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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 *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.1  (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.2  Due process requires notifying the employee  of what the official will consider, not that the official be a blank slate.3
      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.4  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.5  The deciding official must be able to invoke  his or her discretion as to whether the proposed penalty is warranted.6  The fundamental requirement of due process is  the opportunity to be heard “at a meaningful time and in a meaningful manner.”7  Processes that do not offer a meaningful  opportunity can run afoul of the Constitution.

    1*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).
      2*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).
      3*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).
      4*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).
      5*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).
      6*Buelna v. Department of Homeland Security*, 121 M.S.P.R. 262, ¶¶  27-28 (2014).
      7*Mathews v. Eldridge*, 424 U.S. 319, 333 (1976) (quoting *Armstrong v. Manzo*, 380 U.S. 545, 552  (1965)).


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