Disciplinary & Adverse Actions
Replies to Proposed Disciplinary or Adverse Actions
Our federal employment law team is well versed in the charges of misconduct that may be levied against you, the reply process, and the due process rights you have as a federal employee.
As a federal employee, you likely expect your career to last for years, possibly decades, until your voluntary retirement. While there is a well-known myth that it is impossible to fire a federal employee, the reality is that the federal government removes thousands of federal employees every year.
Federal Employee Misconduct Charge Defense
If your agency believes you have committed misconduct or your performance is unacceptable, you will be issued a notice of a proposed disciplinary or adverse action, which will identify the charge(s) against you and the proposed action, e.g., suspension, demotion/change to a lower grade, removal.
If you receive a notice of proposed disciplinary or adverse action, you have the right to defend yourself and your federal career.
Notices of Proposed Disciplinary or Adverse Action
When you are charged with misconduct or poor performance, your rights depend on the severity of the proposed penalty. For example, you are guaranteed due process rights in adverse action cases but not if a disciplinary action is being proposed.
Understanding the differences is critical. Our team can help you navigate federal employee disciplinary actions and appeals processes.
Disciplinary action is defined as:
- Letter of Reprimand (lowest level – a Letter of Counseling is NOT considered a disciplinary action although it may be adverse)
- Suspension of 14 days or less
An Adverse Action is defined by Title 5 as:
- A Suspension of 15 days or more, including an indefinite suspension
- A Change to a Lower Grade (Demotion)
- A Removal from federal employment
In other forums, such as in an EEO complaint, the term “adverse action” may have a different meaning.
Before an agency imposes a disciplinary action, a federal employee is entitled to:
- An advance written notice stating the specific reasons for the proposed action;
- A reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence;
- Representation by an attorney or other representative; and
- A written decision and the specific reasons therefor at the earliest practicable date.
An employee is entitled to due process rights before an agency imposes an adverse action:
- At least 30 days advance written notice of the charge(s) against you and the proposed penalty;
- View the “materials relied upon” to propose the action — or the evidence against you;
- A reasonable time, but not less than seven days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
- Be represented by an attorney or other representative; and
- Therefore, a written decision and the specific reasons at the earliest practicable date.
Disciplinary Appeals & Actions Legal Support
While a Letter of Reprimand will only remain in your Official Personnel File (OPF) for one to three years, documentation of any suspension, change to lower grade/demotion, or removal from federal service will remain in your OPF indefinitely. This record can significantly impact your reputation, income, and broader career with the federal government or private sector.
Therefore, it is crucial to reply to any misconduct allegations, proposed removal, or poor performance against you.
Our federal employment attorneys are familiar with the federal government’s disciplinary process. We are experts in federal employee disciplinary actions & appeals and stand ready to help!
Assessing and Challenging Agency Decisions
Where it is clear from the decision that the deciding official relied on “ex parte” information in making the decision, i.e., information not provided to the employee in advance of the reply, a due process violation may be found.
A due process violation may also be found if insufficient notice is provided or if the employee is denied the right to reply to the charges and any aggravating information being relied on to determine the appropriateness of the proposed penalty.
When the agency fails to afford due process, the MSPB must vacate the agency’s decision. If you are unsure of whether your due process rights may have been violated, the attorneys at The Federal Practice Group can help you assess the agency’s actions.
Questions About a Notice Proposed Removal or Discipline Proposal Reply?
Federal employees should understand their rights when they receive proposed removal or discipline notices. Get in touch today with our federal employee disciplinary actions & appeals attorneys to discuss the unique circumstances of your case and see how we can assist you.
Our Practice Focus
What Makes Us Different
From EEO complaints to adverse actions, our experienced federal employment attorneys ensure your entitlement to due process and legal representation every step of the way.
Represent government employees at all federal agencies, nationwide and overseas
Highly-skilled MSPB appeals attorneys with a proven track record
Notable success in EEO complaints and appeals
Frequently Asked Questions
Federal employees are protected from discrimination based on sex, gender, color, race, national origin, religion, age, and disability, and have the right to file an EEO complaint against their agency should they face discrimination. Federal employees also have the right to due process before being subjected to an adverse action.
Yes, federal employees can sue for discrimination, but first you must exhaust administrative remedies, which includes filing a formal complaint with your agency and letting 180 days pass. In many instances, federal employees elect to pursue their EEO complaints through the EEOC’s hearing process instead of filing a civil action.
Federal employees must initiate contact with an EEO Counselor within 45 days of any act of discrimination. After an informal complaint stage, you will be issued a Notice of Right to File a formal complaint, which will permit you 15 days to do so.
Federal employees do not have the right to sue for wrongful termination the way private sector employees do, but most federal employees have the right to appeal a removal to the MSPB, which will adjudicate whether the Agency can sustain any charges raised against you.
Yes, most federal employees can file a complaint against their agency with the U.S. Office of Special Counsel (OSC) if they are facing whistleblower retaliation. If OSC does not accept your complaint for investigation and prosecution, OSC will issue you an Individual Right of Action (IRA) notice giving you the right to pursue corrective action at the MSPB. Federal employees do not have the right to sue in court under the Whistleblower Protection Act.