Federal employees who are serving a probationary or trial period often have fewer job protections than permanent federal employees. However, probationary status does not mean an employee has no rights at all. In certain situations, probationary employees may have legal protections, procedural rights, or alternative avenues to challenge an adverse action.
This article explains what probationary federal employees need to know about their rights, limitations, and potential legal options if they are facing termination or other adverse action.
What Is a Federal Probationary Period?
A probationary period is a trial phase of federal employment during which an agency evaluates an employee’s performance, conduct, and suitability for continued employment.
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Competitive service employees generally serve a one-year probationary period
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Excepted service employees may serve a trial period, which can be one or two years, depending on the appointment authority
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Time spent as a contractor or intern typically does not count toward probation
Also, keep in mind that due to new Office of Personnel Management (OPM) regulations in June of 2025, probationary employees cannot move to full tenure status without affirmative approval by their agency. During the probationary period, agencies have broader discretion to remove employees than they do once probation is completed. However, some federal supervisors abuse this process and attempt to terminate employees not on actual merit, but personality dislike or illegal motives.
Can a Federal Agency Terminate a Probationary Employee?
Yes. In most cases, a federal agency may terminate a probationary employee with limited procedural requirements and without providing full appeal rights to the Merit Systems Protection Board (MSPB) or OPM. The probationary appeals process is currently pending transition from the MSPB to OPM based on recent OPM proposed rules.
Unlike permanent employees, probationary employees generally:
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Are not entitled to advance notice of removal
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Do not receive a formal opportunity to respond
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Do not have full MSPB / OPM appeal rights
However, this discretion is not unlimited, and agencies must still follow applicable laws and regulations.
Do Probationary Employees Have Appeal Rights?
In general, probationary employees do not have MSPB or OPM appeal rights. However, there are important exceptions. Many of these rights and appeal procedures are being revised and may be undertaken by the OPM in the near future.
Limited MSPB or OPM Appeal Rights May Exist If:
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The termination is based on pre-appointment reasons, such as alleged falsification of application materials or conduct that occurred before federal service
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The termination is based on marital status or partisan political affiliation
In these narrow circumstances, a probationary employee might be able to file an MSPB appeal or OPM appeal (when the process is finalized) challenging whether the agency followed the law. Previously, these types of appeals were solely handled by the MSPB.
Other Legal Protections for Probationary Employees
Even when MSPB appeal rights are limited, probationary employees may still have other legal avenues available which may provide a better opportunity to litigate a wrongful probationary termination.
Equal Employment Opportunity (EEO) Rights
Probationary employees are protected from discrimination based on:
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Race
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Color
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Religion
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Sex (including pregnancy and gender identity)
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National origin
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Age (40 and over)
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Disability
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Genetic information
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Retaliation for prior EEO activity
A probationary employee who believes their termination was discriminatory may pursue an EEO complaint, regardless of probationary status. Any new changes do not effect the EEO process.
Whistleblower Protections
Federal employees — including probationary employees — are protected from retaliation for making protected disclosures under the Whistleblower Protection Act.
Employees who believe they were terminated for whistleblowing may seek relief through the U.S. Office of Special Counsel (OSC) and ultimately the MSPB.
USERRA Protections
Federal employees in a probationary status are also protected against military discrimination. The Uniformed Services Employment and Reemployment Rights Act (USERRA) permit these individuals to appeal probationary terminations based on military discrimination. If the military discrimination claim arises under USERRA, the MSPB has jurisdiction regardless of probationary status.
Common Agency Mistakes During Probationary Terminations
Agencies sometimes make errors that affect a probationary employee’s rights, including:
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Terminating an employee whose probation has already ended
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Improperly classifying the employee’s appointment status
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Failing to follow required procedures for pre-appointment removals
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Terminating an employee based on whistleblowing
- Terminating an employee based on illegal discrimination
These issues can significantly affect whether appeal rights exist.
Examples
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Example 1: An employee removed for alleged resume falsification may be entitled to appeal to either the MSPB or OPM.
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Example 2: An employee terminated shortly after filing an EEO complaint may have a retaliation claim.
- Example 3: An employee discloses fraud and is terminated in their probationary period as retaliation.
Each case depends on its specific facts and timing.
Changes Likely Ahead in 2026 and Beyond
As noted, new changes have been proposed by the Government in regards to attempt to limit or change probationary rights. These new policies started in 2025 and have been proposed for 2026. Expect additional changes to the probationary appeals process in the future. It is expected that OPM will take on more of the probationary period appeals in the future. These changes do not affect discrimination or whistleblower appeals involving probationary employees.
Frequently Asked Questions
How long is a federal probationary period?
Most competitive service employees serve a one-year probationary period, but some excepted service positions require a longer trial period. Additionally, an agency must affirmatively approve the transition from probationary to tenured employee.
Can a probationary employee appeal a termination to the MSPB or OPM?
Usually no — but limited MSPB or OPM appeals may be available in specific circumstances, and other legal claims may still exist like EEO or Whistleblower complaints.
Does probationary status mean I have no rights?
No. While rights are limited, probationary employees are still protected from discrimination, retaliation, and certain prohibited personnel practices.
Why Legal Guidance Matters
Because probationary rights are limited, currently changing and highly technical, timing and classification issues are critical. Employees may lose potential claims simply by missing deadlines or misunderstanding their status.
An experienced federal employment attorney can help determine whether:
- OPM appeals exist if MSPB appeals do not
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An EEO or OSC claim is appropriate
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The agency followed required procedures
Conclusion
Federal probationary employees have fewer protections than permanent employees, but they are not without rights. Understanding the scope and limits of those rights is essential when facing termination or other adverse actions.
If you believe your probationary termination violated federal law or merit system principles, seeking timely legal advice may help protect your interests.
Our speciality is defending federal employees against disciplinary actions.
Approximately 20,000 federal employees are subject to disciplinary actions a year. Our nationwide federal employee lawyers represent federal employees in these disciplinary cases before their federal agencies. Each disciplinary action defense is unique and should be evaluated by attorneys familiar with federal employment law.
Defending Thousands of Federal Employees Over the Past 25 Years in Disciplinary Cases
There are different types of disciplinary actions for federal employees. These vary and can include letters of counseling, reprimands, suspensions, demotions, and removals. For most serious disciplinary actions, referred to as adverse actions (usually removals), a federal employee first receives a notice of the proposed discipline and is given the opportunity to respond. A proposal will have an explanation of the conduct or issues leading to the proposed disciplinary action.
If a federal employee is issued a notice of proposed disciplinary action, they will have the opportunity to contest it before it becomes final. Most permanent federal employees (past their probationary period) are entitled to significant due process rights. In responding, a federal employee can choose to provide a written response, an oral response, or both. We often recommend providing both oral and written responses.
Request Disciplinary Materials (Materials Relied Upon)
In most disciplinary cases, it is important for federal employees to request all of the materials that have been relied upon by the agency in proposing the discipline. Sometimes these are attached to the proposal, and other times they must be requested separately. We request these materials before responding on behalf of federal employees at the beginning of a case. These materials provide the basis for the proposed disciplinary action.
Draft a Written Response
It is important to prepare a complete written response to the allegations in proposed disciplinary cases. These responses are typically 7 to 20 pages in length, depending on the underlying facts and number of charges and specifications. Most written responses are typically due anywhere from 7 to 30 days after a proposal is provided to a federal employee.
The written response will address the alleged charges of misconduct or performance and any relevant mitigating factors (also known as the Douglas factors). In our responses, we also provide available evidence that contradicts the charges. Additionally, we attach declarations, affidavits, good performance records, character support letters, and other helpful exhibits.
Presenting the Oral Response
The oral response portion of a federal employee’s response can be very important. While written responses can be critical in refuting specific allegations, there is something very important about personally meeting with a Deciding Official that is making the decision. We think that in serious cases, oral responses can make a significant difference in outcomes. We represent federal employees during oral responses. Typically, during an oral response, the federal employee, their attorney, and the Deciding Official (often with their counsel) will be present. The attorney and federal employee will get a chance to argue against the disciplinary action directly to the decisionmaker.
After the oral response, there is usually a few weeks to a few months until a decision is made on the proposed discipline. During that time, there is also the possibility that attorneys from both sides can resolve the discipline through settlement.
Appeals from Adverse Disciplinary Decisions
If an unjust disciplinary decision is sustained by a federal agency, there are various options for federal employees to appeal further. If serious enough, an individual can appeal to the Merit Systems Protection Board (MSPB). Other potential appeals can include filing Equal Employment Opportunity complaints or whistleblower appeals, where applicable. There are also a number of other types of appeals that may be brought, but legal advice is important when making such decisions.
Reach Out to a Federal Employee Lawyer
When a federal employee receives or anticipates a proposed disciplinary action, it is important to have an attorney represent or advise them from the beginning. Our lawyers represent federal employees nationwide in all types of federal employee discipline. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.
Quick Definition:
An indefinite suspension places a federal employee in a non-duty, non-pay status without a set end date, typically pending an investigation, medical determination, or security clearance action.
Indefinite suspensions are a unique and serious issue in federal employment law, particularly for positions requiring a security clearance. As a nationwide federal employment attorney, We regularly advise federal employees across the United States who have been proposed for an indefinite suspension due to clearance, criminal or medical-related issues.
These types of cases can place employees in professional and financial limbo for extended periods, often with limited due-process protections and unclear timelines for resolution. Legal counsel is important.
What Is an Indefinite Suspension in Federal Employment?
An indefinite suspension is considered a non-disciplinary adverse action used by federal agencies when an employee is deemed unable to perform the essential functions of their position.
Federal agencies may impose an indefinite suspension for one of three reasons and the suspension remains in place until the issue is resolved, with no defined end date.
From a federal employment attorney’s perspective, these actions are among the most disruptive and legally complex employment measures agencies can take.
When Agencies Use Indefinite Suspensions
Federal agencies generally use indefinite suspension in three major scenarios:
1. Criminal Investigations or Charges
If an agency has reasonable cause to believe an employee committed a crime that could lead to imprisonment, it may place the employee on indefinite suspension while the criminal matter is pending.
2. Medical or Fitness-for-Duty Concerns
An agency may suspend an employee if continued presence in the workplace could pose a danger due to medical issues — pending a fitness-for-duty determination.
3. Security Clearance Suspensions
If an employee’s access to classified information — essential to their job — is suspended or revoked, the agency may impose an indefinite suspension pending the clearance decision.
These situations must be supported by legitimate agency reasons and tied to the efficiency of the service, a legal standard in federal adverse actions.
Why Indefinite Suspensions Are Common in Federal Employment
Unlike private-sector employment, many federal positions require ongoing eligibility for access to classified or sensitive information. As a result, federal employees are uniquely vulnerable to indefinite suspensions tied to:
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Pending security clearance investigations
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Clearance suspensions or proposed revocations
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Adjudication delays
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Allegations that remain unresolved
Even when allegations are disputed or unproven, agencies often proceed with suspension based solely on clearance uncertainty.
Types of Indefinite Suspensions
Federal employees may be placed on:
✔ Indefinite Suspension With Pay
Often used when the agency temporarily removes an employee from duty but continues pay status, usually via a short memorandum.
✔ Indefinite Suspension Without Pay
More serious — requires formal notice and due process. It removes the employee from both duty and pay status until the triggering conditions are resolved.
Most concerns arise when the suspension is without pay, due to the financial impact on a federal employee.
How Indefinite Suspensions Differ From Other Federal Adverse Actions
Indefinite suspensions differ significantly from removals or fixed-term suspensions:
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No predetermined end date
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Often framed as non-disciplinary
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Frequently involve national security authority
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May limit MSPB appeal rights
Because clearance, criminal and medical issues frequently take months or years, indefinite suspensions can quietly become long-term employment separations.
Due Process and Legal Rights Under Federal Employment Law
Indefinite suspensions raise serious due-process concerns. While federal employees are entitled to procedural protections under civil service laws, agencies often argue that those protections are reduced when national security or clearance authority is invoked.
As nationwide federal employment attorneys, we routinely see agencies assert broad discretion even when:
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The underlying allegations are contested
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No final clearance decisions or criminal charges have been issued
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Employees are denied access to critical evidence
This makes early legal strategy essential.
Appealing an Indefinite Suspension
Federal employees may appeal an indefinite suspension to the Merit Systems Protection Board (MSPB). When doing so, they should understand:
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The agency must demonstrate that it had reasonable cause for the suspension.
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The suspension must promote the efficiency of the service and have an ascertainable condition that will end it.
If procedural due process was denied — for example, insufficient notice or an unclear basis — the MSPB may reverse or remand the action.
Additional guidance is available through the MSPB appeals process for federal employees.
The Real-World Impact on Federal Employees
Federal employees placed on indefinite suspension often experience:
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Extended loss of income
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Career stagnation or derailment
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Clearance damage affecting future employment
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Significant emotional and financial stress
Many employees assume the suspension will be short. In reality, clearance delays are common, and prolonged suspensions are the norm.
Why Federal Employees Nationwide Seek Legal Counsel Early
Federal employment law—and especially security clearance law—is highly specialized. Employees facing indefinite suspension benefit from early legal representation to:
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Protect procedural rights
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Shape the agency record
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Respond strategically to proposed actions
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Minimize long-term clearance damage
Waiting to seek counsel can significantly limit available options.
Frequently Asked Questions About Indefinite Suspensions
Is an indefinite suspension disciplinary?
No. Agencies typically characterize indefinite suspensions as non-disciplinary. However, the impact can be as severe as a removal.
Can an indefinite suspension last indefinitely?
Yes. There is no fixed time limit, and suspensions may last as long as the issue (clearance, criminal, medical) remains unresolved.
Can a federal employee be placed on indefinite suspension without pay?
Yes. An agency may impose an indefinite suspension without pay, but only after providing required due process, including advance notice, the opportunity to review evidence, and a chance to respond. These suspensions are considered adverse actions under federal regulations.
Will an indefinite suspension affect future federal employment?
It can. How the matter is handled may affect future clearance eligibility and federal job opportunities.
Protecting Your Federal Career
Indefinite suspensions sit at the heart of federal employment law. Federal employees across the country should not assume these matters will resolve quickly or without lasting consequences. For a more technical overview, see our resource page on indefinite suspension for federal employees.
Summary
Indefinite suspension for federal employees is a powerful administrative tool used in serious employment situations. They:
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Occur without a fixed end date and typically involve major adverse scenarios
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Must meet due process requirements under federal regulations
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Can be appealed through the MSPB with proper legal strategy
If you or a colleague are facing an indefinite suspension, it’s important to act quickly to protect your rights and career.
📞 Call (703) 668-0070 for a confidential consultation or click here.
Before a federal employee can appeal a disciplinary action to the Merit Systems Protection Board (MSPB), the employing agency must first issue a final agency decision on the proposed discipline. When the final action results in a suspension of 15 days or more, a demotion, or removal, the employee may have the right to appeal to the MSPB.
Before deciding whether to file an appeal, it is critical to carefully review the final agency decision and consult with an experienced federal employment attorney.
What Is a Final Agency Decision?
A final agency decision is the written determination issued by the deciding official in response to a proposed disciplinary or adverse action, such as a proposed suspension, demotion, or removal. This decision follows the employee’s opportunity to submit a written and/or oral reply to the proposal.
In most cases, agencies issue a final decision within two to eight weeks after the employee submits a response. During this period, the employee may continue working or may be placed on administrative leave. Once the final decision is issued, important deadlines begin to run.
Agency Timelines Can Vary
Some federal agencies issue final decisions quickly, while others take significantly longer. Regardless of timing, once the decision is issued, the employee must promptly review it to determine whether an MSPB appeal—or another appeal option—is available and appropriate.
Key Issues to Review Before Filing an MSPB Appeal
When reviewing a final agency decision, federal employees should pay close attention to the following issues with the help of a MSPB appeals attorney:
1. The Effective Date of the Action
The effective date is often different from the date on the decision letter. In most cases, the 30-day deadline to file an MSPB appeal begins on the effective date, not the date the decision was signed. Missing this deadline can result in dismissal of the appeal.
2. Which Charges Were Sustained
If multiple charges or specifications were proposed, the deciding official may have sustained some, all, or none of them. If charges were not sustained, this may support an argument that the penalty imposed was excessive and should have been mitigated.
3. New or Improper Information in the Decision
Employees should carefully review the language used in the final decision. If the decision includes new factual findings, evidence, or reasoning that were not disclosed in the proposal or supporting materials, this may raise due process concerns. This issue often arises in the deciding official’s factual findings or analysis of the Douglas factors.
4. Appeal Rights Listed in the Decision
Final agency decisions often list multiple potential appeal options. However, agencies do not always correctly identify an employee’s eligibility for certain appeal forums. Choosing the wrong forum can result in the loss of appeal rights. An attorney can help determine whether the MSPB—or another process—is the correct venue.
Vague or Incomplete Factual Findings
Many final agency decisions contain minimal factual analysis by the deciding official. While detailed findings are less common, they can sometimes reveal legal or procedural errors that strengthen an MSPB appeal. It is also important to note that not all federal employees have the same appeal rights, and certain employees—such as some Department of Veterans Affairs personnel—may be covered by different appeal systems.
Deciding Whether to Appeal
A final agency decision should be reviewed carefully and promptly. Because MSPB deadlines are strict and appeal rights vary by employee and agency, obtaining legal advice early can help protect your rights and ensure the strongest possible case.
Conclusion
When considering an appeal to the MSPB, a thorough review of the final agency decision is essential. An experienced federal employment attorney can evaluate the decision, identify potential legal issues, and advise you on the best course of action.
Berry & Berry, PLLC represents federal employees nationwide before the Merit Systems Protection Board. To discuss your case, contact us at www.berrylegal.com or call (703) 668-0070.
Many federal employees quit when things become toxic or discriminatory. They shouldn’t have to suffer these issues in the federal workplace but do. Many resign or retire and then ask whether or not there is any remedy. This is where the concept of constructive discharge comes up. Our federal employment lawyers represent these federal employees.
📞 Call (703) 668-0070
What is a Constructive Discharge?
A constructive discharge is a forced resignation or retirement by involuntary means. Many federal employees are confused about this concept and whether it may apply to their case.
The most clear example of a constructive removal involves a federal employee who has suffered continuous discrimination in the workplace to the point that they are suffering significantly at work (mentally and/or physically) and the employee’s very well being requires that they resign.
This type of argument can be made at either the Equal Employment Opportunity Commission (EEOC), in the context of a Merit Systems Protection Board (MSPB) appeal, in the courts and before other forums.
Examples of Constructive Discharge in the Federal Sector
1. An agency failed to address ongoing sexual harassment at work against a female federal employee, where the employee fears for their safety and resigns after their agency has not remedied the situation after she had reported it.
2. A federal employee is forced to apply for disability retirement when a federal agency refuses to take steps to determine whether his medical disability could be reasonably accommodated.
3. A federal employee, rather than facing daily acts of retaliation at work for having filed an Equal Employment Opportunity (EEO) complaint against their supervisor later resigns because his manager, still angry about the earlier EEO complaint, continues to retaliate against the employee severely. The federal employee, despite her attempt to notify upper management of these acts of retaliation, begins to suffer anxiety and depression. The employee resigns based on these intolerable working conditions to protect her health.
4. A federal employee working for at an air base restaurant was found to have been at an subjected to unlawful harassment based on his sexual orientation when a server at the restaurant repeatedly called him a derogatory name used to insult gay men and threatened him with bodily harm. Because the federal employee’s resignation was seen as reasonable, given the threats, the EEOC held that he was constructively discharged from his position. Silas T. v. Dep’t of the Air Force, EEOC No. 2019003996 (EEOC OFO 2021).
How to Establish a Constructive Discharge Claim
The key issue in a constructive discharge or removal case is whether the agency, through discrimination, retaliation, harassment, etc., made the employee’s conditions at work so horrible that any reasonable person in the same situation would have felt compelled to resign or retire. Constructive removals or discharges do not happen in every case and the EEOC, MSPB and the courts review these cases in degrees to determine whether or not a resignation or retirement was effectively forced due to the intolerable working conditions.
The essential test for a constructive removal/discharge are the following questions:
1. Whether or not there has been discriminatory or retaliatory behavior against the federal employee?;
2. Whether or not the discriminatory behavior has been so severe as to be intolerable by a reasonable person?; and
3. Whether the individual was forced to resign or retire because of these intolerable conditions?
If the answers to these 3 questions are yes, then it is possible to bring a constructive removal or discharge case against a federal agency. It is very important, in the context of a constructive discharge claim, to put the agency on notice of the ongoing negative work conditions before a resignation or retirement takes place. This cannot be emphasized enough. The agency should have a clear record of the efforts made by the federal employee to put management on notice of the ongoing negative work conditions. Doing so before the removal is often key to showing evidence of the intolerableness in working conditions when filing a claim.
Evaluating Evidence for Constructive Removal
Establishing evidence of the constructive removal is important given the way in which the EEOC and the MSPB have evaluated such claims in the past. The MSPB “has recognized that ‘an employee is not guaranteed a work environment free of stress,’ and that dissatisfaction with work assignments, a feeling of being unfairly treated, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to retire or resign. Miller v. Department of Defense, 85 M.S.P.R. 310, 322 (2000). The EEOC, in 2017, in Latarsha A. v. Cochran, 2017 EEOPUB LEXIS 319, EEOC (IHS) 0120150488 (E.E.O.C. Jan. 31, 2017) offered their reasoning:
The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee’s working conditions so difficult that any reasonable person in the employee’s position would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003, 2002 EEOPUB LEXIS 2344 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant’s position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant’s involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep’t of Justice, EEOC Request No. 05940688, 1995 EEOPUB LEXIS 1014 (Apr. 13, 1995).
Remedies for Constructive Discharges / Removals
There are a number of remedies possible for constructive discharge cases. For instance, there can be a return to work, lost backpay, attorneys fees, and compensatory and other damages. Additionally, settlements can often be worked out with federal agencies which rectify a difficult employment situation in any number of ways.
Contact Us
If you need assistance in filing or evaluating a constructive discharge claim, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
Federal employees can face disciplinary actions for a wide range of issues, from minor reprimands to proposed removals. When your federal career is on the line, understanding the process and asserting your rights is critical.
At Berry & Berry, PLLC, our federal employment attorneys represent federal employees nationwide in disciplinary and adverse action cases. With decades of experience defending federal workers, we help protect careers, benefits, and professional reputations.
Federal Disciplinary and Adverse Actions Explained
Federal disciplinary actions vary and include:
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Letters of counseling or warning
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Letters of reprimand
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Suspensions (14 days or fewer)
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Demotions
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Proposed removals
More serious penalties, those involving suspensions over 14 days, demotions, and removals are considered adverse actions with additional legal rights given to federal employees.
Step-by-Step: the Federal Disciplinary Process
The following includes the 8 parts of the federal disciplinary process that federal employees should consider when going through a disciplinary action.
1. Receiving the Proposed Action
When an agency issues a notice of proposed discipline or an adverse action, it should:
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Explain the allegations or performance issues
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List relevant deadlines
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Provide (or be requested to provide) the evidence relied upon
There are usually at least 2-3 deadlines in a proposed action that you have to consider. These include: (1) the deadline to request the materials relied upon, (2) the deadline to request an oral response; and (3) a deadline to submit the written response. Deadlines can be short (as few as 7 days) or up to 30 days. Missing a deadline can forfeit your right to respond. In some cases, deadline extensions can be sought.
2. Request All Materials Relied Upon
Federal employees have the right to review the agency’s evidence before responding. These materials may include:
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Investigation reports
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Emails, video, recordings, or documents
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Witness statements
Having the full file is essential for crafting a strong written response.
3. How to Prepare a Comprehensive Written Response
Your written response should:
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Address all allegations
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Refute inaccuracies
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Include supporting exhibits (declarations, rebuttal evidence, performance records, character letters)
It’s often detailed (7–20 pages or more), and should also include mitigation arguments known as the Douglas factors — criteria used to argue for a reduced penalty even if some misconduct occurred.
4. Prepare an Oral Reply
In important disciplinary cases, presenting an oral reply before a Deciding Official can make a significant difference. This is your chance to:
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Emphasize key arguments
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Highlight mitigating circumstances
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Reinforce why discipline should be reduced or withdrawn
Experience in oral advocacy can directly influence outcomes.
5. Understanding the Douglas Factors
The Douglas factors are used in federal disciplinary cases to argue for a lesser penalty. Established by the MSPB in Douglas v. Veterans Administration, they include considerations such as:
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Length of service
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Past performance and awards
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Absence of prior discipline
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Whether the offense was intentional or negligent
Agencies must consider these factors when determining a reasonable penalty.
6. What Happens After Your Response
Once written and oral responses are complete, the agency’s Deciding Official issues a final decision. Outcomes may include:
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Disciplinary action upheld
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Penalty reduced
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Proposed action rescinded
You’ll also receive a notice outlining your appeal rights.
7. Appeals Options After an Adverse Action
If the final decision is adverse, you may have one or more appeal options depending on your circumstances.
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Merit Systems Protection Board (MSPB) – appeals for adverse actions like removals and long suspensions
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Agency grievance procedures – if covered by a union contract
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Equal Employment Opportunity (EEO) complaints – if discrimination or retaliation is involved
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Office of Special Counsel (OSC) – for whistleblower retaliation claims
Deadlines for appeals are strict — often as few as 30 days — so prompt legal support is essential.
8. Why You Need an Experienced Federal Employment Lawyer
Defending a federal disciplinary action is not just procedural, it is a chance to reverse or mitigate damage to a federal employee’s career. A skilled attorney can:
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Analyze and challenge agency evidence
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Identify procedural errors
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Craft persuasive mitigation arguments
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Navigate complex appeals, including MSPB and OSC complaints
With decades defending federal employees, Berry & Berry, PLLC helps clients protect their jobs, benefits, and retirement.
Frequently Asked Questions About Federal Employee Disciplinary Actions
What should I do after receiving a proposed suspension or removal?
After receiving a notice of proposed discipline, you typically have a limited amount of time to respond before a final decision is made. This is your primary opportunity to challenge the agency’s allegations, present evidence, and argue for a lesser penalty. Many employees choose to consult an attorney at this stage because an effective response can sometimes prevent or reduce discipline before it becomes final.
How long do I have to respond to a federal disciplinary action?
Response deadlines vary by agency and the type of action, but employees are commonly given 7 to 30 days to submit a written response and request an oral reply. These deadlines are strict, and missing them can limit your ability to influence the outcome. The proposal notice should specify the exact timeframe.
Can I respond orally instead of in writing?
In many cases, federal employees are entitled to both a written response and an oral reply to the deciding official. An oral reply allows you to address concerns directly, clarify misunderstandings, and humanize your position. Written responses, however, are often critical because they create a record that may later be reviewed on appeal.
What are the Douglas Factors and why do they matter?
The Douglas Factors are a set of criteria agencies must consider when determining an appropriate penalty, including your work history, intent, consistency of discipline, and potential for rehabilitation. A strong response often focuses on these factors to argue that the proposed penalty is excessive or unreasonable. Addressing the Douglas Factors can significantly affect the final outcome.
Do I need an attorney before a final decision is issued?
While representation is not required, many federal employees seek legal guidance during the proposal stage because this is when discipline can sometimes be mitigated or avoided altogether. Once a final decision is issued, options may become more limited and costly. Early legal involvement can help ensure your response is strategic and complete.
Can disciplinary actions be appealed to the MSPB?
Some disciplinary actions, such as removals, demotions, and lengthy suspensions, may be appealable to the Merit Systems Protection Board (MSPB). Eligibility depends on factors such as your employment status, length of service, and the nature of the action. Appeal rights are typically explained in the final decision notice.
Get Help Today
If you’ve received a proposed disciplinary or adverse action, don’t wait. Contact us for experienced legal representation at (703) 668-0070 or click here.
Changes to federal employee annuity rules have just been made. The United States Court of Appeals for the Federal Circuit, on October 10, 2025, issued a major new ruling in OPM v. Moulton, holding that the Office of Personnel Management (OPM) may only divide a federal retiree’s Federal Employees Retirement System (FERS) annuity supplement with a former spouse if a court order or divorce decree expressly provides for such a division. This new case is going to have a major impact on federal employee supplements.
The Moulton decision affirms the Merit Systems Protection Board’s (MSPB) interpretation of the law and rejects OPM’s broader approach previously adopted in 2016. Our federal retirement lawyers represent individuals facing annuity issues before OPM.
FERS Annuity Supplements
What are FERS annuity supplements? A Federal Annuity Supplement (often referred to as a FERS Supplement) is an additional payment provided to certain FERS retirees. It is designed to bridge the income gap between the time a federal employee retires and when they become eligible to receive Social Security at age 62. Many individuals ask why the FERS Supplement exists. The FERS Supplement exists because many federal employees retire in their late 50s (especially special-category employees) and the supplement helps ensure income stability until Social Security eligibility.
As a result, most federal employees are covered by FERS which is made up of three components: (1) Social Security benefits, (2) a Thrift Savings Plan (a retirement savings and investment plan similar to 401(k) plans available to private-sector employees), and (3) a basic annuity payment. For employees who retire before reaching age 62, the earliest Social Security retirement age, FERS also provides this retirement annuity supplement, which is a temporary payment meant to bridge the gap between retirement and Social Security eligibility.
Typically, OPM did not divide the FERS annuity supplement between a retiree and a former spouse, as the annuity supplement was not considered to be subject to division. However, OPM altered its approach in 2016. It began interpreting any court-ordered division of the basic annuity as implicitly including the annuity supplement, even if the order did not expressly say so. OPM applied this new interpretation retroactively, demanding repayment from retirees and reducing future supplement payments.
OPM v. Moulton Changes the Rules
In Moulton, the Federal Circuit addressed the question of whether OPM apportions the annuity supplement only when the terms of a court order expressly provide for the division of the supplement. Mr. Moulton, a federal retiree, challenged OPM’s revised policy after the agency began withholding part of his annuity supplement to pay his former spouse, despite his divorce order never mentioning the annuity supplement. He brought the case before the MSPB, which sided with him. OPM appealed to the Federal Circuit.
The Federal Circuit analyzed two key statutes: 5 U.S.C. § 8421(c), which governs the FERS annuity supplement and 5 U.S.C. § 8467(a), which authorizes OPM to comply with court orders in dividing retirement benefits “to the extent expressly provided for.” In ruling, the court ruled that the annuity supplement is not automatically part of a divorce supplement and cannot be split unless expressly provided for.
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The Moulton case changes the previous OPM rules involving FERS annuity supplement cases. If you’re dealing with a divorce or retirement issue involving federal retirement benefits or need help drafting or interpreting a Court Order Acceptable for Processing (COAP), you should consult with a federal retirement lawyer who understands the intricacies of federal retirement law.
Our lawyers advise individuals and attorneys nationwide on how to properly divide federal retirement benefits, draft, review and revise COAPs and court orders, and ensure compliance with OPM requirements among other related federal benefits issues. Please contact us here or at (703) 668-0070 should you wish to schedule a time to discuss your individual federal retirement issues.
Illegal drug use and misuse can be a crucial factor in obtaining or maintaining a security clearance. Adjudicative Guideline H of the Security Executive Agency Directive (SEAD) governs drug involvement and substance misuse. Drug use refers to the illegal use of a substance or the misuse of a legal drug in a way that deviates from prescribed medical guidelines. This Guideline also evaluates the impact of drugs on an individual’s ability to obtain or maintain a security clearance.
Today, while certain drugs are being decriminalized or legalized at the state level, individuals seeking or holding a federal security clearance must recognize that federal regulations have not changed to match state laws. In other words, compliance with state law does not equate to compliance with federal standards. Unfortunately, this has led to many security clearance problems over the past 5 years.
Laws and Regulations
The laws and rules governing drug use and holding a security clearance are up the President. The Supreme Court has made this clear. Presidents, over the years, have developed an evolving framework regarding drug usage and security concerns. In this, presidents have included illegal drug use as a basis to deny or revoke a security clearance. Security Executive Agent Directive (SEAD 4) governs the adjudicative guidelines used to determine an individual’s eligibility for access to classified information.
Adjudicative Guideline H: Drug Involvement and Substance Misuse outlines the considerations and concerns the government evaluates regarding any history or pattern of drug involvement. SEAD 4 governs federal employees, government contractors and military personnel.
Guideline H Security Concerns for Drug Use
The Government takes illegal drug use and prescription drug misuse seriously in the contact of security clearances. Drug abuse or dependence may increase the risk of unauthorized disclosure of classified information by impairing physical or psychological functioning. As a result, improper or illegal use of drugs raises questions pertaining to an individual’s willingness or ability to protect classified information and comply with the laws and regulations.
Guideline H of SEAD 4 focuses on the following areas of misuse
- The illegal use of controlled substances, including the misuse of prescription and non-prescription drugs;
- Use of substances that impair mental or physical functioning; or
- The use of substances used in a manner inconsistent with their intended purpose.
Drug Use Clearance Mitigation
Security clearance adjudicators consider many different types of mitigating factors when evaluating drug use or prescription use cases. There are too many to list here. However, here are some considerations when they evaluate a security clearance case for mitigation.
- Recency/Frequency: Was the drug use long ago and was it an isolated incident? Was there a pattern or repeated use?
- Voluntary Cessation and Abstinence: Has the individual abstained for a significant period of time? Is there a risk that the use can recur?
- Acknowledgment: Has the applicant or security clearance holder accepted accountability?
- Change in Environment: Has the individual dissociated from drug-using peers and environments where drugs might be used?
- Medical context: Was prescription misuse related to an illness, and has it since stopped? Has the individual since obtained a legal prescription for the medication they used improperly before?
- Rehabilitation and treatment: Was treatment necessary? If so, was it sought? Was it effective?
Drug Use in Light of Marijuana State Laws
Today, we all know that many states have legalized marijuana for recreational or medicinal use. However, marijuana use remains illegal under federal law, and its use usually triggers security clearance concerns. The problem is that Congress has not changed the Controlled Substances Act, which classifies all marijuana use as illegal. As a result, federal clearance forms, such as the Standard Form 86 (SF 86) or eAPP, continue to ask about marijuana use, despite the legality of its use at the state level. One of the most common security clearance issues that we see in our office are clients that believed that because state law permitted marijuana use that it was acceptable. The Government always responds by pointing to training given to individuals holding security clearance which shows the contrary.
Examples of Favorable Determinations
The following are a few examples of favorable drug use cases:
Example A: An applicant admitted to marijuana use during college and as a graduate student. He has since abstained, provided character references from colleagues and friends, and demonstrated a stable employment history. Clearance granted. Copy of decision is located here.
Example B: Between March 2021 and September 2023, the Applicant used legal cannabidiol (CBD) products under a state medical program to treat chronic back pain. The products contained less than 0.2% tetrahydrocannabinol (THC), which was below the federal legal limit. He has since stopped using CBD, is under medical care with a new treatment plan, and has no plans to resume use. Clearance granted. Copy of decision is located here.
Examples of Unfavorable Drug Use Determinations
The following are just a few examples of unfavorable drug use clearance decisions:
Example A: Applicant deliberately used marijuana from 2013 to at least January 2022 and minimized its seriousness during the interview process. He stated that he intended to continue to use marijuana after being granted a security clearance. Clearance denied. Copy of decision is located here.
Example B: Applicant admits to using marijuana intermittently from 2011 to 2018, including use while employed in a position that prohibited drug use. He used marijuana recreationally and for post-surgical pain, continued associating with users, and lived with a roommate who used it regularly. Although he initially stated in a 2018 security clearance application that he intended to keep using marijuana, he later changed his position after learning it remains illegal under federal law. Applicant testified he has no intent to use it again. However, the administrative judge found that the applicant did not show the requisite character or judgment of someone who has the maturity, integrity, good judgment, and reliability necessary to access classified information. Clearance denied. Copy of decision is located here.
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Security clearance decisions under Guideline H depend heavily on the individual’s specific facts, history, and demonstrated efforts toward reform and abstinence. With the growing trend toward the decriminalization and legalization of certain substances, it crucial for applicants to be honest about prior drug use. If you are facing a security clearance review involving drug use or prescription misuse, you should seek experienced legal counsel familiar with federal clearance adjudications. We can be reached at (703) 668-0070 or by contacting us here.
We defend Department of Veterans Affairs (VA) medical professionals in clinical privileges cases. Negative clinical privilege decisions impact the ability of medical professionals to practice at the VA. They can also affect professional reputations and career advancement. Furthermore, clinical privileges are essential in order to provide care to veterans. When clinical privileges are revoked or suspended, VA employees face significant professional and personal challenges. VA medical professionals should retain experienced Veterans Affairs employment lawyers when privileging issues arise.
What are Veterans Affairs Clinical Privileges?
VA clinical privileges are given when a VA facility authorizes a medical provider (licensed independent healthcare practitioners or LIPs) to independently (i.e., without supervision or restriction) provide healthcare services on a facility-specific basis. Only providers who are permitted by state law or Federal law or regulation and the VA medical facility through the Medical Staff Bylaws may be privileged to practice independently. Clinical privileges are based on the individual’s clinical competence as determined by peer references, professional experience, health status, education, training, and licensure. Clinical privileges must be VA medical facility-specific, LIP-specific, and within available VA medical facility resources to support the privileges granted.
Grounds for Reduction or Revocation of Clinical Privileges at the VA
There are many reasons why VA clinical privileges can be lost. The privilege review process is governed by specific VA guidelines. These guidelines protect the medical provider’s rights. Generally, if privileges are being reduced or revoked as an adverse action, the action is being taken based on allegations of substandard care, professional misconduct, or professional incompetence.
VA Privileging Oversight
There are two common ways in which the VA exercises oversight over providers for the purposes of privileging: Focused Professional Practice Evaluations (FPPEs) and Ongoing Professional Practice Evaluations (OPPEs).
Focused Professional Practice Evaluations (FPPE)
An FPPE is an oversight process where the respective clinical service chief and the Executive Committee of the Medical Staff (ECMS) evaluate the competence of a provider. This is done for those who have not yet documented evidence of competently performing the requested privileges at a VA medical facility. FPPEs can also be done for Cause. An FPPE for Cause is a period during which the clinical service chief assesses the provider’s performance. This is to determine if any action should be taken on the provider’s privileges after a clinical concern has been triggered and a FCCR has been conducted. If participating in a FPPE, especially one for Cause, it is important to make sure that VA policies are followed in the process.
The FPPE process may include, but is not limited to, periodic chart review, direct observation, monitoring of diagnostic and treatment techniques, or discussion with other individuals involved in the care of patients. Efforts should be taken to ensure that the medical provider is given a fair and impartial review process.
Ongoing Professional Practice Evaluations (OPPE)
An Ongoing Professional Performance Evaluation (OPPE) is the ongoing monitoring of privileged providers to identify clinical practice issues that impact the quality and safety of care. OPPE applies to all providers who are privileged, including physician assistants, nurse practitioners, and clinical pharmacist practitioners who are on Scopes of Practice.
Responding to a Privileging Action at the VA
If a federal employee at the VA faces a potential or actual loss of clinical privileges, it is essential for them to understand the procedural safeguards in place and their rights to challenge such actions.
1. Initial Notification of Adverse Privileging Action
If the VA proposes to revoke, suspend, or limit a healthcare provider’s clinical privileges, they will be notified in writing. This notification should include the specific reasons for the proposed action, along with any supporting evidence or documentation. The medical provider will receive adequate notice in order to respond to the allegations alleged regarding their performance or conduct.
If the provider responds to the proposed action, the provider’s response is provided to the Facility Director for decision. The Facility Director must make and document a decision on the basis of the record. If the provider disagrees with the Facility Director’s decision, an appeal hearing may be requested. The request for a hearing must be submitted within five workdays after receipt of the decision.
At this stage, a provider may have the opportunity for informal resolution. Informal resolutions with management can address issues before a formal privileging decision is made. If the provider can demonstrate that the concerns are unfounded or can propose corrective actions (such as additional training or peer review), it may be possible to resolve the issue without a formal revocation of privileges.
2. Fair Hearing Panel
If the Facility Director upholds the revocation or reduction of privileges action, the provider may request a Fair Hearing. Once a Fair Hearing is requested by the provider, the Facility Director must appoint a review panel of three professionals within five workdays after receipt of the practitioner’s request for a hearing to conduct a review and hearing. At least two members of the Panel must be members of the same profession. If specialized knowledge is required, at least one member of the Panel must be a member of the same specialty.
The provider will be notified of the time, date, and place of the Fair Haring. Prior to the hearing date, the provider will be offered the opportunity to identify witnesses for the hearing and submit exhibits to be considered during the hearing. During the hearing, the provider has the right to be present for the full proceeding, be represented by legal counsel, and call witnesses.
Upon conclusion of the hearing, within 15 working days, the Panel must complete their review of the case and submit their report to the Facility Director. The Facility Director then has the authority to accept, reject, accept in part, or modify the review panel’s recommendations. The Facility Director must issue a written decision within 10 working days of the date of receiving the Panel’s report. Once the Facility Director makes the final decision to reduce or revoke privileges, this decision can be reported to the National Practitioner Data Bank (NPDB).
3. Appeal of Final Revocation or Reduction Decision
If the Facility Director issues a final decision reducing or revoking the provider’s privileges, the provider may appeal that decision to a final level of review. This final appeal is submitted to the appropriate VISN Director within five workdays of receipt of the facility Director’s decision. This appeal option will not delay the submission of the NPDB report. If the Facility Director’s decision is overturned on appeal, the report to the NPDB must be withdrawn. Once an appeal is filed at this final level, the VISN Director must provide a written decision, based on the record, within 20 work days after receipt of the practitioner’s appeal. The decision of the VISN Director is not subject to further appeal.
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Our Veterans Affairs employment lawyers defend medical professionals in privileging cases. We also represent all federal employee medical providers. If you need legal assistance regarding privileging actions or other VA employment matters, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
We represent federal, Virginia and Washington, D.C. employees in hostile work environment claims. If you have been mistreated at work, especially in a consistent and/or repetitive manner, you might describe it as a “hostile work environment” based on harassment. But in a legal context, this term has a very specific meaning. Not all difficult or abusive workplace situations are actionable under anti-discrimination laws. If a situation is actionable, you may need to act quickly—especially if you are a federal government employee—in order to preserve your rights and potentially obtain relief. It is therefore particularly important to obtain legal counsel as early as possible in order to determine whether your case meets the relevant criteria to bring legal action. An EEO lawyer can also advise you as to what can be done to pursue the claim based on your type of employment and the facts of the case. Regardless, understanding the type of claim is a good first step.
Basics of a Proper Hostile Work Environment Claim
The federal anti-discrimination laws recognize two basic types of harassment claims, and they are fairly intuitive on a surface level: the harassment is either a pattern of conduct (or other change affecting the work environment in an ongoing way), or it is a discrete action standing by itself, such as a termination. If it is a pattern of abusive treatment, or an ongoing and harmful changed condition of the employment, it can be called a “hostile work environment,” often shortened to HWE. The idea behind HWE is that even if an employee is not directly fired, demoted, or otherwise subjected to a specific adverse action, the “terms and conditions” of their employment can still be changed—either formally, or informally and thus “constructively”—by a sufficiently substantial alteration to the work environment.
Two Key Components of HWE Claims
There are two key components of a proper HWE claim under federal law. The first component is that you must have been subjected to “unwelcome conduct” that was, or is, “severe or pervasive”—enough for the overall work environment to reasonably considered “hostile or abusive.” The second component, which is not obvious to many people and which is the source of much confusion, is that however the “unwelcome conduct” may be manifested, it must also be based on your membership in a legally protected group.
Protected Groups
Protected groups include race, color, or national origin; religion; sex and/or gender, including related statuses such as pregnancy; age; disability; genetic information; or having engaged in prior “protected” Equal Employment Opportunity (EEO) activity such as complaining about discrimination or participating in another’s EEOC complaint adjudication. (Discrimination on the basis of prior protected activity is called retaliation or reprisal). Note that this is at the federal level. States may add their own protected groups under their own anti-discrimination laws, but you can’t use state-specific additions to that list if you pursue your case via the federal EEO complaint process. For example, Virginia law protects against discrimination on the basis of marital status or military veteran status; at the federal level, you might have to make a marital status claim using a sex- or gender-based argument, and you would have to potentially pursue the veteran discrimination claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is a separate statute with a separate complaint and adjudication process. You would have to pursue state-level anti-discrimination processes to use the “extra” protected statuses, and the efficacy of those processes can vary substantially by state.
Nexus Requirement
The second component of tying the HWE to a protected status is critical. Absent this “nexus” component, a claim of harassment or HWE will not survive scrutiny under the federal EEO process. That means that abusive work environments which are not based on any of the protected statuses cannot properly be claimed as a “hostile work environment” under these workplace laws, even if they are based on, e.g., intense personal animus or egregiously targeted and arbitrary adverse action. While such situations could be remediable via other processes, such as the Office of Special Counsel (OSC) if you are a federal employee, or via other state protections, it is important to keep in mind that private companies generally enjoy “at will” employment protections. This means they are allowed to fire or otherwise take adverse action against an employee for any reason or even no reason, as long as it is not a discriminatory reason based on these protected statuses. And for federal agencies, arbitrary or otherwise unsupported personnel action could be appealable to the Merit Systems Protection Board (MSPB) or reported to OSC, but it is not independently an EEO claim.
Subjective Versus Objective HWE
The EEOC necessarily follows Supreme Court precedent regarding these legal issues. In 1993, the Supreme Court laid out a framework for HWE claims, including with the “severe or pervasive” standard. In that same seminal case, Harris v. Forklift Systems, Inc., the Court also imposed a two-pronged standard for deciding when a work environment is sufficiently “hostile:” it must be both subjectively hostile and objectively hostile.
Objective Hostility
Objective hostility uses the classic legal hypothetical of “reasonableness:” would a “reasonable person” find the work environment objectively hostile or abusive? If not, the claim may not be actionable regardless of what the employee subjectively believes. Because this determination is not made by a complainant themselves, it is worth considering whether a neutral decisionmaker (i.e., a judge or jury) is likely to find that an average, rational person in the employee’s position would find the work environment hostile and/or abusive.
Subjective Hostility
Subjective hostility means that the employee must subjectively believe and perceive the workplace to be hostile and abusive before a HWE claim is valid. This may seem silly—why would somebody claim HWE if they don’t personally consider it hostile or abusive?—but that is the point here: you cannot claim HWE if you don’t personally find the environment to be hostile or abusive, even if a reasonable person would and the only reason you don’t is because you don’t mind it. In other words, you cannot receive a windfall just from being willing to put up with something that a hypothetical “reasonable” employee would find to be objectively hostile.
Together, this means that an unreasonably sensitive person cannot claim HWE over a situation where a reasonable person would not mind, and likewise, an especially stoic person cannot claim HWE without actually perceiving the hostility or abuse as harmful to themselves or their employment. Both subjective and objective hostility must be present.
Further Considerations
Alongside satisfying the “severe or pervasive” standard, demonstrating both subjective and objective hostility, and showing how the problematic actions were based on or motivated by one or more protected statuses, HWE cases often involve even more granular analyses. For example, was the conduct “unwelcome?” How should this be argued in a case with a wide range of allegedly discriminatory and harassing conduct? What if a separate incident is also part of a broader pattern? These issues can get complicated very quickly, which is why experienced representation can be an especially beneficial asset in pursuing a HWE claim.
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Although the umbrella concept of “harassment” can include HWE and “regular,” perhaps more isolated harassing conduct by an employer, there are various stages of the EEOC complaint, investigation, and adjudication processes during which presenting the claims properly can be critically important. Even if a mistake can be rectified later in terms of a claim’s phrasing, a complainant misunderstanding and mis-alleging an EEO-related harassment claim can cause problems with how the complaint is processed, investigated, and ultimately adjudicated. As a result, the distinctions between HWE and “other” harassment are helpful to know from the very beginning, and knowledgeable legal counsel can help tailor how your claims are presented in order to achieve the best possible outcome for your case.If you are seeking representation before the EEOC, you can contact us via our website, www.berrylegal.com, or by phone at (703) 668-0070, to arrange for an individual consultation.
