ADVERSE ACTIONS BY FEDERAL AGENCIES
AND ADMINISTRATIVE APPEALS
William P. Berzak*
INTRODUCTION
This article presents a "bird's-eye view" of the adverse action
procedures accorded federal employees against whom removal or other
adverse action is taken by departments and agencies, and the
administrative avenues available for appealing from such actions.'
BA CKGROUND
Generally speaking, prior to the 20th Century, the dismissal of
federal employees from the competitive service was a relatively simple
matter. Federal employment was considered a privilege and not a right,
and in the absence of constitutional or statutory restriction on the
power of removal, courts were not prone to grant relief to employees
who had been arbitrarily and summarily removed from their positions.
On July 27, 1897, President William McKinley promulgated Civil
Service Rule 8, which provided that removals from the competitive
classified service should not be made except for just cause and for
reasons given in writing. Also, the Rule provided that the person sought
to be removed "shall have notice and be furnished a copy of such
reasons, and be allowed a reasonable time for personally answering the
'2
same in writing."
However, referring to the provisions of Rule 8, the Civil Service
Commission reported in its Twenty-ninth Report for the fiscal year
ended June 30, 1912 that:
The courts declined to take cognizance of this provision and held that
punishment for its violation rested solely with the President on the ground
that the rule was not one which derived efficacy from the civil service act.
Thus the rule did not create any legal interest and could not be invoked
by an employee before the courts ...
The Commission's statement was buttressed by the United States
1. For a more in-depth review of these and related subject matters the reader may wish to refer
to Fed. Personnel Manual Supp. Pt. 752-1 (hereinafter cited as F.P.M.S.), "Adverse Action-Law
and Regulations, Annotated". Also, see 5 C.F.R. Pt. 752 (1969), "Adverse Actions by
Agencies"; 5 C.F.R. Pt. 771 (1969), "Employee Grievances and Administrative Appeals"; and
5 C.F.R. Pt. 772 (1969), "Appeals to the Commission".
2. 18 C.S.C. Am. Rep. (1902).
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19
Supreme Court in dismissing a writ of error on December 10, 1906,
on the grounds that it had no jurisdiction to review the judgment of
the Court of Appeals of the District of Columbia where a government
employee did not deny the authority of the President or his
representative to dismiss him, but only contended that his dismissal
was illegal because certain rules and regulations of the civil service were
not observed
A.
Lloyd-LaFolletteAct
The pendulum gained monentum in the direction of due process with
the passage of the Lloyd-LaFollette Act of August 24, 1912, 37 Stat.
555. Section 6 of the Act, prohibits removals of classified employees
covered under the act "except for such cause as will promote the
efficiency of the service and for reasons given in writing", and requires
notice and a copy of the charges to be furnished to the employee with
a reasonable time "for personally answering the same in writing" and
to submit supporting affidavits. Section 6 of the Act further provides
that "no examination of witnesses nor any trial or hearing shall be
required except in the discretion of the. officer making the removal,"
Employees were not granted a right of administrative appeal under the
Act. However, the statutory restriction which the Act placed on the
power of removal afforded employees a legal basis for appealing to
courts, from arbitrary removals in violation of the procedural and
substantive provisions of the Act.
B.
Veterans' Preference Ac t of 1944
The pendulum accelerated its pace in the direction of due process
with the passage of the Veterans' Preference Act of 1944,1 which
granted preference employees a substantial degree of protection against
arbitrary or erroneous adverse actions.
Section 14 of the Act provided that "No permanent or indefinite
preference eligible, who has completed a probationary or trial period
employed in the civil service . . . shall be discharged, suspended for
more than thirty days, furloughed without pay, reduced in rank or
compensation . . . except for such cause as will promote the efficiency
of the service and for reasons given in writing. . . ." Section 14 also
provided for "at least thirty days' advance written notice . . . stating
any and all reasons, specifically and in detail, for any such proposed
3. United States ex rel. Taylor v. Taft, 203 U.S. 461 (1906).
4. 5 U.S.C. § 851 (1944).
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ADVERSE ACTIONS BY A GENCIES
action . . .a reasonable time for answering the same personally and
in writing, and for furnishing affidavits in support of answer."
Preference eligibles were specifically granted a right of appeal to the
Civil Service Commission from an adverse decision of an
administrative officer so acting.
Nonpreference employees were not accorded any rights under the
Veterans' Preference Act. This disparity in treatment ended with the
implementation of Section 14 of Executive Order 10988, dated January
17, 1962.
C.
Executive Order 10988
Section 14 of the Executive Order 10988 dated January 17, 1962, 3
C.F.R. § 521 (1959-63 Comp.), provided for the extension to all
employees in the competitive civil service, rights identical in adverse
action cases to those provided preference eligibles under section 14 of
the Veterans' Preference Act of 1944, as amended. It further provided
employees in the competitive service with the right to appeal to the
Civil Service Commission from an adverse decision of the
administrative officer so acting, such appeal to be processed in an
identical manner to that provided for appeals under section 14 of the
Veterans' Preference Act.
Adverse Action Procedures
For the most part, the Commission's regulations governing adverse
actions (removal, suspension for more than 30 days, furlough without
pay, and reduction in rank or pay) take into consideration and
implement the provisions of (1) Section 6 of the Lloyd-LaFollette Act,
as amended,6 (2) Section 14 of the Veterans' Preference Act of 1944,
as amended, 7 and (3) Section 14 of Executive Order 109888 superseded
by Section 22 of Executive Order 11491, effective January 1, 1970.1
The employees entitled to the procedural protections of the Civil
5. The Commission's regulations equalizing the procedural protections and appeal rights of
nonpreference and preference employees in adverse action cases become effective as to all adverse
actions commenced by issuance of a notification of a proposed action on and after July 1, 1962.
Effective January 1, 1970, Executive Order 10983 was revoked by Executive Order 11491 dated
October 29, 1969. The provisions of Section 22 of Executive Order 11491 are similar tb those
contained in Section 14 of Executive Order 10938. Exec. Order No. 10988 § 14, 3 C.F.R. (195963 Comp.).
6. 5 U.S.C. §§ 7101,7102,7501 (Supp. IV, 1965-68).
7. 5 U.S.C. §§ 7511, 7512,7701 (Supp. IV, 1965-68).
8. 3 C.F.R. 521 (1959-63 Comp.).
9. 34 Fed. Reg. 17605 (1969).
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Service Regulations 0 include any career, or career-conditional
employee who is not serving a probationary or trial period, any
preference eligible employee who has completed one year of current
continuous employment in a position outside the competitive service,
and other employees who meet the criteria specified in § 752.201 of
the Civil Service Regulations."
A.
Notice of ProposedAdverse Action
With certain exceptions,'2 an employee against whom adverse action
is sought is entitled to at least 30 full days advance written notice
stating any and all reasons, specifically and in detail, for the proposed
action. Failure to give the required period of advance notice constitutes
reversible error. Also an adverse action is reversible if taken for reasons
other than stated in the notice of proposed adverse action. And the
reasons given must be stated with clarity and sufficient detail to afford
the employee a full and fair opportunity to reply to the proposed action
and defend against it. The agency's action is subject to reversal, if the
stated reasons for the proposed action do not meet the regulatory
requirements for specificity and detail.
B.
Opportunity to A nswer
With exceptions provided in the Civil Service Regulations, 3 an
employee is entitled to a reasonable time for answering charges and for
furnishing affidavits in support of his answers. The employee is entitled
to answer personally, or in writing, or both personally and in writing.
The right to answer personally includes the right to answer orally in
person by being given a reasonable opportunity to make any
representations which the employee believes might sway the final
decision in his case, but does not include the right to a trial or formal
hearing with examination of witnesses." When the employee requests
an opportunity to answer personally, the agency is required to make a
representative available to hear his answer. The representative
designated to hear the answer must be a person who has authority
either to make a final decision on the proposed adverse action or to
recommend what final decision should be made.
10. 5 C.F.R. § 752.202 (1969).
11. 5 C.F.R. § 752.201 (1969).
12. The exceptions are specified in Section 752. 2 0 2 (c) of the Civil Service Regulations, 5
C.F.R. § 752.202(c) (1969).
13. 5 C.F.R. § 752.202(c) (1969).
14. 5 C.F.R. § 752.202(b) (1969).
1970]
C.
A D VERSE A CTIONS B Y A GENCIES
Notice ofA dverse Decision
The Civil Service Regulations' 5 provide, in part, that the employee
is entitled to written notice of the agency's decision at the earliest
practical date, informing the employee of the reasons for the action,
and furnishing him with appropriate information concerning his appeal
rights, including the time limits for filing an appeal.
The reasons which the agency relies on to support its decision must
be stated in the final notice, and must not include any reasons which
were not set forth in the notice of proposed adverse action. If an
advance notice contains a number of separate reasons for the proposed
action and the agency finds some are sustained and others are not, it
must decide whether the sustained reasons warrant the conclusion that
whatever adverse action it finally decides to take will "for such cause
as will promote the efficiency of the service." The adverse action taken
must be reasonable considering all of the circumstances as disclosed by
the evidence of record. Otherwise, it may be subject to reversal upon
appeal.
Up to this point we have dealt primarily with procedures in taking
adverse actions. For the most part, the remainder of this article will
discuss the avenues for appealing from adverse actions.
If the employee is entitled to appeal to the agency under its appeal
system established in accordance with the Civil Service Regulations, 6
the notice of adverse decision should inform him of this right. Also, it
should inform the employee of his alternative appeal rights, which
include, with certain limitations, the right to appeal both to the agency
7
and to the Civil Service Commission.1
AdministrativeAppeals Within Agencies
Executive Order 10987 dated January 17, 1962, entitled "Agency
15. 5 C.F.R. § 752.202(0 (1969).
16. 5 C.F.R. Pt. 771 (1969).
17. Subchapt. S2-7 of F.P.M.S. Pt. 752-I states, in part that the Notice of Adverse Decision
should make it clear to the employee that:
(a) If he elects to appeal first to the Commission, he thereby forfeits his right of appeal to
the agency; and (b) If he elects to appeal first to the agency, he will then be entitled to appeal
to the Commission only (i) after the notice of the final agency appellate decision when the
agency appeals system has only one appellate level, or (ii) after notice of the first-level agency
appellate decision when the agency appeals system has more than one appellate level, or (iii)
after 60 days from the date of filing with the agency if no appellate decision has been made
within that time. (c). If the agency appeals system has more than one appellate level, the
employee should be notified that (i) if he appeals a first-level appellate decision to the agency
second appellate level, he forfeits his right of appeal to the Commission and (ii) if he appeals
a first-level appellate decision to the Commission, he forfeits his right of appeal to the agency
second appellate level.
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Systems for Appeals from Adverse Actions" ordered the head of each
department and agency (with certain exceptions) t8 to establish a system
for the reconsideration of administrative decisions to take adverse
action against employees. Under § 2(a) of the Order, the Civil Service
Commission was directed to issue regulations to put the Order into
effect.
The regulations pertaining to administrative appeals within agencies
are set forth in the Civil Service Regulations. 9
With respect to time limits for appealing, an employee may submit
an appeal at any time after receipt of the notice or original decision
but not later than 15 calendar days after the adverse action has been
effected. The'agency may extend the time limit (i) when the employee
shows that he was prevented by circumstances beyond his control from
appealing within the time limit, or (2) for other reasons considered
sufficient by the agency.
Although an agency has discretion in deciding whether to accept or
not accept a late appeal, it is obligated to carefully consider an
employee's reasons for filing late. An appeal involves a substantial
right, and the Civil Service Commission, on appeal, will remand a case
to an agency for processing under its appellate system when it is found
that the agency abused its discretion in refusing to accept an appeal.
Generally, an employee is entitled to a hearing on20 his appeal,"' and
to appear at the hearing personally or through or accompanied by his
representative. Both parties are entitled to produce, examine, and crossexamine witnesses. Testimony is taken under oath or affirmation.
Rules of evidence are not applied strictly, but testimony or other
evidence which is unduly repetitious or which has no probative value
is generally excluded.
The agency official authorized to decide the appeal must be at a
higher administrative level than the agency official who made the
original decision, except that when the head of the agency made the
original decision, he shall decide the appeal.
18. Section 5(a) of Executive Order No. 10987 excludes from coverage the Central Intclligence
Agency, the National Security Agency, the Federal Bureau of Investigation, the Atomic Energy
Commission, and the Tennessee Valley Authority. Exec. Order No. 10987, 3 C.F.R. (1959-63
Comp.).
19. 5 C.F.R. § 771 (1969).
20. This is not to be confused with the employee's right to answer the charges orally in person.
21. A few agencies grant employees against whom adverse action is proposed a hearing before
the issuance of its initial decision. In such cases, an employee has no right to another hearing on
appeal under the agency system.
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A D VERSE A CTIONS B Y A GENCIES
Appeals to the Civil Service Commission
Regulations governing appeals to the Civil Service Commission from
agency adverse actions are contained in § 752.203 of the Civil Service
Regulationse 2 and Part 772 of the Civil Service RegulationsP3
Although the appeal must be in writing, no particular form is
required. Regulations do specify that appeals should set forth the
employee's reasons for contesting the adverse action With such offer of
proof and pertinent documents as he is able to submit. Some appellants
do not seem to have the ability to state their reasons for appealing 4
However, they do not lose their right of appeal for failing to satisfy
the "contents requirement." An appeal may be closed for failure to
prosecute if an appellant does not furnish required information with
reasonable promptness.
When a first level appellate office of the Commission receives an
appeal, it will determine whether the appeal is within its jurisdiction:
Generally, when a first level appellate office receives a timely appeal
from an adverse action over which it has jurisdiction, it takes steps to
compile a complete appellate file, which usually includes copies of the
notice of proposed adverse action; any affidavits or other evidence
submitted to the agency by and in behalf of the employee; and the
agency appeals file, if an appeal was processed under the agency's
appellate system. Both parties are given an opportunity to review the
complete appellate file when it is fully assembled.
In reviewing the record, if the first level appellate office finds that
the agency committed reversible procedural error, it will issue a
decision reversing the agency's action (without deciding the merits of
the case) and recommend cancellation of the adverse action. If the
action is found to be procedurally correct, it will review the merits of
the case to determine whether or not the reasons relied upon by the
agency for taking the adverse action are sustained by substantial
evidence, and if so, whether the sustained reasons constituted a proper
basis for the action taken, taking into consideration all of the
surrounding and mitigating circumstances.
22. 5 C.F.R. § 752.203 (1969).
23. 5 C.F.R. Pt. 772 (1969).
24. Although employees have the right to designate a representative and are informed of that
right, approximately 30% do not.
25. Generally, the Commission's Appeals Examining Office, Washington, D.C. has initial
appellate jurisdiction in adverse action cases from employees working within the metropolitan
area of Washington and in certain areas outside the continental limits of the United States, and
the Directors of the Commission's Regional Offices have initial appellate jurisdiction over adverse
action appeals from employees working within their respective regional boundaries.
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Any corrective act on recommended by the Commission's appellate
offices on adverse action appeals, whether based on procedural or
substantive deficiencies in the agency's action, is mandatory."9
A.
Hearing
The appellant has a right to a hearing before a representative of the
Civil Service Commission. The appellant will be advised of this right
and will be granted a hearing if he requests it.2 He may appear at the
hearing on his appeal personally or through or accompanied by his
representative. The Commission is not authorized to subpoena
witnesses. However, the parties are entitled to produce witnesses.
Regulations provide that an agency shall make its employees available
as witnesses at the hearing when (1) requested by the Commission after
consideration of a request by the appellant or the agency and (2) it is
administratively practicable should it decline, it must submit to the
Commission its written reasons for the declination 9
If a review of the record shows that the appellant had a full and fair
hearing under the agency appeals system, the Commission's Appeals
Examiner may restrict, in his discretion, the number of witnesses if it
appears that their testimony will be merely repetitive of their previous
testimony at the agency hearing. As previously indicated, the agency
hearing record is included in the appeals file and is considered by the
Commission's appellate office in adjudicating the appeal.
At the hearing both parties may introduce evidence, including
testimony of witnesses and cross-examine witnesses.
B.
Evidence
With respect to the admissibility of evidence, rules of evidence are
not strictly observed. Although some designated representatives of
employees have expressed the opinion that courtroom procedures and
rules of evidence should be observed strictly as in criminal trials, the
adverse action proceedings are administrative in nature. The cause of
action generally involves an alleged offense against the employeremployee relationship, and justice often would not be served by
26. 5 U.S.C. § 5596 (Supp. IV, 1965-68).
27. Approximately 50% of the appellants request a hearing.
28. Section 772.305 of the Civil Service Regulations, 5 C.F.R. § 772.305 (1969).
29. Generally speaking the Commission's internal procedures for carrying out the requirements
of § 772.305 of the Regulations are designed to protect the right of the appellant to have the
witnesses he needs in presenting hig defense, without subjecting the agency to unreasonable
inconvenience, expense, and disruption such as might result if witneses were demanded in excessive
and unnecessary numbers. F.P.M. § A-1 Ch. 171.
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A D VERSE A CTIONS B Y A GENCIES
converting the administrative process to a judicial one. More often than
not employees have won their cases with evidence, although having
probative value, which would have been excluded had it been necessary
to "meet the courtroom test." Keeping in mind that agencies are called
upon to perform certain functions in the public interest with a limited
number of employees and limited funds, the administrative system
should not become bogged down by overly formalized procedures.
What is important is that the system provide due process for the
employee, and result in fair and just decisions. The relatively high
percentage (approximately 23%)3O of reversals of agency actions is
indicative of the fact that employees are not being deprived of due
process in the adjudication of their appeals.
C.
Decision on InitialAppeal
The Commission's first level appellate office, after considering the
entire appellate record, issues a written decision which contains an
analysis of the evidence and findings with respect to the procedural as
well as the substantive.aspects of the case. If it determines that the
adverse action was unjust or otherwise improper, it will recommend
that the agency cancel the action. Compliance with recommended
corrective action is mandatory 3
The decision of the Commission's first level appellate office will
notify the parties of their right to appeal to the Commission's Board
of Appeals and Review.
D. Appeals to the BoardofAppeals andReview
Generally, a department, agency, or individual, who is dissatisfied
with an initial appellate decision within the Civil Service Commission,
may appeal to the Board of Appeals and Review. An individual may
file an appeal personally, or through his designated representative. The
time limit for filing an appeal with the Board is fifteen calendar days
from date of receipt of the initial decision. If the appeal is not received
within fifteen calendar days after receipt of the initial Commission
decision, the appellant will be afforded an opportunity to explain his
failure to file the appeal within the prescribed time limit. If the Board
decides that circumstances beyond the appellant's control prevented
him from filing a timely appeal, it will accept the appeal, provided the
30. Figures supplied by the Appeals Program Management Office, U.S. Civil Service
Commission.
31. 5 U.S.C. § 5596 (Supp. IV, 1965-68).
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appellant exercised due diligence under the circumstances. If in the
Board's judgment, the delay in filing an appeal was not caused by
circumstances beyond the appellant's control, a decision will be issued
declining to accept the appeal.
The appellant or his representative may include representations or a
brief with the notification of appeal. If any new or additional
representations are made, a copy is forwarded to the appellee for
comments or rebuttal. A copy of any rebuttal received by the Board is
forwarded to the appellant for his information.
The case is adjudicated on the basis of the entire appellate file,
including the record developed during the processing of the appeal at
the Commission's office of initial appellate jurisdiction, plus the further
representations of the parties on appeal to the Board. The Board makes
determinations on the sufficiency of the reasons for the adverse actions
as well as the procedural aspects of the case. If in the Board's judgment
the evidence of record is not sufficient to resolve the issues, it will
remand the case to the Commission's office of initial appellate
jurisdiction to develop further information. The Board does not
conduct hearings.
Decisions of the Board are final and there is no further right of
administrative appeal.
Requests for Reopening and Reconsideration ofAppeals
The Civil Service Regulations' 2 provide that the Commissioners may,
in their discretion, reopen and reconsider any previous decision when
the party requesting reopening submits written argument or evidence
which tends to establish that:
(1) New and material evidence is available that was not readily available
when the previous decision was issued;
(2) The previous decision involves an erroneous interpretation of law or
regulation or a misapplication of established policy; or
(3) The previous decision is of a precedential nature involving a new or
unreviewed policy consideration that may have effects beyond the actual
case at hand, or is otherwise of such an exceptional nature as to merit
the personal attention of the Commissioners.
Conclusion
As indicated in the opening sentence, the purpose of this Article is
to give the reader a "bird's eye view" of the adverse action procedures
32. 5 C.F.R. § 772.308 (1969).
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A D VERSE A CTIONS B Y A GENCIES
397
accorded Federal employees, and the administrative avenues available
for appealing from such actions. Footnote No. I in this article cites
material which should be read for an in-depth review of these and
related subject matters. Additional information is also contained in the
article which follows, "Notes on Appropriateness of the Current
Adverse Action and Appeals System."