Performance-Based Action Appeals Before the Merit Systems Protection Board | Practical Law

Performance-Based Action Appeals Before the Merit Systems Protection Board | Practical Law

A Practice Note about performance-based action appeals before the Merit Systems Protection Board (MSPB) under the Civil Service Reform Act (CSRA). This Note identifies the performance-based actions appealable to the MSPB (sometimes called Chapter 43 appeals) and the types of federal employees that have MSPB appeal rights, as well as the burdens of proof that apply to the federal agency and the employee. It also discusses federal law and procedures applicable to federal sector employees.

Performance-Based Action Appeals Before the Merit Systems Protection Board

Practical Law Practice Note w-033-5968 (Approx. 26 pages)

Performance-Based Action Appeals Before the Merit Systems Protection Board

by Practical Law Labor & Employment
Maintained • USA (National/Federal)
A Practice Note about performance-based action appeals before the Merit Systems Protection Board (MSPB) under the Civil Service Reform Act (CSRA). This Note identifies the performance-based actions appealable to the MSPB (sometimes called Chapter 43 appeals) and the types of federal employees that have MSPB appeal rights, as well as the burdens of proof that apply to the federal agency and the employee. It also discusses federal law and procedures applicable to federal sector employees.
The Merit Systems Protection Board (MSPB) adjudicates appeals of federal sector personnel actions that are both:
  • Appealable to the MSPB under a civil service law, rule, or regulation.
  • Brought by an employee, former employee, or applicant eligible to appeal the action.
(5 U.S.C. § 7701(a); 5 C.F.R. § 1201.3.)
Several civil service laws, rules, and regulations give federal employees appeal rights to the MSPB. These appeal rights vary depending on the appointment the employee holds, length of employment, the agency the employee works at, and any special status the employee may have. This Note discusses the appeals process for personal actions based on an employee's unacceptable performance, appealable to the MSPB under Chapter 43 of the Civil Service Reform Act (CSRA). These are sometimes also called Chapter 43 appeals.
A federal agency may also take an adverse action against an employee for poor performance or misconduct under Chapter 75 of the CSRA (see Practice Note, Adverse Action Appeals Before the Merit Systems Protection Board). For more information about other civil service laws that may also provide MSPB appeal rights, see Practice Note, Civil Service Protections for Federal Employees: Overview. For more information about the MSPB's organization and jurisdiction, see Practice Note, The Merit Systems Protection Board (MSPB).

Performance-Based Personnel Actions

A federal agency may reduce an employee's salary grade (a demotion) or remove (terminate from federal service) an employee for unacceptable performance (5 U.S.C. § 4303(a); 5 C.F.R. § 432.105(a)). Unacceptable performance means that the employee's performance fails to meet established performance standards in one or more critical elements of the employee's position (5 U.S.C. § 4301(3)).
An agency may choose to demote or remove an employee for poor performance under either Chapter 43 or Chapter 75 (Lovshin v. Dep't of the Navy, 767 F.2d 826, 842-43 (Fed. Cir. 1985)). Chapter 43 is used to demote or remove an employee for poor performance only and may not be used to demote or remove an employee for engaging in misconduct. However, an agency may use Chapter 75 to demote or remove an employee for a combination of poor performance and misconduct (see Practice Note, Adverse Action Appeals Before the Merit Systems Protection Board).
Chapter 43 does not apply to:
  • Reducing the salary grade of a supervisor or manager who has not completed the probationary period if the reduction is:
    • based on supervisory or managerial performance; and
    • to the grade held immediately before becoming a supervisor or manager.
  • Removing or reducing the grade of an employee in the competitive service who is serving a probationary or trial period under the initial appointment.
  • Removing or reducing the grade of an employee in a competitive service position that does not require a probationary or trial period, but the employee has not completed one year of current continuous employment in the same or similar position.
  • Removing or reducing the grade of an employee in the excepted service who has not completed one year or current continuous employment in the same or similar position.
  • A personnel action imposed by the MSPB.
  • Personnel actions taken against administrative law judges.
  • Personnel actions taken in the interest of national security.
  • An action taken under another statute that excludes the action from the CSRA (such as, for example, removing or demoting an employee of the Department of Veterans Affairs (VA) under 38 U.S.C. § 714).
  • Removing an SES employee to a civil service position outside the SES.
  • A voluntary action by the employee.
  • A performance-based action taken under Chapter 75, although these actions are appealable to the MSPB under different procedures (see Practice Note, Adverse Action Appeals Before the Merit Systems Protection Board).
  • An action that terminates a temporary or term promotion and returns the employee to either:
    • the position they were temporary promoted from; or
    • a different position of equivalent grade and pay if the agency informed the employee that the promotion was of a limited duration.
  • A termination according to the terms specified as conditions of employment when the appointment was made.
  • An involuntary retirement because of disability.
  • An action against a technician in the National Guard while the technician is in a military pay status or when it concerns fitness for duty in the reverse component.
(5 U.S.C. § 4303(f); 5 C.F.R. § 432.102(b).)

Employees Who May Appeal a Performance-Based Action

The right to appeal a performance-based action under Chapter 43 depends on the type of appointment an employee has and how long the employee has worked in the federal government. Although 5 U.S.C. § 2105 generally defines federal civil service employees, only employees defined in Chapter 43 may appeal a performance-based action.
Chapter 43 applies to:
  • Executive agencies and departments.
  • Military departments.
  • The Government Publishing Office.
  • Independent establishments in the executive branch other than:
    • the Postal Service;
    • the Postal Regulatory Commissions;
    • government corporations; and
    • the Government Accountability Office.
(5 U.S.C. § 4301; 5 C.F.R. § 432.102(c).)
For appealing a performance-based action, an employee as defined in Chapter 43 is:
  • An individual in the competitive service who has completed one year of current continuous service in a position other than a temporary appointment limited to one year or less.
  • A preference eligible individual.
  • An individual in the excepted service who has completed one year of current continuous employment in the same or similar position.
(5 U.S.C. § 4303(e); 5 C.F.R. § 432.102(e), (f).)

Employees Who Have No Right to Appeal a Performance-Based Action

Chapter 43 covers employees working in the executive branch. Legislative employees are covered by the Congressional Accountability Act (CAA), not the CSRA. This includes employees of the Library of Congress.
Certain executive branch employees are excluded from the definition of employees eligible to appeal a performance-based action to the MSPB. These employees include:
  • Employees of a government corporation.
  • Employees of:
    • the Central Intelligence Agency;
    • the Defense Intelligence Agency;
    • the National Geospatial-Intelligence Agency;
    • the National Security Agency; or
    • any executive agency or unit which is designated by the President and has the principal function of conducting foreign intelligence or counterintelligence activities.
  • Employees of the Government Accountability Office.
  • Employees of the US Postal Service and Postal Rate Commission.
  • Employees in the competitive service who are serving:
    • a probationary or trial period under an initial appointment; or
    • in an appointment that does not require a probationary or trial period and who have not completed one year of current continuous employment in the same or similar positions under other than a temporary appointment limited to one year or less.
  • Employees in the excepted service who have not completed one year of current continuous service in the same or similar positions.
  • Employees working outside the US paid according to local prevailing wage rates.
  • Foreign Service members.
  • Physicians, dentists, nurses, and other employees in the Veterans Health Administration (VHA) whose pay is fixed under 38 U.S.C. Chapter 73.
  • VHA employees whose position is excluded from the competitive service, unless the employee was appointed under 38 U.S.C. § 7401(3), which includes a list of therapists, counselors, medical assistants, technicians, and other non-physician health care occupations.
  • Administrative law judges.
  • Employees in the Senior Executive Service (SES).
  • Individuals appointed by the President.
  • Individuals occupying a position not in the competitive service excluded from coverage by Office of Personnel Management (OPM) regulations.
  • Reemployed annuitants.
  • Individuals occupying a position in the excepted service that is not reasonably expected to exceed 120 calendar days in a consecutive 12-month period.
  • Individuals who:
    • serve in a position under a temporary appointment for less than one year;
    • agree to serve without a performance evaluation; and
    • will not be considered for reappointment or an increase in pay based on their performance.
(5 U.S.C. § 4301; 5 C.F.R. § 432.102(d), (f).)

Due Process Requirements

Before taking a performance-based against a federal employee with MSPB appeal rights, an agency must:
  • Give the employee a reasonable opportunity to demonstrate acceptable performance (see Performance Appraisals).
  • Provide the employee at least 30 days' advance notice of the performance-based action in writing (see Notice of Proposed Action).
  • Make a final decision within 30 days after the notice period expires and issue a written decision that has the concurrence of an employee in a higher position than the person who proposed the action (see Agency Decision).

Performance Appraisals

Before proposing a performance-based action, employees must have been provided a reasonable opportunity to demonstrate acceptable performance (5 C.F.R. § 432.105(a)(1)). Federal agencies develop performance appraisal systems in consultation with OPM and the Office of Special Counsel (OSC) that:
  • Provide for periodic appraisals of employee job performance.
  • Encourage employee participation in establishing performance standards.
  • Establish performance standards that, to the maximum extent feasible, permit accurate evaluation of job performance based on objective job-related criteria.
  • Communicate the performance standards to each employee.
  • Evaluate employees against these standards.
  • Recognize and reward employees whose performance warrants recognition or reward.
  • Assist employees in improving unacceptable performance.
  • Provide an opportunity to demonstrate improved performance before reassigning, demoting, or removing an employee that has unacceptable performance.
  • Promote the protection of whistleblowers.
(5 U.S.C. § 4302.)
An agency may address an employee's unacceptable performance any time during the performance appraisal cycle but must give the employee an opportunity to improve before taking a performance-based action. The agency must:
  • Notify the employee of the critical elements for which their performance is unacceptable.
  • Inform the employee of the performance requirements or standards that must be attained to demonstrate acceptable performance.
  • Inform the employee that unless their performance in the critical element improves to and is sustained at an acceptable level, the employee may be reduced in grade or removed.
  • Give the employee a reasonable opportunity to demonstrate acceptable performance.
  • Offer the employee assistance in improving unacceptable performance.
(5 C.F.R. § 432.104.)
For more information about monitoring employee performance and addressing poor performance, see Taking Federal Sector Performance-Based Actions Under Chapter 43 Checklist.
Once the employee has been afforded a reasonable opportunity to demonstrate acceptable performance, the agency may propose a demotion or removal if the employee's performance is still unacceptable in one or more of the critical elements for which the employee was given the opportunity to improve (5 C.F.R. § 432.105(a)(1)).

Notice of Proposed Action

A proposed action to remove or reduce an employee's grade must be based on instances of unacceptable performance that occurred within one year before the date of the notice of proposed action (5 C.F.R. § 432.105(a)(3)).
In the notice of proposed action, the agency must:
  • Identify specific instances of unacceptable performance by the employee on which the proposed action is based.
  • Identify the critical elements of the employee's position involved in each instance of unacceptable performance.
  • Allow the employee to be represented by an attorney or other representative.
  • Give the employee a reasonable time to answer orally and in writing.
(5 U.S.C. § 4303(b); 5 C.F.R. § 432.105(a).)
The agency may extend the advance notice period for another 30 days. An agency may further extend the notice period to:
  • Obtain and evaluate medical information when the employee raises a medical issue in their answer to the proposed reduction in grade or removal.
  • Arrange for the employee's travel to orally reply to an appropriate agency official or for the agency official's travel to hear the employee's oral reply.
  • Consider the employee's answer if the agency granted the employee an extension to the reply period (for example, because of the employee's illness or incapacitation).
  • Consider a reasonable accommodation of the employee's disability.
  • Consider positions to which the employee might be reassigned or demoted if the agency's procedures provide for reassignment or demotion.
  • Comply with a stay ordered by an MSPB board member.
(5 C.F.R. § 432.105(a)(4)(B).)
If the agency believes a further extension is necessary for any other reason, the agency must request prior approval for the extension from OPM (5 C.F.R. § 432.105(a)(4)(C)).

Agency Decision

In arriving at its final decision, the agency:
  • Must consider the employee's answer.
  • Must base its decision only on instances of unacceptable performance that occurred within one year before the advance notice of proposed action.
  • May require a medical examination if the employee's answer includes a claim of a medical condition that affects their ability to perform.
  • Must provide information about disability retirement to an employee who raises a medical condition and has enough years of service to retire.
(5 C.F.R. § 432.105(a)(4)(iv); (b).)
The agency must issue a final decision within 30 days after the notice period. An agency official higher in the chain of command than the official who proposed the action must concur in the final decision to demote or remove the employee. (5 C.F.R. § 432.105(b).)
The agency's final decision must:
  • Specify the instances of the employee's unacceptable performance that the demotion or removal is based on.
  • Inform the employee of any applicable appeal or grievance rights.
(5 C.F.R. § 432.105(b).)

Establishing MSPB Jurisdiction and Burdens of Proof in Performance-Based Action Appeals

The burdens of proof in performance-based action appeals shift from the employee (called the appellant in the MSPB appeal process) to the agency and back again, depending on the stage of the appeal and the issues being decided.

Appellant's Burden of Proof

The appellant has the burden of proving:
  • That the MSPB has jurisdiction over the appeal.
  • That the appeal was timely filed.
  • Any affirmative defenses that may justify reversing or modifying the performance-based action (see Affirmative Defenses).
(5 C.F.R. § 1201.56(b)(2).)
To prove the MSPB has jurisdiction, the appellant must make a nonfrivolous allegation that the appellant both:
  • Is an employee within the meaning of 5 U.S.C. § 4303.
  • Was removed or suffered a reduction in salary grade based on unacceptable performance.
A nonfrivolous allegation is an assertion that, if proven, may establish the matter at issue. The MSPB considers an allegation nonfrivolous when it is made under penalty of perjury and is:
  • More than conclusory.
  • Plausible on its face.
  • Material to the legal issues in the appeal.
(5 C.F.R. § 1201.4(s).)
To be timely, the appellant must file the appeal within the later of 30 days after:
  • The effective date of the performance-based action.
  • The appellant receives the agency's decision to take the performance-based action.
(5 C.F.R. § 1201.22(b)(1).)
If the appellant and agency agree in writing before the deadline for filing to try to resolve the appeal through an alternative dispute resolution process, the deadline for filing is extended to 60 days (5 C.F.R. § 1201.22(b)(1)).

Agency's Burden of Proof

The agency has the burden of proving that its performance-based action decision is supported by substantial evidence (5 C.F.R. § 1201.56(b)(1)(i)). That is, the agency must produce 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. § 1201.4(p).)
When an agency reduces an employee's salary grade or removes an employee for unacceptable performance under Chapter 43, the agency must show by substantial evidence that:
  • OPM approved the agency's performance appraisal system and any significant changes to it.
  • The agency communicated to the appellant the performance standards and critical elements of the appellant's position.
  • The appellant's performance standards are valid under 5 U.S.C. § 4302(b)(1).
  • The appellant's performance during the appraisal period was unacceptable in one or more critical elements.
  • The agency warned the appellant of the performance inadequacies during the appraisal period and gave the appellant a reasonable opportunity to demonstrate acceptable performance.
  • After an adequate improvement period, the appellant's performance remained unacceptable in one or more of the critical elements.
(Lee v. Dep't of Veterans Affairs, 2022 MSPB 11 at *4, ¶¶ 15 (MSPB May 12, 2022).)
If the agency meets its burden, the burden shifts to the appellant to prove any affirmative defenses. In certain appeals, the burden may shift back to the agency to prove by clear and convincing evidence that it would have taken the performance-based action anyway (see Whistleblower Retaliation as an Affirmative Defense).

Adjudicating the Merits of a Performance-Based Action Appeal

To remove or demote an employee under Chapter 75, the agency must prove that the personnel action will promote the efficiency of the service (see Practice Note, Adverse Action Appeals Before the Merit Systems Protection Board: Nexus Between Conduct and the Efficiency of the Service). An agency need not prove that the removal or demotion promotes the efficiency of the service for a Chapter 43 performance-based action.
The MSPB usually presumes that OPM has approved the agency's performance appraisal system, unless the appellant alleges that there is reason to believe OPM did not approve the agency's performance appraisal system or significant changes to a previously approved system (Adamsen v. Dep't of Agric., 563 F.3d 1326, 1330-31 (Fed. Cir.), opinion modified on reh'g, 571 F.3d 1363 (Fed. Cir. 2009); Daigle v. Dep't of Veterans Affairs, 84 M.S.P.R. 625, 630-31 ¶ 12 (MSPB 1999)).
The MSPB's review of performance-based actions is fact-specific and typically focuses on:
  • Documents supporting the notice of removal or reduction in grade such as:
    • the written performance standards and critical elements for the appellant's position; and
    • any performance improvement plan (PIP) or other documents warning of inadequate performance.
  • Testimony from the appellant's supervisor about the position's performance standards and critical elements, and the appellant's performance inadequacies.
Common arguments by appellants include that the agency failed to:
  • Communicate objective and reasonable written performance standards and critical elements.
  • Warn the appellant of inadequacies in critical elements during the appraisal period.
  • Give the appellant a reasonable opportunity to improve.

Communicating Objective and Reasonable Written Performance Standards and Critical Elements

A critical element is "a work assignment or responsibility of such importance that unacceptable performance on the element would result in a determination that an employee's overall performance is unacceptable" (5 C.F.R. § 430.203).
Performance standards for a position must "to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria" (5 U.S.C. § 4302(c)(1)). This means that the performance standards must set out in objective terms the minimum level of performance an employee must achieve to avoid demotion or removal for unacceptable performance (Eibel v. Dep't of the Navy, 857 F.2d 1439, 1441 (Fed. Cir. 1988)).
A performance standard may allow for some subjective judgment on a supervisor's part and an agency can "flesh out" or clarify performance standards or critical elements in the PIP, but the PIP must both:
  • Provide an accurate objective measurement.
  • Reasonably inform the employee of what is acceptable performance.
(See, for example, Eibel, 857 F.2d at 1443-44; Wilson v. Dep't of Health & Human Servs., 770 F.2d 1048, 1055-56 (Fed. Cir. 1985); Dancy v. Dep't of the Navy, 55 M.S.P.R. 331, 335 (MSPB 1992).)
An agency may not rewrite a performance standard in the PIP and "fleshing out" a performance standard in a performance improvement plan may not impose a higher level of performance than was previously required by the critical element (Thompson v. Farm Credit Admin., 51 M.S.P.R. 569, 577-78 (MSPB 1991)).
Appellants are more successful in challenging performance-based actions when performance standards or critical elements are:
  • Vague or ambiguous.
  • Subject to various interpretations.
  • Require subjective evaluation.
  • "Backwards" in that they describe unacceptable performance rather than acceptable performance.
For example, minimally acceptable performance for a critical element described as "Assignments and instructions to staff are hastily made and sometimes misunderstood" was a "backwards" standard subject to various interpretation and subjective evaluation (Eibel, 857 F.2d at 1443).
In contrast, a performance standard requiring that "Draft reports are completed in a timely manner, address all pertinent issues, and require minimum revisions" was valid even though it allowed for some subjective judgment because the agency informed the appellant of the specific areas in which he needed improvement and the specific tasks he had to achieve to keep his job (Wilson, 770 F.2d at 1055-56).

Warning an Employee of Inadequate Performance

The agency must show that it warned the appellant that their performance was inadequate in critical elements and explain what the appellant needs to demonstrate improvement (Henderson v. Nat'l Aeronautics & Space Admin., 116 M.S.P.R. 96, 105-07, ¶ 20-23 (MSPB 2011)).
The warning need not occur at any particular time, but the warning must relate to performance inadequacies that occurred during the same appraisal period for which the written performance standards were communicated (Harris v. Sec. & Exch. Comm'n, 972 F.3d 1307, 1316 (Fed. Cir. 2020)).
Agencies commonly use a PIP to warn employees of inadequate performance and describe what the employee needs to accomplish to demonstrate improvement. The agency typically describes the PIP in the proposed notice of reduction in grade or removal and relies on the PIP to meet this element in the MSPB appeal.
There is no rule or regulation requiring an agency to warn an underperforming employee of a performance problem before issuing a PIP. In other words, the PIP can serve as the warning of unacceptable performance. (Harris, 972 F.3d at 1316.) However, when an agency removes an employee under Chapter 43 because the employee failed to improve during a PIP, the agency must establish that the employee's performance was unacceptable before the PIP (Santos v. Nat'l Aeronautics & Space Admin., 990 F.3d 1355, 1360-63 (Fed. Cir. 2021)).

Providing a Reasonable Opportunity to Improve

The opportunity to improve is "one of the most important substantive rights in the entire Chapter 43 performance appraisal framework" (Thompson, 51 M.S.P.R. at 578).
In determining whether an agency has provided a reasonable opportunity to improve, the MSPB looks at:
  • The nature of the duties and responsibilities of the employee's position.
  • The performance deficiencies involved.
  • The amount of time provided to enable the employee to demonstrate acceptable performance.
(Lee v. EPA, 115 M.S.P.R. 533, 551, ¶ 32 (MSPB 2010).)
This is a highly fact-specific assessment. The MSPB may also consider the appellant's length of service and experience in assessing whether the agency provided adequate instruction and time in which to demonstrate improvement (Satlin v. Dep't of Veterans Affairs, 60 M.S.P.R. 218, 225 (MSPB 1993)).
A 30-day PIP generally satisfies an agency's obligation to provide a reasonable opportunity to demonstrate acceptable performance (Towne v. Dep't of the Air Force, 120 M.S.P.R. 239, 246, ¶ 10 (MSPB 2013)).
As part of the opportunity to demonstrate acceptable performance, the agency must offer assistance to the employee in improving unacceptable performance (5 C.F.R. § 432.104). The nature of the assistance the agency must offer will vary based upon the requirements of the position and the employee’s performance deficiencies. For example, if training is not necessary for the work required during the PIP, then the agency is not required to provide training as part of the PIP. (Goodwin v. Dep't of the Air Force, 75 M.S.P.R. 204, 207-08 (1997).)
However, if the agency promises in the PIP to provide specific assistance for the employee to improve performance and fails to meet these promises, the MSPB is likely to find the appellant did not have a meaningful opportunity to improve (see, for example, Thompson, 51 M.S.P.R. at 579; Adorador v. Dep't of the Air Force, 38 M.S.P.R. 461, 466-67 (MSPB 1988)).
For more information, see Taking Federal Sector Performance-Based Actions Under Chapter 43 Checklist: Provide an Opportunity to Improve.

Performance Remains Unacceptable After Opportunity to Improve

Once an employee has had a reasonable opportunity to improve, the agency may demote or remove the employee if:
  • The employee's performance during or after the PIP remains unacceptable in one or more of the critical elements identified in the PIP.
  • The employee's improvement is short-term or temporary and additional instances of unacceptable performance occur within a one-year period ending on the date of the proposed demotion or removal.
(5 C.F.R. § 432.105(a)(1), (a)(3); White v. Dep't of Veterans Affairs, 120 M.S.P.R. 405, 414, ¶ 5 (MSPB 2013).)
If the employee performs acceptably for one year and then their performance again becomes unacceptable, the employee is entitled to a new PIP and opportunity to improve (5 C.F.R. § 432.105(a)(2)).
The agency's burden to prove that the appellant's performance remained unacceptable is met by submitting documentation through the charges and the appellant's working papers (Towne v. Dep't of the Air Force, 120 M.S.P.R. at 252, ¶ 24). The notice of proposed removal can serve as documentation of the charges when the notice:
  • Sets forth in detail the employee's errors and deficiencies.
  • Is corroborated by other evidence.
(Towne v. Dep't of the Air Force, 120 M.S.P.R. at 252, ¶ 24.)
Other corroborating evidence may include examples of the appellant's work product with errors or mistakes and testimony of the appellant's supervisor.
If the employee's performance is unacceptable in one or more, but not all, components of a critical element, the agency must show that the employee's performance warranted an unacceptable rating on the element as a whole. The agency may submit evidence that shows:
  • The employee knew or should have known the significance of the components at issue.
  • The importance of the components in relation to the critical element as a whole.
(Lee v. EPA, 115 M.S.P.R. at 553, ¶ 36.)
The agency need not show that an employee's performance was unacceptable on a majority of the components to prove unacceptable performance on the critical element as a whole (Lee v. EPA, 115 M.S.P.R. at 553, ¶ 36). For example:
However, the agency must still demonstrate that the employee's performance remained unsatisfactory in a critical element. An agency's Chapter 43 action may be reversed if the agency can only prove the employee failed to achieve successful performance in strategic or non-critical goals that were not aligned with any critical element. (Pridgen v. Off. of Mgmt. & Budget, 2022 MSPB 31, at *4, ¶¶ 16-18 (MSPB Sept. 12, 2022).)

Reviewing the Performance-Based Action

If the agency proves that the performance-based action decision is supported by substantial evidence, the MSPB cannot reduce the agency's penalty (Lisiecki v. MSPB, 769 F.2d 1558, 1567-68 (Fed. Cir. 1985)). The burden may shift to the appellant to prove any affirmative defenses (see Affirmative Defenses).
If the agency fails to prove the demotion or removal is supported by substantial evidence, the MSPB reverses the performance-based action (see Remedies).
The Douglas factors, named for the Douglas v. Department of Veterans Administration case, are a list of non-exhaustive factors the MSPB considers in Chapter 75 adverse action appeals in assessing the reasonableness of the agency's penalty (5 M.S.P.R. 280 (MSPB 1981); see Practice Note, Adverse Action Appeals Before the Merit Systems Protection Board: Reviewing the Agency's Penalty: The Douglas Factors). The Douglas factors are not used in Chapter 43 performance-based actions.

Affirmative Defenses

Even if the agency meets its burden of proving that substantial evidence supports its performance-based action, the MSPB must reverse the agency's decision if the employee shows one or more of the following:
  • The agency committed harmful procedural error in reaching its decision.
  • The decision was based on a PPP described in 5 U.S.C. § 2302(b).
  • The decision was not in accordance with law.
(5 U.S.C. § 7701(c)(2); 5 C.F.R. § 1201.56(c).)
If an employee is excluded from the statute that gives rise to the affirmative defense, the employee may not assert that affirmative defense.

Harmful Error

The MSPB reverses a performance-based action if the appellant proves the agency committed an error that caused substantial harm or prejudice to the appellant's rights (5 C.F.R. § 1201.4(r)). The appellant must show all the following:
  • The agency was required to follow certain procedures to take the action.
  • The agency did not follow a required procedure.
  • If the agency had followed it, the agency would likely have reached a different decision on the action.
(Cornelius v. Nutt, 472 U.S. 648, 658-59 (1985); Towne v. Dep't of the Air Force, 120 M.S.P.R. at 256, ¶ 35.)
The agency's performance appraisal system and the due process requirements in Chapter 43 are obvious sources of procedures the agency must follow to take a performance-based action (see Due Process Requirements). A collective bargaining agreement may also require certain procedures, and the agency's failure to follow these procedures may result in the MSPB reversing the agency's action (Cornelius, 472 U.S. at 659; DeSousa v. Agency for Int'l Dev., 38 M.S.P.R. 522, 526 (MSPB 1988)).
The MSPB is unlikely to find harmful error if the agency generally follows the procedures in Chapter 43, even if the appellant believes the agency should have taken additional procedures. For example:
  • The appellant claimed the agency failed to allow him an oral reply to the proposed demotion, but failed to prove that he requested an opportunity to orally respond, and he submitted a written reply. The MSPB found that even if the agency had considered an oral reply, it would not have changed its decision to demote the appellant. (White v. Dep't of Veterans Affairs, 120 M.S.P.R. at 414-15, ¶¶ 15-18.)
  • The appellant failed to prove harmful error when the proposing and deciding official of her performance-based removal were the same person and a higher level official concurred in the decision after the decision was issued because the appellant could not show that any error affected the outcome of her performance-based removal (Towne v. Dep't of the Air Force, 120 M.S.P.R. at 256-57, ¶¶ 36-38).
  • A 13-month delay between issuing a notice of proposed removal and a decision to demote the appellant in lieu of removing him was not harmful error because the appellant could not show that the outcome would have been different or that the delay harmed his ability to appeal the demotion decision (Salter v. Dep't of the Treasury, 92 M.S.P.R. 355, 359-60, ¶¶ 8-13 (MSPB 2002)).

Prohibited Personnel Practices

If the agency took the performance-based action against the employee for a prohibited reason, the MSPB must reverse the action (5 U.S.C. § 7701(c)(2)). An agency commits a PPP when an agency official takes, recommends, or approves a personnel action for one of the following 14 prohibited reasons:
  • Discrimination for or against any employee based on:
    (5 U.S.C. § 2302(b)(1).)
  • Soliciting or considering a recommendation about an employee unless the recommendation is based on the personal knowledge or records of the person providing the recommendation (5 U.S.C. § 2302(b)(2)).
  • Coercing political activity of any person or retaliating against an employee for refusing to engage in political activity (5 U.S.C. § 2302(b)(3)).
  • Obstructing any person from competing for federal employment (5 U.S.C. § 2302(b)(4)).
  • Influencing any person to withdraw from competition to improve or injure the employment prospects of another person (5 U.S.C. § 2302(b)(5)).
  • Granting an unfair advantage to an applicant to help or hurt a particular person's chance of obtaining a job (5 U.S.C. § 2302(b)(6)).
  • Nepotism (hiring, promoting, or advocating the hiring or promotion of a relative) (5 U.S.C. § 2302(b)(7)).
  • Whistleblower retaliation (5 U.S.C. § 2302(b)(8)).
  • Other retaliation, including retaliation against an employee who:
    • filed a complaint, grievance, or appeal;
    • testified for or helped someone else to file a complaint, grievance, or appeal;
    • cooperated with or disclosed information to OSC, an Inspector General, or any other agency component responsible for investigation or review; or
    • refused to obey an order that requires the employee to violate a law, rule, or regulation.
    (5 U.S.C. § 2302(b)(9).)
  • Other discrimination based on an employee's conduct that does not adversely affect job performance (5 U.S.C. § 2302(b)(10)).
  • Failing to honor a veteran's preference requirement (5 U.S.C. § 2302(b)(11)).
  • Violating any other civil service law, rule, or regulation designed to uphold the merit system principles (5 U.S.C. § 2302(b)(12)).
  • Imposing a non-disclosure agreement that does not contain a specific statement notifying employees of their whistleblowing rights (5 U.S.C. § 2302(b)(13)).
  • Accessing the medical records of another employee or applicant as part of or otherwise in furtherance of another PPP (5 U.S.C. § 2302(b)(14)).
The most common affirmative defenses in performance-based action appeals are:

Discrimination as an Affirmative Defense

An appellant may assert that the agency's performance-based action was motivated by discrimination on several grounds. If the appellant asserts that the performance-based action was motivated by discrimination, harassment, or retaliation covered under the statutes enforced by the Equal Employment Opportunity Commission (EEOC), the performance-based action appeal is a mixed case appeal and subject to specific procedures. This includes discrimination based on:
  • Race.
  • Color.
  • National origin.
  • Religion.
  • Sex.
  • Age.
  • Disabling or handicapping condition.
To establish this affirmative defense, the appellant must demonstrate that one of the above prohibited considerations was a motivating factor in the personnel action, even if it was not the only reason. The appellant may use any combination of evidence that supports the appellant's affirmative defense, including:
  • Direct evidence of discriminatory bias.
  • Evidence of suspicious timing, ambiguous statements, behavior toward or comments directed at other employees in the protected group, and other bits and pieces that compose a "convincing mosaic" of discrimination.
  • Evidence of how other employees similarly situated to the appellant but not within the appellant's protected class were treated.
  • Evidence suggesting the agency's stated reason for its action was a pretext for discrimination.
  • Some combination of direct and indirect evidence.
(Pridgen, 2022 MSPB 31, at *6, ¶ 24).)
Discrimination in work assignments may also be relevant in determining whether the agency provided the appellant a reasonable opportunity to improve performance (Pridgen, 2022 MSPB 31, at *7, ¶ 28).
However, even if the appellant proves discrimination was a motivating factor in the personnel action, the MSPB does not automatically reverse the action. The burden shifts to the agency to prove that it would have taken the same action in the absence of the discriminatory or retaliatory motive. (Savage, 122 M.S.P.R. 612, 639, ¶ 51 (MSPB 2015) (overruled on other grounds by Pridgen v. Off. of Mgmt. & Budget, 2022 MSPB 31 (MSPB Sept. 12, 2022).) Only if the agency cannot prove it would have taken the same action regardless of discrimination does the MSPB reverse the personnel action.
In mixed case appeals, the appellant may request the EEOC review the MSPB's decision on the discrimination issues (29 C.F.R. § 1614.303). For more information on mixed case appeals, see Practice Note, Mixed Cases in Federal Public Employment.

Whistleblower Retaliation as an Affirmative Defense

To establish the affirmative defense of whistleblower retaliation, the appellant must prove by preponderant evidence that the appellant made a disclosure protected by the Whistleblower Protection Act (WPA), as amended by the Whistleblower Protection Enhancement Act (WPEA), and the disclosure was a contributing factor in the agency's decision to take the adverse action (5 C.F.R. § 1209.7(a); Gonzalez v. Dep't of Transp., 109 M.S.P.R. 250, 258, ¶ 16 (MSPB 2008)). The appellant may show that the disclosure was a contributing factor using circumstantial evidence, including evidence that:
  • The official taking the personnel action knew of the disclosure.
  • The demotion or removal occurred within a period of time where a reasonable person may conclude it was a contributing factor in the adverse action.
(Grubb v. Dep't of the Interior, 96 M.S.P.R. 361, 367, ¶11 (MSPB 2004).)
The agency may then prove by clear and convincing evidence that it would have taken the same adverse action in the absence of the protected disclosure. (Gonzalez, 109 M.S.P.R. at 258, ¶ 16.) The MSPB considers:
  • The strength of the agency's evidence supporting its action.
  • The existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision.
  • Any evidence that the agency takes similar actions against employees who are not whistleblowers but are otherwise similarly situated.
(Carr v. Social Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).)
For more information on whistleblower reprisal, see Practice Note, Whistleblower Protections Under the Whistleblower Protection Act.

Decisions Not In Accordance with Law

The MSPB may reverse a personnel action if the agency's decision was not in accordance with law. Chapter 43 requires certain due process protections before an agency may take a performance-based action against an employee (see Due Process Requirements). Other sources of "law" may permit or prohibit an agency's decision, including agency-specific:
  • Regulations.
  • Rules.
  • Policies.
  • Collective bargaining agreements.
(See Doe v. Dep't of Justice, 113 M.S.P.R. 128, 135, ¶ 10 (MSPB 2010).)
Violations of procedural requirements are generally analyzed under the harmful error standard (see Harmful Error), but situations where an agency has no legal authority for taking an action must always be reversed (Stephen v. Dep't of the Air Force, 47 M.S.P.R. 672, 683-84 (MSPB 1991)).

Procedural Due Process Violations

The CSRA gives civil service employees a property right in continued employment that an agency cannot take away without constitutional due process. The procedural requirements in Chapters 43 and 75 generally outline the due process protections for federal executive branch employees, but are not the final limits on the constitutional procedures an agency must follow. (Stone v. FDIC, 179 F.3d 1368, 1375 (Fed. Cir. 1999).)
The essential requirements of due process in performance-based actions are notice and an opportunity to respond. A performance-based action taken without these steps is likely to be reversed. For example, in Ginochi v. Department of the Treasury, the agency demoted the appellant from a supervisory position to a non-supervisory position based on the agency's dissatisfaction with the appellant's performance. The demotion notice stated that the supervisory position was subject to a one year probationary period, but the agency had not informed the appellant that he was serving a probationary period before the demotion notice. The MSPB found that the appellant has previously completed a supervisory probationary period, was therefore not a probationer, and was entitled to Chapter 43 or 75 procedural protections, which he did not receive. The MSPB reversed his demotion. (Ginocchi v. Dep't of the Treasury, 53 M.S.P.R. 62, 72–73 (MSPB 1992).)

Remedies

The MSPB has authority to order any federal agency or employee to comply with its decisions and the power to enforce compliance (5 U.S.C. § 1204(a)). When the MSPB finds for the appellant, it orders the agency to cancel the performance-based action and restore the appellant to the same or a substantially equivalent position to the position the appellant held before the wrongful demotion or removal (Kerr v. Nat'l Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984)).
Remedies for a prevailing appellant in an MSPB performance-based action appeal include:
  • Reversing the demotion or removal and reinstating the appellant.
  • Awarding back pay, interest on back pay, restoration of leave, and other monetary benefits to restore the appellant to the position the employee was in before the performance-based action was taken.
  • Awarding attorney's fees when warranted in the interest of justice, including in any case in which:
    • the agency committed a PPP; or
    • the agency's action was clearly without merit.
(5 U.S.C. § 7701; 5 C.F.R. §§ 1201.111 and 1201.202.)
Back pay determinations are governed by the Back Pay Act and accompanying regulations (5 U.S.C. § 5596; 5 C.F.R. §§ 550.804 to 550.805). Compensatory damages may be available, but only in appeals involving:
(5 C.F.R. § 1201.202(c).)
An MSPB order instructs the appellant and agency to cooperate in calculating the amount of back pay, interest, and other benefits due and the appellant to provide any necessary information the agency requests to help it carry out the MSPB's order. If the parties dispute the amount of back pay, interest, or other benefits due, the agency must pay the appellant the undisputed amount no later than 60 calendar days after the date of the order.
The agency must tell the appellant in writing when it believes it has fully carried out the MSPB's order (5 C.F.R. § 1201.181(b)). If the appellant believes the agency did not fully carry out the order, the appellant may file a petition for enforcement within 30 days after receiving the notice that the agency has complied (5 C.F.R. § 1201.182(a)).

Attorney's Fees

The MSPB may award attorney's fees and costs to prevailing appellants if the administrative judge or Board determines that it is in the interests of justice (5 U.S.C. § 7701(g)(1)). Attorney's fees are not available for agency attorneys (Lewis v. Dep't of the Army, 31 M.S.P.R. 476 (MSPB 1986)).
To support a petition for attorney's fees, the appellant must show that:
  • The appellant was the prevailing party.
  • The appellant had an attorney-client relationship and incurred the attorney's fees.
  • An award of fees is warranted in the interest of justice.
  • The amount of fees claimed is reasonable.
(Driscoll v. U.S. Postal Serv., 116 M.S.P.R. 662, 666 ¶ 7 (MSPB 2011).)
For more information, see Standard Document, Appellant's Motion for Attorney Fees: MSPB.

Judicial Review of MSPB Performance-Based Action Appeal Decisions

The appellant (but not the agency) may appeal a final MSPB performance-based action appeal decision to the US Court of Appeals for the Federal Circuit within 60 days from the date of the MSPB's final decision (5 U.S.C. § 7703(b)(1)(A)). For years, the Federal Circuit considered this deadline to be jurisdictional and not subject to equitable tolling (Fedora v. MSPB, 848 F.3d 1013 (Fed. Cir. 2017)). However, the US Supreme Court recently unanimously held that the deadline is a non-jurisdictional filing deadline that is presumptively subject to equitable tolling (Harrow v. Dep't of Defense, (U.S. May 16, 2024)).
If the performance-based action appeal involved allegations of whistleblower or other retaliation under 5 U.S.C. § 2302(b)(8) or certain subsections of 5 U.S.C. § 2302(b)(9), the appellant may file a petition for review in the Federal Circuit or any appropriate circuit within 60 days from the date of the final decision (5 U.S.C. § 7703(b)(1)(B)).
Judicial review of most MSPB decisions is limited. The Federal Circuit must affirm an MSPB decision unless it is:
  • Arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law.
  • Obtained without following procedures required by law, rule, or regulation.
  • Unsupported by substantial evidence.
(5 U.S.C. § 7703(c); Harris, 972 F.3d at 1315.)
Judicial review of performance-based actions is additionally limited because the court gives deference to an agency's judgment about its employees' performance in light of the agency's assessment of its personnel needs and standards (Harris, 972 F.3d at 1315).
If the performance-based action appeal involved allegations of discrimination under Title VII, the Rehab Act, the ADEA, or GINA, the appellant may file a lawsuit in an appropriate US District Court within 30 days of receiving the final decision (5 U.S.C. § 7703(b)(2)). In discrimination cases, the appellant is entitled to a de novo trial (5 U.S.C. § 7703(c)).
If the appeal is a mixed case, the appellant should file in federal district court to obtain judicial review of both discrimination claims and civil service issues (Perry v. MSPB, 582 U.S. 420, 437 (2017); Kloeckner v. Solis, 568 U.S. 41 (2012)).
For more information on judicial review of MSPB decision, see Practice Note, MSPB Appeals Process: Overview: Judicial Review.