Q. Denied the Opportunity to respond to proposal to suspend.?
Updated On: Mar 07, 2016
Q. How do I know if my agency has denied me a meaningful opportunity to respond to its proposal to suspend me?

A. The opportunity to respond to an agency's proposal for adverse action is "a fundamental due process requirement," the Merit Systems Protection Board concluded in Terry David Doe v. U.S. Postal Service (2013). The issue of whether an employee has had a meaningful opportunity to respond to a proposed adverse action - or the lack thereof - often arises when a deciding official either intentionally or accidentally fails to consider an employee's written or oral response or when the evidence file is not provided at all or only is provided partially. It also comes up when an employee is indefinitely suspended or removed after having his or her security clearance revoked or when a deciding official's decision is based on information not mentioned in the notice of a proposed adverse action.

One reason why a deciding official might not legitimately consider an employee's response to an adverse action is because the response was not timely. But agency officials can miscalculate when a response period ends, as was the case in Doe. Furthermore, meaningful notice of the actual evidence used to propose or decide adverse action is as important as having a meaningful opportunity to respond. When another official - after a proposal notice has been issued - attempts to influence the deciding official's decision or penalty selection by providing him or her with new information not provided to the employee, this may result in a so-called "ex-parte" or one-sided communication. When this happens, and employees are unaware or cannot respond to the evidence provided to the deciding official then the "employees are no longer on notice of the reasons for their dismissal and/or the evidence relied upon by the agency," the Federal Circuit stated in Milton R. Stone v. FDIC (1999). Consequently, the constitutional due process guarantee of the opportunity to respond may be "undermined" by the ex parte communication. Later cases have construed such ex parte communication to be reversible error per se.

When an agency proposes to indefinitely suspend an employee because his security clearance was revoked or suspended, he or she should know to which information or action he or she has a meaningful opportunity to respond. Only the manner in which the agency indefinitely suspended or removed his clearance (leading to the suspension or removal from service) is reviewable, the MSPB noted in Angelo T. Marshall v. Department of Defense (2014). Employees who have received a notice of adverse action should immediately consult with an experienced federal employment law attorney, who can see the pitfalls in the agency's case and prepare a written response to safeguard their due process rights.

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