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Adverse Action Articles

  1. A Primer in Pieces
  2. Second-Hand News Can be Misleading
  3. The Adverse Action Process � A Flowchart
  4. Performance-Based Actions under Chapters 43 and 75 of Title 5 � Similarities and Differences
  5. Different Types of Adverse Actions Use Different Rules
  6. Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
  7. Decision-Maker Must Listen and Have Power to Decide
  8. Connecting the Job and the Offense (�Nexus�)
  9. Labels are Not Required, but if Used They Must be Proven
  10. Determining the Penalty
  11. How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
  12. Avoid Facilitating Prohibited Personnel Practices (PPPs)
  13. Agency Officials' Substantive and Procedural Errors and How to Fix Them
  14. Identifying Probationers and Their Rights
  15. The Limited Powers of the U.S. Merit Systems Protection Board
  16. Why Federal Employees Have the Right to a Hearing
  17. How a Hearing is Conducted
  18. Implementing or Challenging Initial Decisions
  19. Additional Resources

 

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

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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.1

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 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.2  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.3

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.”4

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.5  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[.]”6  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.7

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 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.”8  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.9




1 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), available at www.mspb.gov/studies.

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

3 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.

4 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.

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

6 5 U.S.C. § 4303(b)(1).

7 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]”).

8 5 C.F.R. §§ 752.203(b), 752.404(b).

9 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).

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