An employee's voluntary decision to resign or retire from federal service is generally not appealable as a removal. Similarly, an employee that voluntarily accepts a downgrade to a position at a lower grade or pay may not appeal the reduction as an adverse action. In limited circumstances, a resignation, retirement, or accepted downgrade may be considered a constructive adverse action and therefore appealable, if the employee lacked a meaningful choice because of the agency's improper action.

For example, an apparently voluntary resignation or retirement may be treated as a constructive removal if:

(Garcia v. Dep't of Homeland Sec., 437 F.3d 1322, 1328-30 (Fed. Cir. 2006).)

A constructive adverse action is not merely an unpleasant choice between resigning or retiring and being removed for cause. An employee must show that the agency knew the reason for the threatened removal was not legitimate. (Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987).) Proving that a resignation or retirement is a constructive adverse action is a high bar for an employee to meet.

The MSPB also recognizes that an employee's absence from work (for example, by being placed on leave without pay (LWOP) status) may be a constructive suspension. To demonstrate that an absence from work is not voluntary and is an appealable constructive suspension, an employee must show both that:

(Thomas v. Dep't of Navy, 123 M.S.P.R. 628, 633, ¶ 9 (MSPB 2016).)

In constructive adverse actions, because the questions of the MSPB's jurisdiction and the merits are inextricably intertwined, if the employee shows that the resignation or retirement was involuntary, the employee not only establishes MSPB jurisdiction, but wins on the merits and the MSPB will reverse the constructive adverse action (Schultz, 810 F.2d at 1136).

An indefinite suspension is appealable if it lasts more than 14 days (5 C.F.R. § 752.401(a)(2)). To validly impose an indefinite suspension, an agency must show that:

(Hernandez v. Dep't of the Navy, 120 M.S.P.R. 14, 16-17 ¶ 6 (MSPB 2013).)

The MSPB has authorized the use of indefinite suspensions in these circumstances:

(Gonzalez v. Dep't of Homeland Sec., 114 M.S.P.R. 318, 326-27 ¶ 13 (MSPB 2010).)

The requirement of "current continuous service" means that, immediately before the adverse action, the employee must have been continuously working in a civilian position without a break in service of a work day (5 C.F.R. § 752.402; Roy v. MSPB, 672 F.3d 1378, 1380-81 (Fed. Cir. 2012)). Taking annual or sick leave is not a break in service.

Civilian employment in a different agency may count toward the calculation of the length of the employee's current continuous service (Dade v. VA, 101 M.S.P.R. 43, 44-48 ¶¶ 2, 6, 9-12 (MSPB 2005)). However, military service does not count toward the calculation of current continuous service (Wilder v. MSPB, 675 F.3d 1319, 1322-23 (Fed. Cir. 2012)).

Past service cannot be tacked on to current service to add up to the requirement of current continuous service if there is a substantial break in service between the past service and current service (see Williams v. MSPB, 892 F.3d 1156, 1158-59 (Fed. Cir. 2018); Roy, 672 F.3d at 1380-81; Herbert v. U.S.P.S., 86 M.S.P.R. 80, 84-85, ¶¶ 8-9 (MSPB 2000)). Service in temporary positions does not count toward the current continuous service requirement (Williams, 892 F.3d at 1161; Roy, 672 F.3d at 1381; Forest v. MSPB, 47 F.3d 409, 411 (Fed. Cir. 1995)).

Time when an employee is still employed but in a non-pay status (such as when an employee is on indefinite suspension or receiving compensation benefits for an injury) may count as continuous service (see Jackson v. U.S.P.S., 73 M.S.P.R. 512, 514 n.2 (MSPB 1997); Strawbridge v. U.S.P.S., 31 M.S.P.R. 386, 388 (MSPB 1986)).

For excepted service employees, the current continuous service must be in the same or similar positions (5 U.S.C. § 7511(a)(1)(B) and (C)(ii)). Similar positions means positions in which all of the following are true:

(5 C.F.R. § 752.402.)

Competitive service employees can meet the current continuous service requirement without proving that the service was in the same or similar positions.

Most competitive and excepted service positions require a probationary or trial period, usually at least one year. The purpose of the probationary period is to allow the agency to determine the employee's fitness for employment. An agency can remove a probationary employee for nearly any reason that demonstrates unfitness for continued employment (5 C.F.R. §§ 315.803 and 315.804). An agency terminating a probationer for failing to demonstrate fitness or qualification for continued employment should notify the probationer in writing as to why the probationer is being terminated and the effective date of the termination (5 C.F.R. § 315.804(a)).

However, employees who have not completed the probationary or trial period for their position have limited MSPB appeal rights, unless they have met the requirement of current continuous service in another non-temporary position (McCormick v. Dep't of Air Force, 307 F.3d 1339 (Fed. Cir. 2002); see Current Continuous Service).

A competitive service probationer may appeal a removal only if the removal was:

(5 C.F.R. § 315.806.)

Even when a probationary employee can appeal a removal for pre-appointment reasons, the MSPB only considers whether the agency's failure to give the probationer advance notice and an opportunity to respond was "harmful error" (LeMaster v. Dep't of Veterans Affairs, 123 M.S.P.R. 453, 457, ¶ 7 (MSPB 2016); see Harmful Error).

Probationers in the excepted service have no right to appeal an adverse action to the MSPB (Ramirez-Evans v. Dep't of Veterans Affairs, 113 M.S.P.R. 297, 301, ¶ 10 (MSPB 2010)).

MSPB appeal rights for employees of the Department of Veterans Affairs (VA) are significantly limited. The VA may remove, suspend, or demote a VA employee if the VA Secretary determines the employee's misconduct or performance warrants any of these actions (38 U.S.C. §§ 713(a) and 714(a)). The VA may also reprimand or involuntarily reassign SES employee to a non-SES position (38 U.S.C. § 713(a)(1)). If the VA decides to remove an employee from the SES, the agency can also remove the individual from the civil service (38 U.S.C. § 713(a)(2)).

The employee is entitled to:

(38 U.S.C. §§ 713(b) and 714(c).)

However, the aggregate time for advance notice, response, and the VA's final decision may not exceed 15 business days (38 U.S.C. §§ 713(b)(2)(A) and 714(c)(1)(A)).

SES employees and certain administrators and executives may grieve the adverse action under an internal grievance process for whistleblowers, which must be completed within 21 days (38 U.S.C. §§ 713(b)(1)(C) and 713(b)(3)). SES employees may not appeal the adverse action to the MSPB but may obtain judicial review of the final agency decision (38 U.S.C. §§ 713(b)(5) and (c)).

Non-SES VA employees may file an MSPB adverse action appeal but:

(38 U.S.C. § 714(c) and (d).)

Postal Service employees in the excepted service generally do not have MSPB appeal rights for adverse actions, unless they are one of the following:

(5 U.S.C. § 7511(a)(1)(B)(ii); 39 U.S.C. § 1005(a)(4)(A)(ii).)

These employees must also have completed one year of current continuous service in the same or similar positions to have MSPB appeal rights (Id.).

Employees of the Department of Homeland Security's Transportation Security Administration (TSA) are covered by the personnel management system applicable to employees of the Federal Aviation Administration (FAA) (49 U.S.C. § 114(n)). FAA employees and TSA employees who are not screeners generally have MSPB appeal rights for adverse actions (49 U.S.C. § 40122(g)(3)). However, TSA screeners, lead screeners, and supervisory screeners do not have the right to appeal MSPB adverse actions (Conyers v. MSPB, 388 F.3d 1380, 1382-83 (Fed. Cir. 2004); Connolly v. Dep't of Homeland Sec., 99 M.S.P.R. 422, 426 ¶ 12 (MSPB 2005)).

Chapter 75 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 (Gardner v. Library of Congress, 774 F.2d 1081 (Fed. Cir. 1985)).

Certain executive branch employees are statutorily excluded from the definition of employees eligible to appeal an adverse action to the MSPB. These employees include:

(5 U.S.C. § 7511(b).)

Other statutes may limit an employee's MSPB appeal rights. A statute giving an agency authority to hire certain kinds of employees outside of the usual appointing mechanisms may limit the MSPB appeal rights of these employees (5 C.F.R. § 752.401(12)). For example, the National Institutes of Health (NIH), part of the Department of Health and Human Services, has special hiring authority for hiring certain categories of research scientists and research fellows. These employees are excluded from the MSPB's adverse action appeal jurisdiction (Fishbein v. Dep't of Health & Human Services, 102 M.S.P.R. 4, 13 ¶ 17 (MSPB 2009)). An agency or employee's counsel should check the statute that governs the agency's hiring authority to determine whether the employee has full or limited MSPB appeal rights.

Whether an employee's off-duty criminal conduct has sufficient nexus with the efficiency of the service to justify an adverse action depends on the facts of the case. For example, in Merritt v Dep't of Justice, a correctional officer was removed for using and sharing a small amount of marijuana with friends from work at home. The MSPB reversed his removal because the employee's conduct was not egregious (he had been neither arrested for nor convicted of marijuana possession) and the agency failed to show that he was more likely to violate or fail to enforce the prison's regulations on keeping contraband out of the prison. (Merritt, 6 M.S.P.R. at 607-08.)

In another case, three correctional officers were removed based on a charge of possessing and using marijuana outside a public tavern. The MSPB held that there was a nexus between these correctional officers' conduct and the efficiency of the service because they had smoked the marijuana in public and were observed by at least one coworker. Their off-duty misconduct may cause the public to question whether the drug laws were being properly enforced within the prison and were antithetical to the agency's law enforcement and rehabilitative programs the officers were responsible for monitoring. (Kruger, 32 M.S.P.R. at 74-75.) However, the MSPB reduced the penalty from removal to a 60-day suspension because they had not been arrested or convicted of any crime and all three had records of good performance with no prior disciplinary action (Kruger, 32 M.S.P.R. at 76-77).

When an employee is arrested or convicted of a crime, the nexus is stronger. An arrest for off-duty conduct does not supply the nexus on its own to justify removing an employee (Roby v. Dep't of Justice, 59 M.S.P.R. 426, 428 (MSPB 1993); Barber v. Dep't of Navy, 8 M.S.P.R. 229, 230 (MSPB 1981)). However, an agency may suspend an employee who has been arrested if the agency has reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed (5 U.S.C. § 7513(b)(1); Barber, 8 M.S.P.R. at 230-31).

The nexus presumption is strong in cases involving criminal convictions for violent crimes. Examples include:

An employee's non-criminal off-duty conduct may also justify an adverse action, if the conduct has a nexus with the efficiency of the service. This analysis is fact-specific. For example, in Monterosso v. Dep't. of Treas., the MSPB reversed the removal of a mail clerk for failing to pay debts that led to court judgments. The Board held that there was no specific connection between the employee's potentially embarrassing failure to pay debts and the efficiency of the service, especially because there was no reason for the agency to act as an intermediary between the employee and his creditors (6 M.S.P.R. 684 (MSPB 1981)). However, in Cornish v. Dep't. of Commerce, frequent and recurring phone calls from an employee's creditors tied up the agency's telephone lines, aggravated the employee's coworkers, and consumed numerous hours of his supervisor's time counseling him about the need to address his personal problems, all of which was sufficient to demonstrate a nexus (10 M.S.P.R. 382, 383-85 (MSPB 1982)).

Federal employees may also be removed for off-duty conduct contrary to the employing agency's mission. For example:

An appellant may assert that the agency's adverse action was motivated by discrimination on several grounds. If the appellant asserts that the adverse action was motivated by discrimination, harassment, or retaliation covered under the statutes enforced by the Equal Employment Opportunity Commission (EEOC), the adverse action appeal is a mixed case appeal and subject to specific procedures. This includes discrimination based on:

To establish this affirmative defense, the appellant must demonstrate that one of the above prohibited considerations was a motivating factor in the adverse 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:

(Pridgen v. OMB, 2022 MSPB 31 at *6, ¶ 24 (MSPB Sept. 12, 2022).)

The MSPB uses the same McDonnell Douglas burden-shifting framework used in discrimination cases before the EEOC and federal courts. (Pridgen, 2022 MSPB 31 at *6, ¶ 25.)

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.

An appellant may also assert that the adverse action was motivated by discrimination based on marital status or political affiliation (5 U.S.C. § 2302(b)(1)). Even though Title VII does not prohibit marital status discrimination, the MSPB uses the same burden-shifting analysis for marital status cases as the EEOC uses for Title VII cases (McClintock v. Veterans Admin., 6 M.S.P.R. 475, 478 (MSPB 1981)).

An appellant asserting political affiliation discrimination must prove the appellant was discriminated against because of the appellant's affiliation with a political party or candidate (see Rhodes v. Dep't of Commerce, 86 M.S.P.R. 476, 480 (MSPB 2000)).

Probationary employees who do not normally have the right to appeal a removal during the probationary period may appeal if the probationary employee is in the competitive service and the removal is motivated by either marital status discrimination or partisan political reasons (5 C.F.R. § 1201.3(a)(3)).

Finally, an appellant may assert that the adverse action was motivated by discrimination based on conduct not adversely affecting the employee's performance (5 U.S.C. § 2302(b)(10)). This PPP refers only to conduct totally unrelated to job performance (Harvey v. MSPB, 802 F.2d 537, 551-52 (D.C. Cir. 1986)). The MSPB has not established the precise elements for proving a PPP violation under Section 2302(b)(10). Depending on the facts of a particular case, discrimination under this PPP may be analogous to either an affirmative defense of:

(MacLean v. Dep't of Homeland Sec., 116 M.S.P.R. 562, 574-75 ¶ 25-27 (MSPB 2011), rev'd on other grounds 714 F.3d 1301 (Fed. Cir. 2013).)

Whichever analogous standard is used, the appellant has the ultimate burden to prove whether the agency intentionally retaliated or discriminated against the appellant for conduct unrelated to job performance (MacLean, 116 M.S.P.R. at 575 ¶ 28).

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); Jenkins v. EPA, 118 M.S.P.R. 161, 169 ¶ 16 (MSPB 2012)). The appellant may show that the disclosure was a contributing factor using circumstantial evidence, including evidence that:

(Grubb v. Dep't of Interior, 96 M.S.P.R. 361, 367 (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 (Jenkins, 118 M.S.P.R. at 169 ¶ 16). The MSPB considers:

(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.

An employee may assert as an affirmative defense that the employee's protected activity (other than whistleblowing) was the reason behind an agency's adverse action.

Protected activity for other retaliation includes exercising any appeal, complaint, or grievance right granted by a law, rule, or regulation (5 U.S.C. § 2302(b)(9)). Protected activity under this PPP includes filing:

The appellant must prove, by preponderant evidence, that:

(5 C.F.R. § 1209.7(a); Alarid v. Dep't of Army, 122 M.S.P.R. 600, 607-09, ¶¶ 12-14 (MSPB 2015).)

The agency must then prove by clear and convincing evidence that it would have taken the same action in the absence of the appellant's protected activity (Alarid, 122 M.S.P.R. at 609, ¶ 15).

For more information, see Practice Note, Whistleblower Protections Under the Whistleblower Protection Act: Proving Retaliation for Exercising Whistleblowing, Complaint, Appeal, or Grievance Rights Under WPA Section 2302(b)(9).

The CSRA gives civil service employees a property right in continued employment that an agency cannot take away without constitutional due process. Chapter 75's procedural requirements 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 adverse actions are notice and an opportunity to respond. An adverse action taken without these steps is likely to be reversed. For example, in Edwards v. US Postal Service, the Postal Service suspended a supervisory employee without specifying the reason for the suspension in the notice and gave the employee the opportunity to file an internal appeal only after placing him in a non-duty, non-pay status. The MSPB reversed the suspension because the Postal Service's failure to provide the employee with notice for the basis of the suspension and a pre-suspension opportunity to respond violated his constitutional right to due process. (112 M.S.P.R. 196, 200-02 ¶ 13-15 (MSPB 2009).)

When a deciding official receives new and material information by an ex parte communication (in this context, a communication the employee knows nothing about), the employee's constitutional due process rights are undermined and the adverse action must be reversed (Stone, 179 F.3d at 1376). For example, the Air Force removed a firefighter who tested positive for oxycodone and oxymorphone despite his explanation that he had accidentally taken one of his mother's pills instead of his own prescribed medication. The deciding official consulted with his wife (a registered nurse) and his brother-in-law (a nurse practitioner) and based on those conversations, determined that the employee's explanation for his positive drug test was not credible. Because the deciding official based the removal decision on new and material information (his consultations with his family members) without providing the employee an opportunity to respond, the firefighter's removal was reversed. (Johnson v. Dep't of Air Force, 50 F.4th 110, 115-16 (Fed. Cir. 2022).)

Not all ex parte communications are constitutionally impermissible. In assessing whether the ex parte communication violated the employee's constitutional guarantee of notice, the MSPB considers whether:

(Stone, 179 F.3d at 1376-77.)

If the ex parte communication provided new and material information to the deciding official, the MSPB does not analyze whether the failure to provide the information to the employee was harmful error. Rather, the employee is entitled to a new, constitutionally appropriate proceeding. (Stone, 179 F.3d at 1377; see also Ward v. U.S.P.S., 634 F.3d 1274, 1279 (Fed. Cir. 2011).)

The constitutional due process analysis is applied on a charge-by-charge basis. For example, if an ex parte communication tainted the decision-making process for one charge but separate and distinct evidence supports other charges of misconduct sufficient to justify the adverse action, the adverse action may be affirmed without requiring a new proceeding. (See Boss v. Dep't of Homeland Security, 908 F.3d 1278, 1281-83 (Fed. Cir. 2018).)

If the ex parte communication does not rise to a due process violation, the MSPB still evaluates whether this procedural error resulted in harmful error to the appellant (Ward, 634 F.3d at 1281; see Harmful Error).