shaw bransford & roth case law update

Board Issues Adverse Actions Report

On December 5, 2016, the Merit Systems Protection Board released a new report, entitled “Adverse Actions: A Compilation of Articles.” 

In a press release, the Board’s Chairman called the report a “must read” for Proposing and Deciding Officials. The Board stated that it opted for a “buffet” style report in lieu of a more formal report to the President in part because a formal report may appear “unnecessarily daunting” to interested parties.

The report includes a discussion of Board precedent and the case law that informs the adverse action process, while also asking readers “to question anecdotes they may hear about adverse actions,” explaining “that the story may be missing crucial facts. As an example, the Board used the case of Sharpe v. Environmental Protection Agency, Docket No. DA-0752-14-0034-1-1 (Feb. 27, 2015). In this case, an MSPB administrative judge overturned an Agency removal action for “unauthorized absence” that was not supported by law. However, Congressional and media attention on the case focused on the Board’s reversal of the removal despite the individual’s alleged violation of his probation regarding a charge of indecency with a child. The Board noted in its report that this allegation was completely absent from the case at issue, and that the employee had, in a separate action, been indefinitely suspended by the agency until the aforementioned criminal proceedings were resolved. The Board observed that the unfortunate byproduct of faulty reporting on the proceedings was that an average reader may “walk away thinking Federal agencies are regularly forced to employ child molesters who violate probation and the agencies can do nothing about it.” The Board stated that contrary to that potential perception, it has an extensive history of sustaining removals for egregious off-duty misconduct.

The report also sought to explain that performance based actions are not limited to chapter 43 of Title 5, and that although chapter 75 of Title 5 was typically considered the “misconduct” statute rather than the statute for performance-based actions, “agencies are permitted to take a performance-based action under either statute, provided they comply with the process for the chapter they select.”

Elsewhere in the report, the Board provided the constitutional legal precedent that provides employees with the right to notice and a meaningful opportunity to reply, and explained each agency’s rights to tailor its procedures to “best address their agency’s unique needs within the bounds set by the law” but cautioned that in doing so, “it is important to understand where the rules come from in order to understand what can – and cannot – be changed.”

The Board also described in a separate article how an agency risks denying its employees due process if the reply period is merely an “empty formality” in which “the employee speaks while no one with the power to affect the outcome listens.” The board cited Hodges v. U.S. Postal Service, 118 M.S.P.R. 591 (2012), in which the deciding official failed to read the employee’s written response before issuing a decision, as an example of a reply period that had become an “empty formality” and was therefore violative of due process.

Many other articles contained in the report touched on separate issues, including the labeling of charges, penalty determination, similarly situated employees, and more.

Read the full report: Adverse Actions: A Compilation of Articles


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: MSPB, Merit Systems Protection Board, adverse action cases, Title 5



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