Federal employees facing removal are entitled to constitutional and statutory due process protections. When agencies violate those protections, the Merit Systems Protection Board (MSPB) may reverse the removal entirely — even when misconduct is alleged.
Unfortunately, due process violations are far more common than most federal employees realize.
This guide explains:
• What due process means in federal employment cases
• The most common due process violations in MSPB appeals
• Key legal precedents
• How employees can challenge removal actions
What Is Due Process in Federal Employee Discipline?
Federal employees with MSPB appeal rights (generally career employees who have completed probation) cannot be removed without procedural due process.
The core requirements were established in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). https://supreme.justia.com/cases/federal/us/470/532/
These protections were later incorporated into federal civil service law, particularly:
5 U.S.C. § 7513 – Adverse Actions https://www.law.cornell.edu/uscode/text/5/7513
Before removing a federal employee, an agency must provide:
• Advance written notice of the proposed removal
• An explanation of the evidence supporting the charge
• A meaningful opportunity to respond
The Two-Step Removal Process
Most federal removals follow a two-stage process.
Step 1 – Notice of Proposed Removal
A proposing official issues a written notice describing:
• The charges
• The specifications supporting the charges
• The evidence relied upon
The employee is typically given between 7 and 30 days to respond.
Step 2 – Decision on the Proposal
A separate deciding official reviews:
• The proposal
• The employee’s reply
• Any supporting evidence
The deciding official then determines whether the charges are sustained and whether removal is warranted under the Douglas factors.
Common Due Process Violations in MSPB Removal Cases
Many MSPB appeals succeed because agencies fail to follow basic procedural requirements.
1. Reliance on Evidence Not Disclosed to the Employee
One of the most frequent due process violations occurs when a deciding official relies on new or undisclosed evidence.
The Federal Circuit addressed this issue in Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999). https://caselaw.findlaw.com/court/us-federal-circuit/1414122.html
In Stone, the court ruled that deciding officials cannot rely on ex parte communications that introduce new and material information without giving the employee an opportunity to respond.
Examples include:
• Emails from management not provided to the employee
• Investigative summaries never disclosed
• Evidence discussed privately with the deciding official
If the communication is new and material, the removal may be reversed.
2. Deciding Official Bias
A deciding official must remain neutral and independent.
Problems arise when the deciding official:
• Participated in the investigation
• Was directly involved in the alleged misconduct
• Formed an opinion before reviewing the employee’s reply
If the deciding official predetermines the outcome, the removal may violate due process.
3. Failure to Disclose Evidence Supporting the Charges
Agencies must provide employees with the evidence relied upon to support the charges.
If the agency relies on:
• Investigative reports
• Witness statements
• Emails or internal communications
those materials must generally be disclosed so the employee can respond meaningfully.
4. New Charges Raised in the Decision Letter
Another due process violation occurs when the decision letter introduces new theories or allegations that were not included in the proposal.
Employees must have an opportunity to respond to the actual charges relied upon.
Why Due Process Violations Matter
Due process errors can lead to reversal of the removal action.
The MSPB may:
• Cancel the removal
• Order reinstatement
• Award back pay
• Grant attorney fees
Relevant statute: Back Pay Act – 5 U.S.C. § 5596 https://www.law.cornell.edu/uscode/text/5/5596
The Role of Discovery in Due Process Cases
In MSPB litigation, discovery often reveals undisclosed evidence or ex parte communications that violate due process.
Attorneys frequently review:
• Proposal and decision letters
• Investigative files
• Internal emails
• Communications between managers
• Communications involving deciding officials
When to Raise Due Process Issues
Due process defenses are often raised through:
• Affirmative defenses
• Discovery requests
• Motions practice
• Cross‑examination at the MSPB hearing
Filing an MSPB Appeal
Federal employees typically have only 30 days to file an MSPB appeal after the effective date of removal.
Information about filing an MSPB appeal:
https://www.mspb.gov/appeals/appeals.htm
Additional Resources
MSPB Website:
https://www.mspb.gov
Levine Federal Law – MSPB Appeals:
https://levinefedlaw.com/mspb-appeals/
Levine Federal Law Home Page:
https://levinefedlaw.com
Federal employees seeking representation in removal appeals, disciplinary actions, due process cases, or federal employment litigation can learn more at Levine Federal Law.