1
Analysis of data from U.S. Office of Personnel Management, Central Personnel Data File (CPDF), FY 2000-FY 2014. Discharge
data includes the removal of probationers and those in a trial period for reasons involving conduct and/or performance. It does not
include discharges from some agencies that use unique coding, such as the more than 10,000 separation actions that occurred within
the Transportation Security Administration (TSA) in this period, because the coding system does not permit us to determine the reasons
for those separations.
2
See 38 U.S.C. §§ 4301-4333 (USERRA); Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, § 706(e)-(g) (authorizing
discrimination litigation in Federal courts). Congress has also enacted other laws to protect private sector employees. See, e.g., Family
Medical Leave Act of 1993 (FMLA), Pub. L. No. 103-3, 107 Stat. 6, § 107 (authorizing civil actions and damages); Dodd-Frank Wall
Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376, § 748 (authorizing a cause of action for discrimination
against whistleblowers); http://www.whistleblowers.gov/
(explaining that Congress has enacted 22 laws to protect employees from
retaliation for reporting occupational safety hazards).
3
See 5 U.S.C. § 5596 (b)(1)(A). But see 5 U.S.C. § 1214(b)(1) (authorizing the Office of the Special Counsel (OSC) to request that the
Board order a stay of a personnel action if there are reasonable grounds to believe the action is the result of a prohibited personnel
practice). MSPB records indicate that OSC requests for such stays are very rare. From FY 2004-2014, OSC filed 65 requests for a stay,
86% of which were granted. Appellants also may request a stay under more limited circumstances. See 5 U.S.C. § 1221(c).
4
Goeke v. Department of Justice, 122 M.S.P.R. 69, ¶ 23 (2015) (explaining that the agency opted to delegate to a non-supervisory
career official the authority to propose adverse actions, even though no external law, rule, or regulation required any delegation of the
agency’s disciplinary power. Such a delegation can be abandoned or modified prospectively by the agency at will; but, once adopted and
until modified, it must be enforced); see Boddie v. Department of the Navy, 827 F.2d 1578, 1580 (Fed. Cir. 1987) (explaining that a new
official can be substituted only if the substitution occurs before the assigned official considers the charges); Ward v. U.S. Postal Service,
634 F.3d 1274, 1279 (2011) (prohibiting ex parte communications); 5 U.S.C. § 7513 (authorizing an “agency” to impose an adverse
action).
5
Wallington v. Department of Treasury, 42 M.S.P.R. 462, 465 (1989). See, e.g., Raymond v. Department of Army, 34 M.S.P.R.
476, 478 (1987) (appellant removed and MSPB appeal dismissed without prejudice to refiling because of investigation by U.S.
Attorney); Green v. U.S. Postal Service, 16 M.S.P.R. 203, 206 (1983) (staying a removal appeal at MSPB pending completion of the
ongoing criminal investigation by the U.S. Attorney’s Office). Civil proceedings may be frozen pending the resolution of a criminal
prosecution. Afro-Lecon, Inc. v. United States, 820 F.2d 1198, 1204 (Fed. Cir. 1987). However, the law has specific provisions to make
it possible to fire an employee reasonably suspected of a crime for which imprisonment may be imposed even faster than an employee
whose actions are not likely to result in imprisonment. 5 U.S.C. § 7513(b)(1). Additionally, the Board has held that an employee is not
entitled to back pay for any period of an indefinite suspension based on an indictment, regardless of the outcome of the criminal
charges, if the indictment was proper when effected. Jarvis v. Department of Justice, 45 M.S.P.R. 104, 108 (1990); see Wiemers v.
Merit Systems Protection Board, 792 F.2d 1113, 1116 (Fed. Cir. 1986) (holding that a reversal of a conviction did not entitle an employee
to back pay for a suspension based on alleged criminal activity).
6
Analysis of data from CPDF, FY 2005-2013, full-time, permanent employees experiencing a suspension of more than 14 days,
change to lower grade, or removal for cause.
7
See, e.g., Gebhardt v. Department of the Air Force, 99 M.S.P.R. 49, ¶ 21 (2005), aff’d, 180 F. App’x 951 (Fed. Cir. 2006) (holding
that “[s]upervisors may be held to a higher standard of conduct than non-supervisors because they hold positions of trust and
responsibility”); Myers v. Department of Agriculture, 88 M.S.P.R. 565, ¶ 34 (2001), aff’d, 50 F. App’x 443 (Fed. Cir. 2002) (holding
that an “agency has a right to expect a higher standard of conduct from supervisors than from nonsupervisory employees”).
8
Wigen v. U.S. Postal Service, 58 M.S.P.R. 381, 383 (1993) (an agency cannot impose disciplinary or adverse action more than
once for the same instance of misconduct).
9
Brough v. Department of Commerce, 119 M.S.P.R. 118, ¶¶ 10, 13 (2013). The agency must comply with its own internal rules for
issuing notices of proposed action. See Canary v. U.S. Postal Service, 119 M.S.P.R. 310, ¶¶ 11-12 (2013) (holding that the substitution of
a new deciding official violated the agency’s procedures under the circumstances of the case).
10
See Dejoy v. Department of Health & Human Services, 2 M.S.P.R. 577, 580 (1980) (holding that an agency may cancel a
proposed removal and substitute a new notice of proposed removal).
11
See Ward, 634 F.3d at 1279 (explaining that if there is a due process violation, the appellant “is automatically entitled to an
‘entirely new’ and ‘constitutionally correct’ removal proceeding”); Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 8 (2012)
(explaining that the appellant is entitled to a new proceeding).
12
The MSPB appeals process only applies to non-probationary career appointees and those who met the definition of employee
prior to placement in the SES. See 5 U.S.C. §§ 7541, 7543.
13
5 U.S.C. § 7543. Section 707 of the Veterans Access, Choice, and Accountability Act (VACAA), Pub. L. No. 113-146, 128 Stat 1754,
which established a different process for the removal of SES members in the Department of Veterans Affairs (DVA), provided that, “the
Secretary determines the performance or misconduct of the individual warrants such removal.” See 38 U.S.C. § 713. However, under
both the traditional SES system and the VACCA system, there is no requirement to delay the effective date of the termination and
cessation of pay and benefits pending appeal. Rather, under the traditional system, any appeal of an action for “misconduct, neglect of
duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function” cannot take place
until after the action takes effect, as it is the taking of the action which provides MSPB with its jurisdiction.
14
5 U.S.C. § 3592(a). But see 5 U.S.C. §§ 3592(b)(2), 4314(b)(3) (the right to request a hearing under section 3592(a) does not
apply to any senior executive removed for receiving unsatisfactory annual appraisals).