Federal Disability Retirement: Library

Understanding Your Rights:  The Process for Removing a Federal Employee Who Is Deemed Unfit For Duty

By, Elliott Andalman
And Michelle Amick
© 2011

Federal governmental agencies and employers are authorized to make any employee removal that promotes the efficiency of service.  In 1884, the first annual report of the United States Civil Service stated, “the power of removal and its exercise for just reasons are essential both to the discipline and the efficiency of the public service.” The Civil Service Commission has promulgated general standards to be used by agencies in instituting adverse actions. 5 CFR § 752.104 provides reasons that may not used as a basis for removing a federal employee. Reasons include, taking and adverse employment action against an employee based on marital status or political reasons or because of “race, color, religion, sex, or national origin, or for physical handicap with respect to any position of duty which may be efficiently performed by a person with the physical handicap.” *

If the agency is not in violation of the statute, then section 7513 governs the removal and appeal proceedings. The statute states that an action proposed against an employee is entitled to:

(1) At least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action;

(2) A reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;

(3) Be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefore at the earliest practicable date.

(c) An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (b) (2) of this section.

(d) An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title [5 U.S.C.A. § 7701].

(e) Copies of the notice of proposed action, the answer of the employee when written, a summary thereof when made orally, the notice of decision and reasons therefore, and any order affecting an action covered by this subchapter [5 U.S.C.A. §§ 7511 et seq.], together with any supporting material, shall be maintained by the agency and shall be furnished to the Board upon its request and to the employee affected upon the employee’s request.

Under 5 U.S.C. § 7513(b) (1), an agency will first give the employee whose removal has been proposed, a “Notice of Proposed Action.” The action should state, in sufficient detail, why the employee has been proposed for removal.  While the notice must be sufficiently detailed, it does not need to include every element of each of the charges reported. Upon removal, an employee must also be given the SF-8 Notice to Federal Employees about Unemployment Insurance, per the regulations of the Labor Department.

An employee who has been removed may appeal the decision to the Merit Systems Protection Board.  The employee is also entitled to a hearing where an official transcript is kept, and has the right to be represented by an attorney.  All employees have the right to appeal their decision beyond the Merit Systems Appeal Board to a Federal District Court.  However, to have appeal rights to a district court, the employee must first exhaust his administrative remedies.

Judicial review of civil service firings discretion primarily lies in hands of administrative agencies involved, and courts will not substitute their own judgment for that of agency. Review is limited to whether agency denied employee his appropriate procedural rights and whether the decision to remove employee was arbitrary and capricious. **

If you are a federal or postal employee contemplating who has been removed from service, or are in the process of being removed, you should consult with an experienced attorney.  At Andalman & Flynn, our team of legal professionals can assist and represent you to protect your rights and increase your chances of success challenging a removal action. If we can be of assistance to you, please call us at 301-563-6685 or toll-free at 1-888-558-7871. You can also visit our website at www.andalmanflynn.com and complete one of our website contact forms so we can contact you for consultation concerning your situation.

*5 U.S.C. § 752.104; 33 F.R. 12491, Sept. 4, 1968, as amended at 34 F.R. 5372, Mar. 19, 1969.

**“What is a ‘cause as will promote the efficiency of the service,’ as a basis, under 5 U.S.C.A. § 7512, of adverse action against a preference eligible government employee or his disbarment for future appointment,” 25 A.L.R. Fed. 443 (2008).

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