The Federal workforce is the single largest public sector workforce in our country, and the largest employer in the world. It also has the most complex and comprehensive set of laws, rules, and regulations of any public employer. Our attorneys are highly knowledgeable and experienced in the federal sector employment realm. Our extensive knowledge of federal personnel law makes us well qualified to serve other public sector employers.
We are also uniquely qualified attorneys because we provide legal services to both employees and agencies alike. We know both sides. Understanding the legal concepts of both sides of the federal employment relationship, makes us uniquely qualified to succeed for our clients.
Our Services
The modern federal employment system is a complex statutory scheme created more than 40 years ago, implemented by various administrative processes derived from nuanced statutory and regulatory provisions. Navigating any one of those processes requires a tailored approach.
Depending on the agency and the basis for the personnel action, the agency’s legal authority and employee rights may come from various sections of either Title 5, Title 38, Title 42, or Title 50 of the U.S. Code. Each different legal authority for taking an action affords employees distinct rights, available defenses, and grievance or appeal rights.
For 40 years, Shaw, Bransford & Roth has represented federal employees and agencies across government. We leverage that experience to shepherd our clients through complicated administrative processes and advise them on options and potential outcomes, so they can make informed decisions about the legal situation.
Disciplinary and Adverse Actions under Chapter 75
Chapter 75 Actions
Federal personnel law is complicated. A federal employee facing discipline is entitled to certain processes and protections before an agency can take a disciplinary action. Understanding these processes is important.
A federal employee covered under Chapter 75 who receives a proposed disciplinary or adverse action is entitled by law to:
30 days’ advance written notice of the charges;
Notice of proposed penalty;
The evidence relied upon by the agency;
Representation by an attorney; and,
An opportunity to respond orally and in writing to the proposed charges.
The employee’s response to the proposal is the opportunity to address the charged conduct, clarify and expand on the underlying facts, and invoke the discretion of the agency official who will decide whether to take the proposed action. We work with our clients to develop an in-depth understanding of what is legally important and a detailed knowledge of what factors the decision-maker will consider in determining the outcome of the proposed action.
Our lawyers guide clients through what may seem like an insurmountable process. We work with clients to prepare a written response to the proposal. We thoroughly review and assess the evidence relied on by the agency and identify any evidentiary gaps, evaluate the strength of the agency’s case and whether the agency can prove the charges under the appropriate evidentiary standard (which varies depending on your employer and the statutory processes used to propose discipline), and work with the client to develop and present an effective defense.
We also prepare our clients for the oral reply, and advocate on the client’s behalf at the oral reply, whether it is held telephonically, on a video conference, or in person. Leading up to the oral reply, we facilitate the client’s development of a statement that the client will deliver to the deciding official. The client’s oral reply statement should buttress and advance the defense to the proposed action.
The Douglas Factors: Addressing the Reasonableness of the Penalty
Often, responding to a proposed disciplinary or adverse action under Chapter 75 involves not only addressing the merits of the alleged infraction, but also addressing whether the proposed penalty is legal.
Agency decision makers are generally required to consider the following factors, known as the Douglas factors, when evaluating whether the proposed penalty should be imposed. The factors to be considered are:
The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
The employee's job level and type of employment, including supervisory, or fiduciary role, contacts with the public, and prominence of the position;
The employee's past disciplinary record;
The employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties;
Consistency of the penalty with those imposed upon other employees for the same or similar offenses;
Consistency of the penalty with any applicable agency table of penalties;
The notoriety of the offense or its impact upon the reputation of the agency;
The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about conduct in question;
Potential for the employee's rehabilitation;
Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
Consistency of the penalty with any applicable agency table of penalties;
The notoriety of the offense or its impact upon the reputation of the agency;
The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about conduct in question;
Potential for the employee's rehabilitation;
Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
Douglas v. Veterans Admin., 5 M.S.P.R. 280, 332 (1981).
Our attorneys are skilled at working with clients to fully understand the circumstances surrounding their actions and omissions. We listen to our client, ask questions, and draw out pertinent facts. We then work to personalize a response that factors in the particular circumstances and highlight the Douglas factors that support a legally appropriate outcome.
Employee Rights Following a Disciplinary or Adverse Action under Chapter 75
Should the agency sustain charged conduct against an employee and impose a penalty, our attorneys identify appeal rights and plan an appropriate strategy to contest the action. Employee rights depend on the level discipline imposed and the employee’s employment status.
If the discipline imposed is a reprimand or suspension of 14 days or less, and the employee is a non-bargaining unit employee, the right to appeal the decision will derive from your agency’s internal grievance procedures. 5 C.F.R. § 752.203(f).
If the employee is a non-probationary employee and the penalty imposed is a suspension of greater than 14 days, a reduction in grade, a reduction in pay, or a removal action, they have the right to file an appeal with the Merit Systems Protection Board (MSPB).
In an MSPB appeal, employees are entitled to a hearing before an administrative judge, who will issue a decision. Our attorneys evaluate the strength of an appeal and prepare the case for hearing. This includes conducting discovery, which entitles employees to request documents and ask questions about the agency’s case to ferret out important facts, and conduct depositions, which allows us to question involved management officials and witnesses to fully understand the strengths and weaknesses of the agency’s case.
In preparation for your MSPB hearing, we work with clients to develop a litigation strategy that has the greatest likelihood of success. At hearing, employees have an opportunity to tell their story. We conduct effective cross-examination of agency officials to highlight shortcomings in the agency’s case. Following a hearing, if required by the administrative judge, we fully brief the case to ensure the judge takes into consideration all important evidence mentioned at the hearing.
If our client prevails on appeal, we prepare a fee petition to argue for the payment of attorney fees by the agency. We have successfully litigated dozens of cases before the MSPB, and have been successful in securing payment of successful litigants’ attorney fees. If the initial appeal is unsuccessful and there are grounds for a second-level appeal, our attorneys evaluate options and advocate why the initial decision should be reversed in a petition for review with the MSPB members.
More information about the entire appeals process (from initial appeal through petition for review) can be found on the MSPB's website.
Shaw Bransford & Roth is a full-service litigation practice. We negotiate, litigate, advocate, and counsel at all stages of the litigation process. We deliver experienced legal services.
Adverse Actions under Chapter 43
Is the Proposed Performance-Based Action under Chapter 43 or Chapter 75? It’s a Difference That Matters.
Federal agencies have two separate statutory processes under Title 5 to take a personnel action against an employee for poor performance – Chapter 43 actions and Chapter 75 actions. The legal elements, standards of proof, and available actions are different depending on which statutory process is utilized by the agency. Thus, it is critical to understand what legal process you are in, and how that process affects an employee’s rights.
Under Chapter 43, an agency may seek to demote or remove an employee from federal service when the action is based solely on the employee’s failure to meet a critical element in an employee’s performance standards. The performance standards are established annually based on an employee’s position description. Before an agency can bring an action under Chapter 43, the agency must first provide the employee an adequate opportunity to improve, commonly referred to as a performance improvement plan (PIP).
The agency’s burden of proof in Chapter 43 actions is relatively low, “substantial evidence.” Substantial evidence is the “degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p).
Under Chapter 75, the agency has a broad array of penalties available to take an action. The agency may reprimand, suspend, demote, or terminate an employee. With Chapter 75, the proposed action is based on conduct not specifically tied to performance standards.
Chapter 75 actions place a higher burden of proof on agencies. It requires an agency to prove the charged misconduct, nexus, and the penalty by “preponderant evidence.” Preponderant evidence is the “the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).
The type of statutory process used by an agency depends on a variety of factors, including the nature of the agency, the nature of the work performed, and the amount of time the agency is willing to expend to correct the performance deficiency leading up to the proposed action. Some agency officials may choose to bring a performance-based action under Chapter 75, because they believe a formal performance improvement period will take too long to correct the job deficiency. Others may choose to bring an action under Chapter 43, because the agency’s burden of proof is lower. We understand that these statutory processes can be complicated. Our attorneys are prepared to educate clients on their rights and the statutory processes at issue.
Chapter 43 Actions: Employee Rights and the Agency’s Legal Requirements
Certain processes are required under Chapter 43 before an agency can demote or remove an employee from the federal service. Our attorneys make sure clients understand these legal processes and evaluate whether they have been met.
Chapter 43 requires agencies to provide employees with performance standards and the critical elements of their position at the beginning of each performance cycle. When an agency determines that performance in one or more critical elements is unacceptable, it is required to give an employee an opportunity to demonstrate acceptable performance. It fulfills this requirement by placing an employee on a performance improvement plan (PIP), and granting the employee a meaningful opportunity to improve.
In a PIP, the agency specifies what performance is unacceptable and what must be done for performance to be deemed acceptable during the PIP. But the agency is also required by statute to assist its employees to improve their performance during the PIP. The use of a PIP is one of the key trade-offs and challenges to agency officials when deciding to bring an action under Chapter 43, as opposed to under Chapter 75. The amount of time provided for in a PIP varies depending on the agency.
Our attorneys are well versed in Chapter 43 actions, and we are leading the discussion on changes to the legal requirements needed for an agency to bring a Chapter 43 action. In the most recent legal review of Chapter 43 requirements, the U.S. Court of Appeals for the Federal Circuit (which reviews MSPB decisions) appointed one of our attorneys, Debra Roth, to be amicus curiae counsel in Santos v. NASA to brief a statutory interpretation question from the position of the pro se employee-petitioner. The Federal Circuit’s landmark opinion in Santos v. NASA, 990 F.3d 1355 (Fed. Cir. 2021) adopted the position that we argued based purely on statutory interpretation rules of construction. The Federal Circuit held that when an employee challenges a removal action based on unacceptable performance at the MSPB, the statutory language in Chapter 43 imposes a requirement on an agency to prove pre-PIP unacceptable performance to justify placing an employee on a PIP. Before the Santos decision, federal agencies were not required to prove an employee had unacceptable performance prior to placement on a PIP.
When the PIP concludes, if the agency finds that an employee “continue[s] to” have unacceptable performance, it will issue to a proposed adverse action under Chapter 43. Employees who receive such an action, are entitled to:
30 days’ advance written notice of the unacceptable performance;
The specific instances of unacceptable performance; and,
The critical elements of your position involved in each instance of unacceptable performance;
Notice of the proposed action – whether it will be a demotion or removal from service;
Representation by an attorney; and,
An opportunity to respond orally and in writing.
Like defending a Chapter 75 action, the employee’s response to a proposed Chapter 43 action is critical. It is the opportunity to address any procedural deficiencies by the agency and to explain why the performance was acceptable, both before and during the PIP. We work to ensure that all statutory requirements leading up to the action were complied with and put on a defense to showcase the employee’s past work.
After the employee responds to the proposed performance action, the agency is then required to issue a written decision that identifies specific examples of unacceptable performance. Congress designed Chapter 43 to make it easier for agencies to sustain performance actions against employees than Chapter 75 disciplinary actions. The agency’s burden of proof is relatively low (as compared to Chapter 75 actions). Chapter 43 only requires agencies to prove the unacceptable performance by substantial evidence.
Should the agency sustain the proposed action, be it demotion or removal, an employee is entitled to appeal the action to the MSPB. Our attorneys are prepared to present a realistic assessment of whether our clients can prevail in an appeal, and work with our clients to defend against the agency’s action.
Adverse Actions under Title 38
The Legal Processes for Title 38 VA Employees Differ
For employee of the Department of Veterans Affairs (VA), the rights afforded them may fall under a relatively new statutory authority, 38 U.S.C. §§ 713 for VA senior executives and 714 for GS employees. Under this law, the VA may propose an adverse action (meaning a suspension of 15 or more days, demotion, or removal) against an employee for performance or misconduct. The processes afforded to VA employees under this law differs from those found in Chapter 75, and make it faster and easier for the VA to take personnel actions against its employees.
In 2017, Congress enacted the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017. Under this law, the timelines for the entire period of notice, response, and a final decision on a proposed action are shortened, limited to only 15 business days. Under this new law, a non-SES VA employee has only 7 business days to reply to any proposed action. In the event the agency’s deciding official imposes a suspension greater than 14 days, demotion, or removal action, a VA employee has a right to appeal the action to the MSPB. But this deadline too is reduced, and any appeal with the MSPB must be filed no later than 10 business days after the VA’s decision has been issued.
After section 714 of the 2017 law went into effect, the Federal Circuit found that the VA had erroneously applied it. Specifically, the VA used the “substantial evidence” standard of proof (the same lower burden of proof utilized by agencies to sustain performance actions under 5 U.S.C. Chapter 43) when determining whether the charged misconduct occurred, and did not use the Douglas factors to assess the reasonableness of the proposed penalty.
In August 2021, the Federal Circuit issued two cases, Rodriguez v. Department of Veterans Affairs, 8. F.4th 1290 (Fed. Cir. 2021), and Connor v. Department of Veterans Affairs, 8 F.4th 1319 (Fed. Circ. 2021), that corrected the VA’s misapplication of the law. In Rodriguez, the Federal Circuit held that preponderance of the evidence (a higher burden of proof), is the “minimal appropriate burden of proof” the VA may use in determining whether alleged misconduct occurred in section 714 disciplinary actions. In Connor, the Federal Circuit held “[section] 714 did not alter preexisting law” regarding the Douglas factors and that “the VA and the Board must continue to apply the relevant Douglas factors in considering the reasonableness of the penalty.”
Still, with this law, the VA has options when proposing adverse actions such as removal, demotion, or a suspension of 15 days or more. If the VA decides to propose an adverse action against a non-SES employee, it may do so under either 38 U.S.C. § 714 or under the existing processes found in Chapter 75. But if the VA wishes to propose a disciplinary action (like a reprimand or suspension of 14 days or less), then it is limited to use the processes found in Chapter 75, since the statutory processes in 38 U.S.C. § 714 do not apply to these minor disciplinary actions.
For employees who receive a proposed adverse action under 38 U.S.C. § 714, it is important to know you will have to meet tight deadlines. At Shaw Bransford & Roth, our attorneys are experienced in and familiar with the VA’s processes and ready to swiftly work with VA employees to respond to the proposal notice and/or litigate the case before the MSPB. We have litigated landmark cases on behalf of VA employees, such as Graves v. Department of Veterans Affairs, MSPB Docket No. CH-0707-16-0180-J-1 (Jan. 29, 2016), Rubens v. Department of Veterans Affairs, MSPB Docket No. PH-0707-16-0151-J-1 (Feb. 1, 2016), and Helman v. Department of Veterans Affairs, 856 F.3d 920 (Fed. Cir. 2017). We are at the forefront of important legal issues affecting VA employees.
Other Disciplinary and Adverse Actions Against Federal Employees
At Shaw Bransford & Roth, we also work with members of the Senior Executive Service, Foreign Service employees, Title 38 medical professionals of the Veterans Health Administration, Title 42 employees, and other federal employees hired under special authorities. Employee rights in responding to proposed discipline vary depending on what legal authority these employees were hired under. Our attorneys ensure clients know the rights that flow from their type of federal appointment and work clients to navigate through the available legal processes.