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U.S. Merit Systems Protection Board
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Home
	   Studies
		   	 Adverse Actions: A Primer in Pieces
      Second-Hand News Can be Misleading
      The Adverse Action Process - A Flowchart
      Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences
      Different Types of Adverse Actions Use Different Rules
      Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
      Decision-Maker Must Listen and Have Power to Decide
      Connecting the Job and the Offense ("Nexus")
      Labels are Not Required, but if Used They Must be Proven
      Determining the Penalty
      How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
      Avoid Facilitating Prohibited Personnel Practices (PPPs)
      Agency Officials' Substantive and Procedural Errors and How to Fix Them
      Identifying Probationers and Their Rights
      The Limited Powers of the U.S. Merit Systems Protection Board
      Why Federal Employees Have the Right to a Hearing
      How a Hearing is Conducted
      Implementing or Challenging Initial Decisions
      Additional Resources
  Search and Site Index *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).1  When appearing before MSPB, the agency has  the responsibility to prove its case.2  Congress also chose to provide judicial  review of MSPB decisions.3By 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.4  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.5The 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.”6  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.7Thus, 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 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.8
      1     5 U.S.C. §§ 7513(d),  4303(e).
      2  5 U.S.C. § 7701(c)(1).
      3  5 U.S.C. § 7703(a)(1).
      4 5 U.S.C. § 7701(a).
      55 U.S.C. § 7701(b)(1).
      6*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.)
      7 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  post-termination 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), available at www.mspb.gov/studies.
      8*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).


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