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MSPB: Due Process in Adverse Action Appeals to the Merit Systems Protection Board

MSPB: Due Process in Adverse Action Appeals to the Merit Systems Protection Board

Occasionally, we see a proposal letter that is so poorly or broadly worded that the Federal Employee is not fully informed of the charges that the Agency has brought against them.

When removing a Federal Employee, Merit Systems Protection Board (MSPB) case law is clear that 5 U.S.C. § 7513(b)(1) requires that the Federal government Agency give the Federal employee advance written notice stating the specific reasons for the proposed adverse action. The MSPB has consistently held that a Federal employee must know the charges that he or she has been charged with so that he or she may adequately prepare and present a defense before the Agency. Brown v. USPS, 47 MSPR 50, 57 (1991). The MSPB has found that to satisfy this requirement of notice to the federal employee, the Federal executive agency is required to state the specific reasons for a proposed adverse action in sufficient detail to allow the employee to make an informed reply.

The MSPB cannot consider or sustain charges or specifications that are not included in the notice of the proposed adverse action against the Federal Employee, because the Federal Employee must have full notice of the charges against her. The MSPB has found that providing the Federal employee with advance written notice of the charges and an opportunity to reply before a final agency decision is made are fundamental procedural due process rights. See, Brown; see also, Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). Indeed, in Cleveland Board of Education, the Supreme Court held that a Federal Agency’s failure to provide a tenured civil service employee with an opportunity to present a response, either in person or in writing, to an appealable agency action that deprives the Federal employee of a property right in her employment constitutes an abridgment of the Federal employee’s constitutional right to minimum due process of the law.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

If you believe that your Agency has deprived you of due process in proposing an adverse action against you, or if you are a Federal employee with an MSPB matter for which you would like legal advice, please contact the MSPB lawyers at the Law Offices of Eric L. Pines, PLLC. Lawyers at the Law Offices of Eric L. Pines, PLLC represent Federal Employees before the MSPB, the EEOC, OPM and OWCP in all fifty (50) states in the country.