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Due Process

WHAT IS “DUE PROCESS?”

The main distinction between federal and private sector employees is that federal employees can only be subjected to an adverse action, such as removal, demotion to a lower grade, or suspension of more than 14 days, including indefinite suspensions, if they are afforded due process because federal employment is property protected by the Constitution.

At its core, due process requires notice and the right to reply to a proposed removal or other adverse action. Over the years, the U.S. Court of Appeals for the Federal Circuit and the Merit Systems Protection Board (MSPB) have clarified what this means, although the case law has been continually evolving. Under current law, before a federal agency takes an adverse action against a federal employee, the agency must:

  • Issue a notice of proposed adverse action to the employee, at least 30 days in advance, with the charge(s) sufficiently detailed to allow the employee to make an informed reply;
  • Allow the employee to review the materials relied upon, or the evidence against them, prior to replying to the charge(s). This includes any evidence considered to be aggravating with regard to the penalty assessment.
  • Afford the employee with a “meaningful opportunity” to reply, which typically includes both the right to reply in writing and orally to a deciding official with authority to make a decision on the proposed action.