Agencies Can Reissue Disciplinary Actions While Pursuing Appeal of Procedural Loss

This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.

What options does an agency have when an Administrative Judge (AJ) at the Merit Systems Protection Board (MSPB, the Board) reverses termination action for a due process violation and the agency wants to appeal? On August 9, 2022, the U.S. Court of Appeals for the Federal Circuit found lawful an agency’s decision to propose a new termination action (fixing the alleged due process violation) while still pursuing its appeal of the MSPB’s reversal of its first termination action.

In September 2017, the Department of the Treasury initiated termination proceedings against one of its employees, alleging that he misused government property by accessing and downloading confidential employee data for use in his Uniformed Services Employment and Reemployment Rights Act (USERRA) complaint. The employee’s supervisor issued him a proposed removal notice, with three supporting specifications. A Deciding Official sustained all three specifications and terminated the employee effective April 13, 2018. The employee then appealed his termination to the MSPB.

On September 11, 2019, an MSPB AJ reversed the removal, finding that the employee demonstrated “harmful procedural error and a due process violation” because the Deciding Official “considered factors not referenced” in the initial proposed removal notice. However, the AJ also stated that absent the due process violation, she “would have sustained the agency’s charge and supporting specifications.” In the AJ’s decision, she ordered the agency to issue the employee “interim relief” if they wanted to pursue an appeal of her decision. Interim relief, among other things, includes reinstatement while the appeal is pending.

The agency (and the employee) appealed the AJ’s decision, and the agency complied with the AJ’s interim relief order, returning the employee to the paid rolls effective September 11, 2019. However, in 2019, the Board lacked a quorum, meaning the agency’s appeal had no chance of being heard until the Board’s quorum was restored and the Board worked through its considerable backlog to reach its case (the Board’s quorum was restored on March 4, 2022).

While the Board lacked a quorum, the agency once again proposed the employee’s termination, based on the same charge and specifications, but apparently curing the due process violation. That proposed termination was sustained, and the employee appealed to the MSPB. A different AJ issued an initial decision in the second appeal, affirming the removal action and concluding that “the agency could initiate and effect a second removal action against [the employee] based on the same charges while a[n appeal] of the first removal action was pending” before the Board.

This time, instead of appealing to the Board, the employee appealed to the Federal Circuit, where he argued that 5 U.S.C. § 7701(b)(2) precluded the second removal action. The Federal Circuit ordered supplemental briefing on the issue, asking the parties to answer the following question:

“When the Board has issued an interim relief order pursuant to 5 U.S.C. § 7701(b)(2) ordering that the employee be restored to his position and paid back pay, does the order preclude the Agency from initiating a duplicate removal action and removing the employee while the interim relief order is in effect?”

In response, the employee contended that the interim relief statute and the AJ’s order barred duplicate removal actions while the first proceeding was still pending at the appellate level. But the Federal Circuit rejected that argument, citing its prior decision in Guillebeau v. Department of the Navy, 362 F.3d 1329, 1331 (Fed. Cir. 2004), where an agency terminated an employee because of different conduct than the first action. However, the appeals court held that the principle of Guillebeau applied equally where the employee’s conduct is the same, but the grounds of the Board’s decisions are different and the Board’s decisions are not “inconsistent” with one another.

Here, the appeals court found that while the first action was set aside for a procedural deficiency, that deficiency was not present in the second proceeding. Looking at the legislative history, the appeals court held that it supported a narrow reading of the statutory provision at issue, which was “designed to prevent an employee from being denied the benefits of a Board’s decision, pending appeal, by an agency’s interim action inconsistent with a first decision.” Summarizing the legislative history, the appeals court held the statute was designed to “preserve the consequence of a ‘favorable decision,’ not to preserve the employee’s employment rights regardless of the circumstances.’”

The Federal Circuit thus found the second removal action “permissible while the first removal was still pending before the Board because the second removal cured the procedural deficiency of the first removal and did not evade the first decision.

Read the full case: Coy v. Treasury.


For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.


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