For a federal employee who has just received a notice proposing removal, a suspension, or a demotion, the next few weeks matter. The rules that protect federal civilian employees are detailed, the deadlines are short, and several of those rules changed in 2026.
Hampton Roads has a large federal civilian workforce, at places like Norfolk Naval Shipyard, NAVSEA field activities, Naval Station Norfolk, NASA Langley and the Hampton VA Medical Center. Below is an overview of how the process generally works when an adverse action lands on an employee’s desk, and what changed this year.
First: Is the Action Appealable to the MSPB?
The Merit Systems Protection Board (MSPB) is the independent agency that hears appeals of many federal personnel actions. For most covered employees, appealable chapter 75 adverse actions include:
- Removals
- Suspensions of more than 14 days, including indefinite suspensions
- Reductions in grade or pay
- Furloughs of 30 days or less
5 C.F.R. § 752.401(a). Shorter suspensions of 14 days or less are generally not appealable to the MSPB, although other options may exist. Whether a particular employee has appeal rights depends on the appointment, length of service and, as of 2026, whether the position was moved into a new schedule.
Step 1: Requesting the Material the Agency Relied On
When an agency proposes an adverse action, the notice must tell the employee of the right to review “the material which is relied on to support the reasons for action given in the notice.” 5 C.F.R. § 752.404(b)(1). The statute also requires the agency to keep the supporting material and furnish it to the employee on request. 5 U.S.C. § 7513(e).
Employees often make this request in writing and keep copies of every request and response. If the agency relied on material it never let the employee see, that can be a procedural error. Under the MSPB’s “harmful error” standard, however, the employee generally must show the error likely affected the outcome. See Forrester v. Dep’t of Health & Hum. Servs., 27 M.S.P.R. 450, 453–55 (1985).
Step 2: The Right to Reply, and Possible Due Process Problems
An employee is entitled to at least 30 days’ advance written notice stating the specific reasons for the proposed action (with a narrow exception in some criminal matters), at least 7 days to answer orally and in writing, the right to be represented by an attorney or other representative, and a written decision. 5 U.S.C. § 7513(b).
The reply is often a key opportunity to influence the outcome. In deciding, the agency may consider only the reasons stated in the proposal and the employee’s answer. 5 C.F.R. § 752.404(g)(1). Due process also requires notice and a meaningful opportunity to respond before a tenured public employee is removed. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). If the deciding official received new and material information that the employee never had a chance to address, that may be a constitutional due process violation. Stone v. FDIC, 179 F.3d 1368, 1376–77 (Fed. Cir. 1999).
Step 3: The 30-Day Appeal Deadline
An MSPB appeal generally must be filed no later than 30 days after the effective date of the action, or 30 days after the employee receives the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b)(1). If the employee and the agency agree in writing to try alternative dispute resolution before the deadline, the window is extended to 60 days total. Id.
Filing a grievance does not extend the time to file an MSPB appeal. Id. § 1201.21(d)(2).
Step 4: Choosing a Forum (Election of Remedies)
Depending on the situation, an employee may be able to challenge an action through an MSPB appeal, a negotiated grievance, an EEO discrimination complaint, or a complaint to the Office of Special Counsel (OSC). In many cases, the law treats whichever is filed first as the employee’s election, and it can close off the others. 5 U.S.C. § 7121.
- Discrimination claims (“mixed cases”). An employee who believes the action was based in whole or in part on discrimination may file either a mixed-case EEO complaint with the agency or a mixed-case appeal with the MSPB, but not both. 29 C.F.R. § 1614.302(b). If the EEO complaint is filed first, the MSPB deadline generally runs from the agency’s final decision, or the employee may go to the MSPB if the agency hasn’t decided within 120 days. 5 C.F.R. § 1201.154(b).
- Whistleblower or other prohibited personnel practice claims. There may be a choice among an MSPB appeal, a grievance, or an OSC complaint.
- Grievances. In 2026, DoD directed termination of many collective bargaining agreements pursuant to Executive Order 14251, subject to exemptions and court injunctions, and litigation is ongoing. DoD civilians may want to confirm the current status of the negotiated grievance procedure in their old contract before relying on it.
An election only binds an employee if it was “knowing and informed,” which means the decision letter has to explain these choices and their consequences. Agoranos v. Dep’t of Just., 119 M.S.P.R. 498, ¶¶ 15–17 (2013). In Kaszowski v. Department of the Air Force, 2023 MSPB 15, ¶ 7, an employee filed a grievance over her removal first. Because the agency’s notice never explained that a grievance and an MSPB appeal were mutually exclusive, the Board held she had not given up her appeal.
Step 5: Late Appeals and Good Cause
If an appeal is late, the MSPB will dismiss it unless the appellant shows good reason for the delay. 5 C.F.R. § 1201.22(c). The Board weighs factors such as the length of the delay, whether the appellant was told about the deadline, circumstances beyond the appellant’s control, and whether the appellant acted with diligence. Alonzo v. Dep’t of the Air Force, 4 M.S.P.R. 180, 184 (1980).
A missing or deficient notice of appeal rights can also be relevant to good cause. The Board has held that an agency’s failure to give required notice of appeal rights generally constitutes good cause for a late filing, although the appellant must still act diligently after learning of the right to appeal. Kirkland v. Dep’t of Homeland Sec., 119 M.S.P.R. 74, ¶ 6 (2013).
What Changed in 2026
Schedule Policy/Career. OPM’s final rule creating Schedule Policy/Career took effect March 9, 2026. 91 Fed. Reg. 5580 (Feb. 6, 2026). Employees in these “policy-influencing” positions remain career employees, but they are excluded from chapter 75 adverse action procedures and MSPB adverse action appeals. See 5 C.F.R. § 752.401(d)(2). On June 3, 2026, an executive order moved the first group of positions into the new schedule.
No MSPB appeal of the move itself. OPM also rescinded the 2024 rule that let employees appeal being moved into an excepted-service position that lacked those protections, and the MSPB removed that appeal right from its own regulations. 91 Fed. Reg. 8359 (Feb. 23, 2026).
Penalty review and the Douglas factors. The MSPB has long reviewed penalties using the 12 factors in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305–06 (1981). Under a final MSPB rule for misconduct-based adverse action appeals, the Board no longer requires consideration of all 12 factors in every case. Instead, the agency’s choice of penalty is now “entitled to substantial deference,” and the Board reviews it only to decide whether it is within the tolerable limits of reasonableness under the totality of the circumstances, case by case. 91 Fed. Reg. 56,549 (Sept. 3, 2026); 5 C.F.R. § 1201.56(b)(3). This is a significant shift, not just a procedural tweak. The new standard applies to appeals filed on or after October 5, 2026; appeals already pending are decided under the prior framework. That can make the reply to the proposal even more important as a place to explain why a penalty is too harsh. The Board has said that considerations such as length of service, past record and consistency with penalties given to others remain relevant where the record supports them.
Proposed “clean record” limits. OPM and the MSPB have also proposed a rule, “Promoting Employee Accountability,” that would streamline agency procedures for performance-based and adverse actions and restrict settlements that remove official documentation of poor performance or misconduct. 91 Fed. Reg. 40,444 (July 2, 2026); see 91 Fed. Reg. 58,387 (Sept. 15, 2026) (reopening the comment period through Sept. 29, 2026). It is only a proposal, but if finalized it could limit the “clean record” agreements many employees negotiate when resolving a removal.
Probationary terminations, RIFs and suitability actions. Effective September 2, 2026, OPM rules moved these appeals from the MSPB to new OPM procedures for covered actions. 91 Fed. Reg. 49,072 (Aug. 3, 2026) (probationary and trial-period terminations); 91 Fed. Reg. 49,230 (Aug. 3, 2026) (RIFs); 91 Fed. Reg. 49,034 (Aug. 3, 2026) (suitability actions). Each rule has its own transition line: the probationary rule does not govern covered actions effected before September 2; the RIF rule applies only where the specific RIF notice was issued on or after September 2; and the suitability rule does not apply to appeals filed with the MSPB before that date. The MSPB updated its rules to match. 91 Fed. Reg. 51,997 (Aug. 12, 2026). Under OPM’s new RIF rule, its decision is not subject to judicial review. 5 C.F.R. § 351.901(c)(4).
Several of these changes are being challenged in federal court and could shift again. For employees who are on probation, received a RIF notice, or were moved into Schedule Policy/Career, which rights apply depends on each person’s appointment and circumstances, and it can help to have the situation reviewed.
Frequently Asked Questions
How long does an employee have to appeal a removal to the MSPB?
Generally 30 days from the effective date or from receipt of the decision, whichever is later (60 days if the employee and the agency agreed in writing to try ADR). Different rules apply to some claims, including mixed cases and whistleblower appeals.
Can an employee file both an EEO complaint and an MSPB appeal?
Not on the same matter. For a mixed case, whichever is filed first is generally treated as the election.
If a position was moved into Schedule Policy/Career, can a removal still be appealed?
Under the 2026 rule, these positions are excluded from chapter 75 MSPB adverse action appeals. EEO and whistleblower channels may still apply, and the rule is being litigated.
Does the MSPB still use the Douglas factors?
Not as a required checklist for misconduct appeals filed on or after October 5, 2026. The Board looks at the totality of the circumstances. Factors like work record, length of service and how others were disciplined can still matter, but the Board now defers substantially to the agency.
Talk to Us About Your Options
If you are a federal employee in Norfolk, Hampton Roads or elsewhere and have received a proposed adverse action or a decision letter, The Griffin Law Firm, PLLC can review your notice, your deadlines and your options. To schedule a consultation, call (888) 707-4282.
For more on related issues, see our post on Federal Employment and Security Clearances.
Attorney Advertising. This article provides general information, not legal advice, and reading it does not create an attorney-client relationship. Laws and regulations change, and the outcome of any matter depends on its specific facts.