Report from MSPB Explains Federal Civil Service Employment Due Process | Practical Law

Report from MSPB Explains Federal Civil Service Employment Due Process | Practical Law

The US Merit Systems Protection Board (MSPB) issued a report outlining the various due process standards for federal civil service employees, and explaining the underlying reasons for those standards. The report, titled "What Is Due Process In Federal Civil Service Employment?," traces the history and evolution of the processes and rules by which federal civil service agencies take adverse actions against federal civil service employees. The report then highlights the core statutory and constitutional due process requirements that currently must be followed in varying types of employee disciplinary matters, with the two touchstone requirements being: 1) A meaningful opportunity for the individual employee to know the charges against him/her in advance and present a defense; and 2) the ability to appeal a serious adverse action to an impartial adjudicator.

Report from MSPB Explains Federal Civil Service Employment Due Process

Practical Law Legal Update 1-612-3886 (Approx. 5 pages)

Report from MSPB Explains Federal Civil Service Employment Due Process

by Practical Law Labor & Employment
Published on 12 May 2015 • USA (National/Federal)
The US Merit Systems Protection Board (MSPB) issued a report outlining the various due process standards for federal civil service employees, and explaining the underlying reasons for those standards. The report, titled "What Is Due Process In Federal Civil Service Employment?," traces the history and evolution of the processes and rules by which federal civil service agencies take adverse actions against federal civil service employees. The report then highlights the core statutory and constitutional due process requirements that currently must be followed in varying types of employee disciplinary matters, with the two touchstone requirements being: 1) A meaningful opportunity for the individual employee to know the charges against him/her in advance and present a defense; and 2) the ability to appeal a serious adverse action to an impartial adjudicator.
On May 11, 2015, the US Merit Systems Protection Board (MSPB) issued a report outlining the various due process standards for federal civil service employees, and explaining the underlying reasons for those standards. The report, titled "What Is Due Process In Federal Civil Service Employment?," traces the history and evolution of the processes and rules by which federal civil service agencies take adverse actions against federal civil service employees. The report then highlights the core statutory and constitutional due process requirements that currently must be followed in varying types of employee disciplinary matters, with the two touchstone requirements being: 1) A meaningful opportunity for the individual employee to know the charges against him/her in advance and present a defense; and 2) the ability to appeal a serious adverse action to an impartial adjudicator.
The report, generated by MSPB Chairperson Susan Tsui Grundmann and directed to President Obama, Vice President Biden and Speaker Boehner:
  • Traces the history of the MSPB.
  • Discusses major court decisions that addressed the core constitutional requirements of due process in the context of the merit-based civil service system, with particular focus on the US Supreme Court's seminal decision in Cleveland Board of Education v. Loudermill (470 U.S. 532 (1985)).
  • Analyzes the statutory framework of due process for specific types of federal civil service employee discipline, including:
    • suspensions of 14 days or fewer;
    • suspensions of more than 14 days;
    • reductions in pay;
    • demotions; and
    • removals.
    (5 U.S.C. § 7503; 5 U.S.C. § 7513(b).)
As detailed in the report, prior to an agency imposing a suspension of 14 days or fewer, due process, at a minimum, requires:
  • Advance written notice to the employee stating the specific reasons for the proposed action.
  • A reasonable time for the employee to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer.
  • The right of the employee to be represented by an attorney or other representative.
  • The issuance of a written decision as soon as possible outlining the specific reasons for the adverse action.
(5 U.S.C. § 7503.)
MSPB does not have appellate jurisdiction with this type of discipline unless conferred by another statute, such as in cases alleging:
  • Whistleblower retaliation.
  • Discrimination based on military service or obligations.
(Johnson v. U.S. Postal Service, 85 M.S.P.R. 1, ¶ 11 (1999).)
The report also addressed suspensions of more than 14 days, demotions, reductions in pay and removal, for which minimum due process requires:
  • At least 30 days' advance written notice to the employee, unless there is reasonable cause to believe the employee committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action.
  • A reasonable time, but not fewer than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer.
  • The right of the employee to be represented by an attorney or other representative.
  • The issuance of a written decision as soon as possible outlining the specific reasons for the adverse action.
(5 U.S.C. § 7513.)
The report includes a section outlining recent efforts to modify the current civil service system (both within the federal government as a whole and within individual agencies) and the role of due process in those changes. It also includes an appendix intended to clear up confusion about how the federal civil service disciplinary process works.