Due Process Rights of Federal Employees in Employment Matters: MSPB Basics

Federal employees facing proposed adverse action by a U.S. Government Agency employer retains their due process rights under the U.S. Constitution. The main pertinent rights, in most cases, include the Right to Notice and the Right to a Meaningful Opportunity to Reply. The writer of this article handles cases at the MSPB, EEOC and in courts and had the privilege to be a professor that taught Constitutional Law.

The Right to Notice and the Right to a Meaningful Opportunity to Reply, while often treated separately, are organically intertwined. In order to be able to exercise the right to a meaningful opportunity to reply, the individual has to have notice of any proposed adverse action against him. In the same vein, the right to notice shall be essentially meaningless unless the individual is also afforded a meaningful opportunity to reply.

For an article discussing options after removal from federal government service please see: Removal from Federal Government Service.

Due Process Rights of Federal Employees.

Right to Notice

The right to notice means advance notice, prior to any decision being made by the Agency, that an adverse action may be taken against the employee. Such advance notice must include the charges proposed to be taken against the employee, the proposed penalty, the legal basis for such action, and any supporting evidence to support the charges.

The notice must be also complete – in the sense that if there is any charge or evidence that was not included in the notice was ultimately used in a decision against the employee, the MSPB can find this a violation of due process for failure to give notice.

In the case of Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999), the Federal Circuit Court found that there was a violation of the due process requirements of notice and an opportunity to be heard when the notice received by the employee did not include new and material information that was eventually used against the employee by the deciding official.

Meaningful Opportunity to Reply

The employee’s meaningful opportunity to reply includes a reasonable time to reply, both orally and in writing.

This is essentially the chance for the employee to present his side of the story, and he is entitled to do so before any action is taken against him. This gives the deciding official the chance to review the entirety of the charges – particularly if there are facts disputed by the employee, before making a final decision.

The procedures defining the right to reply, however, must meet constitutionally adequate procedures. As the court held in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 (1985):

“The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology. “Property” cannot be defined by the procedures provided for its deprivation any more than can life or liberty. The right to due process is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.”

If you are interested to know more about Due Process Rights of Federal Employees, you may schedule a No-Charge Initial Consultation with a lawyer: Schedule a Call with an Attorney.

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