What is Due Process in the Federal Civil Service Employment?

What is Due Process in

Federal Civil Service Employment?

A Report to the President and the Congress of the United States

by the U.S. Merit Systems Protection Board

May 2015

U.S. MERIT SYSTEMS PROTECTION BOARD

1615 M Street, NW

Washington, DC 20419-0001

e President

President of the Senate

Speaker of the House of Representatives

Dear Sirs:

In accordance with the requirements of 5 U.S.C. § 1204(a)(3), it is my honor to submit

this U.S. Merit Systems Protection Board (MSPB) report, What is Due Process in Federal Civil Service

Employment? This report explains the interactions between the U.S. Constitution and adverse

personnel actions in a merit-based civil service.

In the Civil Service Reform Act of 1978 (CSRA), Congress sought to ensure that agencies

could remove poor performers and employees who engage in misconduct, while protecting the civil

service from the harmful effects of management acting for improper reasons such as discrimination

or retaliation for whistleblowing. Recently, Congress has expressed an increased interest in amending

the CSRA, including those provisions that apply to adverse actions.

To assist Congress in these endeavors, this report explains the current civil service laws

for adverse actions and the history behind their formation. It also explains why the Constitution

requires that any system to remove a public employee for cause must include: (1) an opportunity

– before removal – for the individual to know the charges and present a defense; and (2) the ability

to appeal a removal decision before an impartial adjudicator. The report discusses why the

circumstances of the case can determine whether the individual has been given the process that is “due”

and how this enables the employing agency to act even more swiftly when there is reason to believe that

a serious crime has been committed. The report also contains an appendix that clarifies any confusion

about how the current civil service operates.

Due process is available for the whistleblower, the employee who belongs to the “wrong”

political party, the reservist whose periods of military service are inconvenient to the boss, the

scapegoat, and the person who has been misjudged based on faulty information. Due process is a

constitutional requirement and a small price to pay to ensure the American people receive a merit-

based civil service rather than a corrupt spoils system.

I believe that you will find this report useful as you consider issues affecting the Federal

Government’s ability to maintain a high-quality workforce in a merit-based civil service.

Respectfully,

Susan Tsui Grundmann

U.S. Merit Systems Protection Board

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

Office of Policy and Evaluation

Director

James M. Read

Deputy Director

James Tsugawa

Project Manager

Sharon Roth

Table of Contents

Executive Summary ............................................................................................ i

Introduction ....................................................................................................... 1

Chapter One: Development of Federal Employee Rights ....................................3

The Spoils System ...........................................................................................3

The Pendleton Act of 1883...............................................................................5

The Lloyd-La Follette Act of 1912 ....................................................................5

The Veterans’ Preference Act of 1944...............................................................7

President Kennedy’s Executive Order in 1962..................................................9

The Civil Service Reform Act of 1978 ...............................................................9

Chapter Two: Loudermill and Progeny............................................................. 13

The Loudermill Case ..................................................................................... 13

Loudermill Applies to Federal Government ................................................... 18

Loudermill and Suspensions .........................................................................23

Chapter Three: The Statutory Procedures ........................................................ 27

Suspensions of 14 Days or Less......................................................................27

Suspensions of More than 14 Days, Demotions, and Removals ......................27

Chapter Four: Efforts to Modify the System .....................................................33

Government-Wide Modifications...................................................................33

Agency-Specific Modifications.......................................................................36

Conclusion ........................................................................................................39

Appendix A: Clearing up the Confusion............................................................ 41

Appendix B: The Statutory Process Flowcharts ................................................45

Executive Summary

Recently, there has been extensive public discourse comparing the Federal civil

service and employment in the private sector, particularly pertaining to adverse actions

such as removals. The truth is that the adverse action laws are not entirely different. As

with private sector employers, the Government may be sued for discrimination,

violation of the rights of veterans to return to duty after military service, retaliation for

protected whistleblowing activities, and for ignoring other laws applicable to the private

sector that Congress has deemed necessary for the public good. However, it is also true

that there are some rules about the process for removing employees that apply only to

the Federal Government. As this report will explain in greater depth, the requirements

of the U.S. Constitution have shaped the rules under which civil service agencies may

take adverse actions, and the Constitution therefore must play a role in any responsible

discourse regarding modifications to those rules.

More than a century ago, the Government operated under a “spoils system” in

which employees could be removed for any reason, including membership in a different

political party than the President or publicly disclosing agency wrongdoing. The result

of such a system was appointment and retention decisions based on political favoritism

and not qualifications or performance. In response, Congress determined that there

was a need for a career civil service, comprised of individuals who were qualified for

their positions and appointed and retained (or separated) based on their competency

and suitability. As a part of this system, Congress enacted a law stating that any adverse

action must be taken for cause – meaning that the action must advance the efficiency of

the service.

Today, that law, as amended, is codified in chapter 75 of title 5. Under chapter

75, an agency may implement an adverse action – up to and including removal – for

such cause as will promote the efficiency of the service. Before an agency imposes a

suspension for 14 days or less, an employee is entitled to: (1) an advance written notice

stating the specific reasons for the proposed action; (2) a reasonable time to answer

orally and in writing and to furnish affidavits and other documentary evidence in

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD i

Executive Summary

support of the answer; (3) be represented by an attorney or other representative; and (4)

a written decision and the specific reasons therefor at the earliest practicable date.

Before an agency imposes a suspension for more than 14 days, a change to lower

grade, reduction in pay, or a removal action, an employee is entitled to: (1) at least 30

days’ advance written notice, unless there is reasonable cause to believe the employee

has committed a crime for which a sentence of imprisonment may be imposed, stating

the specific reasons for the proposed action; (2) a reasonable time, but not less than 7

days, to answer orally and in writing and to furnish affidavits and other documentary

evidence in support of the answer; (3) be represented by an attorney or other

representative; and (4) a written decision and the specific reasons therefor at the earliest

practicable date. The law also provides that for these more serious adverse actions, once

the action has taken effect, the employee is entitled to file an appeal with the Merit

Systems Protection Board.

While a legislature can decide whether to grant property, the Constitution

determines the degree of legal process and safeguards that must be provided before the

Government may take away that property. The U.S. Supreme Court has repeatedly held

that, when a cause is required to remove a public employee, due process is necessary to

determine if that cause has been met. Neither Congress nor the President has the power

to ignore or waive due process.

Due process “couples” the pre- and post-deprivation processes, meaning that the

more robust the post-deprivation process (i.e., a hearing before an impartial

adjudicator), the less robust the process must be before the action occurs. However, at

a minimum, due process includes the right to: (1) be notified of the Government’s

intentions; and (2) receive a meaningful opportunity to respond before the action takes

place.

Congress has enacted the procedural rules described above to help ensure that

adverse actions are taken in accordance with the Constitution and for proper cause. Due

process – and the rules that implement it – are in place for everyone, not only for the

few problem employees who will inevitably appear in any workforce of more than a

ii WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Executive Summary

million individuals. Due process is there for the whistleblower, the employee who

belongs to the “wrong” political party, the reservist whose periods of military service are

inconvenient to the boss, the scapegoat, and the person who has been misjudged based

on faulty information. Due process is a constitutional requirement and a small price to

pay to ensure the American people receive a merit-based civil service rather than a

corrupt spoils system.

When considering any changes to the current statutes for adverse actions, it will

be important for those involved in the debates to consider: (1) how best to achieve the

goal of a merit-based civil service that has the respect of the American people, including

those citizens that the Government hopes will answer the call to public service; and (2)

the extent to which the new language of the statutes will comport with the Constitution

as interpreted by the U.S. Supreme Court.

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD iii

Executive Summary

iv WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Introduction

The issue of due process

1

in Federal employment has received attention in recent

years in the decisions of both the U.S. Merit Systems Protection Board (“MSPB” or “the

Board”) and its reviewing court, the U.S. Court of Appeals for the Federal Circuit

(“Federal Circuit”).

2

The roots of due process are older than the Republic and are

enshrined in the Constitution.

3

In 1912, when Congress established by statute that civil

service employees could not be removed except for just cause, it included a list of

processes due to employees.

4

Congress also was concerned about due process when it

enacted the Civil Service Reform Act of 1978 (CSRA), which created the Board as a

successor agency to the Civil Service Commission (CSC) and codified the procedures

many agencies still use today to remove or discipline Federal employees.

5

Due process’s

deep roots in American jurisprudence, the Constitution, and more than a century of

Federal civil service laws ensure that it is an issue that is fundamental to the question of

Federal employee rights. The purpose of this report is to describe, in plain English, the

1

Due process refers to the steps that the Government must take to ensure fairness before

depriving a citizen of life, liberty, or property. As Chapter Two will explain in greater depth,

due process is guaranteed by the U.S. Constitution and applies to public employment in which

the Government has established that there must be a cause to remove or suspend an individual.

See Gilbert v. Homar, 520 U.S. 924, 935-36 (1997) (suspension); Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 541 (1985) (removal). Due process “is flexible and calls

for such procedural protections as the particular situation demands.” Gilbert, 520 U.S. at 930

(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

2

See, e.g., Ward v. U.S. Postal Service, 634 F.3d 1274, 1279 (Fed. Cir. 2011) (holding that if

a deciding official is given new and material information relevant to the charges or the penalty

without providing the employee with an opportunity to respond, then the employee’s due

process rights are violated); Gajdos v. Department of the Army, 121 M.S.P.R. 361, ¶¶ 18-25

(2014) (arguing that Mathews v. Eldridge, 424 U.S. 319 (1976) established the standard to be

used to determine due process rights); but see id., dissenting opinion of Vice Chairman

Wagner, at ¶ 3 (asserting that the Board’s examination of an employee’s entitlement to due

process should be governed by Cleveland Board of Education v. Loudermill, 470 U.S. 532

(1985), not Mathews).

3

Griffin v. Illinois, 351 U.S. 12, 16-17 (1956) (explaining that our constitutional guarantee

of due process follows the tradition set forth in the Magna Carta). See Pacific Mutual Life

Insurance Co. v. Haslip, 499 U.S. 1, 28-34 (1991) (Scalia, J., concurring) (describing the

history of due process from the Magna Carta in 1215, to an English statute from 1354, to the

American colonists’ understanding of the term in the late 18th century as expressed in their

laws and state constitutions, to Supreme Court decisions reached thereafter).

4

Lloyd-La Follette Act, 37 Stat. 555, Aug. 24, 1912.

5

S. Rep. 95-969, at 40 (1978 U.S.C.C.A.N. 2723, 2762) (explaining that the CSRA’s “new

procedures [were expected to] make it possible to act against ineffective employees with

reasonable dispatch, while still providing the employee his due process rights”).

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 1

Introduction

history of due process and the sources of due process rights in Federal employment to

explain the past and provide a foundation to explore issues that may arise in the future.

Appendix A contains a list of some perceptions about the civil service, accompanied by

facts to clear up confusion about the system along with citations to allow further

research and discovery for those who may be interested in correcting the record.

Appendix B contains flowcharts showing how the adverse action system works. The

materials contained in the appendixes are repeated in the back of the report on

perforated sheets so that they can be removed and shared with others.

2 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter One: Development of Federal Employee Rights

Due process is the means by which the Government may lawfully deprive an

individual of his or her life, liberty, or property.

6

To explain why due process applies to

Federal employment we begin with a discussion of why Federal employees have a

property interest in their employment.

The right to be removed only for just cause (and not arbitrarily or for a reason

that is contrary to the public good) is distinct from due process. However, it is that right

to just cause that gives the employee a property interest in the job, which triggers the

constitutional requirement that the Government follow due process in the removal of

that property interest.

To many people, it may seem odd for the law to give a person a “right” to

continue in a Federal job, the thinking being that the job belongs to the Government on

behalf of the American people and the incumbent is merely the temporary holder of the

position. The job exists to serve the public, not the particular person who happens to be

filling it. Why, then, protect the individual’s right to keep the job?

The right to be removed only for cause did not come about purely out of concern

for the individual who desires to avoid unemployment. Rather, it was the result of

thorough debate over how best to ensure that the individuals responsible for

effectuating Federal laws – employees of the executive branch – were the right people

for the jobs at hand. The requirement that there be just cause to remove an employee is

the opposite side of the coin from the requirement that the appointment of the

individual be justified by his or her fitness for service. Both ensure a merit-based

system.

The Spoils System

Prior to 1883, incompetence and corruption flourished throughout the Federal

Government, as individuals were appointed and retained (or separated) based upon

6

U.S. Const. Amend. V.

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 3

Chapter One: Development of Federal Employee Rights

political contributions rather than capabilities or competence.

7

This was known as the

“spoils system” because Federal positions were considered the spoils of war (elections

being the war) available for distribution to supporters as payment for that support.

8

In

the words of Theodore Roosevelt (who served as a Civil Service Commissioner before

becoming the 26th President), “[t]he spoils system was more fruitful of degradation in

our political life than any other that could possibly have been invented. The spoils-

monger, the man who peddled patronage, inevitably bred the vote-buyer, the vote-seller,

and the man guilty of misfeasance in office.”

9

Aside from the ethical standards of an individual who was likely to engage in the

behaviors necessary to be selected in a spoils system, holding the position itself also did

not encourage ethical behavior. In order to keep the appointment, an employee might

use his office to grant favors to the leadership of the party in power. “Not only

incompetence, but also graft, corruption, and outright theft were common.”

10

George

William Curtis, a proponent of a merit-based civil service, said that under the spoils

system, “[t]he country seethe[d] with intrigue and corruption. Economy, patriotism,

honesty, honor, seem[ed] to have become words of no meaning.”

11

The system was so

deeply corrupt that ultimately, a President was assassinated by a disappointed office

7

Elrod v. Burns, 427 U.S. 347, 354 (1976) (explaining that “strong discontent with the

corruption and inefficiency of the patronage system of public employment eventuated in the

Pendleton Act”). President Andrew Jackson is famously credited with saying, "If you have a job

in your department that can’t be done by a Democrat, abolish the job[.]” The Independent,

“Andrew Jackson,” available at http://www.independent.co.uk/news/presidents/andrew-

jackson-1391112.html. See also U.S. Office of Personnel Management, Biography of an Ideal

(2003), at 175-200.

8

U.S. Office of Personnel Management, Biography of an Ideal (2003), at 184.

9

Id. at 182-83.

10

Id. at 183-84.

11

Id. at 182. In 1871, George William Curtis was appointed by President Ulysses S. Grant to

serve as chairman of the first Federal Civil Service Commission. The commission was unable to

stop the use of patronage to fill positions and Curtis resigned. Ultimately, the commission’s

funding was terminated and reform would not come until the Pendleton Act of 1883. New York

Times, “On This Day,” available at

https://www.nytimes.com/learning/general/onthisday/harp/1207.html.

4 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter One: Development of Federal Employee Rights

seeker who believed that he was entitled to a Federal job based on the work he had done

for his political party and had been denied this entitlement.

12

The Pendleton Act of 1883

In 1883, Congress passed the Pendleton Act, which required that the classified

civil service (meaning the Federal positions subject to the rules for merit that Congress

had established) hire employees based on the “relative capacity and fitness of the

persons examined to discharge the duties” in question, following “open, competitive

examinations” of candidates.

13

However, retention of these capable individuals proved to be a different question.

In the decades following the Pendleton Act, protections against removals varied based

on the whims of the President in office. In 1896, President Grover Cleveland ordered

that removals of Federal employees could not be made based on “political or religious

opinions or affiliations” and penalties for “delinquency or misconduct” must be “like in

character” for “like offenses[.]”

14

In 1897, President William McKinley amended that

rule to include that, “No removal shall be made from any position subject to competitive

examination except for just cause and upon written charges filed with the head of the

Department, or other appointing officer, and of which the accused shall have full notice

and an opportunity to make defense.”

15

The Lloyd-La Follette Act of 1912

Despite these rules, abuses remained. In 1912, when discussing the need to enact

legislation to ensure that removals were consistent with merit, Senator Robert La

Follette entered into the Congressional Record stories of myriad abuses, including that

a “particularly efficient” employee who was recently promoted was fired a few weeks

12

Biography of an Ideal at 199-201.

13

Pendleton Act of 1883, § 2.

14

Grover Cleveland, “Executive Order - Civil Service Rules,” Rule II, §§ 3, 6 (May 6, 1896),

available at http://www.presidency.ucsb.edu/ws/?pid=70805.

15

United States v. Wickersham, 201 U.S. 390, 398 (1906) (quoting the Executive Order of

July 27, 1897).

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 5

Chapter One: Development of Federal Employee Rights

later for notifying the press of dangerous working conditions that had already caused

the deaths of four people.

16

One letter entered into the record alleged that reductions in

grade and summary removals for reasons unrelated to job performance had caused the

civil service to become “a laughing farce and a cruel mockery.”

17

In 1912, Congress enacted section 6 of the Lloyd-La Follette Act, which stated in

part,

That no person in the classified civil service of the United States shall be

removed therefrom except for such cause as will promote the efficiency of

said service and for reasons given in writing, and the person whose

removal is sought shall have notice of the same and of any charges

preferred [sic] against him, and be furnished with a copy thereof, and also

be allowed a reasonable time for personally answering the same in writing;

and affidavits in support thereof[.]

18

The Lloyd-La Follette Act included the right of the CSC to review a copy of the

records related to the above, but expressly did not provide for the right to a hearing or

examination of witnesses unless the management official effectuating the removal chose

to provide them.

19

16

48 Cong. Rec. 10731 (Aug. 12, 1912). The passage of more than a century has not

eliminated the need to ensure that removals are for cause and not for an improper reason such

as retaliation for whistleblowing. See, e.g, Aquino v. Department of Homeland Security, 121

M.S.P.R. 35 (2014). In Aquino, the appellant, a screener for the Transportation Security

Administration (TSA), informed his fourth-level supervisor of actions by his first-level

supervisor that he reasonably believed posed a substantial and specific danger to public safety

in aviation. The supervisor then alleged that the appellant was inattentive to his duties and the

appellant was removed on this basis. The appellant exhausted his remedies with the Office of

Special Counsel and filed an individual right of action appeal with MSPB. Following a hearing,

MSPB determined that the appellant’s supervisor learned of the appellant’s disclosure on the

same day the appellant made his disclosure and that it was only a few days later that the

appellant’s supervisor reported the appellant’s alleged misconduct to upper-level management.

Additionally, MSPB determined that other employees, who committed offenses similar to the

allegations against the appellant, but who were not whistleblowers, were not removed. MSPB

therefore found that the appellant’s protected whistleblowing activity was a contributing factor

in his removal and ordered the agency to cancel the removal action. Id. at ¶¶ 2-4, 14-31, 33.

17

48 Cong. Rec. 10729 (Aug. 12, 1912). Senator La Follette alleged that following his

inquiries into the state of the civil service, the Postal Service violated postal laws and subjected

his mail to “an espionage that was almost Russian in its character[,]” opening and examining

mail addressed to the senator sent by Postal Service employees. Id.

18

37 Stat. 555 (Aug. 24, 1912).

19

Id.

6 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter One: Development of Federal Employee Rights

By the time World War II approached, the CSC had carved out a role for itself

overseeing the removal process, but it was very limited. Agencies would give the CSC

copies of a removal file only upon request by the CSC and only for the purpose of

investigating procedural compliance with the statute. The CSC made it clear that

neither it nor the courts would review whether there was sufficient cause for removal or

any other “exercise of discretion by the appointing power[.]”

20

The Veterans’ Preference Act of 1944

For veterans, this situation – in which the CSC would not look at whether the

agency had cause for implementing a removal action – changed in 1944 with the

enactment of the Veterans’ Preference Act (VPA). Under the VPA, preference-eligible

veterans were allowed to file an appeal with the CSC for discharges, suspensions of more

than 30 days, furloughs without pay, reductions in rank or compensation, or

debarment.

21

This right included furnishing affidavits in support of the individual and

an entitlement to appear before the CSC, which would then issue its findings and

recommendations.

22

However, there was an important piece missing from the VPA of

1944 as originally enacted; agencies were not specifically required to abide by the CSC’s

decisions.

23

A House Report explaining the need to add a legal requirement for agencies

20

“The power of removal for unfitness remains in the appointing officer unimpaired by the

restrictions of the civil-service law and rules. He is the judge of the qualifications of his

subordinates, and the question whether such cause exists as requires a removal in the interests

of the efficiency of the service is for him to determine. The judgment of the appointing officer

as to whether or not the causes for removal are sufficient is not reviewable by the courts or by

the Civil Service Commission, but the civil-service rules provide that the Commission shall

have authority to investigate any alleged failure to follow the procedure required by statute or

rule. Courts will not restrain or review the exercise of discretion by the appointing power,

except to enforce statutory restrictions, and will not interfere in or review cases of alleged

violation of executive rules and regulations relating to removals. An employee’s fitness,

capacity, and attention to his duties are questions of discretion and judgment to be determined

by his superior officers.” U.S. Civil Service Commission, Removal, Reduction, Suspension, and

Furlough, Form 505 (Mar. 1937), at 1, 6-7.

21

58 Stat. 387 (Veterans’ Preference Act of 1944) § 14.

22

Id.

23

See generally 58 Stat. 387 (Veterans’ Preference Act of 1944). The CSC was given the

authority to “make and enforce appropriate rules and regulations” to effectuate the purpose of

the VPA. Id. at § 19. However, the CSC’s decisions concerning the appeals process under the

VPA were often “disregarded” by the employing agencies and departments. H. Rep. 80-1817

(Committee on Post Office and Civil Service) (Apr. 16, 1948).

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 7

Chapter One: Development of Federal Employee Rights

to comply with recommendations from the CSC stated, “It is obvious that the Veterans’

Preference Act is a nullity unless provision is made to make effective the decisions of the

Civil Service Commission with respect to appeals processed by veterans and other

employees under the provisions of the Veterans’ Preference Act.”

24

The VPA was

amended in 1948 to state that agencies were required to comply with CSC

recommendations in appeals brought under the VPA.

25

While the VPA provided protections for preference eligibles, the system for those

without preference remained in a state of disorder. A 1953 study conducted by a

subcommittee of the Senate Committee on [the] Post Office and Civil Service described

the adverse action review process afforded by the Lloyd-La Follette Act as

“comparatively feeble[.]”

26

The report stated that, “[e]veryone interviewed during the

study has agreed that appeals and grievances policies and practices in the Federal

Government as a whole are in a state of confusion. The legislative basis for the

disposition of these matters is a patchwork of laws enacted at different times and for

different purposes.”

27

The subcommittee found that a lack of central direction from the

CSC, varying levels of protection in different agencies based on individual agency

policies, and the inability of employees in some agencies to get a hearing on matters as

serious as removal actions, “tend[ed] to breed confusion and misunderstanding and to

cause resentment, distrust, and exasperation on the part of employees and management

alike.”

28

24

H. Rep. 80-1817 (Committee on Post Office and Civil Service) (Apr. 16, 1948).

25

62 Stat. 575, Pub. L. No. 80-741 (Jun. 22, 1948).

26

Senate Committee on Post Office and Civil Service, Appeals and Grievance Procedures in

the Federal Government, 83 S. Doc. 33 (Mar. 20, 1953), at 7-8.

27

Id. at 3-4. The laws and executive orders mentioned by the report included protections

against discrimination and appeal rights for performance ratings and classification decisions.

Id. at 8.

28

Id. at 4-5. When it was left up to agencies to decide what protections to grant, the

pattern was quite interesting – particularly given that the study occurred during the height of

the Cold War. The greater the national security implications of an agency’s mission, the more

inclined the agency seemed to be to protect employees from improper actions. Agencies with

responsibilities for national defense and veterans, such as the Department of the Army, Mutual

Security Agency, and the Veterans’ Administration, opted to “go beyond the letter of the law in

establishing hearing procedures.” These agencies chose to give both hearing and appeal rights

to non-veterans as well as veterans for adverse actions involving misconduct, poor

8 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter One: Development of Federal Employee Rights

The House Committee on [the] Post Office and Civil Service reached similar

conclusions regarding the inadequacies of the system in place in the 1950s, concluding

that,

In light of all of the circumstances, and recognizing that an increase in

appeals before the Commission would result, there seems to be no sound

ground for denying equal appeals rights to all Federal employees or for

continuance of the present situation which in effect relegates the

nonpreference Federal employee to the status of a second-class citizen, in

comparison to preference employees, in certain classes of appeals from

adverse personnel actions.

29

President Kennedy’s Executive Order in 1962

On January 17, 1962, President John Kennedy addressed these problems by

issuing an executive order to “extend to all employees in the competitive civil service

rights identical in adverse action cases to those provided preference eligibles.”

30

This

included the right to appeal adverse agency decisions to the CSC.

31

The Civil Service Reform Act of 1978

In 1978, Congress enacted the CSRA. “A leading purpose of the CSRA was to

replace the haphazard arrangements for administrative and judicial review of personnel

action[s], part of the outdated patchwork of statutes and rules built up over almost a

performance, and malfeasance. Id. at 8. The Central Intelligence Agency and Atomic Energy

Commission also would always grant a hearing before taking an adverse personnel action. Id.

at 4. In contrast, the Department of Agriculture chose to deny hearings before removing an

employee. Id. at 8. Still other agencies, such as the Department of Justice, chose to have no

formal policy, so that procedures may have varied in similar cases within the same agency. Id.

29

House Committee on Post Office and Civil Service, United States Civil Service

Commission Report, 84 H. R. Rept. No. 1844 (Mar. 1, 1956), at 46. “Preference” employees are

individuals entitled to preferential treatment in certain hiring and separation situations

because of past military service. Levels of preference can vary, and the individual may be a

veteran, spouse, widow, or mother, depending on the circumstances. For more information

about veterans’ preference and how it operates, see U.S. Merit Systems Protection Board,

Veteran Hiring in the Civil Service: Practices and Perceptions (2014), available at

www.mspb.gov/studies.

30

Executive Order 10988, Employee-Management Cooperation in the Federal Service,

Jan. 17, 1962, § 14.

31

Id.

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 9

Chapter One: Development of Federal Employee Rights

century that was the civil service system.”

32

In the CSRA, Congress recognized the

importance of due process and an outside review procedure to ensure that adverse

actions were merit-based and comported with constitutional requirements as

established by Supreme Court decisions issued as of 1978.

33

It codified the employee’s

right to: (1) notice of the charges; (2) a reasonable opportunity to respond to the

deciding official; and (3) an appeal to a neutral body after the adverse action takes

effect.

34

Congress also made it clear that agency actions would not be permitted to

stand if they were the result of prohibited personnel actions, such as discrimination or

retaliation for whistleblowing.

35

As discussed later in this report, some provisions of the CSRA have been

modified over the years. But, the core protections (notice of the proposed action, a

meaningful opportunity to respond, and a right to be heard by a neutral adjudicator)

remain for most employees and have been expanded to encompass additional

employees not originally covered by the CSRA.

36

These core protections and the

standards of proof to take an adverse action are discussed in greater depth in Chapter

Three.

Unfortunately, misunderstandings have occurred about how the adverse action

laws operate. Appendix A contains a list of some perceptions that people may have

about the ability of agencies to implement adverse actions and provides information to

clear up the confusion.

32

United States v. Fausto, 484 U.S. 439, 444 (1988) (internal punctuations and citations

omitted).

33

S. Rep. 95-969, at 19, 24, 51-52 (1978 U.S.C.C.A.N. 2723, 2741, 2746, 2773-74).

34

5 U.S.C. §§ 7503, 7513, 7701-7703. The Lloyd-La Follette Act included the right to notice

and an opportunity to respond, but was missing the important post-action review process by a

neutral body to ensure that the action was in the interest of the efficiency of the service and

had not been taken for an improper reason. See 37 Stat. 555 (Aug. 24, 1912).

35

5 U.S.C. § 7701(c)(2). See, e.g., Sowers v. Department of Agriculture, 24 M.S.P.R. 492,

494, 496 (1984) (ordering the cancellation of a removal action after the Board found that the

record showed the agency manipulated circumstances to remove a whistleblower who was

excellent in his post).

36

See, e.g., Civil Service Due Process Amendments of 1990, Pub. L. No. 101-376, 104 Stat. 461.

10 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter One: Development of Federal Employee Rights

As this chapter has explained, the protections currently provided to Federal

employees were the result of a slow evolution involving both congressional action and

independent action by various Presidents through executive orders. These protections

were provided because it became clear over time that a consistent review process for

adverse actions was necessary for an effective merit-based system.

However, as the next chapter explains, in 1985, the third branch of the

Government – the judiciary – became involved in the matter and via its interpretation of

the U.S. Constitution, it changed the ground rules under which the executive and

legislative branches are permitted to operate the civil service. In Cleveland Board of

Education v. Loudermill, 470 U.S. 532 (1985), the Supreme Court held that Congress

(through statutes) or the President (through executive orders) can still grant

protections to employees, but Congress and the President lack the authority to decide

whether they will grant due process rights for those protections. Rather, according to

the Supreme Court, the Constitution guarantees that if there must be a cause to remove

the individual from his or her job, then there is automatically a due process requirement

to establish that the cause has been met.

37

See Loudermill, 470 U.S. at 541. See also Eric Katz, “Lawmakers Threaten New Secret

Service Chief's Job, Tell Him to Fire More Agents,” Govexec.com (Mar. 24, 2015), available at,

http://www.govexec.com/defense/2015/03/lawmakers-threaten-new-secret-service-chiefs-job-

tell-him-fire-more-agents/108298/?oref=govexec_today_nl, in which the Director of the

Secret Service explained, “I am resolved to holding people accountable for their actions. . . But

I want to make clear that I do not have the ability to simply terminate employees based solely

on allegations of misconduct. This is not because I am being lenient, but because tenured

federal government employees have certain constitutional due process rights which are

implemented through statutory procedures.”

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 11

Chapter One: Development of Federal Employee Rights

12 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter Two: Loudermill and Progeny

Cleveland Board of Education v. Loudermill (“Loudermill”) is a landmark case

that serves as the foundation for nearly any recent case involving the due process rights

of public employees, including Federal employees.

38

However, Loudermill did not

happen in a vacuum and does not stand alone. It is consistent with the Supreme Court

decisions about public employment that preceded it.

39

Loudermill and its progeny

uniformly provide that while governments decide whether employment with them will

be at-will, once a government institutes the requirement that it must have a cause to

take adverse actions, constitutional requirements will determine a minimum threshold

for how those actions can occur.

The Loudermill Case

James Loudermill was employed by the Cleveland Board of Education in 1979-

1980. He was classified as a civil servant. Under Ohio state law in effect at the time,

“[s]uch employees [could] be terminated only for cause, and [could] obtain

administrative review if discharged.”

40

Prior to his appointment, Loudermill claimed that he had never been convicted of

a felony, despite having been convicted of grand larceny more than a decade earlier. He

was removed for dishonesty regarding his criminal history without being provided an

38

While Loudermill originated as a challenge to a state law, the U.S. Supreme Court and the

Federal Circuit have clearly and unequivocally held that the decision in Loudermill applies to

actions taken against Federal employees. The issue is public employment, regardless of the

level of government. See, e.g., Lachance v. Erickson, 522 U.S. 262, 266 (1998) (explaining that

while the Loudermill holding of due process, particularly the right to notice and a meaningful

opportunity to respond, applies to the Federal civil service, there is no right to lie in that

response); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1375 (1999)

(quoting and citing Loudermill extensively to explain a Federal employee’s due process right to

present his or her side of the case).

39

See, e.g., National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179, 192 (1988)

(citing Loudermill and holding that when a state university acts to “impose a serious

disciplinary sanction” on a tenured employee, it must comply with due process); Board of

Regents of State Colleges v. Roth, 408 U.S. 564, 576-77 (1972) (describing three earlier

decisions in which the Court held that due process rights applied to public employment).

40

Loudermill, 470 U.S. at 535.

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 13

Chapter Two: Loudermill and Progeny

opportunity to respond to the charge or to challenge the decision to remove him.

41

He

appealed the removal decision to Ohio’s civil service commission. When the Ohio

commission upheld the removal, Loudermill had the right to appeal that decision

through the state courts. He opted to file a claim in Federal court instead, asserting that

the Ohio statute under which he was removed was unconstitutional because it did not

entitle him to respond to the charge against him before the removal took place.

42

The Federal district court determined that Loudermill had a property right in the

position but “held that because the very statute that created the property right in

continued employment also specified the procedures for discharge, and because those

procedures were followed, Loudermill was, by definition, afforded all the process due.”

43

At about the same time, another Ohioan, Richard Donnelly, was removed from

his position by the Parma Board of Education. While Donnelly was reinstated by the

Ohio civil service commission (without back pay for the period in which he had been

terminated), he also challenged the constitutionality of the same law “[i]n a complaint

essentially identical to Loudermill’s[.]” Because of the similarities, the two cases were

consolidated for appeal.

44

They are jointly known as Loudermill.

On appeal, the U.S. Court of Appeals for the Sixth Circuit found that both

individuals had a property right to their positions. However, unlike the district court

below, the Sixth Circuit found that “the compelling private interest in retaining

employment, combined with the value of presenting evidence prior to dismissal,

outweighed the added administrative burden of a pre-termination hearing” and that

Loudermill and Donnelly had therefore been “deprived of due process.”

45

41

Id.

42

Id.

43

Id. at 536.

44

Id. at 536-37.

45

Id. at 537 (punctuation added).

14 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter Two: Loudermill and Progeny

The Supreme Court granted certiorari for both cases.

46

The question of whether

the appellants had a property interest in their jobs was disposed of quickly. The court

noted that the individuals, by statute, were “entitled to retain their positions during

good behavior and efficient service, [and] could not be dismissed except for

misfeasance, malfeasance, or nonfeasance in office[.]”

47

The Court agreed with the

district and appellate courts below that by limiting the circumstances under which the

positions could be taken away, the statute gave the employees property rights in their

positions.

48

While not disputing the existence of the property right, the Parma Board of

Education argued that the same law that granted the property right also provided the

conditions under which the property in question (the job) could be taken away. This

was known as the “bitter with the sweet” approach because the law simultaneously gave

the property in question and enabled the state to take it away on its own terms.

49

In response to this claim, the Court determined that, “[t]he point is

straightforward: the Due Process Clause provides that certain substantive rights – life,

liberty, and property – cannot be deprived except pursuant to constitutionally adequate

procedures. The categories of substance and procedure are distinct.” In other words, a

statute can give the substance – namely the property right – but the fact that it has done

so does not necessarily mean that it can freely limit the procedures by which that right

can be taken away.

50

46

Certiorari refers to an order from an appellate court to a lower court instructing it to

deliver a case so that it may be reviewed. Most cases heard by the Supreme Court are the

results of it granting requests that it issue such orders, causing it to be referred to as “granting

certiorari” – meaning that the court has indicated it will agree to review a case. Black’s Law

Dictionary (10th ed. 2014).

47

Loudermill, 470 U.S. at 538-39 (internal punctuation omitted).

48

Id.

49

Id. at 539-40.

50

Id. at 541. Property rights in continued employment may come from statutes or from

other commitments made by the governmental entity. See, e.g., Roth, 408 U.S. at 576-77

(describing a case, Connell v. Higginbotham, 403 U.S. 207, 208 (1970), which held that an

employment contract with a clearly implied promise of continued employment was sufficient to

establish the property right); Leary v. Daeschner, 228 F.3d 729, 741-42 (6th Cir. 2000)

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 15

Chapter Two: Loudermill and Progeny

The Court held that,

Property cannot be defined by the procedures provided for its

deprivation any more than can life or liberty. The right to due

process is conferred, not by legislative grace, but by constitutional

guarantee. While the legislature may elect not to confer a property

interest in public employment, it may not constitutionally authorize

the deprivation of such an interest, once conferred, without

appropriate procedural safeguards.

51

The Court explained that, “once it is determined that the Due Process Clause

applies, the question remains what process is due. The answer to that question is not to

be found in the Ohio statute.”

52

Rather, it comes from the Federal Constitution.

53

The Loudermill Court explained that the “root requirement” of the Due Process

Clause is that “an individual be given an opportunity for a hearing before he is deprived

of any significant property interest. This principle requires some kind of a hearing prior

to the discharge of an employee who has a constitutionally protected property interest in

his employment.”

54

One reason for this due process right is the possibility that “[e]ven where the

facts are clear, the appropriateness or necessity of the discharge may not be; in such

cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is

likely to be before the termination takes effect.”

55

The Court was emphatic that “the

right to a hearing does not depend on a demonstration of certain success.”

56

The Court recognized that public employers might not want to keep an employee

on the job during the pre-termination process. However, its recommended solution was

(holding that a contract, such as a collective bargaining agreement, may create a property

interest).

51

Loudermill, 470 U.S. at 541 (internal punctuation omitted).

52

Id. (internal punctuation and citation omitted).

53

Id.

54

Id. at 542 (internal punctuation and citations omitted). The Court also stated that, “this

rule has been settled for some time now.” Id.

55

Id. at 543.

56

Id. at 544.

16 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter Two: Loudermill and Progeny

that, “in those situations where the employer perceives a significant hazard in keeping

the employee on the job, it can avoid the problem by suspending with pay.” Removal

without a pre-termination process is not an option.

57

Rather, an employee with a

property right in the position must be given “notice and an opportunity to respond.”

58

While the decision in Loudermill explained that pre-termination procedures are

required, it also made it clear that the constitutionality of termination procedures does

not depend solely on the pre-termination process. The Court stated that its holding was

heavily dependent on “the provisions in Ohio law for a full post-termination hearing.”

59

The two issues (pre- and post-termination procedures) are “coupled” when looking at

the question of whether due process has been given.

60

The “nature of the subsequent proceedings” can determine whether the pre-

termination proceedings were adequate.

61

When applying this rule, courts have

emphasized the need to look at the “totality” of the procedures.

62

For example, in

Farhat v. Jopke, 370 F.3d 580, 597 (6th Cir. 2004), the court held that Loudermill does

not demand that the pre-termination opportunity to respond take place before a neutral

and impartial decision-maker when impartiality is provided by a “post-termination

proceeding where bias and corruption are ferreted out.”

63

However, while “the nature

of subsequent proceedings may lessen the amount of process that the state must provide

57

Id. at 544-45.

58

Id. at 546.

59

Id. at 545-48.

60

Id. at 547-48.

61

Id. at 545. Because of this coupling, the constitutionality of the process as a whole may

depend on the constitutionality of various stages of the process, including which party bears

the burden of proof. The Supreme Court has held that for a deprivation of life, liberty, or

property, a statute that presumes guilt without “a fair opportunity to repel” that presumption

violates the due process clause. Manley v. State of Georgia, 279 U.S. 1, 6 (1929). See also

Speiser v. Randall, 357 U.S. 513, 524 (1958) (explaining that in both criminal and civil cases,

the burden of proof cannot be “unfairly” shifted to the defendant).

62

West v. Grand County, 967 F.2d 362, 368 (10th Cir. 1992).

63

Farhat, 370 F.3d at 597. See Clements v. Airport Authority of Washoe County, 69 F.3d

321, 332-33 (9th Cir. 1995) (holding that if post-termination proceedings are overseen by

individuals who harbor malice for the employee’s whistleblowing activities, the process will fail

to meet the due process requirements).

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 17

Chapter Two: Loudermill and Progeny

pre-termination, subsequent proceedings cannot serve to eliminate the essential

requirement of a pre-termination notice and opportunity to respond.”

64

Loudermill Applies to the Federal Government

Public employers – whether state or Federal – are covered by the due process

guarantees of the U.S. Constitution.

65

For this reason, a decision by a Federal court

pertaining to due process in state employment can be instructive when the holding is

reached as a result of the Federal Constitution. However, a decision reached by the U.S.

Supreme Court is more than instructive – it is an instruction.

66

When the Supreme

Court reaches a conclusion based on the requirements of the Federal Constitution, that

holding should be considered when setting laws, regardless of whether the legislature in

question is state or Federal. While Loudermill was a decision involving a state

employer, both the Supreme Court and the Federal Circuit have explicitly

recognized that the Constitutional due process rights described in

Loudermill apply to the Federal civil service.

67

The two most well-settled (and well-known) issues in all of American

jurisprudence are quite simple: “An act of congress repugnant to the constitution

cannot become a law” and it is “emphatically the province and duty” of the judiciary to

interpret laws and the Constitution.

68

As a result, any decisions by the Supreme Court

64

Clements, 69 F.3d at 332.

65

While the Federal Government is covered by the Fifth Amendment and the states by the

Fourteenth Amendment, the effect is the same. See Hampton v. Mow Sun Wong, 426 U.S. 88,

100 (1976) (explaining that, “when there is no special national interest involved, the Due

Process Clause has been construed as having the same significance as the Equal Protection

Clause”); Block v. Hirsh, 256 U.S. 135, 159 (1921) (explaining that, “[t]he national government

by the Fifth Amendment to the Constitution, and the states by the Fourteenth Amendment, are

forbidden to deprive any person of ‘life, liberty, or property, without due process of law’”).

66

The Supreme Court is the highest court for cases involving claims brought under the

Federal Constitution and for claims arising under Federal civil service laws. See 28 U.S.C.

§ 1254 (granting the Supreme Court jurisdiction to review cases from the courts of appeals);

28 U.S.C. § 1295(a)(9) (granting jurisdiction over MSPB decisions to the Federal Circuit).

67

Erickson, 522 U.S. at 266 (citing Loudermill when explaining the due process rights of a

Federal civil servant in his employment); Stone, 179 F.3d at 1375-76 (holding in the context of

Federal employment that the “process due a public employee prior to removal from office has

been explained in Loudermill”).

68

Marbury v. Madison, 5 U.S. 137, 138, 177 (1803). See Richmond Medical Center for

Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009) (holding based on Marbury that, “where

18 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter Two: Loudermill and Progeny

involving constitutional interpretations – including decisions regarding public

employment – are binding on Congress and the President. While a Supreme Court

decision based on its interpretation of a law may be overruled by the enactment of a new

law, a decision based on the Constitution cannot.

69

A decision based on an

interpretation of the Constitution can only be altered through a new decision by the

Supreme Court or a constitutional amendment.

70

There are two significant cases relying on Loudermill that have highlighted the

extent to which the Constitution requires an opportunity to respond before an adverse

action can be effectuated: (1) Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir.

2011); and (2) Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir.

1999). They are sometimes referred to jointly by the label “Ward/Stone” because of the

extent to which they share a common legal concept – namely, that if a deciding official is

exposed to information affecting the outcome of his decision-making process without

the employee being told of the information and given the opportunity to present a

defense against it, then any opportunity to respond is fundamentally flawed and will fail

to meet the constitutional requirements of Loudermill.

71

In Stone, a removal case, the deciding official received two ex parte

communications: one from the proposing official and one from a second official who

a legislature oversteps its bounds and issues a law repugnant to the constitution, it is void and

must be struck down by the courts”) (internal punctuation omitted); Berkowitz v. United

States, 340 F.2d 168, 173 (1st Cir. 1965) (holding that a court may find that “Congress could

not have intended what its words appear to say” if the alternative is to hold that the court

“cannot give effect to what was said because it is repugnant to the Constitution”). See also U.S.

Supreme Court at www.supremecourt.gov/about/constitutional.aspx (explaining that,“[w]hen

the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions

can be altered only by the rarely used procedure of constitutional amendment or by a new

ruling of the Court”).

69

Compare Dickerson v. United States, 530 U.S. 428, 432 (2000) (explaining that “a

constitutional decision of this Court may not be in effect overruled by an Act of Congress”)

(punctuation omitted) with Mansell v. Mansell, 490 U.S. 581, 588 (1989) (explaining that

Congress could “overcome” an earlier decision by the Court involving statutory interpretation

by enacting new legislation).

70

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 66 (1996).

71

Ward, 634 F.3d at 1280; Stone, 179 F.3d at 1377.

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 19

Chapter Two: Loudermill and Progeny

also advocated for Stone’s removal.

72

Stone was not informed of the communications or

their content prior to the effectuation of his removal.

73

He appealed his removal to

MSPB, asserting that these communications harmed his due process rights.

74

The

administrative judge assigned to the case held that there was no statute or regulation

prohibiting such communications, and the Board denied the appellant’s petition for

review.

75

Stone then filed an appeal to the Federal Circuit.

76

On appeal, citing Loudermill, the court stated:

We begin by noting that [Stone’s] property interest is not defined

by, or conditioned on, Congress’ choice of procedures for its

deprivation. In other words, [title 5] § 7513 and § 4303 do not

provide the final limit on the procedures the agency must follow in

removing Mr. Stone. Procedural due process requires “that certain

substantive rights – life, liberty, and property – cannot be deprived

except pursuant to constitutionally adequate procedures.”

77

The court held that “[i]t 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.”

78

Accordingly, the case

was remanded to the Board with instructions that if the Board found that the

communications involved new and material information, the action would have to be

reversed and the employee provided with a constitutionally correct removal

procedure.

79

The factors that the Board was instructed to consider when determining if

information was new and material included:

72

Stone, 179 F.3d at 1372-73. An ex parte communication is a communication between one

party and the decision-maker where the other party is not present and not given the

opportunity to present his or her side of the argument.

73

Id.

74

Id. at 1373.

75

Id. at 1371.

76

Id.

77

Id. at 1375 (internal citation to Loudermill omitted).

78

Id. at 1376 (emphasis added).

79

Id. at 1377.

20 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter Two: Loudermill and Progeny

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.

80

These are commonly referred to as the Stone factors or the Stone test.

In Ward, the appellant was removed for improper conduct arising out of a

conflict with his supervisor in which she perceived the appellant’s behavior as

threatening and disobedient.

81

Before reaching a decision on the penalty, the deciding

official spoke with three supervisors and one manager who discussed other alleged

incidents involving similar behavior by Ward.

82

Ward was not informed of these

conversations.

83

The deciding official later admitted that the repeated pattern of

belligerent conduct described in the conversations led him to conclude that Ward could

not be rehabilitated by a lesser penalty and that removal was therefore necessary.

84

On appeal, the Board held that the deciding official’s use of this ex parte

information was improper but concluded that, because the ex parte communication

involved the penalty and not the charges, it could remedy the error by doing its own

penalty analysis.

85

The Board then held removal was appropriate.

86

Ward appealed this decision to the Federal Circuit, which held that the Board

erred in its conclusion that an impropriety involving the penalty did not raise the same

constitutional issues as an impropriety involving charges.

87

The court held that the

distinction was “arbitrary and unsupportable” because “[t]here is no constitutionally

80

Id.

81

Ward, 634 F.3d at 1276.

82

Id. at 1277.

83

Id. at 1278.

84

Id. at 1277.

85

Id.

86

Id.

87

Id. at 1280.

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 21

Chapter Two: Loudermill and Progeny

relevant distinction between ex parte communications relating to the underlying charge

and those relating to the penalty.”

88

The Board was instructed that it could not excuse a

constitutional violation as a harmless error.

89

The court remanded the case to the Board with the instruction to apply the Stone

factors to determine whether new and material information had been introduced to the

process without the appellant being granted the opportunity to respond.

90

If this had

occurred, then, as with Stone, the appellant would be entitled to a new, constitutionally

correct procedure.

91

The court also reminded the Board that, “[a]s Stone recognized, the Due Process

Clause only provides the minimum process to which a public employee is entitled prior

to removal. Public employees are, of course, entitled to other procedural protections

afforded them by statute, regulation, or agency procedure.”

92

The Board was instructed

that, if it found the constitutional requirements had been met, then it was to examine

any procedural errors involving statutes or regulations and conduct a “proper” analysis

to determine if such errors were harmful.

93

A harmful error is one in which the outcome

was affected by the agency’s failure to follow required procedures.

94

The court

reminded the Board that, by statute, if there were harmful errors in the agency’s

process, the agency could not prevail.

95

Thus, even if the Board concluded that the

removal itself was reasonable, it did not have the authority to cure an agency’s

procedural errors.

96

88

Id.

89

Id.

90

Id.

91

Id.

92

Id. at 1281 (internal citations and punctuation omitted).

93

Id. at 1282.

94

Id. at 1281-82.

95

Id.

96

Id.

22 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter Two: Loudermill and Progeny

Loudermill and Suspensions

In the Federal context, there has not been extensive discussion of the types of

actions to which the property right extends because the statute pertaining to the

procedures for removing civil service employees, 5 U.S.C. chapter 75, also applies those

same procedures to lengthy suspensions and demotions. However, the Supreme Court

has addressed the interaction between its Loudermill decision and situations in which

the penalty is a suspension rather than a removal.

In Gilbert v. Homar, 520 U.S. 924 (1997), a policeman employed by the State of

Pennsylvania was suspended without pay without first receiving notice and a period to

reply. The suspension was triggered by his arrest and the filing of charges for a drug

felony.

97

When deciding whether there would be a due process right to advanced notice

and an opportunity to reply in such cases, the Court noted that it had previously held

that due process “is flexible and calls for such procedural protections as the particular

situation demands.”

98

When “a State must act quickly, or where it would be impractical

to provide [a] predeprivation process, [a] postdeprivation process satisfies the

requirements of the Due Process Clause.”

99

The Court held that “[a]n important

government interest, accompanied by a substantial assurance that the deprivation is not

baseless or unwarranted, may in limited cases demanding prompt action justify

postponing the opportunity to be heard until after the initial deprivation.”

100

The Court applied its test from Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (a

benefits case), to explain the factors to consider in determining whether sufficient due

97

Gilbert, 520 U.S. at 926-27. For purposes of this case, the Court assumed the individual

had a property right without actually deciding that the property right existed. Id. at 929. Cf.

Tarkanian, 488 U.S. at 192 (holding in the context of a case involving a suspension that acted

as a demotion that, when a state actor “decides to impose a serious disciplinary sanction upon

one of its tenured employees, it must comply with the terms of the Due Process Clause of the

Fourteenth Amendment to the Federal Constitution”).

98

Gilbert, 520 U.S. at 930 (quoting Morrissey, 408 U.S. at 481).

99

Id. at 930.

100

Id. at 930-31 (quoting Federal Deposit Insurance Corporation v. Mallen, 486 U.S. 230,

240 (1988) (emphasis added).

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 23

Chapter Two: Loudermill and Progeny

process has been granted in the employment context. The three factors are: “First, the

private interest that will be affected by the official action; second, the risk of an

erroneous deprivation of such interest through the procedures used, and the probable

value, if any, of additional or substitute procedural safeguards; and finally, the

Government’s interest.”

101

For the private interest factor, the Court reiterated its holdings from other cases

that the length and finality of the property deprivation should be considered when

assessing the process that an individual is due and concluded that a suspension may be

a relatively minor deprivation compared to a removal “[s]o long as the suspended

employee receives a sufficiently prompt postsuspension hearing[.]”

102

For the state interest factor, the Court noted that a police officer holds a position

of “great public trust and high public visibility” and that felony charges are serious.

Therefore, the state had a strong interest in the matter.

103

For the last Mathews factor, the risk of an erroneous action, the Court noted that

the purpose of a pre-suspension hearing would be to determine if there was adequate

evidence of the misconduct and found that the arrest and filing of charges against the

individual provided an adequate safeguard. Therefore, the Court concluded that the

individual’s constitutional right to due process was not violated when he was suspended

without advanced notice.

104

However, in Gilbert, the Court noted that the charges against the individual were

dropped on September 1st, yet the suspension continued without a hearing until

September 18th. The Court held that, “[o]nce the charges were dropped, the risk of

erroneous deprivation increased substantially[.]”

105

Accordingly, it remanded the case

101

Gilbert, 520 U.S. at 931-32 (quoting Mathews, 424 U.S. at 335).

102

Gilbert, 520 U.S. at 932.

103

Id.

104

Id. at 933-34.

105

Id. at 935.

24 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter Two: Loudermill and Progeny

to the court of appeals to determine whether, under the facts of the case, the hearing was

sufficiently prompt to satisfy the requirements of due process.

106

In other words, because due process is situationally dependent, as situations

evolve, the minimum level of process that the Constitution requires can change. One of

the dangers of skirting too closely to the minimum amount may be the employer finding

itself on the wrong side of that line. The situationally dependent nature of due process

may also pose a challenge for the establishment of rigid rules. For example, what

constitutes a “meaningful” opportunity to reply may be different in a simple case as

opposed to one with highly complex issues or difficult to access evidence. Chapter Three

will discuss in greater depth the opportunity to reply.

106

Id. at 935-36.

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 25

Chapter Two: Loudermill and Progeny

26 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter Three: The Statutory Procedures

Suspensions of 14 Days or Less

By statute, before an agency imposes a suspension for 14 days or less, an

employee is entitled to:

(1) an advance written notice stating the specific reasons for the proposed action;

(2) a reasonable time to answer orally and in writing and to furnish affidavits and

other documentary evidence in support of the answer;

(3) be represented by an attorney or other representative; and

(4) a written decision and the specific reasons therefor at the earliest practicable

date.

107

Appendix B contains a flow chart illustrating this process. The law does not give

appellate jurisdiction to MSPB for such actions unless another statute applies, such as

MSPB’s jurisdiction over cases alleging whistleblower retaliation or discrimination

based on military service or obligations.

108

Suspensions of More than 14 Days, Demotions, and Removals

Before an agency imposes a suspension for more than 14 days, a change to lower

grade, reduction in pay, or a removal action, an employee is entitled to:

(1) at least 30 days’ advance written notice, unless there is reasonable

cause to believe the employee has committed a crime for which a

sentence of imprisonment may be imposed, stating the specific reasons

for the proposed action;

(2) a reasonable time, but not less than 7 days, to answer orally and in

writing and to furnish affidavits and other documentary evidence in

support of the answer;

(3) be represented by an attorney or other representative; and

107

5 U.S.C. § 7503. The U.S. Office of Personnel Management has issued regulations stating

that the employee’s period to reply to a proposed suspension of 14 days or less cannot be less

than 24 hours. 5 C.F.R. § 752.203(c).

108

See, e.g., Johnson v. U.S. Postal Service, 85 M.S.P.R. 1, ¶ 11 (1999) (finding MSPB had

jurisdiction under the Uniformed Services Employment and Reemployment Rights Act of 1994

(USERRA) for a 7-day suspension when the appellant alleged that he was denied leave and

instead was charged with absence without leave (AWOL) for periods during which he served on

military reserve duty, leading to him being suspended for AWOL); Hupka v. Department of

Defense, 74 M.S.P.R. 406, 411 (1997) (finding MSPB had jurisdiction over an appeal of a 5-day

and a 4-day suspension where the appellant alleged retaliation for whistleblowing and

exhausted his administrative remedies).

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 27

Chapter Three: The Statutory Procedures

(4) a written decision and the specific reasons therefor at the earliest

practicable date.

109

Additionally, “[a]n agency may provide, by regulation, for a hearing which may be

in lieu of or in addition to the opportunity to answer” and “[a]n employee against whom

an action is taken under this section is entitled to appeal to the Merit Systems Protection

Board under section 7701 of this title.”

110

Appendix B contains a flow chart illustrating

this process.

While a conduct-based adverse action must comport with the rules set forth in

chapter 75 of title 5, agencies may take a performance-based demotion or removal

action under: (1) the rules specific to performance-based actions set forth in chapter 43

of title 5; or (2) the rules for general demotions and removals set forth in chapter 75.

111

Both chapters have similar requirements for providing an employee with notice

of a proposed action and a meaningful opportunity to respond.

112

However, the

standard of proof differs.

113

If MSPB is asked to adjudicate an appeal, “the decision of

the agency shall be sustained” if the agency’s case is supported by a preponderance of

the evidence, unless the agency opts to use the procedures set forth in 5 U.S.C. § 4303,

in which case it must be supported by substantial evidence.

114

Substantial evidence

means that a reasonable person could have reached the agency’s conclusion, while a

109

5 U.S.C. § 7513(b).

110

5 U.S.C. § 7513(c)-(d).

111

See Lovshin v. Department of the Navy, 767 F.2d 826, 834 (Fed. Cir. 1985) (explaining

that either chapter may be used for performance-based actions); U.S. Merit Systems Protection

Board, Addressing Poor Performers and the Law (2009), available at www.mspb.gov/studies

(discussing performance-based actions under the two different sets of rules).

112

Under 5 U.S.C. § 4303, an employee “is entitled to: (1) 30 days’ advance written notice of

the proposed action which identifies the specific instances of unacceptable performance by the

employee on which the proposed action is based and the critical elements of the employee’s

position involved in each instance of unacceptable performance; (2) be represented by an

attorney or other representative; (3) a reasonable time to answer orally and in writing; and

(4) a written decision” that specifies the instances of unacceptable performance and that has

been “concurred in” by an official at a higher level than that of the proposing official. 5 U.S.C.

§ 4303(b)(1) (punctuation and numbering modified).

113

5 U.S.C. § 7701(c)(1).

114

Id.

28 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter Three: The Statutory Procedures

preponderance of the evidence means that the evidence shows a charge is more likely to

be true than not.

115

If an action is taken under chapter 75 of title 5, then the agency must also prove

that managerial judgment has been properly exercised within “tolerable limits of

reasonableness.”

116

This means that the penalty was not clearly excessive;

disproportionate to the sustained charges; or arbitrary, capricious, or unreasonable.

117

A penalty will be found unreasonable if it is “so harsh and unconscionably

disproportionate to the offense that it amounts to an abuse of discretion[.]”

118

The tolerable limits of reasonableness standard applies to an agency’s chapter 75

action. For actions taken under chapter 43, the Federal Circuit has held that an agency

has “discretion to select one of only two penalties, demotion or removal, for

unacceptable employee performance. That discretion is not unfettered. It is measured

by the mandated performance appraisal system.”

119

Accordingly, MSPB does not review

chapter 43 penalties.

120

However, under either chapter 43 or chapter 75, the agency’s decision will not be

sustained if: (1) there was a harmful error in the application of the agency’s procedures;

(2) the action was based on a prohibited personnel practice (such as discrimination or

retaliation for whistleblowing); or (3) the decision was otherwise not in accordance with

115

A preponderance of the evidence is that degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a contested

fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2). Substantial evidence is the

degree of relevant evidence that a reasonable person, considering the record as a whole, might

accept as adequate to support a conclusion, even though other reasonable persons might

disagree. This is a lower standard of proof than preponderance of the evidence. 5 C.F.R. §

1201.56(c)(1). For an in-depth discussion of the rules for agencies to take performance-based

adverse actions, see U.S. Merit Systems Protection Board, Addressing Poor Performers and the

Law (2009), available at www.mspb.gov/studies.

116

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 302 (1981); see Norris v. Securities

and Exchange Commission, 695 F.3d 1261, 1266 (Fed. Cir. 2012).

117

Douglas, 5 M.S.P.R. at 284.

118

Villela v. Department of the Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984) (quoting

Power v. United States, 531 F.2d 505, 507 (1980)).

119

Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1564 (Fed. Cir. 1985).

120

Id.

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 29

Chapter Three: The Statutory Procedures

the law.

121

These are known as “affirmative defenses.” To prevail on an affirmative

defense, the appellant must prove it by a preponderance of the evidence.

122

As explained above, for performance- and conduct-based adverse actions, the law

permits an agency to effectuate an action 30 days after it proposes the action. If the

agency has reasonable cause to believe the employee has committed a serious crime, the

action can take effect in as little as 7 days. The employee must be told the charges and

proposed penalty and have a reasonable opportunity to respond. If the employee wants

an attorney, he or she is entitled to have one at his or her own expense.

123

When a

decision has been reached, the employee is entitled to be told in writing the reason for

that decision. This is all that the law requires.

124

Responsible agencies may take the time to conduct investigations before

proposing actions in order to feel confident that they can prove their charges and that

the penalty does not constitute an abuse of discretion. They may determine that it is

reasonable to offer an employee more than the statutory bare minimum of time to

submit a response to the charges. These are choices that agencies make – and often for

good reasons. Agencies should want to ensure that their charges are true and that

information that may prove otherwise comes to their attention before they remove an

employee. As the Secretary of the Department of Veterans’ Affairs, Robert McDonald,

stated in an interview on 60 Minutes, when asked whether employees who lie and put

themselves before veterans should be fired: “Absolutely. Absolutely. But we’ve got to

make it stick.”

125

The statute, as currently constructed, was designed to comport with the

Constitution so that agencies could make their actions “stick.” It balances the

importance of speedy action with the constitutional right of an employee to respond and

121

5 U.S.C. § 7701(c)(2); see 5 U.S.C. § 2302(b) (listing the prohibited personnel practices).

122

5 C.F.R. § 1201.56.

123

Marsheck v. Department of Transportation, 15 M.S.P.R. 423, 425 (1983).

124

5 U.S.C. § 7513.

125

CBS News, “Cleaning up the VA,” Nov. 9, 2014, transcript available at

http://www.cbsnews.com/news/robert-mcdonald-cleaning-up-the-veterans-affairs-hospitals/.

30 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter Three: The Statutory Procedures

show the agency that it has wrongly charged or will wrongly penalize him or her. Any

amendments to the statute should do the same. It would not serve the public interest

for agencies to take actions that violate the Constitution or that fail to advance the

efficiency of the service.

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 31

Chapter Three: The Statutory Procedures

32 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter Four: Efforts to Modify the System

While MSPB is a successor agency to the CSC and was given adjudicatory

responsibilities that had belonged to the CSC, the law that established MSPB also

provided a new statutory framework to protect employee rights and the merit systems.

This chapter describes some of the changes that have taken place in the adverse action

system following its initial establishment in the CSRA and the role of due process in

those changes.

When reviewing case law, it is important to recognize that the rules have been

subjected to some modifications since the CSRA and that many changes applied only to

specific agencies, while others were Government-wide.

126

Additionally, some (but not

all) of the agency-unique changes were later repealed in part or whole. Therefore,

individuals with an interest in this area should be careful when reviewing older cases

and cases involving agency-specific rules.

Government-Wide Modifications

There have been a number of modifications to the civil service adverse action

processes since 1978; however, many of these changes were unique to a single agency.

Some modifications were by statute and others by case law. The modifications that had

an effect on the entire civil service include: (1) the Civil Service Due Process

Amendments of 1990 (DPA), Pub. L. No. 101-376, 104 Stat. 461 (which changed

important rules for excepted service (“ES”) employees); (2) McCormick v. Department

of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002) (overruling previous holdings regarding

competitive service (“CS”) probationary period employees and the legal definition of

126

The definition of “employee” in the competitive excepted services has evolved since the

CSRA as a result of both new statutes and case law. The history is complex, as we explained in

our 2006 report, Navigating the Probationary Period After Van Wersch and McCormick,

available at www.mspb.gov/studies. Today, the answer as to whether a CS or ES individual is

an employee often – but not always – revolves around whether the individual has completed a

trial or probationary period. As explained in our earlier discussion of the Pendleton Act,

Congress desired that there be a period in which an individual must prove himself or herself on

the job before an appointment is finalized. Until that has occurred, generally, the individual is

not yet an employee with a property right in such employment. Navigating the Probationary

Period After Van Wersch and McCormick discusses some exceptions to this general rule.

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 33

Chapter Four: Efforts to Modify the System

“employee”); and (3) Van Wersch v. Department of Health & Human Services, 197 F.3d

1144 (Fed. Cir. 1999) (discussing the legal definition of “employee” in the ES).

The DPA, which granted appeal rights to most ES employees, is particularly

instructive because of the deliberateness with which it was enacted. In United States v.

Fausto, 484 U.S. 439 (1988), the question before the Court was what remedies were

available to an ES employee who had been suspended wrongly.

127

The Court held that

the CSRA had created “a comprehensive system for reviewing personnel action[s] taken

against federal employees. Its deliberate exclusion of [ES employees] from the

provisions establishing administrative and judicial review for [a 30-day suspension]

prevents [a] respondent [in Fausto’s situation] from seeking review in the Claims Court

under the Back Pay Act.”

128

Congress objected to this result, which would have left ES employees without

adequate protection from improper adverse actions, and passed the DPA, which was

explicitly intended to provide ES employees with the right to challenge adverse

actions.

129

The House Post Office and Civil Service Committee described the need for

the bill as “urgent” in light of the Fausto decision.

130

It also noted that ES veterans had

appeal rights to MSPB under the VPA of 1944 (discussed in Chapter One) and that:

Permitting veterans in excepted service positions to appeal to the Merit

Systems Protection Board when they face adverse actions has not crippled

the ability of agencies excepted from the competitive service to function.

127

Fausto was removed by his agency. He appealed that action to MSPB, which concluded it

lacked jurisdiction over his appeal because he was in the excepted service. He then filed a

grievance with his agency, which determined he should not have been removed and mitigated

the action to a 30-day suspension. He then filed an appeal of that suspension with the U.S.

Court of Claims, which concluded it lacked jurisdiction. He appealed that decision to the

Federal Circuit, which held that while MSPB lacked jurisdiction over the case under the CSRA,

the Claims Court did have jurisdiction under the Tucker Act. (The Tucker Act grants the

Claims Court “jurisdiction to render judgment upon any claim against the United States

founded upon the Constitution.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017 (1984)

(punctuation modified)). The Claims Court then reached the merits of the case, found the

suspension should not have occurred, and ordered back pay. The Government petitioned the

Supreme Court for certiorari on the question of the Claims Court’s jurisdiction over an

excepted service employee’s Tucker Act claim. Fausto, 484 U.S. at 442-43.

128

Fausto, 484 U.S. at 455.

129

Pub. L. No. 101-376; H.R. Rep. 101-328, at 4 (1990 U.S.C.C.A.N. 695, 698).

130

H.R. Rep. 101-328, at 4 (1990 U.S.C.C.A.N. 695, 698).

34 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter Four: Efforts to Modify the System

Therefore, the committee see[s] no problem with extending these

procedural protections to certain other employees in the excepted

service.

131

Congress determined that ES employees “should have the same right to be free

from arbitrary removal as do competitive service employees.”

132

After discussions with

the Office of Personnel Management (OPM), the law was crafted to require a longer

waiting (trial) period for ES employees to obtain appeal rights in recognition of

differences in how they are appointed.

133

President George H.W. Bush, who as a former

Director of Central Intelligence was in a unique position to understand the need to

balance security concerns and management prerogatives with fair treatment of

employees, signed the bill into law on August 17, 1990.

134

The DPA was intended to reverse the effect of Fausto and put ES employees

under MSPB’s protection to the same extent as CS employees.

135

However, there are

some adverse actions, such as suspensions of 14 days or less, which cannot be appealed

to MSPB under ordinary circumstances.

136

The DPA did not address these actions.

137

131

H.R. Rep. 101-328, at 3 (1990 U.S.C.C.A.N. 695, 697).

132

H.R. Rep. 101-328, at 4 (1990 U.S.C.C.A.N. 695, 698).

133

Van Wersch, 197 F.3d at 1149 (quoting 136 Cong. Rec. 20365, 20366 (1990)). Certain

agencies also were explicitly excepted from the provisions of the bill, primarily either because a

different law already addressed their specific workforces (e.g., Foreign Service, Central

Intelligence Agency, General Accounting Office, and Veterans Health Services and Research

Administration); or because their missions were deemed too sensitive to permit a broadening

of employees’ appeal rights (e.g., Federal Bureau of Investigation and National Security

Agency). See H.R. Rep. 101-328, at 5 (1990 U.S.C.C.A.N. 695, 699) for a more complete list of

agencies excepted from the DPA and the reasons for those exceptions.

134

136 Cong. Rec. H11769-04 (message from the President), 1990 WL 275299.

135

H.R. Rep. 101-328, at 3-4 (1990 U.S.C.C.A.N. 695, 697-98).

136

MSPB may have jurisdiction over whistleblower retaliation claims even if it would not

otherwise have jurisdiction over the employee or adverse action in question. See, e.g., Hupka,

74 M.S.P.R. at 411 (holding that MSPB has jurisdiction over an appeal of a 5-day and a 4-day

suspension where the appellant alleged retaliation for whistleblowing and exhausted his

administrative remedies); O’Brien v. Office of Independent Counsel, 74 M.S.P.R. 192, 195, 197,

208 (1997) (holding that MSPB has jurisdiction over an appeal from a temporary employee in

the excepted service if the individual is a whistleblower who experienced retaliation and has

exhausted his administrative remedies). Similarly, USERRA can provide MSPB jurisdiction

over suspensions that are too brief to otherwise meet the requirements for MSPB’s adverse

action jurisdiction. See, e.g., Johnson, 85 M.S.P.R. 1, ¶ 11 (finding USERRA jurisdiction over a

7-day suspension when the appellant alleged that he was denied leave and instead was charged

with absence without leave (AWOL) for periods during which he served on military reserve

duty, leading to him being suspended for AWOL).

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 35

Chapter Four: Efforts to Modify the System

As a result, chapter 75’s subchapter I sets forth rules involving the necessary cause and

procedures for short suspensions in the competitive service without discussing any such

rules for the excepted service.

Unlike the DPA, the changes to the civil service brought about by the Federal

Circuit’s decisions in Van Wersch and McCormick appear to be the result of poor

statutory construction rather than congressional intent. In both Van Wersch and

McCormick, the Federal Circuit determined that there was a “compelling case” to be

made that Congress intended that individuals on new appointments who had previous

Federal service would be treated as probationers who do not have finalized

appointments and are therefore not entitled to the full panoply of rights given to

employees. However, the court concluded that, because of the way in which the law was

structured, CS and ES individuals in a probationary or trial period could be entitled to

the procedural rights set forth in title 5 chapter 75 if the individuals met certain

conditions regarding length of service.

138

In other words, through its possibly

unintentional word choices, Congress gave due process rights to individuals whose right

to the property – the appointment – had not yet been finalized.

139

Agency-Specific Modifications

Post-CSRA agency-specific changes to the civil service rules tend to be most

noteworthy for their short duration. Some (but not all) have been enacted only to be

repealed by a later Congress. Such actions can have their own complications. An

example of this is the 1996 Department of Transportation and Related Agencies

137

See Pub. L. No. 101-376.

138

See McCormick, 307 F.3d at 1341-42; Van Wersch, 197 F.3d at 1152. Section

7511(a)(1)(A) of title 5 lists who may be considered an employee for purposes of appeal rights

and uses the word “or” to separately list two different qualifying criteria. This use of “or” can

be found in the original text of the CSRA and is likely a result of an attempt to mimic the

regulations of the CSC. However, moving the words out of the surrounding context from the

Code of Federal Regulations caused a change in their meaning. The criteria was originally

structured as a list of individuals who could not be considered employees with procedural and

appeal rights, but the CSRA structured the law as a list of individuals who were covered. In

this way, what had once been criteria for excluding an individual from coverage ceased to have

that effect. Compare CSRA, Pub.L. No. 95–454, 92 Stat. 1111 with 5 C.F.R. § 752.103 (1978).

139

Congress has not chosen to enact legislation to overrule the decisions in Van Wersch or

McCormick.

36 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Chapter Four: Efforts to Modify the System

Appropriations Act (“DOT Act”), Pub. L. No. 104–50, 109 Stat. 436 (1995) and the

Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“Ford Act”),

Pub. L. No. 106–181, 114 Stat. 61 (2000).

140

The DOT Act removed the Federal Aviation Administration (FAA) from MSPB

jurisdiction and the relevant statutes and rules, and the Ford Act mostly put it back.

MSPB jurisdiction was restored to what it had been before the DOT Act, but the Ford

Act did not address any changes to MSPB’s Government-wide jurisdiction that occurred

after the DOT Act and did not specify the rules that the Board was to apply when

exercising its reinstated jurisdiction.

141

According to the Federal Circuit, Congress

enacted the Ford Act because it was “[d]issatisfied with the DOT Act’s foreclosure of

appeal rights to the Board[.]”

142

Employees of the Transportation Security

Administration (TSA) also fall under the FAA system.

143

These systems can have some

140

Another example of an agency-specific law that was later repealed is the National

Security Personnel System (NSPS). NSPS was authorized by Congress for the Department of

Defense (DoD) in the National Defense Authorization Act (NDAA) for FY 2004 and repealed in

the NDAA for FY 2010. See U.S. Government Accountability Office, DOD Is Terminating the

National Security Personnel System, but Needs a Strategic Plan to Guide Its Design of a New

System, GAO-11-524R, Apr. 28, 2011, at 1-2. This imposition and repeal of a personnel system

also created some adverse action issues. See, e.g., Ellis v. Department of the Navy, 117

M.S.P.R. 511, ¶¶ 6-8 (2012) (explaining why a cumulative effect of personnel actions gave some

employees adverse action appeal rights over the manner in which they were moved from an

NSPS pay system back to the GS pay system, while others did not have appeal rights).

141

See Roche v. Merit Systems Protection Board, 596 F.3d 1375, 1378-82 (Fed. Cir. 2010)

(explaining the history of the two Acts and the extent to which Board jurisdiction was restored

without specifying the rules that the Board was to apply when exercising that jurisdiction);

Belhumeur v. Department of Transportation, 104 M.S.P.R. 408, ¶¶ 5-12 (2007) (explaining

that because the Veterans Employment Opportunity Act (VEOA) was enacted in 1998 and the

Ford Act of 2000 reinstated the jurisdiction that the Board had in 1996, the Board lacked

VEOA jurisdiction for the FAA). See also Gonzalez v. Department of Transportation, 568 F.3d

1369, 1370 (Fed. Cir. 2009) (explaining that the Ford Act did not restore the Back Pay Act for

FAA employees).

142

Roche, 596 F.3d at 1378.

143

Coradeschi v. Department of Homeland Security, 439 F.3d 1329, 1332 (Fed. Cir. 2006).

Because the FAA is within the Department of Transportation and the TSA is within the Department

of Homeland Security, some cases that list either of those departments as a party to a case may follow a

different set of rules than other cases within those same departments. TSA screeners are particularly

in their own category, with the Board unable to hear appeals from TSA screeners alleging

violations of laws such as USERRA, the Whistleblower Protection Act (WPA), VEOA, suitability

determinations under 5 C.F.R. part 731, employment practices appeals under 5 C.F.R. part 300,

and the Board’s review of agency regulations under 5 C.F.R. part 1203. Spain v. Department of

Homeland Security, 99 M.S.P.R. 529 (2005), aff’d sub nom., Spain v. Merit Systems

Protection Board, 177 F. App’x 88 (Fed. Cir. 2006).

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 37

Chapter Four: Efforts to Modify the System

seemingly odd quirks when compared to the rest of the civil service because some laws

interact with each other, and the Ford Act did not fully return the FAA system to all of

the laws related to the civil service. As a result, the employment laws pertaining to FAA

and the TSA have some missing bits and pieces.

144

As noted earlier, one of the main reasons for the enactment “of the CSRA was to

replace the haphazard arrangements for administrative and judicial review of personnel

action[s], part of the outdated patchwork of statutes and rules built up over almost a

century that was the civil service system.”

145

In the 40 years since the CSRA was

enacted, the addition of various pieces has made the civil service increasingly complex to

manage, as once again, a patchwork of statutes and rules must find a way to work

together in concert.

146

144

See Gonzalez, 568 F.3d at 1370 (explaining that the Ford Act did not restore the Back

Pay Act for FAA employees); Mitchell v. Department of Homeland Security, 104 M.S.P.R. 682,

¶ 5 (2007) (explaining that because the TSA Administrator had not modified the FAA personnel

system, the Board could not order back pay or interest for the employee); Belhumeur, 104

M.S.P.R. 408, ¶¶ 5-12 (explaining that because VEOA was enacted in 1998 and the Ford Act of

2000 put back the jurisdiction that the Board had in 1996, the Board lacked VEOA jurisdiction

for the FAA).

145

Fausto, 484 U.S. at 444 (internal punctuations and citations omitted).

146

See U.S. Merit Systems Protection Board, Veteran Hiring in the Civil Service: Practices

and Perceptions (2014), available at www.mspb.gov/studies (discussing the variety of laws

enacted to support the hiring of veterans and how complicated a situation can become when

they interact with other hiring laws and regulations).

38 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Conclusion

There are good reasons why public employers must ensure that actions are taken

to advance the efficiency of the service and not for improper motives. These

requirements mean that certain procedural rules must be followed. But, in the words of

Supreme Court Justice William Douglas, “[i]t is procedure that spells much of the

difference between rule by law and rule by whim or caprice. Steadfast adherence to

strict procedural safeguards is our main assurance that there will be equal justice under

law.”

147

Prior to the 1960s, the Federal Government obtained a wealth of experience

showing what can happen in the absence of such rules and with the supremacy of

capriciousness. As the chapter titled Development of Federal Employee Rights

illustrated, Congress found the results both unpleasant and unproductive.

It has been said that: “No better instrument has been devised for arriving at

truth than to give a person in jeopardy of serious loss notice of the case against him and

opportunity to meet it. Nor has a better way been found for generating the feeling, so

important to a popular government, that justice has been done.”

148

However, providing

an individual with the opportunity to respond does not always prevent improper actions

from occurring. Agencies have taken adverse actions that are unsupported by the

evidence.

149

Adverse actions for prohibited reasons, such as discrimination or

retaliation for whistleblowing activities, still occur.

150

147

Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 179 (1951) (Douglas, J.,

concurring). In that same decision, Justice Felix Frankfurter wrote: “Man being what he is

cannot safely be trusted with complete immunity from outward responsibility in depriving

others of their rights. At least such is the conviction underlying our Bill of Rights. That a

conclusion satisfies one’s private conscience does not attest its reliability. The validity and

moral authority of a conclusion largely depend on the mode by which it was reached. Secrecy is

not congenial to truth-seeking and self-righteousness gives too slender an assurance of

rightness.” Id. at 171 (Frankfurter, J., concurring).

148

Id. at 171-72 (Frankfurter, J., concurring).

149

See, e.g., Prouty v. General Services Administration, 122 M.S.P.R. 117, ¶¶ 35-38 (2014)

(explaining that under the current statute, supervisors and executives can be held to high

standards for proven charges, but the removal actions at issue could not be sustained because

the agency had abandoned its duty to produce evidence in support of its charges); Kenyon v.

Department of the Navy, 57 M.S.P.R. 258, 261-62 (1993) (holding that the appellant was

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 39

Conclusion

The system remains imperfect, but the current statutes, containing a pre-

termination opportunity to respond, coupled with a post-termination review of agency

decisions, have enabled the Government to provide the public with a merit-based civil

service with due process under the law. Merit-based actions are required for an effective

and efficient civil service. Due process is required to ensure that: (1) merit is truly the

basis of the system; and (2) the system comports with the requirements of the U.S.

Constitution. As with any set of laws, there is likely room for improvement. But, as long

as merit is part of the system, due process will remain a required element.

entitled to attorney fees because the agency deliberately chose not to produce any evidence or

argument supporting its removal action or its subsequent decision to cancel the removal after

the employee filed an appeal).

150

See, e.g., Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197, ¶¶ 8-23, 41-42

(2011) (finding that the employee’s protected disclosures to members of Congress and an Office

of the Inspector General were contributing factors in his removal and ordering that the removal

be cancelled); Spahn v. Department of Justice, 93 M.S.P.R. 195, ¶¶ 40, 42(2003) (finding that,

where misconduct was proven but the penalty was a result of sex-based discrimination, the

penalty imposed must be the same as that given to similarly-situated members of the other

sex); Creer v. U.S. Postal Service, 62 M.S.P.R. 656, 663-64 (1994) (ordering the cancellation of

a removal action that was the result of sex-based discrimination); Johnson v. Defense Logistics

Agency, 61 M.S.P.R. 601, 607-10 (1994) (ordering the cancellation of a removal action where

the unrebutted testimony, including that of the agency’s deciding official, showed a pattern of

racial discrimination). See also U.S. Office of Special Counsel, Annual Report to Congress for

Fiscal Year 2013, at 19, available at www.osc.gov (discussing cases in which OSC obtained

corrective action for whistleblowers who experienced retaliation).

40 WHAT IS DUE PROCESS IN FEDERAL CIVIL SERVICE EMPLOYMENT?

Appendix A: Clearing up the Confusion

Perception

Reality

It is impossible to fire a

Federal employee.

From FY 2000-2014, over 77,000 full-time, permanent,

Federal employees were discharged as a result of

performance and/or conduct issues.

151

There are no legal barriers to

firing an employee in the

private sector.

Many of the laws that apply to removing employees in

the Federal civil service also apply to private sector

employment or have a similar counterpart, such as the

Civil Rights Act of 1964 (Title VII – Equal Employment

Opportunity), and the Uniformed Services Employment

and Reemployment Rights Act of 1994 (USERRA), both

of which permit private sector employees to pursue

litigation.

152

An agency must pay a salary to

an employee who has been

removed until any appeal has

been resolved.

An employee does not continue to receive a salary once

removed. If the action is found to have been

unwarranted, then reinstatement and back pay may be

awarded. But, there is no pay while removed.

153

151

Analysis of data from U.S. Office of Personnel Management, Central Personnel Data File

(CPDF), FY 2000-FY 2014. Discharge data includes the removal of probationers and those in a

trial period for reasons involving conduct and/or performance. It does not include discharges

from some agencies that use unique coding, such as the more than 10,000 separation actions

that occurred within the TSA in this period, because the coding system does not permit us to

determine the reasons for those separations.

152

See 38 U.S.C. §§ 4301-4333 (USERRA); Civil Rights Act of 1964, Pub. L. No. 88-352, 78

Stat. 241, § 706(e)-(g) (authorizing discrimination litigation in Federal courts). Congress has

also enacted other laws to protect private sector employees. See, e.g., Family Medical Leave

Act of 1993 (FMLA), Pub. L. No. 103-3, 107 Stat. 6, § 107 (authorizing civil actions and

damages); Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203,

124 Stat. 1376, § 748 (authorizing a cause of action for discrimination against whistleblowers);

http://www.whistleblowers.gov/ (explaining that Congress has enacted 22 laws to protect

employees from retaliation for reporting occupational safety hazards).

153

See 5 U.S.C. § 5596 (b)(1)(A). But see 5 U.S.C. § 1214(b)(1) (authorizing the Office of the

Special Counsel (OSC) to request that the Board order a stay of a personnel action if there are

reasonable grounds to believe the action is the result of a prohibited personnel practice).

MSPB records indicate that OSC requests for such stays are very rare. From FY 2004-2014,

OSC filed 65 requests for a stay, 86% of which were granted. Appellants also may request a

stay under more limited circumstances. See 5 U.S.C. § 1221(c).

A REPORT BY THE U.S. MERIT SYSTEMS PROTECTION BOARD 41

Appendix A: Clearing up the Confusion

Perception

Reality

Agency leaders have no

authority to serve as proposing

or deciding officials in title 5

adverse actions.

Title 5 empowers the agency to take an adverse action.

If agency leadership chooses to delegate the proposal or

decision authority to lower levels, then it cannot

interfere with the decision-making process of those

delegees. But, prior to the assigned decision-maker’s

involvement in a particular case, current statutes permit

delegations to be abandoned or modified by the agency

at will.

154

If an employee is suspected of

a crime, the agency cannot fire

the employee for the same

underlying conduct until the

criminal matter is resolved.

The agency is permitted to remove the employee

without waiting for criminal charges to be filed. If the

removal is appealed to MSPB and criminal charges are

filed, then MSPB may stay its proceedings until the

criminal matter is resolved if, under the facts of the

particular case, it is necessary in the interest of justice.

However, the individual remains removed without pay

during that period.

155

154

Goeke v. Department of Justice, 122 M.S.P.R. 69, ¶ 23 (2015) (explaining that the a