When a federal agency takes an adverse action against a non-probationary federal employee, it must follow basic due process requirements. The ultimate adverse action is subject to being reversed by the Merit Systems Protection Board (MSPB) if due process is not followed. The basic requirements are that non-probationary employees must be provided at least 30 days’ advance written notice of the adverse action as a proposed adverse action unless the “crime provision” exception applies. Adverse actions are generally defined as a suspension for more than 14 days, a demotion or a removal from federal service.
When such an adverse action is proposed, the agency must state the specific reasons for the adverse action in the notice, and the employee must be given an opportunity to review any and all materials relied on in proposing the action. During the advance notice period, the employee must be given an opportunity to respond, both orally and in writing to the proposal notice, and present additional information, including affidavits.
The agency’s deciding official must consider only the reasons stated in the proposal notice, and the employee’s reply. If the agency considers any additional information in reaching the adverse action decision, there is a likely due process violation and the action may be reversed in an appeal filed with the MSPB. Additional new information that relates either to the charged misconduct or to aggravating factors supporting an enhanced penalty could be determined by the MSPB to be constitutionally impermissible if the employee did not have a chance to respond to that information.
If the MSPB concludes that due process was not followed, the Board can reverse the action, and the employee would be entitled to a new and constitutionally correct proceeding.