unduly disruptive while it seeks a review of the case by the Board. If the agency has concerns 

about the employee, it has an unreviewable authority to keep the employee away pending resolution of the 

PFR. By statute, the agency “must still give [the employee] all pay, benefits, and other terms and conditions 

of employment” he would have received if he had worked.178 But, even if the agency acts in bad faith when 

deciding to prevent the employee’s return to duty during the PFR process, “Congress did not provide for any 

[MSPB] review of this decision” by the employing agency.179

178 King v. Jerome, 42 F.3d 1371, 1374 (Fed. Cir. 1994).

179 Id.
6262 Adverse Actions: A Compilation of Articles
A Report by the U.S. Merit Systems Protection Board 63

Studies related to adverse actions:

What is Due Process in Federal Civil Service Employment? (2015)

Clean Record Settlement Agreements and the Law (2013)

Addressing Poor Performers and the Law (2009)

Alternative Discipline: Creative Solutions for Agencies to Effectively Address Employee 

Misconduct (2008)

Navigating the Probationary Period After Van Wersch and McCormick (2007)

The Probationary Period: A Critical Assessment Opportunity (2005)

Additional articles related to adverse actions:

Indefinite Suspensions and Potentially Criminal Behavior: Using Reasonable Cause to Act (May 2016)

Adverse Actions: Rules and Reality (Aug. 2015)

Identifying a Probationer: It is not Always Easy, but is Always Important (Jun. 2015)

Probationary Periods: A Missed Opportunity to Address Poor Performance (Spring 2015)

Clean Record Settlements: Words Matter (Jan. 2014)

Conduct-Based Actions: Why Performance Matters (Sep. 2011)

Alternative Discipline: What You Need to Know (Feb. 2009)

What Agencies Should Know in a Post-Van Wersch & McCormick World (Jul. 2006)

Due Process: What You Need to Know (May 2006)

The Trial Period: A Missing Link (Jan. 2006)

Replace Warm Bodies with Working Bodies (Apr. 2005)

Agency Corner: Administering the Probationary Period (Jan. 2005)

Using the Probationary Period to Weed Out Selection Errors (Jun. 2004)

Additional Resources


U.S. Merit Systems Protection Board

1615 M Street, N.W.

Washington, DC 20419

Official Business

Penalty For Private Use $300

PRSRT STD

U.S. POSTAGE PAID

WASHINGTON DC

PERMIT NO. G-113

Adverse Actions: 

A Compilation of Articles