ADVERSE ACTIONS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00530R000400690004-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 31
• Document Creation Date: December 22, 2016
• Document Release Date: October 4, 2012
• Sequence Number: 4
• Publication Date: December 31, 1980
• Content Type: MISC

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752-1 x -6
Chapter 752
Adverse Actions
Contents
SUBCHAPTER L General Provisions
1-1 Scope and purpose of chapter
a. Scope
b. Purpose
1-2 Arrangement of chapter
1-3 Use of chapter
SUBCHAPTER 2. Susper,3ions for 14 Days or Less
2-1 Coverage
a. Actions covered
b. Employees covered
2-2 Standard for action
2-3 Procedures
a. Advance written notice
b. Employee's answer
c. Right to representation
d. Agency decision
SUBCHAPTER 3. Removal, Suspension for More Than 14 Days, Reduction
in Grade or Pay, and Furlough for 30 Days or Less
3-1 Coverage
a. Actions covered
b. Actions not covered
c. Employees covered
d. Employees not covered
3-2 Merit of the adverse action
a. Cause
b. Insufficient cause
c. Court decisions relating to cause for action
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752-2 Contents
3-3 Procedures
a. Thirty days' advance written notice
b. Exceptions to the 30 days notice period
c. Specific reasons for the action
d. Material relied on
e. Preparation of notice
f. Notice of furlough for 30 days or less
g. Employee's answer
h. Right to representation
i. Agency decision
j. Agency hearing
k. Appeal and grievance rights
1. Agency records
APPENDIX A. Court Cases and Comptroller General Decisions Cited in Chapter
For related information on See
Civil Service laws, Executive orders, and regulations Supplement 9913-1
Corrective actions Chapter 274
Separation for medical unfitness Chapter 339
Reduction in force Chapter 351
Suitability Chapter 731
Personnel security program Chapter 732
Employee responsibilities and conduct Chapter 735
Discipline Chapter 751
Federal employees occupational health program Chapter 792
?'
Retirement Chapter 831
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CHAPTER 752
Adverse Actions
Subchapter 1. General Provisions
NOTE: In this chapter, all references to the law are printed in lightface italics. Regulatory
references are printed in boldface italics.
1-1. SCOPE AND PURPOSE OF CHAPTER
a. Scope. This chapter replaces, but does not du-
plicate the functions of, the former Supplement 752-
1, revoked effective January 11, 1979, which con-
tained many requirements beyond those of law or
regulation. This chapter contain guidance and infor-
mation only; no discussion in it is considered to set
? a required praciice. Law and OPM regulations con-
tinue to be the only requirements, aside from those
of agency regulation and/or negotiated agreement, for
taking adverse actions.
b. Purpose. The chapter has been developed for
the express purpose of helping managers and person-
nel officials who have a need to interpret and apply
the provisions,of law and OPM regulations relating
to adverse actions in the Federal service. On the basis
of OPM's interest and experience in this area, and the
decisions of the courts in contested cases, this chapter
explains and illustrates the requirements of law and
regulation. The chapter has some guidance on deter-
mining whether a proposed adverse action is war-
ranted on its merits, i.e., whether it is for "such cause
as will promote the efficiency of the service." The
? chapter does not attempt to help agencies decide when
and under what circumstances adverse actions may
be appropriate. Chapter 751 has some guidance of
this type. Agency guides to discipline and OPM pub-
lications discuss principles 'and techniques of good
personnel management for avoiding the need for ad-
verse personnel actions. Even in the best-run orga-
nizations, however, situations occur where adverse
action is unavoidable. The guidance in this chapter
Federal Personnel Manual
is provided to help agency personnel in processing
necessary actions promptly, fairly, and effectively,
and to serve as reference material for others with an
interest in the area.
Because Merit Systems Protection Board decisions,
arbitrators' awards, decisions of the Federal Labor
Relations Authority, or those of the courts may apply
the requirements for taking adverse actions in differ-
ent ways, we suggest that agency officials contact
their personnel office to obtain the most recent in-
formation. In some cases, the general counsel's office
may be involved.
1-2. ARRANGEMENT OF CHAPTER
The applicable provisions of law and re.gulation are
quoted section by section. After each portion of this
legal and regulatory material, specific provisions of
it are referred to and followed with narrative material
explaining exactly what the provisions require. In
addition, references are included to pertinent or il-
lustrative decisions of the courts or the Comptroller
General, and cross-references to other applicable legal
or regulatory requirements. An appendix to the chap-
ter contains names and citations of currently pertinent
court or Comptroller General decisions in the area of
adverse actions.
1-3. USE OF CHAPTER
(1) The laws and regulations governing adverse
action give basic rights to employees against whom
adverse action is being proposed and prescribe certain
procedural requirements which agencies must observe
when taking actions. The major overall purposes of
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752-4 CHAPTER 752. ADVERSE ACTIONS.
these legal and regulatory provisions are to require
that adverse actions be taken only for "such cause as
will promote the efficiency of the service", and to
establish fair, orderly, and uniform procedures for
effecting actions which are warranted on their merits.
Beyond these requirements, whether or not a partic-
ular action is warranted on its merits is always a matter
of judgment. Though the basic procedural outlines
can be stated quite simply, the people responsible for
effecting adverse actions must have a good under-
standing of what the law and regulations are designed
to accomplish, and must have the ability and expe-
rience to make sound judgments. With this under-
Inst. 261
December 31, 1980
standing, OPM believes agencies will find the chapter
helpful. However, no publication will be able to serve
as a substitute for good judgment.
(2) The law and regulations, and OPM's infor-
mation and illustration, usually involve minimum re-
quirements. Agencies may find it wise to be more
rather than less generous when there is a question in
applying procedural protections in an individual sit-
uation. Agencies must also be aware that they must
satisfy their own regulatory requirements and/or those.
set by negotiated agreement which may go beyond
those of chapter 75 and part 752.
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Subchapter 2. Suspensions for 14 Days or Less
2-1. COVERAGE
a. Actions covered. Law: "This subchapter ap-
plies to a suspension for 14 days or less, but does
not apply to a suspension under section 7521 or 7532
of this title." (5 U.S.C. 7501) "IS]iispension' means
the placing of an employee, for disciplinary reasons,
in a temporary status without duties and pay." (5
U.S.C. 7501(2)) Regulation: "Day means calendar
day." (Section 752.201c. of Subpart B. Part 752.)
(I) Not co. red by these procedures are suspen-
sions of adMinistrative law judges, those taken for
reasons of national security, or those taken under au-
thorities of the Special Counsel.
(2) While suspensions for 14 days or less are cov-
ered by Subpart B of Part 752, with lesser procedural
rights and no appeal rights, days are calendar days,
i.e., consecutive days, including weekends, and can-
not be chosen to include only work days for the pur-
pose of avoiding the greater procedures of S.ubpart D.
If an agency does choose to suspend on the basis of
workdays, we recommend checking to be sure that
a working days' suspension does not extend beyond
14 calendar ,days. Fourteen calendar days equal ten
work days of eight hours each, or eighty hours of
duty.
(3) In a personal, disciplinary situation, placing an
employee on annual or sick leave, or in a nonduty,
nonpay status without his or her consent has been
held to constitute a suspension. This is true when
enforced leave is used as a disciplinary action, as part
of a disciplinary action, or as a prelude to a discipli-
nary action. It is not true when the use of leave is
required because the employee is not ready, willing
and able to perform assigned duties or in an emer-
gency situation when the agency has not yet deter-
mined whether disciplinary.action may be appropri-
ate. Chapter 751 contains more guidance on the
correct use of enforced leave in emergency and non-
disciplinary situations. Here are several decisions by
the courts and the Comptroller General v. hien agen-
cies may wish to consider:
Federal Personnel Manual
(a) In Hart v. U.S., the court held that an employee
who had been placed on enforced annual leave after
a dispute as to whether she had refused to perform
work which was properly hers to do, was recalled to
duty, given a notice of proposed removal and ulti-
mately removed, was entitled to back pay for the
period of enforced leave because the leave was in fact
a suspension taken without procedures.
(b) The courts have also held that an agency may
not force an employee to take annual leave as a dis-
ciplinary measure during an advance notice period of
a proposed disciplinary action if the employee is
ready, willing and able to work. (Armand v. U.S.,
Kenny v. U.S., Taylor v. U.S.)
(c) Enforced annual leave situations such as the
administrative closing of an office for a period of time
during which employees are required to take annual
leave, or instances when employees' requests for an-
nual leave are denied and the employees are instructed
to take annual leave at other specific times, are not
personal, disciplinary types of situations. Rather, they
come under the Comptroller General rulings that the
head of an agency may require any individual em-
ployees or class of employees to take annual leave at
any time and for any period within the limitations of
the annual and sick leave provisions of law. (40
Comp. Gen. 312. and 3a id 611).
(d) The Comptroller General has held that placing
an employee on sick leave who was capable of per-
forming the duties of his position was an erroneous
suspension. (39 Comp. Gen. 154).
(e) An agency's action placing an employee, with-
out his or her consent, in a paid leave status and then
a nonduty, nonpay status after annual and sick leave
are exhausted, on the basis of its medical officers'
reports that the employee was incapable of performing
the official duties of the job, is not considered a sus-
pension. The action of the agency in continuing the
employee in a nonduty, nonpay status, however, after
receiving notice from the former Civil Service Com-
mission that its application for the employee's dis-
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CHAPTER 752. ADVERSE ACTIONS
ability retirement had been rejected, was equivalent
to suspension. Instead, the agency should have either
returned the employee to duty or, if it felt it could
not safely do so, placed him or her in a nonduty, pay
status, without charge to leave, while taking appro-
priate action. (41 Comp. Gen. 774 and 38 Comp. Gen
203). It should be noted that this issue is currently
before the Merit Systems Protection Board. OPM has
taken the position that under appropriate circum-
stance, enforced leave is not equivalent to a suspen-
sion. Nonetheless, because of the uncertainties in-
volved in any case in litigation, agencies may wish
to determine the status of this issue before placing an
employee on enforced leave.
b. Employees Covered. Law: " 'Employee' means
an individual in the competitive service who is not
serving a probationary or trial period under an initial
appointment or who has completed one year of cur-
rent continuous employment in the same or similar
positions under other than a temporary appointment
limited to one year or less." (5 U.S.C. 7501(1)) Reg-
ulation: "The following employees are covered by
this subpart: (1) An employee covered by the defi-
nition it: 5 U.S.C. 7501(1), including an employee
-1 the Government Printing Office; and (2) An em-
ployee with competitive status who occupies a po-
sition under Schedule B of Part 213 of this chapter."
(Section 752.201(b)).
(I) Some employees may have served a probation-'
ary period in one position but still be required to serve
a second probationary period, during which time they
would again not be covered by the provisions of Part
752. This later probafloriary period may be occasioned
when a current or former employee who had com-
pleted probation is again appointed based on se:cction
from a competitive register which requires a new pro-
bationary period.
(2) The definition of employee in section 7501(1)
is intended to provide coverage, formerly provided
by section 752.301 (c)(1) of the Civil Service Com-
mission's regulation, of employees in the competitive
service who are in status quo or are serving in types
of appointments which involve no probationary pe-
riod. e.g., TAPER or special tenure appointments.
(See Ainsworth v. United States) It is not intended
to exclude from coverage employees who have served
a probationary or trial period, left the Federal service
for a time, and have been reinstated, but who have
not completed one year of service since their rein-
Inst. 261
December 31, 1980
statement. Current continuous employment in a po-
sition in the competitive service with no probationary
or trial period may be either employment in one po-
sition without a break of a workday, or employment
in more than one position in the same line of work
in the same agency without a break of a workday. All
employment, whether in the competitive service or
in the excepted service, is creditable. Employment is
credited for this purpose in the same manner that it
is credited toward the completion of a probationary
period (see appendix A of chapter 315)
(3) Employees in temporary appointments limited
to one year or less are not covered by the provisions
of adverse action law and regulation even when their
appointments may inadvertently be extended past one
year or when they have served more than a year in
two or more temporary appointments
(4) Some employees who would usually be in the
excepted service are in the competitive service be-
cause they have status in their positions. Employees
have status in their positions when they are in the
competitive service at the time the Office first lists
their positions under Schedules A, B, or C of Pail
213, and they continue to occupy those same posi-
tions. (Roth v. Brownell and FPM chapter 212 provide
further information on employees who retain status
in their positions while occupying those positions.)
(5) Schedule B employees with competitive status
serving under nontemporary appointments are cov-
ered by Subpart B of Part 752, regardless of whether
they are preference eligibles or have completed one
year of current continuous employment in that
appointment.
(6) Competitive service employees of the District
of Columbia are not covered under Part 752 after
January 1, 1980, since they are covered by their own
personnel system.
2-2. STANDARD FOR ACTION
Law: "Under regulations prescribed by the Office
of Personnel Management, an employee may be sus-
pended for 14 days or less for such cause as will
promote the efficiency of the service (including dis-
courteous conduct to the public confirmed by an im-
mediate supervisor's report of four such instances
within any one-year period or any other pattern of
discourteous conduct)." 5 U.S.C. 7503(a)) Regula-
tion: "(a) An agency may take action under this
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Subchapter 2. Suspensions for 14 Days or Less
7rth in 5 U.S.C. 7503(a). (b)
7-n IE. -Lace a suspension against an
m-L, of any reason prohibited by
Cuon 752.202)
? -seiplinary adverse action is a
.12.ainst the employee-employer
' ; -2.nstitutes a proper and valid
.?r the agency to decide. Only
.17.c.uct toward the public, is spec-
:7s: of 5 U.S.C. 7503(a). Having
- not by itself enough to warrant
Jr:n, the suspension must be for
4 ?s-mote the efficiency of the serv-
/ '% is the sole test of the merits
_nder Part 752. See also the dis-
:rider section 3-1a.
I?) dealing with prohibited per-
-des under personnel actions an
.napter 75 of title 5, and prohibits
actions for several specific
rea-
? -7-77 -2d discrimination, reprisal for le-
-2:-.).ing activity or the exercise of any
3Pre41 f by law, rule, or regulation, or
21ri tl"r' '',er 7 :he basis of conduct which does
r" ", , the employee's performance or
that of 1. 4.-7.cers, except that an agency may
r.4'f S(tl ri determining the employee's fit-
' ? of that employee for any crime
""" =. InN,' State, of the District of Colum-
1:"' " States. Agencies must assure that
1"`' `-r er actions do not inadvertently fall
ilnflcr th,
');
752,7
action, but the agency need not include every reason
that might have been used to support its action. (Sag-
gait v. Young, DeNigris v. U.S).
b. Employee's Answer. Law: ". . . a reasonable
time to answer orally and in writing and to furnish
affidavits and other documentary evidence in support
of the answer." (5 U.S.C. 7503(b)(2)) Regulation:
"The employee shall be given a reasonable length of
time to answer but not less than 24 hours". (Section
752.203(c))
(1) The law does not specify any minimum time
for the advance notice period under Subpart B. The
regulation requires at least 24 hours. It is good prac-
tice, which most agencies follow, to provide for a
longer period except in extraordinary situations.
(2) Employees have the right to make both oral and
written answers, or either. For a complete discussion
of the right to answer, see Sec. 3-3g (3) through (5).
c. Right to representation. Law: ". . . be repre-
sented by an attorney or other representative." (5
U.S.C. 7503(b)(3)) Regulation: "5 U.S.C. provides
that an employee covered by this part is entitled to
be represented in a suspension action by an attorney
or other representative. An agency may disallow as
an employee's representative an individual whose
activities as a representative could cause a conflict
of interest or position; or an employee of the agency
whose release from his or her position could give
rise to unreasonable costs to the Governtnent or
whose priority work assignments preclude his or her
release. 5 U.S.C. 7114(a)(5)) and the terms of any
applicable collective bargaining agreement govern
representation for employees in an exclusive bar-
gaining unit." (Section 752.203(d))
(1) Employees who are not part of a bargaining
unit have the right to be represented by the person of
their choice. Their selection is subject to agency dis-
allowance only for certain reasons defined in regulation:
(a) "Conflict of interest or position" can take
many forms and is usually best determined on a case-
by-case basis. One example of conflict of interest, but
not by any means the only one, would be represen-
tation of a supervisor or management official (who
may not be included in the bargaining unit under the
provisions of 5 U.S.C. 7112(b)(I )) by (1) an official
of a labor organization that represents or has pending
a petition to represent employees under the supervi-
sor's or management official's direction or control,
or with whom he or she has substantial contact and
dealings, or (2) an officer or an employee of an as-
2 3. 11"'EI-RES
" k .:ritten notice. Law: "An employee
v suspension for 14 days or less is
ered to?(I) an advance written notice
"IIHR cpt::ic reasons for the proposed action;"
" 75ib)(1)) Regulation: "The notice of
l'Hilmttil shaft inform the employee of his or her
"gin II) ',view the material which is relied on to
401:1:4Pitr'01,1111.1ie,2r.e2asolo(nb?sfor action given in the notice."
r
(1) h'' agency will wish to make an intelligent
"II (11111,,:fit effort to get the notice to th:_t employee
nil I' ly basis. For a discussion of the methods of
611"11111' notices, see paragraph 3-3a(6).
") Ilk specific reasons for the action include those
has relied on to support its proposal for
I tI l'pt simnel Manual
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752-8 CHAPTER 752. ADVERSE ACTIONS
sociation, federation, or council with whom such a
labor organization is affiliated. Conflict of position
refers to an incompatibility between the representative
functions and an employee's official duties. One,
again not the only, example would be a professional
personnel employee serving as an employee's repre-
sentative in a case concerning a personnel action over
which the employing personnel office has control, has
participated in, or has in any other way been involved.
(b) "Unreasonable cost to the Government" will
have to be determined based on the individual situ-
ation. Considerations here .might be excess transpor-
tation costs, if the agency pays these, or time away
from the job if an employee's representative is not at
the worksite.
(c) "Priority work assignments" are official as-
signments With high priority or a short deadline from
which an employee cannot be spared.
(2) Employees who are members of a bargaining
unit must select their representatives in accordance
with the provisions of 5 U.S.C. 7114(a)(5)), govern-
ing representation rights, and of an applicable
agreement.
d. Agency decision. Law ". . . a written decision
and the specific reasons therefor at the earliest prac-
ticable date." (5 U.S.C. 7503 (b)(4)) Regulation:
"In arriving at its decision, the agency shall corf-
sider only the reasons specified in the notice of pro-
posed action and shall consider any answer of the
employee and/or his or her representative made to
a designated officiah The agency shall deliver the
notice of decision to the employee at or before the
time the action he effective." (Section 752.203(e))
(1) The written decision must state which reasons
are relied on in the decision. A reference to the pro-
posal notice and mention of which reasons are sus-
tained would he sufficient. The regulation requires
that agencies consider only those reasons given to
employees in notices of propo..ed action. (See also
Urbino v. United Suites) Introduction of new reasons
into the notice of decision could deprive the employ-
ees of any chance to answer these additional reasons
for action. By the same token, agencies are required
to consider any and all answers made.by the employee
or the employee's representative. Though there is no
requirement that the employee's answer and the
Inst. 261
December 31, 1980
agency's consideration of it be specifically mentioned
in the notice of decision, it is good practice to include
a statement to the effect that the employee answered
orally and/or in writing and that the agency considered
the answer, or that he or she didn't answer, as the
case may be.
(2) Neither the law nor the regulation has set an
exact minimum time period within which agencies
must issue final decisions on whether to suspend em-
ployees. The regulation requires that agencies must
inform employees at or before the time the actions
become effective. Even the most careful and correctly
prepared notice of decision will be of no use to an
employee in understanding which reasons the agency
relied on and whether his or her reply was considered,
if the decision reaches the employee after the agency
has effected the suspension. (For a discussion of meth-
ods of delivering the notice. see Section 3-3a(6).)
e: Agency records. Law: "Copies of the notice of
proposed action, the answer of the employee if writ-
ten, a summary thereof if made orally, the notice of
decision and the reasons therefor, and any order ef-
fecting the suspension, together vvith any supporting
material, shall be maintained by the agency and shall
be furnished to the Merit Systems Protection Board
upon its request and to the employee affected upon
the employee's request." (5 U.S.C. 7503(c)) Regu-
lation: "The agency shall maintain copies of the
items specified in 5 U.S.C. 7503(c) and shall furnish
them upon request as required by the subsection."
(Section 752.203(f))
(I) A suspension of 14 days or less is not an action
appealable under law or regulation to the Merits Sys-
tem Protection Board. but is a personnel action within
the meaning of 5 U.S.C. 2302. If the employee later
alleges in a complaint to the Special Counsel that a
short suspension was actually taken for prohibited
reasons, records of the action specified in 5 U.S.C.
7503 (c) will be necessary for that consideration by
the Special Counsel of the Merit Systems Protection
Board as well as for the employee.
(2) "Any supporting material" is that on which the
agency based its notice of proposed action and relied
on to support the reasons in the notice. It may include
statements of witnesses, affidavits, documents, and
investigative reports or extracts from them.
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To Be Filed With Basic FPM Chapter 752
15 November 1981
Subchapter 2. SUSPENSIONS FOR 14 DAYS OR LESS
AR 690-700
752
2-3. Procedures.
c. Right to representation.
(3) An employee's choice of representative or change of representative
must be designated in writing.
d. Agency decision.
(3) The notice of decision will inform the employee of applicable griev-
ance rights and the time limit for submission of a grievance.
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752-9
Subchapter 3. Removal, Suspension for More Than 14 Days, Reduction in
Grade or Pay, and Furlough for 30 Days or Less'
3-1. COVERAGE
a. Actions covered. Law. "This Subchapter ap-
plies to:?(1) a removal; (2) a suspension for more
than 14 days; (3)a reduction in grade; (4)a reduction
in pay: and (5) a furlough of 30 days or less:. . ."
(5 U.S.C. 7512(1) through (5)) Regulation: "This
subpart applies to an action set forth in subchapter
II of chapter 75 of title 5. United States Code, in-
cluding but not limited to: (I) An action based solely
on nonperformance related factors; (2) An action
that involves both performance and nonperformance
related factors; and (3) A solely performance-based
action which is taken by an agency that is not in-
chided within the ddinition under subchapter I of
chapter 43 of title 5, United States Code." (Section
752.401 (a) of Subpart D of Part 752) Following are
actions included under coverage of Subpart D:
(1) Removal or reduction in grade based on' unsat-
isfactory performance, inefficiency, or other perform-
ance-related reason. The agency must take perform-
ance-based action under Part 752 if it does not have
a performance ..appraisal system approved by OPM,
or if the performance-based actions are also based in
part on nonperformance-related reasons. See the de-
cision of the Merit Systems Protection Board in Wells
v. Harris, MSPB Order No. RR-80-3, December 17,
1979.
(2) Removal or reduction in grade based on unsat-
isfactory performance and misconduct.
(3) Removal resulting from an agency's decision
to separate an employee who refuses to transfer with
his or her function. Failure to accompany one's po-
sition in a transfer of function does not automatically
terminate an employee's service, nor make any re-
sulting separation voluntary. ft is necessary to comply
' Note This suhchapter docs not address atherse actions under the
Senior Executive Service Vo'hich are subject to suhchapter V of chapter 75
ot title 5. 11.S.( Flo,ever. to the extent that the statut.c) and regulator)
rilill;It'll%'nts for att.er.e actions under th.: Senior Executi% c Sztsice are
identi..al %Oh tit; reyoirerneno. for similar actit,n, untl:r the competitke
w.,y follow the guid.trt.e conwiiicd toth,hapter.
Federal Personnel Manual
with appropriate adverse action procedures in remov-
ing the employee. (Co/bath v. U.S.)
(4) Removal based on an employee's refusal to
accept a new assignment when the agency has found
it necessary to reassign the employee to a position in
a different geographical location or organization or
which would carry out terms of an established rotation
policy. (Burton v. United States, Handler v. Secre-
tary of Labor.) However, the courts have found that
reassignment to induce an "undesirable" employee
to resign is not for such cause as will promote the
efficiency of the service. (Motto v. General Services
Administration, McClelland v. Andrus) See the de-
cision of the Merit Systems Protection Board in Fra-
zier, et al and Hall, et al, MSPB Order Number
SCC-80-1, December 17, 1979 with regard to pro-
hibited personnel practices.
(5) Separation for failure to perform satisfactorily
during the probationary period is an action not covered
by subpart D of Part 752. However, if the agency
delays effecting the action until the employee has
completed the probationary period, the separation
action is covered by Subpart D of Part 752. The
agency will wish to take into account the discussion
of the timing of such separations found in subsection
8-4f of subchapter 8, chapter 315. Subsection 8-4f
points out that the agency must have effected its action
the day before the end of the last tour of duty within
the probationary period in order to separate the em-
ployee under the procedures of Part 315.
(6) Termination of an employee for failure to qual-
ify for conversion to the career appointment under
Section 315.704, within 90 calendar days after he or
she completes three years of qualifying service. This
termination may be required by the finding of the
OPN1 or the agency that the employee does not qualify
for conversion.
(7) Reduction in basic pay not requested by the
employee for personal reasons and for his or her own
benefit.
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(8) Reduction in grade of an employee whose po-
sition is downgraded because of a classification de-
cision after it had been classified at the higher grade
for less than one year. Such an employee would not
be covered by the grade and pay provisions of 5
U.S.C. 5366, thus he or she would actually be reduced
in grade. (Note: While the employee will not be en-
titled to grade retention, he or she will be entitled to
pay retention in accordance with section 536.212.)
See chapter 351 for circumstances when the down-
grading of the position would constitute a RIF.
(9) Furlough for a period of 30 calendar days or
less based on a decision of an administrative officer.
Military furlough or other similar types of furlough
required by law or regulation are not actions based
on the decision of an administrative officer, but rather
are actions required by established facts and are not
adverse actions. Furloughs for more than 30 calendar
days are reduction-in-force actions covered by Part
351.
(10) Enforced leave in a personal, disciplinary type
of situation constitutes a suspension. (See section
271a(3) for a complete discussion of enforced leave)
b. Actions not covered. Law: ". . . but does not
apply to?(A) a suspension or removal under section
7532 of this title, (B) a reduction in force action under
section 3502 of this title, (C) the reduction in gra*.
of a supervisor or manager who has not completed
the probationary period under section 3321 (a)(2) of
this title if such reduction is to the grade held im-
mediately before beconiing such a supervisor or man-
ager, (D) a reduction in grade or removal under
section 4303 of this title, or (E) an action initiated
under section 1206 at 7521 of this title." (5 U.S.C.
7512, (A) through (E)) Regulation: "This subpart
does not apply to actions and employees excluded
by 5 U.S.C. . . . 7512, or the following: (I) Action
taken under provisions of statute, other than one
codified in title 5, United States Code, which excepts
the action from subchapter II of chapter 75 of title
5, United States Code; (2) Action which entitles an
employee to grade retention under Part 536 of this
title, and an action to terminate this entitlement;
(3) Voluntary action initiated by (hi' employee; (4)
Action taken or directed by the Office of Personnel
Management under Part 731 or Part 754 of this title;
(5) Involuntary retirement because of disability un-
der Part 831 of this title; (6) Termination of ap-
Inst. 261
December 31, 1980
pointment on the expiration date specified as a basic
condition of employment at the time the appointment
was made; (7) Action which terminates a temporary
promotion within a maximum period of two years
and returns the employee to the position from which
temporarily promoted, or reassigns or demotes the
employee to a different position not at a lower grade
or level than the position from which temporarily
promoted; (8) Action which terminates a term pro-
motion at the completion of the project or specified
period or at the end of a rotational assignment in
excess of two years but nol more than five years,
and returns the employee to the position from which
promoted or to a position of equivalent grade and
pay. (9) Cancellation of a promotion to a position
not classified prior to the promotion; (10) Placement
of an employee serving on an intermittent, part-tune,
or seasonal basis in is tzonduty, nonpay status in
accordance with conditions established at the time
of appointment; (11) Reduction of an employee's
rate of pay from a rate which is contrary' to law or
regulation to a rate which is required or permitted
by law or regulation;. . ." (Section 752.401(c), (1)
through (11))
(1) Some examples of actions excluded by law are:
(a) Those taken under authority of the National
Security Act of 1947, Public Law 80-253;
(b) Certain actions against Foreign Service em-
ployees under authority of section 637 of the
Foreign Act of 1946 (22 U.S.C. 1007); and
(c) Actions taken under section 10 (a) of the Cen-
tral Intelligence Act of 1949, as amended (63
Stat. 212, 50 U.S.C. 403j).
(2) Under 5 U.S.C. 7512(c), the term "reduction
in grade" of a supervisor or manager encompasses
reduction in pay as well. Any return of a supervisor
or manager to his or her previous position or an equiv-
alent one within the probationary period under section
3321 (e)(2) of 5 U.S.C. is an action excluded from
adverse action procedures if it is done for reasons of
supervisory or managerial performance. However,
any action based on performance and misconduct
would be covered by Part 752.
(3) "A reduction in grade or removal under section
4303 of this title" is an action for unacceptable per-
formance of one or more critical elements of the po-
sition, taken under Part 432 after the agency has a
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and Furlough for 30 Days or Less
752-11
performance appraisal system approved by OPM
which meets the requirements of Part 430, either for
the agency as a whole or for a component of the
agency. The agency may not take an action for "un-
acceptable performance" under Part 752, since the
law specifically prohibits this. See section 3?a(1) an
(2) for those performance-based actions which may
be taken under Part 752.
(4) Subpart D of Part 752 does not cover actions
initiated under the authorities of the Special Counsel,
or those taken against an administrative law judge.
(5) Some actions are required by facts or by OPM
determinations which leave the agency no choice of
action, e.g., separations specifically ordered by OPM
because of an employee's disqualification for Federal
service, military separation, optional and discontin-
ued service retirement and voluntary actions including
abandonment of position. These actions are not cov-
ered by the adverse action procedures except as dis-
cussed in paragraph (6) below. When OPM merely
orders that corrective action be taken, any adverse
action the agency takes as part of the corrective action
is its own choice.
(6) (a) Separations and reductions in grade or pay
voluntarily initiated by employees are by their nature
not actions requiring the use of adverse action pro-
cedures. On the other hand, a normally voluntary
action has under sonic circumstances been herd by the
courts to be an adverse action taken without proce-
dural protections. In Christie v. United States, the
court held that the element of voluntariness of a res-
ignation by.a, Federal employee is vitiated only when
the resignation is submitted under duress brought on
by Government action. It held that resignations are
presumed to be voluntary unless the employee comes
forward with enough evidence to establish that the
resignation was involuntarily extracted. It also held
that when an employee, faced with an agency decision
to separate for cause, had a choice of whether to
contest the action or to resign, the latter choice did
not render the resignation involuntary merely because
the employee was faced with an inherently unpleasant
situation. Again, the fact that the employee may have
perceived no viable alternative to resignation did no
render the resignation involuntary. Christie cites court
cases which upheld the voluntariness of resignations
when they were submitted to avoid threatened sepa-
ration for cause. (See Pitt v. United States, Cosby V.
United States, Autera v. United States) In several
decisions, the courts have held that the test of invo-
Federal Personnel Manual
luntariness is one of external pressures rather than the
internal subjective perception of the employee. (See
Taylor v. United States, Leone v. United States,
McGucken v. United States, Pitt v. United States)
(b) [In certain instances, normally voluntary actions
may be found to be involuntary. A resignation has
been found to be involuntary if obtained by agency
misrepresentation.] (Christie v. United States) An
action forced by coercion and duress including time
pressure has been found involuntary. (McGucken v.
United Suites, Paroczay v. Hodges, Dabney v. Free- ?
man, Thine v. Googe, Farrell v. Garden, .Bell v.
Grocirk) The agency of course may avoid all appear-
ance of time pressure by letting the employee set the
effective date.
(c) Chapter 715 provides that an employee who
fails to report for duty or return from leave or furlough
for 30 days or less may be separated after a reasonable
time (ten calendar days or more) for abandonment of
position without following the procedures in Part 752
if the agency is unable to determine his or her inten-
tions. However, if the employee asks to return to
work after a separation for abandonment of position,
it is good practice for the agency to restore the em-
ployee unless it has proof of actual intent to abandon
the job. In some instances, the employee may not
have communicated his or her intent to return to work,
perhaps because of illness. Even if the agency has
been faced with a continuing pattern of short unex-
cused absences on the part of an employee, OPM
recommends that the agency restore the employee and
then take any disciplinary action that appears to be
warranted, e.g. a suspension or removal for AWOL,
so as that the employee may have due process. (See
also Bond v. Vance)
(7) OPM's regulations (Part 335) now provide an
authority for agencies to make term promotions (i.e.,
ones extending in excess of two years but no more
than five years in length) for certain purposes specified
in Section 335.102(g), after the agency has entered
into a formal agreement with OPM. An action to
terminate a term promotion at th.;! completion of the
specified period and return the employee to the po-
sition from which he or she was promoted or to a
position of equivalent grade and pay is now excluded
from coverage of Part 752. See Section 335.102(g)
for the requirements for term promotions.
c. Employees covered. Law: "For the purpose of
this subehapter--(I ) 'employee' means?(A) an in-
dividual in the competitive service who is not serving
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752-12 CHAPTER 752. ADVERSE ACTIONS
a probationary or trial period under an initial ap-
pointment or who has completed one year of current
continuous employment under other than a temporary
appointment limited to one year or less: and (B) a
preference eligible in an Executive agency in the ex-
cepted service, and a preference eligible in the United
States Postal Service or the Postal Rate Commission,
who has completed one year of current continuous
service in the same or similar positions . . ? I (5
U.S.C. 7511(a)) Regulation: "The following em-
ployees are covered by this subpart: (1) An employee
covered by the definition in 5 U.S.C. 7511 (a)(1)(A)
including an employee of the Government Printing
Office and an employee of the United States Courts;
(2) An employee covered by the definition in 5 U.S.C.
7511 (a)(1)(B); and (3) An employee with competitive
status who occupies a position in Schedule B of Part
213 of this Title." (Section 752.401(b))
(I) For a discussion of employees in the compet-
itive service and of current continuous service for
competitive service employees, see Section 2-1 of
subchapter 2.
(2) The term "preference eligible'. has the mean-
ing given in 5 U.S.C. 2108 and includes certain wid-
ows, wives, and mothers of veterans.
(3) Current continuous employment in a position
outside the competitive service may he either dn-
ployment in one position without a break of a workday
or employment in more than one position in the same
line of work without a bleak of a workday. All em-
ployment in the exvpted service is creditable. All
employment in the competitive service is creditable,
except employnzent in a temporary appointment with
a definite time limitation. Again, employment is cred-
ited for this purpose in the same manner that it is
credited toward completion of a probationary period.
(See appendix A of chapter 315.)
(4) The courts have held that Foreign Service Staff
Officers are covered by adverse action procedures of
Subpart D of Part 752. (Born v. Allen)
d. Employees not covered. Law: "This subchapter
does not apply to an employee?(I) whose appoint-
ment is made by and with the advice and consent of
the Senate. (2) whose position hay been determined
to be of a confidential, policy determining. policy-
making or policy-advocating character bv (A) the
Office of Personnel Management for a position that
it has excepted from the competitive .service; or (B)
the President or the hem! of an agency pr a pavilion
Inst. 261
December 31, 1980
which is excepted from the competitive service by
statute." (5 U.S.C. 7511(b)) Regulation "This sub-
part does not apply to employees excluded by 5
U.S.C. 7511 (b) or the . . (12) A reem-
ployed annuitant; (13) A Presidential appointee; (14)
A National Guard Technician: or (15) A physician,
dentist, nurse, or other employee in the Department
of Medicine and Surgery, Veterans Administration,
who is appointed under chapter 73 of title 38, United
States Code." (Section 752.401, (12) through (15))
(I) Sec section 2-1h for a discussion of competi-
tive service employees serving a second probationary
period.
(2) For a discussion of competitive service em-
ployees in temporary appointments. see section 2-1b.
(3) Legislative or judicial branch employees are
not covered unless their positions are specifically in-
cluded in the competitive service. (Lee Barger V.
tunfi)rd)
(4) Reemployed annuitants whose annuities under
the Civil Service Retirement System are continued
after September 30, 1956, are not covered by Part
752 because they serve "at the will of the appointing
officer" under the terms of 5 U.S.C. 3323(b).
(5) Nonpreference eligible employees in the ex-
cepted service without status are excluded from cov-
erage of Part 752. (For a discussion of employees
with status, see section 2-1(4)) (See also Chollor V.
United States)
(6) Employees of the District of Columbia, whether
competitive service, preference eligible or nonprefer-
ence eligible in the excepted service are not covered
by Part 752 after January 1, 1980, since they are
covered iinder their own personnel system.
(7) Employees of the Central Intelligence Agency
are not covered employees. (Torimas v. McColl(?)
3-2 MERIT OF THE ADVERSE ACTION
a. Cause. Law: "Under regulations prescribed by
the Office of Personnel Management, an agency may
take an action covered by this subchapter against an
employee only for such cause as will promote the
efficiency of the service." (5 U.S.C. 7513 (a)) Reg-
ulation: "(a) An agency may take adverse action
under this subpart only as set forth in 5 U.S.C. 7513
(a). (b) An agency may not take an adverse action
against an employee on the basis of any reasons
prohibited by 5 U.S.C. 2302." (Section 752.403)
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Subchapter 3. Removal, Suspension for More Than 14 Days, Reduction in Grade or Pay,
and Furlough for 30 Days or Less
(1) A cause for adverse action rests upon the
agency's determination that an unfavorable personnel
action covered under Part 752 is necessary in the terms
of the employee-employer relationship. Several cases
involving the relationships, i.e., the nexus, between
off-duty misconduct or employee performance, and
an agency's ability to discharge its responsibilities,
are pending before the Board currently. These cases
involve not only the issue of whether a nexus exists,
but also the issue o
itself has been changed by 5 U. . . 101 b)(10)f whether the nexus requirement
752-13
of penalties or agency practices, or in other internal
regulations, may result in a cause and an action which
combine to be proper in one agency but improper in
another. For example, an offense involving a violation
of law which would warrant removal of a law en-
forcement employee in an agency with a mission of
law enforcement, might not warrant comparable ac-
tion against a warehouse forklift operator in another
agency. The agency must base any action on its con-
clusions that the action is warranted and reasonable
? terms of the circumstances which prompted it, and
(a) Causes for adverse action may be reasons per- that it can establish enough evidence concerning t le
?
sonal to the employee such as on or off-the job mis- facts which support the reasons for action. The
conduct, inefficiency, or physical or mental inability agency's evidence must meet the standard of "pre-
to perform the duties of the position. OPM has issued ponderance of the evidence" in any action under Part
a policy statement on sexual harassment which urges 752. In a decision by the Merit Systems Protection
agencies to take a leadership role in overcoming such Board. Parker v. Defense Logistics Agency, (MSPB
harassment by informing employees of the actions Order No. PH053199001, 80-47 February, 19, 1980),
that will be taken against those who violate the Federal the Board defined this standard as requiring "evidence
Government policy. If the misconduct has occurred that a reasonable person would accept as sufficient to
off the job, the agency will wish to be aware of the find a contested fact more probably true than untrue.
the need to show the nexus, a subject discussed in (3) The courts have held consistently that the de-
subsections SI-1 d. and c. of Supplement 731-1. termination of an appropriate penalty for a particular
Section 2302 (b)(10) specifically prohibits an action offense is properly made by agency officials. (See
taken on the basis of conduct which does not adversely 'Caudal! v. United States, Indiviglio v. United States,
affect the employee's performance or that of fellow Harvey v. Nunlist, Grover v. United States) The
ge cy in determining, the agency penalty is a matter left to the discretion of the
continued fitness of the employee for employment,
may take into consideration his or her conviction for
a crime.
(b) There may also he impersonal reasons such as ion
an emergency' sltu'ation necessitating a short furlough, discretion." (See Power v. United States, Boyce v.
or the need to correct a merit promotion error. United States, Westmoreland v. Laird) The issue of
.) Some causes for adverse action have been spec- the burden of proof which must be met by the agency
. , . - 1 before the NISPB.
workers, except t
hat the
agency except when it exceeds the limits of permis-
sible. or
penalty specified by statute or regulations,
when it is "so harsh and unconscionably dispropor-
? cl the offense that it amounts to an abuse of
in justifying a penalty is currt.
A number of regional field office decisions have re-
quired that the agency report its penalty decision by
a preponderance of the evidence. OPN1 has taken the
position that this is an incorrect reading of the law
and that the agency must only be able to show that
or capricious or a clear
ified by law, Executive order or regulation. oi
examples of these appear in Section S2-3 of Supple-
ment 731-1 (grounds for disqualification of an ap-
plicant or action against an employee) and in chapter
735 (conflicts of interest, misuse of Government ve-
) Other obviously improper adverse ac-
tions have been prohibited by law, Executive order, its penalty is no hides,
or regulation (for example, prohibited personnel prac- abuse of discretion. An additional issue pending be-
.
tices). Between required actions and prohibited ac- fore the Board is the impact of different treatment of
tions, what constitutes a proper and valid cause is similarly situated employees in penalty decisions.
essent:ally for the agency to decide. Because of the uncertainties of litigation, agencies are
(2) Having an identifiable cause is not by itself advised to check to see whether these issues have
enough to warrant adverse action. The action must been decided before taking action. Agencies may wish
be for a cavse "as will promote the efficiency of the to insure that they can support their penalty decisions
service". Differences in agency missions, in tables as adequately as possible under the circumstances.
Inst. 261
December 31, 1980
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CHAPTER 752. ADVERSE ACTIONS
b. Insufficient cause. Some reasons constitute by
their nature an insufficient or potentially insufficient
cause for action.
(1) The fact that an employee was arrested for a
crime does not by itself provide a cause for adverse
action, even when the fact of the arrest is completely
established, since the employee may be innocent of
the crime for which the arrest was made. The correct
basis for any action would be the misconduct which
led to the arrest (or which would warrant suspension
pending further investigation.)
(2) Again, the facto of a criminal indictment would
not constitute by itself a sufficient cause for an adverse
action, except for an indefinite suspension pending
disposition of criminal action. Jaitkoteitz v. United
States gave judicial sanction to indefinite suspensions
pending disposition of criminal indictments. A recent
field office decision has questioned the agency's abil-
ity to indefinitely suspend an employee based solely
on the fact of a criminal indictment. This case cur-
rently is on appeal to the Board. ORM has taken the
position that the agency must show a nexus between
the fact of indictment and the need for the suspension.
This showing may be made when the indictment in-
terferes with the agency's ability to perform its mis-
sion. Because the matter is in litigation, agencies are
advised to check on the status of the litigation befnre
basing an action on an indictment.
(3) Conviction may be cause for removal. How-
ever, a subsequent acquittal of the employee on appeal
could vacate the cause for action. If the cause relied
on is the employee's act or wrong-doing rather than
the conviction, generally the administrative action by
the agency will not be affected by the subsequent
court action on the criminal case. (See United States
v. Cox, United States v. Glazion, Wathen v. United
States) However, agencies should also consider 5
U.S.C. 2302(6)(10).
(4) Misuse of leave as a reason for taking adverse
action has caused much confusion on the part of
agencies. Often, actions for undependability or for
excessive use of leave have been based largely on
incidents of approved leave.
(a) The general rule, because of the agency's dis-
cretion to approve or deny most requests for leave,
is that the agency may not take action based on the
employee's use of leave which the agency has ap-
proved?sick, annual, or leave without pay. An ex-
ception to this rule is discussed in (c) below. (Use of
accrued sick leave in the absence of fraud or subter-
Inst. 261
December 31, 1980
fuge, is an entitlement of every employee who is ill
or incapacitated by injury. Approval by the agency
is contingent, of course, on submission of supporting
evidence acceptable to the agency. The right of the
employee to take sick leave for nonemergency ex-
aminations is subject to requesting this leave in ad-
vance, with the approval of the proposed time subject
to the need for the employee's services.) When the
agency exercises its authority to approve an em-
ployee's request for leave, including leave without
pay, the approving official has presumably made a
determination that the employee's presence on the job
is not required. The agency may, if it does need the
employee's services, deny leave and if the employee
does not report for duty, charge an absence to absence
without leave (AWOL). A denial of leave and a charge
to AWOL is not punitive nor does it mean that the
employee has insufficient reason for requesting leave,
but rather that the employee's presence is required
and that the reason for requesting leave is not one for
which lease must be approved. Such a denial of leave
and charge to AWOL, however, may form the basis
of an adverse action. (For a general discussion of the
various types of leave and requests for leave which
may not be denied, see Supplement 990-2, Book
630.)
(b) If the agency has in the past approved an em-
ployee's leave, but believes that the extent of the leave
used is such that the employee is not on duty on a
regular, full-time or part-time basis in a position
which requires a regular, full-time or part-time em-
ployee, or that the employee has consistently failed
to obtain advance approval for leave, the agency has
the opportunity to establish an appropriate record as
part of a basis for further action: by
?informing the employee that his or her attendance
record is unsatisfactory and needs to be im-
proved; and
?warning the employee that further sick leave will
not be approved without sufficient medical doc-
umentation and that annual leave an-d leave with-
out pay will be appro?ed only if requested in
advance and the employee's services are not es-
sential during the period for which the leave is
requested.
If the employee is then absent without prior ap-
proval or proper medical documentation, OPM rec-
ommends that the agency record the absence as
AWOL, which may serve as a basis for adverse action.
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The amount of AWOL sufficient to establish a cause
for action will depend on the extent of the leave abuse
prior to the warning.
(c) The one exception to the general ntle which
recent appellate decisions have upheld, is that adverse
action may be taken based on a record of excessive
unscheduled leave without pay (LWOP) when three
criteria are met:
The record showed that the employee was ab-
sent for compelling reasons beyond his or her
control so that agency approval or disapproval
was immaterial because the employee could
not be on the job;
(ii) The absence or absences continued beyond a
reasonable time and the employee was warned
that adverse action might be initiated unless
the employee became available for duty on a
regular, full-time or part-time basis; and
(iii) The agency showed that the position needed
to be filled by an employee available for duty
on a regular, full-time or part-time basis.
This exception would be applicable only under cer-
tain unusual circumstances, e.g., the inability of an
employee to return to duty or to work on a regular
basis because of the continuing effects of illness or
injury (on or off-the-job). Other circumstances in in-
dividual cases may meet these criteria, but OPM be-
lieves they are uncommon. For example/repeated
absences because of failure to obtain adequate trans-
portation to work or to tend to personal affairs would
presumably be situations under the control of the em-
ployee, and thus reasons for denial of leave and
charges of AWOL. (Agencies with employees who
are on leave while receiving employee's compen51-
tion will wish to be aware of the positions of chapter
353.)
c. Court decisions relating to cause for action.
Following are court decisions which deal with causes
for action. It should be noted, however, that there
may be problems with nexus under the provisions of
the CSRA in relying on these cases. As mentioned
previously, the Board is currently considering whether
Congress, in adopting 5 U.S.C. 2302(b)(10), changed
the nature of the nexus requirement. Further, each
case must be examined on its own merits and nexus
must be established independently in cach instance.
(1) Appearance of impropriety: Camera v. United
States, Lowery v. Richardson, United States v. Drum,
Womer V. Hampton.
(i)
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752-15
(2) Criminal activity:
(a) Effect of expungement of convictions. Taylor
v. Macy
(b) Effect of subsequent acquittal in court: Alsbury
v. United States Postal Service, Croghan V.
United States, Finfer v. Caplin. Finn v. United
States, Holman v. United States, Kowal v.
United States, Polcover v. Secretary of the
Treasury.
(c) Effect of conviction of crime of serious nature:
Gueory v. Hampton
(3) Discourteous, inconsiderate, or disrespectful
conduct: Green v. Baughman. Halsey v. Nitze, Per-
kins v. United States.
(4) Failure to meet conditions of employment:
Baum V. Zuckert, Sullivan v. United States, Vogt v.
United States.
(5) False statements: Blake v. United States, United
States v. Myers. Rodriguez v. Seamans, Williams V.
United States.
(6) Falsification of travel documents: Delong v.
Hampton, Scan/and v. United States Army.
(7) Inefficiency: Perlstein v. United States, Boyle
v. United States, Menick v. United States, Seebach
v. Gallen, Armstrong v. United States, Angrisani V.
United States, DeFino v. McNamara, DeBusk V.
United States. Korman v. United States, King v.
Hampton.
(8) Misuse of Government time and property:
Green v. Baughman.
(9) Refusal to accept reassignment: (a) agency right
to reassign: Burton V. United States, Handler v. Sec-
retary of Labor, Sexton V. Kennedy.
(b) Improper reassignment to induce resignation:
Motto v. General Services Administration,
McClelland v. Andrus.
(10) Refusal to carry out proper orders: Erenreich
v. United States.
(11) Unauthorized absence: Chiaverini v. United
States, Chiriaco v. United States, Rubin v. United
States.
(12) Unauthorized use of Government vehicle:
Brownell v. United States, Clark v. United States,
Murphy v. Kelly.
(13) Violence against coworkers: Ruffin v. United
States.
3-3 PROCEDUR rs
a. Thirty days' advance written
employee against whom an action
notice. Law: "An
is proposed is en
-
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CHAPTER 752. ADVERSE ACTIONS
titled to?(I) At least 30 days advance written no-
tice,. . ." (5 U.S.C. 7513(5)(1))
(I) The law requires at least 30 full calendar days
before a proposed action is effected. A calendar day
is the 24-hour period between 12 midnight and 12
midnight. In computing the advance notice, the day
on which the notice is delivered is not counted since
it is not a full calendar day. (See Stringer v. Uniteed
States and section I-lb (3) of chapter 210.) The last
day of the notice period is counted when it is a full
calendar day; ordinarily for removals (See paragraph
(2) below) it is a full calendar day since the action
will not become effective until 12 midnight. Twelve
midnight is considered to be the end of the day. (See
Englehardt v. United States) As the term "day" is
defined in section 1-1b(3) of chapter 210, a Saturday.
Sunday, or a legal holiday may not be designated as
the last day of a notice period. I:.cept for these re-
strictions on the last day of a minimum notice period,
the agency may effect an adverse action on any day.
If the agency has any question as to whether it has
met the requirements for the minimum number of
days' notice to be given, the Office recommends a
longer rather than a shorter notice period.
(2) Removals become effective at 12 midnight
(i.e., the end of the day) on the date specified in the
notice of decision, unless the agency specifies some
other particular time earlier than midnight. For ex-
ample, if the affected employee's tour is at night and
includes portions of two calendar days, the agency
may make the action effective as of the time the em-
ployee completes hi or her tour of duty on the morn-
ing of the effective date. However, if the agency spec-
ifies a time earlier than midnight for effecting the
removal, it may not count the effective date itself as
a day in the notice period, since it is not a full calendar
day.
(3) Reductions in grade or pay, furloughs, and sus-
pensions become effective at 12:01 a.m. (i.e., the
beginning of the day), of the date specified in the
notice of decision, except in the case of an employee
whose hours of duty are at night and include portions
of two calendar days. In such cases, the actions take
effect at the beginning of the emploee's tour of duty
at the time specified.
(4) Since the time when an adverse action is made
effective will apply uniformly. an agency need not
(and the OPM recommends that it does not) set any
particular time for the action to become effective un-
Inst. 261
Det ember 31, 1980
less that agency has a specific reason for setting an-
other time.
(5) If the agency amends a notice to include new,
additional reasons, it will need to make certain that
the employee is given sufficient time to answer to
added reasons, and that no action is taken until at
least 30 full calendar days have elapsed from the date
the added reasons are delivered to the employee.
(b) If the employee alleges harmful procedural error
in an appeal of an action under Subparts C and D of
Part 752, the agency will have to show that the em-
ployee received the full 30 days' advance notice:
either that the employee received the notice on a ti-
mely basis or that the agency's action to accomplish
delivery constituted an intelligent and diligent effort,
under the circumstances, to get the notice to the em-
ployee on a timely basis. The method of delivery is
thus an important consideration:
(a) The best and most direct route for delivering
advance and final notices is to hand them to the em-
ployee at work, and to obtain a written acknowl-
edgement of receipt. It is good practice to have two
people deliver the notice, or get a witness to certify
that the notice was delivered if the employee refuses
to sign. Personal delivery may be preferable even
when the employee is not at work. For example. an
employee on authorized annual leave, brief sick leave,
or official travel status ordinarily will be back to work
soon. There is usually no compelling reason why the
delivery of the notice cannot be delayed until the
employee returns. However, an employee on author-
ized sick leave for an extended period in a serious
condition usually is immobilized at home or in a hos-
pital. The agency may decide to delay initiation of
its action because of consideration for the employee
or to avoid the appearance of overzealousness in tak-
ing action against a seriously ill employee. If the
agency decides that it ought not to postpone delivery,
delivery of the notice by a visitor or agency messenger
may be an effective method and will provide proof
of delivery. Agencies would be wise to weigh the
problems which may develop from delivering a notice
under these circumstances against the actual need to
take immediate action.
(I)) Agencies will have cases which warrant every
effort to complete the action within the shortest time
permitted by law and regulation, and in which the
employee is not in a duty status. The mails may offer
the best means of effecting prompt delivery in these
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Subchapter 3. Removal, Suspension for More Than 14 Days; Reduction in Grade or Pay,
and Furlough for 30 Days or Less
cases. This method of delivery works satisfactorily in
most instances. It is important for an agency to keep in
mind the fact that if it proceeds with its action on the
assumption that the employee has received a mailed
notice promptly, there is always the chance of failure of
delivery. Going on this basis, therefore, represents a
calculated risk. The degree of risk depends largely on
the type of mail chosen:
(i) An agency may use return receipt registered mail
for delivery to and receipt by the addressee
only, to make certain an absent employee actu-
ally receives a notice before the agency takes
further action under the terms of the notice.
However, when delivery fails, the returned let-
ter will provide documentary evidence of the
employee's nonreceipt of the notice.
(ii) Again, the agency may use ordinary registered
mail. The Postal Service will leave this type of
mail with any adult at the address shown who
will sign for it. Thus, the nonretum of a letter
mailed this way does not establish that the
addressee actually received it. This type of mail
does offer a way of establishing that the letter
actually reached the address to which it was
sent and of establishing the approximate time it
was delivered.
(iii) The use of unrestricted first class mail does not
752,17
for such time, not to exceed ten calendar days, as is
necessary to effect the action. (2) The advance writ-
ten notice and opportunity to answer are not neces-
sary for furlough without pay due to unforeseeable
circumstances, such as sudden breakdowns in equip-
ment, acts of God, or sudden emergencies requiring
immediate curtailment of activities." (Section
752.404 (d)(1) and (2)).
(1) The so-called "crime provision" of 5 U.S.C.
7513(b)(1) is concerned solely with the duration of the
advance notice period and the opportunity to answer. It
does not deal with the employee's duty status during
the advance notice period nor the merits of the action.
(a) The agency may take an action with a shortened
notice period only when it has reasonable cause to
believe the employee has committed a crime for which
a sentence of imprisonment may be imposed. If the
agency has any doubts as to whether a "crime" for
which a "sentence of imprisonment" can be imposed,
OPN1 believes it would ordinarily be better practice to
resolve those doubts in favor of the employee.
(b) An agency cannot invoke the "crime provision"
solely on evidence of the employee's arrest. However,
if the agency had evidence that the employee was
arrested and held for further legal action by a magis-
trate or was indicted by a grand jury, the agency would
have reasonable cause for believing the employee had
committed a crime. If the agency through its own
"hich
provide any method by which the senoer an
establish when, if ever, the letter was delivered independent investigation has acquired evi enc
IV the addressee or to the place where it was connects an employee with the commission of a crime,
determine whether all the facts and circum-
sent. Hower ; in the absence of evidence to the
contrary, proof that a letter was properly ad-
dressed, stamped, and mailed in the regular
course of business raises a presumption that the
addressee received it. Thus, it is good practice
to document these facts for the record.
b. Exceptions to the 30 days' notice period. Law
". . . unless there is reasonable cause to believe the
employee has committed a crime for which a sentence
of imprisonment may be imposed. . . " (5 U.S.C.
7513(b)(1) Regulation: "(1) 5 U.S.C. 7513(b) autho-
rizes an exception to the 30 days' advance written
notice when the crime provision is involved. The
agency may require the employee to furnish any
answer to the proposed action, and affidavits and
other documentary evidence in support of the answer
within such time as under the circumstances would
be reasonable, but not less than seven days. When the
circumstances require immediate action, the agency
may place the employee in a nonduty status with pay
Federal Personnel Manual
it IflUSL
stances uncovered constitute reasonable cause of be-
lieving the employee has committed the crime.
(c) Generally, to invoke the crime provision and
process a removal or indefinite suspension with a cur-
tailed notice period, the agency would:
(i) Notify the employee that he or she is being put
immediately in a nonduty status with pay for no
longer than ten calendar days.
(ii) Give the employee a notice either of proposed
indefinite suspension pending disposition of
the criminal action or of proposed removal
when the agency has sufficient evidence to
warrant removal. The notice will tell the em-
ployee of the reasonable period for an answer
(not less than seven calendar days.)
(iii) Issue a decision on the action after the employee
has had an opportunity to answer and the agen-
cy has considered any answer.
(iv) Complete the action before the employee has
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CHAPTER 752. ADVERSE ACTIONS
been in a nonduty status for more than ten
calendar days.
(2) The 30-day notice period is not required for
emergency furloughs due to unforeseen circum-
stances. In these situations, there is no minimum time
allowed for a reply since the agency will be powerless
to avoid a sudden and general work stoppage. Aside
from the waiver of the advance notice requirement and
the right to answer, the employee is entitled to the other
requirements provided by law and regulation, includ-
ing the right to appeal. The agency must be prepared to
show that the s cippage was caused by conditions which
no level of agency management having responsibility
for the activity could change.
(3) The Merit Systems Protection Board has issued a
decision (Cuellar v. United States Postal Service,
MSPB Dkt. No. SF075299045, November 13, 1981)
which held that OPM's regulatory provision for emer-
gency suspensions exceeded OPM's statutory authority
to regulate and is illegal. Therefore, agencies may no
longer use these procedures. When an agency believes
that the employee cannot be kept on his or her regular
job during the period of an adverse action proposal,
OPM recommends the following alternatives:
(a) If the employee is absent from the job for reasons
which do not originate with the agency (annual leave,
incarceration, sick leave, etc.), carrying the emploSiee
on appropriate leave?annual, sick, leave without pay,
or absence without leave.
(b) Assigning the employee to other duties in which
the problems thatsnake his or her absence from the job
necessary will not exist.
(c) Placing the employee on leave with his or her
consent, except when the agency has medical evidence
that the employee is unable to work. The employee
may not be placed on enforced leave when he or she is
ready, willing, and able to work since the courts have
found that in connection with a disciplinary action,
enforced leave constitutes a suspension taken without
procedures.
c. Specific reasons for the action. Law: ". . .writ-
ten notice. . .stating the specific reasons for the pro-
posed action." 5 U.S.C. 7513(b)(1). The specific rea-
sons for the action include those reasons the agency has
relied on to support its proposal for action, but the
agency need not include every reason that might have
been used to support its action. (Saggau v. Young,
DeNigris v. United States) The requirement for the
specific reasons is to afford the employee a fair oppor-
tunity to refute the reasons for the action. The amount
of detail needed to meet the requirement is that which
Inst. 304
May 23, 1983
will enable the employee to respond to the reasons. If
the employee is not given all the specific reasons in the
notice, he or she will be unable to respond to those
which he or she does not know about or does not
understand. (Burkett v. United States, Englehard! v.
United States, Norden v. Royall) The employee's ex-
haustive reply to a notice indicates that he or she has
understood the reasons for the proposed action.
(Baughman v. Green, Cohen v. McNamara, Greenway
v. United States)
d. Material relied on. Regulation: "The notice of
proposal shall inform the employee of his or her right
to review the material which is relied on to support the
reasons for action given in the notice. The agency
may not use material which cannot be disclosed to the
employee or his or her representative or designated
physician under Section 297.108 (c)(I) of part 297 of
this title to support the reasons in the notice." (Sec-
tion 752.404(b))
(1) The material to be made available for the em-
ployee's review may include, but is not limited to,
statements of witnesses, documents, and investigative
reports or extracts from these reports. The agency need
not wait until obtaining all the evidence in a case before
it proposes adverse action; it may issue a notice w hen-
ever it believes it has enough evidence to justify the
action. Any additional supporting material may be
introduced at a later stage in the proceeding, but the
employee must be able to review and respond to it.
When a case is one which may involve a crime, the
requirement is not intended to extend the shortened
notice period nor to force the agency to disclose pre-
maturely the evidence that co,ild hamper proper law
enforcement. In a crime case, the agency may make
available the material on hand which supports the
action proposed, e.g., a record or report of arrest and
arraignment. In such cases, general good practice is to
obtain the best evidence possible, which would be
certified official copies of the police report and arrest
and court records. In addition to supporting the use of
the crime provision to shorten the notice period, there
will need to be sufficient material to support the reason
used (i.e., the actual misconduct involved as dis-
tinguished from the fact of arrest) to justify the pro-
posed adverse action.
(2) The agency may not support its reasons for action
with restricted material which cannot be disclosed to
the employee or his or her representative or designated
physician under Part 297. (OPM recommends in such
situations that the notice contain the specifics of service
deficiencies but not specific mcdlcal diagnosis. All the
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Subchapter 3. Removal, Suspension for More Than 14 Days, Reduction in Grade or Pay,
and Furlough for 30 Days or Less 752-19
supporting material on the service deficiencies must be
made available to the employee and/or his or her repre-
sentative except the medical information which the
agency believes can be released only to a physician.)
Again, the agency may not use material to support
reasons in the notice which would violate a pledge of
confidence if disclosed or which is restricted or classi-
fied. If the agency wishes to use information in a
restricted, classified or confidential document, it will
obtain this information in a form which can be made
available for the employee's review. A copy of the
material relied upon may be enclosed with the advance
notice, if the agency chooses to do so. In this circum-
stance, OPM recommends that the advance notice con-
tain the following or a similar statement: You have the
right to review the material which is relied on to sup-
port the reasons for the action given in this notice. A
copy of that material is enclosed for your convenience.
e. Preparation of notice. (1) It may not be harmful
error if the notice does not always state specifically that
the proposed action will promote the efficiency of the
service (DeBusk v. United States) or to explain why it
believes the action will promote the efficiency of the
service (Begendotf v. United States), although this may
be the wisest course to follow. If the agency's proposal
for action is based on misconduct which does not
directly affect the performance of the employee's job
tasks, the agency will bolster its case by an express
explanation of how the efficiency of the service will be
promoted by its action, i.e., establish the nexus.
(2) To prevent errors, OPM recommends that the
agency have an employee who is trained in the techni-
cal requirements of processing adverse actions pre-
pare, or at the very least review before issuance, the
notice of proposed action. Employees who prepare or
review notices will wish to describe correctly the rea-
sons for action. (Note: In the event the agency does
commit a procedural error in taking the action, it may
not be harmful error, depending upon the subsequent
course of the proceedings. See Parker v. Defense Lo-
gistics Agency, cited in section 3-2a(2), for the Merit
System Protection Board's criteria for determining
harmful error.)
(a) Ordinarily, it is preferable to specify in the
notice what the employee did thamas wrong without
using legal terms. The agency need only set forth the
employee's misconduct (what he or she did) and why
the acts justify adverse action (the reason or cause for
the action). If the agency proposes adverse action for
reasons which are stated in legal terms connoting
Federal Personnel Manual
'U.S. GOVERNMENT I HINTING OFFICE: 1983- 3EW-851: 1377
crime, such as "grand larceny", "theft" or "gross
negligence", it may have to prove all, the elements
necessary to establish that the crime has been com-
mitted, including felonious intent.
(b) To avoid errors, the agency may label the of-
fense or offenses, if the label fits the facts, is not a
strictly legal term, and is not relied on by itself to
support the agency's action, since a charge or reason
for action is not self-validating.
(i) It is good practice to label an incident of miscon-
duct so that there will be no question when the
action is proposed or at any time in the future
whether it is a first, second, or third offense of
the same nature. This is especially appropriate
when the proposing official is guided by an
agency table of penalties under which the na-
ture of the offense and the number or times
occurring are used to determine the appropriate
range of penalties. The agency must be careful
to select a label which fits the facts and not to
distort the facts to fit a specified offense in a
table of penalties.
(ii) Labeling an offense will also show the employee
how serious his or her conduct is considered,
and enable the agency to know what miscon-
duct it must prove. AD employee's failure to
comply with a proper order may merit the label
"insubordination", if the offense reflects de-
liberate, willful, and knowing intent. Or, the
agency may conclude that the offense resulted
from nelgigence, or that there is not sufficient
evidence to prove "insubordination" and label
the offense "failure to follow instructions."
(iii) When the agency concludes on the basis of a
repetition of irresponsible acts or failures to act
on the part of the employee, (not only on the
basis of the most recent misconduct,) that a
proposed action is proper, it is good practice to
give one single basic reason and to cite all of the
employee's offenses pertinent to supporting the
basic reason. In some cases, the offenses are of
the same general sort; e.g., repeated un-
authorized absence, tardiness, or failure to car-
ry out assignments. In other cases, the offenses
are varied, such as failure to carry out orders
added to previous instances of unauthorized
absence and misbehavior on the job. These
offenses might be properly labeled "repeated
acts of misconduct". OPM recommends that
the agency assure that there is indeed a pattern
of misconduct or failures to act before grouping
actions under a single label.
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(3) The agency may wish to consider prior disci-
plinary actions (reprimands, suspensions, etc.) in de-
termining the severity of the appropriate remedy to
be set for the current charges. The court in Henkel
v. Campbell held that if the employee has been given
the entitlement to a full review of the prior disciplinary
action, i.e., due process, the agency may properly
consider the prior actions in setting the appropriate
remedy.
(4) The notice must make it clear, in order to meet
the requirements of law and regulation, that the action
is proposed but not yet decided. (See Elchibegoff v.
United States) Usually, a statement that the notice is
of proposed action only and that the agency will con-
sider any answer before making its decision will suf-
fice. It is good practice, even with such a statement,
to be sure that the proposal in no way suggests that
the decision is a foregone conclusion. However, the
agency will be wise to avoid making any statements
in the advance notice which could be construed as
indicating it has already made a decision.
(5) The advance notice must state specifically the
most severe action proposed, so that the employee
will be able to answer the notice properly. 1 he agency
may of course lessen the action; a proposed notice of
removal would not bar a subsequent decision to sus-
pend or demote instead of removing. (See Collins v.
United States) If an agency decides that a more severe
action than originally proposed is appropriate in a
case, it must give the employee a new advance notice
to propose the more severe action, so that again the
employee may have a chance to defend himself or
herself.
(6) The following items are recommended but not
required in the advance notice: telling the employee
of the right to answer both orally and in writing and
to furnish affidavits and other documentary evidence
in support of the answer; the right to representation,
where the material relied on in proposing the action,
as well as the regulations and procedures on which
the proposal is based, may be reviewed; the amount
of time to be given for his or her answer; and iden-
tification of the person or office to receive any oral
or written answer. OPM recommends telling the em-
ployee, if he or she is in an acLive duty status, of the
amount of official time allowed to review the material
relied on, to secure affidavits and other documentary
material, and to prepare an answer to the notice, and
the identity of person with whom to make arrange-
ments for the use of official time.
Federal Personnel Manual
f. Notice of furlough for 30 days or less. Regu-
lation: "When some but not all employees in a given
competitive level are being furloughed, the notice of
proposal shall state the basis for selecting a particular
employee for furlough as well as the reasons for the
furlough." (Section 752.404(b)(2)). The regulatory
requirement is set so that an employee will have the
requisite information for answering the notice, or for
appealing an action with no advance notice period.
g. Employee's answer. Law ". . . a reasonable
time, but not less than seven days, to answer orally
and in writing and to furnish affidavits and other
documentary evidence in support of the answer." (5
U.S.C. 7513 (b)(2)) Regulation: "(I) The agency
shall give the employee a reasonable amount of of-
ficial time to review the material relied on to support
its proposal and to prepare an answer and to secure
affidavits, if he or she is otherwise in an active duty
status. (2) The agency shall designate an official to
hear the employee's oral answer who has authority
either to make or recommend a final decision on the
proposed adverse action. The right to answer orally
in person does not include the right to a formal
hearing with examination of witnesses unless the
agency provides one in its regulations in accordance
with subsection (g) of this section." (Section
752.404(c))
(1) The law requires at least a seven-day period
for the employee to answer; that is only a minimum
which the agencies may modify upward to suit their
own situations.
(a) There is no maximum time set by law or reg-
ulation for an employee to submit an answer, but it
would be good practice for the agency to estimate
what constitutes a reasonable time in a particular case
and advise the employee in the notice of proposal that
it expects an answer within that time. Some stated
limitation, even though tentative, is usually necessary
to keep the proposed action moving as expeditiously
as possible to a conclusion. The agency might find
it desirable to accompany a specific time limit with
a statement that it will consider extension of the time
limit if the employee provides reasons for a requested
extension.
(b) When an employee, under criminal indictment
for the same act for which removal has been proposed,
asserts that submission of an answer to the notice of
proposal within the time allowed would prejudice his
or her defense, the agency may wish to determine
whether the record supports this contention. If the
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CHAP UER 752. ADVERSE ACTIONS
agency decides that the record does support the con-
tention, it would be a good practice, supported by
court decisions, to delay further action on the removal
until action under the indictment has been completed.
(See Silver v. McCauley. Wathen v. United States,
Pa/cover v. Secretary of the Treasury, Peden v.
United States, Cohen V. United States) In most cases
agencies will probably not be able to proceed with
the administrative case without prejudicing the em-
ployee's rights. If the agency does delay action on
the removal under these circumstances, it may wish
to consider indefinite suspension of the employee
pending disposition of the criminal action. Whatever
the agency decides to do, it is good practice to tell
the employee of its decision to delay further proc-
essing, to avoid any question of whether the agency
was neglecting to take any action.
(c) Employees sometimes submit an answer after
the time the agency allowed for an answer but before
the agency has issued its final decision. It is better
practice, when possible. for the agency to give full
consideration to a delayed answer, e.g., when it was
received late because of slow mail delivery, the
agency has not issued its final decision, and has no
compelling reason for completion of the action in the
shortest possible time.
(2) The Office's regulations provide for a reason-
able hilt not specific amount of official time for the
employee who is otherwise in a duty status to review
the material relied on by the agency and to prepare
an answer to it. Each agency will have to set an
amount consonant 'With its own situation, perhaps on
a case-by-case basis. Agencies are reminded of their
obligation to negotiate or consult, as appropriate, with
recognized unions concerning the amount of official
time to he granted.
(3) An employee has the right to make both an oral
and a written answer. If he or she requests the op-
portunity to make an oral answer, the employee is
entitled to have the answer heard. La Marche v.
United States. Long v. United States, Steven.syn v.
United States, Vaughn V. United States) Denial of an
employee's request to answer orally is contrary to
law. (Mallow v. United States, McKatnev v. United
States. Witmer v. United States) OPM points out that
a timely reply must be accepted.
The oral answ er may include any plea the em-
ployee believes ma) influence the decision in his or
her favor or reduce the penalty. The agency may not
restrict the answ er solely to matters relating to the
Inst. 261
December 31, PM
agency's reasons for proposing adverse action. The
court said in Washington v. United States: "To 'an-
swer' to charges, or claims, one need not necessarily
plead the general issue, denying that he did the things
which he is alleged to have done. He may plead in
confession and avoidance, and that is an answer, in
law, and in life. In employment relations particularly,
mitigating circumstances, often of a highly personal
nature, may save a job for a person who, but for these
circumstances, would and should be discharged.
Whether, if the plaintiff had been permitted to make
this kind of a personal appeal to his superior, it would
have saved his job, we do not know. But when Con-
gress gave to the veteran the right to appeal person-
ally, it must have intended to give him the chance of
succeeding in such an appeal. The naked facts, with-
out the personal appeal, could just as well be stated
in writing. And Congress knew as we all know, that
bureaucratic superiors, like other human beings, are
susceptible to the effects of personal pleas."
(5) The law is silent on whom the agency may
designate to hear an employee's oral answer The
Office's regulations require that the person designated
be one who has delegated authority in the agency to
make or recommend a decision. Several court deci-
sions have defined more clearly the type of employee
or official who can properly be designated:
(a) In Ricticei v. United States, the court held that
the oral reply officer ". . .must play a role other than
as presiding over a recording and transcribing me-
dium." Such officers, the court stated, should be ones
who are familiar with the area involved and would
normally make recommendations in that area. In RE-
cocci, the court specifically indicated that trained in-
vestigators of any kind should not serve as oral reply
officers because they negate the feedback an employee
must receive to have a proper oral answer.
(b) The right to answer orally is not met by an
appearance before an investigator charged with the
duty of developing the facts to support the reasons
for action, when the investigator is not the employee's
supervisor or even superior (see (c) below for a dis-
cussion of "superior") in the chain of command.
(Patterson v. United States)
(c) The law does not guarantee an interview with
any particular official as lone as the employee is given
the opportunity to answer a superior with authority
to recommend or take final action. (O'Brien v. United
States) OPM's interpretation of the term "superior"
is that an official duly authorized to judge an ern-
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s.
e,
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Subchapter 3.
Removal, Suspension for More Than 14 Days, Reduction in Grade or Pay.
and Furlough for 30 Days or Less
ployee's case and either decide or recommend a de-
cision is in that respect a superior to the employee.
h. Right to representation. Law: ". . . be repre-
sented by an attorney or representative." (5 U.S.C.
7513(b)(3)) Regulation: "5 U.S.C. 7513(b)(3) pro-
vides that an employee covered by this part is entitled
to be represented by an attorney or other represent-
ative. An agency may disallow as an employee's rep-
resentative an individual whose activities as repre-
sentative would cause a conflict of interest or
position; or an employee of the agency whose release
from his or her official position would give rise to
unreasonable costs or whose priority work assign-
ments preclude his or her release. 5 U.S.C. 7114(a)(5)
and the terms of any applicable collective bargaining
agreement govern representation for employees in
an exclusive bargaining unit." (Section 752.404(e))
For a complete discussion of the right to represen-
tation, see section 2-3c of subchapter 2.
i. Agency decision. Law: ". . . a .?ritten decision
and the specific reasons therefore at the earliest prac-
tical date." (5 U.S.C. 7513(b)(4)) "Regulation: "In
arriving at its written decision, the agency shall con-
sider only the reasons specified in the notice of pro-
posed action and shall consider any answer of the
employee and/or his or her representative made to
a designated official. The agency shall deliver the
notice of decision to the employee at or before the
time the action will be effective. The notice shall tell
the employee of his or her appeal rights." ( c
752-23
given to an employee in a notice of proposed action.
(See also Urbina v. United States) Introduction of
new reasons into the notice of decision could deprive
the employee of any opportunity to answer these ad-
ditional reasons for action. If, however, the error is
harmless or it has been cured by subsequent agency
action?an additional opportunity to answer the new
charge?the Board decisions indicate that the agency
action will be upheld. See Parker v. Defense Logistics
Agency, cited in section 3-2a(2), and Graham v. U.S.
Postal Service, (MSPB No. NY07529908. 6/6/80).
(3) When the reasons sustained are valid and suf-
ficient, one or more invalid reasons will not invalidate
an adverse action. (Baughman v. Green, Deviny v.
Campbell, and Finnegan v. Daly) The agency of
course will have to decide whether the reasons sus-
tained will support the action originally proposed.
(4) A rather brief notice of decision can fulfill the
requirements for stating the reasons relied on in reach-
ing an adverse decision. (Baughman v. Green and
Kenny v. United States). If all the reasons stated in
the notice of proposal are sustained and all are relied
on to support the action, OPM believes that a clear
statement to that effect will be sufficient and that the
agency need not repeat each reason. It is good practice
to mention each reason in the notice of proposal,
whether relied on in the decision or not.
(5) Sometimes the agency will have stated in the
notice of proposed action that it is considering the
errl loyee's past disciplinary record in proposing a
752.404(f)) . ..particular action. It is good practice for the agency
(1) In making its decision, an agency is required to tell the employee whether the agency relied on the
by the regulation to give bona fide consideration to past record in deciding on the action to be taken.
any answer of the employee or the employee's rep- (6) The agency must comply with all applicable
resentative. Though there is no requirement that the requirements of the Merit Systems Protection Board
employee's answer and the agency's consideration of (including providing a copy of the MSPB regulations
it be specifically' mentioned in the notice of decision, and the appeal form) in telling the employee of ap-
it is good practice to include a statement to the effect plicable appeal rights. (See Sec. 1201.21, Notice of
that the employee answered orally ancUor in writing appeal rights, in chapter 1200 of 5 CFR)
and that the agency considered the answer, or that he (7) For a discussion of ways of delivering the de-
or she didn't answer, as the case may be. The agency cision, see paragraph 3-3a(6).
will need to resolve any doubts about its reasons for j. Agency hearing. Law: "An agency may provide,
action or the propriety of the action raised by the by regulation, for a hearing which may be in lieu of
employee's answer before it a lakes its decision. When or in addition to the opportunity to answer provided
it believes it appropriate, the agency may withdraw under subsection (b)(2) of this section." (5 U.S.C.
its action or substitute a lesser action without issuing 7513(c)) Regulation: "Under 5 U.S.C. 7513(c), the
a new notice of proposal.
(2) The law requires an agency to state specifically
its reasons for deciding to take action. The regulation
requires that an agency consider only those reasons
Federal Personnel Manual
agency may in its regulations provide a hearing in
place of or in addition to the opportuna) for written
and oral answer." (Section 752.404(g)) Any' hearing,
including the opportunity to examine witnesses,
Inst. 261
December 31, 1980
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752-24
CHAPTER 752. ADVERSE ACTIONS
which the agency provides is part of the decision, not
of the appellate process. The hearing will thus take
place before the decision to effect the adverse action.
k. Appeal and grievance rights. Law: "An em-
ployee against whom an action is taken under this
section is entitled to appeal to the Merit Systems Pro-
tection Board under section 7701 of this title." (5
U.S.C. 7513(d) Regulation: "(a) Appeal rights. Un-
der the provisions of 5 U.S.C. 7513(d) an employee
against whom an action is taken under this support
is entitled to appeal to the Merit Systems Protection
Board. (b) Grievance rights. 5 U.S.C. 7121 (e)(1)
requires an aggrieved employee to elect to appeal
under this subpart or, where applicable, to file a
grievance under the negotiated grievance procedure,
but not both." (Section 752.405)
(1) An employee who is not a member of an bar-
gaining unit has only one avenue (other than a com-
plaint of discrimination under an agency complaints
procedure) to request review of an agency action taken
under Subparts C and D of Part 752: the appeal pro-
vided by 5 U.S.C. 7513(d) to the Merit Systems Pro-
tection Board. The applicable procedures for filing
such an appeal are found in the regulations of the
Board. (See Section 1201.22 through 1201.24 of Part
1200, 5 CFR)
(2) A member of a bargaining unit under a nego-
tiated agreement which provides for coverage under
the negotiated grievance procedure of actions taken
under Subparts C and D of Part 752 has the choice'
of appealing to the Merit Systems Protection Board
or of filing a grievance under the negotiated grievance
procedures, but the employee may not file both an
appeal and a grievance on the same action. (However,
I This election applies only to members of bargaining units established
under the provisions of chapter 71 of 5 U.S.C.
Inst. 261
December 31, 1980
an employee alleging discrimination in connection,
with an appealable action may appeal to the MSPB
after .first using the negotiated grievance procedure.
If the employee has both appeal and negotiated griev-
ance rights, the agency must inform him or her of
both.)
I. Agency records. Law: "Copies of tlze notice of
proposed action, the answer of the employee when
written, a sunzmary thereof when made orally, the
notice of decision and reasons therefor, and any order
effecting an action covered by this subchapter, to-
gether with any supporting material, shall be main-
tained by the agency and shall be furnished to the
Board upon its request and to the employee affected
upon the employee's request." (5 U.S.C. 7513 (e))
Regulation: "The Agency shall maintain copies of
the items specified in 5 U.S.C. 7513(e) and shall
furnish them upon request as requir.-2 by that sub-
section." (Section 752.406)
(1) The agency is required only to maintain a sum-
mary of the employee's oral answer. If the agency
makes a transcript, OPM believes it meets the legal
requirement.
(2) "Any supporting material- is that on which
the agency based its notice of proposed action and
relied on to support the reasons in the notice. It may
include statements of witnesses, affidavits, docu-
ments, and investigative reports or extracts from
them. OPM emphasizes that these agency records are
extremely important since the agency bears the burden
of proof. It is good practice to have these records
sufficient in themselves for any subsequent appeal.
(3) The required records will, of course, he nec-
essary if the employee appeals the action to the Merit
Systems Protection Board. The agency is not required
to furnish the records either to the Board or to the
employee absent a specific request.
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To Be Filed With Basic FPM Chapter 752
15 November 1981
AR 690-700
752
Subchapter 3. REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS,
REDUCTION IN GRADE OR PAY, AND FURLOUGH FOR 30 DAYS OR LESS
3-1. Coverage. a. Actions covered.
(3) Failure to accompany activity to another
location. The provisions of this subchapter must
be followed when it is nessary to remove an em-
ployee who refuses to accompany his or her posi-
tion to a new location, or to an organization hav-
ing a different appointing officer because of a
transfer of function or activity. This applies also
when an employee accepts a specific position as a
part of a transfer of function and later declines
to move. The advance notice in such cases will,
besides citing the employee's initial refusal to
accompany the position, or subsequent declina-
tion of an offer to mo,re to the new location, ex-
plain the circumstances that make separation
necessary because of such refusal or declination.
(4) Failure to accept new assignment. If the
employee refuses a new assignment and decision
is made to propose separation, the full job pro-
tection requirements prescribed in this subchap-
ter must be observed. This includes a separate
advance notice of the proposed separation. The
proposal to separate can be made any time after
the employee refuses to accept the new assign-
ment. The advance notice of separation will, be-
sides citing the employee's refusal to accept the
assignment, explain the circumstances that
make separatiOn necessary as a result of such re-
fusal. This provision also applies to those cases
in oversea areas when the employee fails to reg-
ister in a DOD Priority Placement Program or
exercise reemployment rights.
(11) Separation for disability?See para-
graph 3-2a(4) and (5).
b. Actions not covered.
(6)(b) Refusal to permit withdrawal of resig-
nation. Any rejection of a request to withdraw a
resignation before the effective date must con-
form with chapter 715.2-3. Otherwise the action
must be processed according to this subchapter.
c. Employees covered. Any personnel action
effecting the involuntary separation or change to
lower grade of an employee occupying a position
in the Senior Executive Service, a GS-16,
GS-1'7, GS-18, or 10 USC 1581 position (PL 313)
requires the prior approval of the Secretary or
Under Secretary of the Army or the Assistant
Secretary having functional responsibility over
the position. Requests for prior approval of such
actions will be transmitted by letter to
HQDA(DAPE-CPZ-BE), WASH DC 20310, with
complete information on the basis for the pro-
posed action so that the required approval may
be obtained.
(5) An employee who served in the Canal
Zone immediately before 19 January 1959 with
competitive status in a position which was in the
competitive service and who, since that date,
continued to be employed without a break in
service in positions in the Canal Zone or Repub-
lic of Panama. Non-veterans in this group do not
have appeal rights to the Merit Systems Protec-
tion Board.
d. Employees not covered.
(5) Although nonpreference eligible employ-
ees in the excepted service are not covered by
this regulation, the procedures of this regulation
may be followed in effecting adverse actions.
When these procedures are extended, such ac-
tion is a matter of courtesy rather than a matter
of right. Nonpreference eligibles in the excepted
service do not have appeal rights to the Merit
Systems Protection Board. However, they may
file a grievance under the appropriate grievance
system.
3-2. Merit of the adverse action. a. Cause.
(4) Mental disability. An employee will not
be separated for mental disability until there is a
final determination that such employee cannot
be retired for disability. (See FPM Suppl 831-1,
S10; FPM Chap. 330.1; and FPM Chap. 306.8.)
(5) Physical Disability
(a) An employee may be separated for
disability at any time. Action should not be initi-
ated unless-
-The employee is unable to perform
the duties of his or her position efficiently and
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4110 AR 690-700
752
safely because of disease or injury.
?Efforts to reassign the employee to a
vacant position for which he or she qualifies at
the same grade level in the commuting area
prove unsuccessful.
?The employee declines to accept as-
signment to a vacant position at a lower grade
for which he or she qualifies.
?After being advised of the right to
file an application for disability retirement, the
employee fails to do so.
?There is insufficient cause to doubt
the employee's mental competence.
(b) Action should not be initiated to sepa-
rate an employee for physical disability when
the employee has bec-ii receiving compensation
from the Office of Worker's Compensation Pro-
grams unless the following additional criteria
are met:
?The employee has been in LWOP sta-
tus for a continuous period of at least 1 year.
?Available medical evidence or prog-
nosis establishes no definite prospect of return
to duty within the next 6 months or on a definite
date within 1 year, and retention would require
an extension of the currently authorized LWOP
which would result in a period of LWOP of 18 or
more continuous months.
(c) When processing separation for disa-
bility, sufficient MOP should be granted, as
needed to finalize the action. (If the employee's
disability is one which impairs his or her judg-
ment and ability to make decisions, action should
be initiated in accordance with FPM Supplement
831-1, S10-10). Before effecting separation ac-
tion, however, the employee must be notified of
the option to apply for disability retirement if
the employee has 5 years of Federal civilian
service and appears to meet the medical require-
ments for disability retirement.
(6) Alcohol and drug abuse. The Depart-
ment of the Army Alcohol and Drug Abuse Pre-
vention and Control Program (AR 600-85) pro-
vides nondisciplinary procedures by which an
employee with alcohol or other drug-related
problems is offered rehabilitation assistance. In-
itiation of reduction in grade or removal actions
for absenteeism and misconduct resulting from
3-2
15 November 1981
alcohol and/or other drug abuse will be post-
poned for 90 days for employees enrolled in and
satisfactorily progressing in an approved reha-
bilitation program. This provision may be sus-
pended when retention in a duty status might
result in damage to Government property or
personal injury to the employee or others. See
AR 600-85 before considering any adverse ac-
tions against employees for offenses related to
alcohol or other drug abuse.
3-3. Procedures. a. Thirty days' advance writ-
ten notice.
(6) Oversea employees. Employees serving
under a transportation agreement returning
from an oversea assignment for separation for
any reason will be carried in a duty status dar-
ing a period of return travel at Government ex-
pense. In all such cases, the effective date of
separation will be the date (actual or construct-
ive) of arrival at the point of authorized destina-
tion in the United States.
(a) To establish the effective date of an
involuntary separation, a constructive date of
arrival will be used. Notation to this effect will
be made under remarks on the Standard Form
50 so that, if it is later found that there was a
significant difference between the constructive
and actual dates of arrival, a corrected Standard
Form 50 can be issued. For example:
?An employee is to be separated on a
constructive date of 16 January 1982. The actual
date of arrival is 12 January 1982. Since the pe-
riod between the actual and constructive dates
can be charged to annual leave or leave without
pay, as appropriate, the difference is not signifi-
cant and no change in the SF 50 is required.
?An employee is to be separated on a
constructive date of 16 January 1982. Because of
delays in transportation through no fault of the
employee, the actual date of arrival is 17 Janu-
ary 1982. Since the difference is the result of
Government action, it is a significant difference
and a change in the SF 50 is required.
?An employee is to be separated on a
constructive date of 16 January 1982. Because of
a delay en route for personal convenience, the
actual date of arrival is 23 January 1982. In this
case, since the delay was the result of the em-
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41111p 15 November 1981
a?.
ployee's action, no change in the SF 50 is re-
quired. If, however, the employee requested an-
nual leave or leave without pay in advance of the
delay, the separation date will be extended ac-
cordingly.
e. Preparation of notice.
(3) In the absence of any rationale in the let-
ter of proposed adverse action or letter of deci-
sion, presiding officials of the Merit Systems
Protection Board may interpret the agency's
reasons for penalty selection in whatever light
they deem appropriate. In order to avoid erro-
neous interpretations, the reasons for selection
of the specific penalty should be clearly and suc-
cinctly stated in the letter of proposed adverse
action. The reasons should include prior discipli-
nary record relied on in establishing the penalty
as well as any mitigating or militating factors
considered. When the penalty is consistent with
AR 690-700
752
the Table of Penalties (Chap. 751, app A) the no-
tice should so state; when it is not consistent, an
explanation for the deviation should be provid-
ed. If the penalty is mitigated in the letter of de-
cision, the reasons for mitigation should be in-
cluded in the decision letter.
h. Right to representation. An employee's
choice of representative or change of represent-
ative must be designated in writing.
j. Agency hearing. Within the Department of
the Army, hearings will not be used in connec-
tion with actions under this subchapter.
k. Appeal and grievance rights. The notice of
decision will inform the employee of applicable
grievance and/or appeal rights and the time lim-
its for filing. It will include, as an attachment, a
copy of the rules and regulations of the Merit
Systems Protection Board.
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Appendix A.
Court Cases and Comptroller General Decisions Cited in Chapter
A
Ainsworth v. United States, 180 Ct. Cl. 166 (1962) ............................Sec. 2-1b(2)
Alsbury V. United States Postal Service, 392 F. Supp. 71 (C.D. Calif, 197 aff
530 F.2d 852, cert. denied, 429 U.S. 828. ........................................... Sec. 3-2c
Angrisani v. United States, 172 Ct. Cl. 439 (1965) .................................... Sec. 3-2c
Armand v. United States, 136 Ct. Cl. 339 (1956) ...................................... Sec. 2-1a(1)(b)
Sec. 3-1b(5)(a)
Armstrong v. United States, 405 F.2d 1275, 186 Ct. Cl. 539, cert denied, 395
U.S. 934 (1969) ............................................................................ Sec. 3-2c
Autera v. United States, 389 F.2d 815, 182 Ct. Cl. 495 (1969) ..................... Sec. 3-1b(6)(a)
Barger v. Mumford, 265 F.2d 380 (D.C. Cir. 1959) ..................... .............. Sec. 3-1d(2)
Baughman v. Green, 229 F.2d 33 (D.C. Cir. 1956) ................................... Sec. 3-3c(1)
Dawn V. Zuckert, 342 F.2d 145 (6th Cir. 1965) ......................................... Sec. 3-2c
Begendorf v. United States, 340 F.2d 326, 169 Ct. Cl. 293 (1965) ................. Sec. 3-3e(1)
Bell v. Groark, 371 F.2d 202 (7th Cir. l966)-. ........................................... Sec. 3-1b(5)(b)
Blake V. United States, 323 F.2d 295 (8th Cir. 1963) .................................. Sec. 3-2c
Bond v. Vance, 327 F.2d 201 (D.C. Cir. 1964) ......................................... Sec. 3-1b(5)(b)
Born v. Allen, 291 F.2d 345 (D.C. Cir. 1960) .......................................... Sec. 3-1c(4)
Boyce v. United States, 543 F.2d 1290 (Ct. Cl. 1976) ................................. Sec. 3-2a(2)
Boyle v. United States, 515 F.2d 1397 (Ct. Cl. 1975) ................................. Sec. 3-2c
Brownell v. United States, 164 Ct. Cl. 371 (1964) ..................................... Sec. 3-2c
Burkett v. United States, 402 F.2d 1002, 185 Ct. Cl. 631 (1968) ................... Sec. 3-3c(1)
Burton V. United States, 186 Ct. Cl. 172 (1968) ........................................ Sec. 3-1a(4)
Sec. 3-2c
Camero v. United States, 345 F.2d 798 (Ct. Cl. 1965) ................................ S
Chiaverini v. United States, 157 Ct. Cl. 371 (1962) ...................................
Chiriaco v. United States, 235 F. Supp. 850 (N.D. Ala. 1963) aff d 339 F.2d 588
(5th Cir. 1964) ..............................................................................
Choller v. United States, 130 Ct. Cl. 338 (1954) .......................................
Christie V. United States, 5L8 F.2d (Ct. Cl. 1975) .....................................
Clark v. United States, 162 Ct. Cl. 477 (1963) .........................................
Cohen v. McNamara, 282 F. Supp. 308 (E.D. Pa 1968) ..............................
Cohen v. United States, 369 F.2d 976, 177 Ct. Cl. 599 (1966) cert. denied, 387
U.S. 917 (1967) ............................................................................
Co/bath i v. United States, 341 F.2d 626, 169 Ct. Cl. 414 (1965) ....................
Cot/inc v. United States, 145 Ct. Cl. 382 (1959) .......................................
ec. 3-2
Sec. 3-2c
Sec. 3-2c
Sec. 3-1d(6)
Sec. 3-1b(5) (a)
Sec. 3-2c
Sec. 3-3c( I )
Sec. 3-3g(1)(b)
Sec. 3-1a(3)
Sec. 3-3e(5)
Federal Personnel Manual
Inst. 261
December 31, 1980
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752?A-2 CHAPTER 752. ADVERSE ACTIONS
Cosby v. United States, 417 F.2d 1345, 189 Ct. CI. 528 (1969) Sec. 3-1b(6)(a)
Croghan v. United Suites, 89 F. Supp. 1002 (Ct. Cl. 1950) Sec. 3-2c
Dabney v. Freeman, 358 F.2d 533 (D.C. Cir. 1965) Sec. 3-1b(5)(b)
DeBusk v. United States, 132 Ct. Cl. 790 (1955) Sec. 3-2c
DeFino v. McNamara, 287 F.2d 339 (D.C. Cir. 1961) Sec. 3-2c
DeLong v. Hampton, 422 F.2d 21 (3rd Cir. 1970) Sec. 3-2c
DeNigris v. United States, 169 Ct. Cl. 619 (1965) Sec. 2-3a
Sec. 3-3c(1)
Deviny v. Campbell, 194 F.2d 876 (D.C. Cir.) cert. denied, 344 U.S. 826
(1952) Sec. 3-31(3)
Elchibegoff v. United States, 106 Ct. Cl. 541 (1946) Sec. 3-3e(6)
Englehardt v. United States, 125 Ct. Cl. 603 (1953) Sec. 3-3c(1)
Erenreich v. United States 164 Ct. CI. 214 (1964) Sec. 3-2c
Farrell v. Gardner, 279 F. Supp. 427 (E.D. Pa. 1968) Sec. 3-1b(5)(b)
Finfer v. Caplin, 344 F.2d 38 (2d. Cir.) cert. denied, sub nom Finfer v. Cohen,
382 U.S. 883 (1965) Sec. 3-2c
Finn v. United States, 152 Ct. Cl. 1 (1961) Sec. 3-2c
Finnegan v. Daly, 248 F. 2d 87 (D.C. Cir. 1957) Sec. 3-3i(3)
Green v. Baughman, 243 F.2d 610 (D.C. Cir. 1957) Sec. 3-2c
Greenway v. United States, 175 Ct. Cl. 350, ctn. denied, 385 U.S. 881 (1966) Sec. 3-3c
Grover v. United States 200 Ct. Cl. 337 (1973) Sec. 3-2a(2)
Gueory v. Hampton, 510 F.2d 1222 (D.C. Cir. 1974) Sec. 3-2c
Haine v. Googe;-248 F. Supp. 349 (S.D.N.Y. 1965) Sec. 3-1b(5)(b)
Hulsey v. Nit(' 390 F.2d 142 (4th Cir. 1968) Sec. 3-2c
Handler v. Secretary of Labor, 379 F.2d 88 (D.C. Cir. 1967) Sec. 3-1a(4)
Sec. 3-2c
Hart v. United States, 284 F.2d 682 (Ct. Cl. 1960) Sec. 2-1a(1)(a)
Harvey v. Nunlist, 499 F.2d 335 (5th Cir. 1974) Sec. 3-2a(2)
Henkle v. Campbell, 462 F. Supp. 1286. (D. Kan. 1978) Sec. 3-3e(3)
Ho/mon v. United States, 383 F.2d 411, 181 Ct. Cl. (1967) Sec. 3-2c
1
lndiviglio V. United States, 299 F.2d 266, 156 Ct. Cl. 241, cert. denied, 371 U.S.
913 (1962) Sec. 3-2a(2)
Jankowitz V. United States, 533 F.2d 538 (Ct. CI. 1976) Sec. 3-2b(2)
Jenkins v. Macy. 357 F.2d 62 (8th Cir. 1966) Sec. 3-2c
Kanda/ v. United States, 186 Ct. CI. 900 (19(i9)
Sec. 3-2a(2)
Kenny v. United States, 145 F. Supp. 898. 134 Ct. CI. 442 (1956)
Sec. 2-1a( I )(b)
Sec. 3-2c
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Appendix A. Court Cases and Comptroller General Decisions Cited in Chapter
King v. Hampton, 412 F. Supp. 827, 829 (ED Va. 1976) off ii 562 F.2d 76 .... Sec. 3-2c
Korman v. United States, 462 F.2d 1382, 199 Ct. Cl. 78 (1972) ................... Sec. 3-2c
Kowal v. United States, 412 F.2d 867, 188 Ct. Cl. 631 (1969) ..................... Sec. 3-2c
LaMarche v. United States, 150 Ct. Cl. 631 (1960) .................................... Sec. 2-3b(2)
Leone v. United States, 204 Ct. CI. 334, 339 (1974) .................................. Sec. 3-3g(3)
Long v. United States, 148 Ct. Cl. 4 (1960) ............................................. Sec. 3-1b(5)(a)
Lowery v. Richardson, 390 F. Supp. 356 (ED. Okla. 1973) aff d 10th Cir. ...... Sec. 2-3b(2)
Sec. 3-3g(3)
Sec. 3-2c
752?A-3
Mallow v. United States, 161 Ct. Cl. 207 (1963) ....................................... Sec. 3-3g(3)
McClelland v. Andrus, 606 F.2d 1278 (1974) ........................................... Sec. 3-1a(4)
McGucken v. United States, 407 F.2d 1349, 187 Ct, Cl. 284 (1969) ............... Sec. 3-1b(5)(b)
McKatney v. United States, 458 F.2d 47, 198 Ct. Cl. 28 (1972) .................... Sec. 3-3g(3)
Menick v. United States, 184 Ct. Cl. 756 (1968) ................ ...................... Sec. 3-2c
Motto v. General Service Administration, 335 F. Supp, 695 (E.D. La. 1975). ... Sec. 3-1a(4)
Murphy v. Kelly, 259 F. Supp. 914 (D. Mass. 1966) .................................. Sec. 3-2c
Sec. 3-2c
Norden v. Royal!, 90 F. Supp. 834 (D.D.C. 1969) ..................................... Sec. 3-3c
0
United States, 284 F.2d 692, 151 Ct. Cl. 392 (1960) ................... Sec. 3-1g(5)(c)
O'Brien
Paroczny V. Hodges, 219 F. Supp. 89 (D.D.C. 1963) ......................... .
Patterson v. United States, 319 F.2d 882, 162 Ct. CI. 675 (1963) .................. Sec.
Peden v. United States, 512 F.2d 1099, 206 Ct. Cl. 329 (1975) .................... Sec.
Perkins v. United?States, 174 Ct. CI. 124 (1966) ....................................... Sec.
Perlstein v. United States, 182 Ct. Cl. 124 (1966) ................ ...................... Sec.
Pitt v. United States, 190 Ct. 506, 513, 420 F.2d 1028, 1032 (1970) ......... Sec.
Polcover v. Secreta' of the Treasury, 477 F.2d 1223 (D.C. 1973) ................ Sec.
Power v. United States, 531 F.2d 505 (Ct. Cl. 1976) .................................. Scc
R ?
....... Sec. 3-1b(5)(b)
3-3g(5)(b)
3-3g(1)(b)
3-2c
3-2c
3-1b(5)(a)
3-3c, 3-3g(1)(b)
. 3-2a(2)
Ricucci v. United States, 425 F.2d 1252 192 Ct. Cl. 1 (1970) ....................... Sec
Rodriquez V. Seamans, 463 F.2d 837 (D.C. Cir. 1963) ............................... Sec
Roth v. Brownell, 215 F.2d 500 (D.C. Cir.) cert. denied, 348 U.S. 863 (1954) . Sec
Rubin v. United States, 150 Ct. Cl. 28 (1960) .......................................... Se
Rujfin v. United States, 144 Ct. CI. 689 (1959) ..................... ................... Se
. 3-3g(5)(a)
. 3-2c
. 2-1b(4)
c. 3-2c
c. 3-2c
(1)
Saggau v. Young, 138 F. Supp. 140(D.D.C. 1956) .................................... Sec. 2-3a, 3-3
c
Scanlan(' v. United States Artily, 389 F. Supp. 65 (D. Md. 1975) .................. Sec. 3-2c
Seebach v. Cullen, 338 F.2d 6o3 (9th Cir.) 1964 ....................................... Sec. 3-2
Sexton v. Kennedy, 523 F.2d 1311 (6th Cir. 1975) ..................................... Sec. 3-2c
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7S2?A-4 CHAPTER 752. ADVERSE ACTIONS
Silver v. McCamey, 221 F.2d 873 (D.C. Cir. 1955) Sec. 3-3g(1)(b)
Stevenson v. United States, 155 Ct. Cl. 592 (1961) Sec. 2-3b (2)
See. 3-3g (3)
Stringer v. United States, 90 F. Supp. 375, 117 Ct. CI. 30(1950) Sec. 3-3a(1)
Sullivan v. United States, 416 F.2d 1277, 189 Ct. Cl. 191 (1969) Sec. 3-2c
T
Taylor v. Macy, 252 F. Supp. 1021 (S.C. Calif. 1966) off d sub nom Taylor v.
United States Civil Service Commission, 374 F.2d 466 (9th Cir. 1967) Sec. 3-2c
Taylor v. United States, 131 Ct. Cl. 387 (1955) Sec. 2-1a(1)(b)
Torpats v. McCone, 300 F. 2d 914 (D.C. Cir. 1962) Sec. 3-1b(5)(a)
U
United States v. Cox, 536 F.2d 65 (5th Cir. 1976) Sec. 3-2b(2)
United States v. Drum, 329 F.2d 109 (1st Cir.) Sec. 3-2c
United States v. Glaziou, 402 F.2d 8(2d. Cir.) Sec. 3-2b(2)
United States v. Myers, 131 F. Supp. 525 (N.D. Cal. 1955) Sec. 3-2c
Urbina v. United States, 180 Ct. Cl. 194 (1967) Sec. 2-3d(i)
Sec. 3-3i(2)
V
Vaughn v. United States, 158 F. Supp. 716, 141 Ct. Cl. 208 (1958) Sec. 2-3b(2)
Sec. 3-3g(3)
Vogt. v. United States, 150 Ct. CI. 636 (1960) Sec. 3-2c
Washington v. United States, 147 F. Supp. 284 (Ct. CI. 1957) Sec. 3-3g(4)
Wathen v. United States, 527 F.2d 1191(1975) Sec. 3-2b(2)
Sec. 3-3g(1)(b)
Weinberg v. Macy. 360 F.2d 816 (D.C. Cir. 1965) Sec. 3-2c
Westmoreland v. Laird, D.C.N.C. 364 F. Supp. 948, affd 485 F.2d 1237
(1973) Sec. 3-2a(2)
Williams v. United*Siates, 434 F.2d 1346, 193 Ct. Cl. 440 (1970) Sec. 3-2c
Winner v. United States, 76 F. Supp. 11 (Ct. Cl. 1948) Sec. 3-3g(3)
Womer v. Hampton, 496 F.2d 99 (5th Cir. 1974) Sec. 3-2c
Decisions of the Comptroller General
38 Comp. Gen. 203 Sec. 2-1(1)(e)
39 Comp. Gen. 154 Sec. 2-1a(1)(d)
40 Comp. Gen. 312 Sec. 2-1a(1)(c)
41 Comp. Gen. 774 Sec. 2-1a(1)(e)
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