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.
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.
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.
