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How to Contest Major Disciplinary Actions

July 16, 2021

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No federal employee likes to dwell on the thought of receiving disciplinary action from an agency. However, it is important that employees facing proposed disciplinary action knows their rights and what steps to take if they want to contest their agency’s proposal.

The governing statutes divide proposed disciplinary actions into two classes, depending on the nature of the discipline proposed. One class applies to the more serious disciplinary actions, including removal, suspension of longer than 14 days, and a reduction in grade or pay. The other class applies to suspensions of fewer than 14 days. For purposes of this article, the discussion will be limited to the more serious disciplinary actions.

As a general matter, in order to have the due process right to contest a proposal, the employee must be considered an “employee” as defined by statute. For the more serious disciplinary proposals, that definition differs between employees in the competitive service and the excepted service. If you are not certain which service you are in, your SF-50 will provide that information.

For the more serious disciplinary proposals, pursuant to 5 U.S.C. §7511(1)(A), someone in the competitive service is generally considered an “employee” for due process purposes if s/he is not a probationary employee or has completed 1 year of “current continuous service,” in the same or similar positions, defined in 5 C.F.R. §752.402 as not having a break in Federal civilian employment of more than a single workday. The one year “tack on” provision does not apply to DOD employees, including in the Departments of the Army, Navy, and Air Force, whose required probationary period in the competitive service is now two years.

For those in the excepted service, pursuant to 5 U.S.C. §7511(1)(C), an “employee” is someone not serving a probationary period or who has completed 2 years of current continuous service in the same or similar positions. A preference eligible veteran in the excepted service need only have completed 1 year of current continuous service in order to be considered an “employee” for due process purposes. 5 U.S.C. §7511(1)(B).

An “employee’s” due process rights, as set forth in 5. U.S.C. §7513, are:

1.) At least 30 days’ advance written notice of the effective date of the proposed discipline. Do not confuse this with the deadline to reply to the proposal, which is typically much shorter. The 30-day provision means, for example, that if you are proposed for removal, the removal cannot be effectuated in fewer than 30 days from the date of the notice, but the decision to remove can be made sooner than that. At the time the proposal is issued, any supporting evidence, such as a Report of Investigation, should be provided to the employee. In some cases, a specific request for such information will be required.

2.) A statement of the specific reasons for the proposed action.

3.) Not fewer than seven days to reply to the proposal in writing and orally. In many cases, the reply deadline can be extended. However, for those of you employed by the Department of Veterans Affairs, the reply deadline is 7 business days and cannot be extended.

In cases of serious proposed discipline, it is highly recommended that the employee reply both in writing and orally. Appearing before the deciding official can have the effect of mitigating the proposed penalty by expressing remorse if in fact you have done something wrong and, in cases of proposed removal, convincing the official that you are a valuable employee whose continued employment would benefit the agency.

4.) Representation by someone of your choice, including an attorney. Representation by an experienced federal employment counsel can be significantly helpful not only in rebutting the charges and specifications against you but also in arguing that the proposed penalty should be reduced if not eliminated entirely.

5.) Receiving a written decision which specifies the reasons claimed to support it. Generally, this must be delivered on or before the effective date of the action. 5 C.F.R §752.404(g)(2). However, in cases of a proposed removal, “to the extent practicable,” the agency should issue the decision within 15 business days after the conclusion of the employee’s opportunity to reply. 5 C.F.R. §752.404(g)(3).

If your Agency’s decision results in you being removed, demoted or suspended for more than 14 days, you have the right to have that decision reviewed by an Administrative Judge of the Merit Systems Protection Board. All of your review options should be explained in the agency’s Decision Letter.

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