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What does it take to appeal a removal action?

On Behalf of | Jun 6, 2023 | MSPB

As a federal employee, you likely know you have the right to contest any adverse action your agency may take against you. This means you can reply to proposed discipline. And it means you can even challenge a removal.

However, saying that you have the right to challenge such an action is different from saying you will succeed with your challenge. Agencies know they must meet high legal standards. As a result, they often wait to take action until they believe they have a solid, winning argument. And the Merit Systems Protection Board (MSPB) often agrees with them. But not all the time. So, you may wonder: When can I successfully challenge a removal?

Semenov v. Department of Veterans Affairs

While the case of Semenov versus the VA is not yet fully resolved, it’s safe to say that Semenov won a big point in the latest chapter. After an administrative judge upheld the VA’s decision to remove him, Semenov appealed to the Board. There, he convinced the Board to send his case back for further consideration. The key issue? The administrative judge had applied the wrong standard of proof.

As a result, the Board sent Semenov’s case back to the regional office for further review. There’s no guarantee that Semenov will win his case in this next review, but the review will provide him with the chance to argue some other key points. In total, the Board demanded the regional office follow up on a whopping eight items:

  1. Apply the correct standard of proof for Semenov’s removal
  2. Allow both sides to argue whether the agency’s failure to use the correct standard of proof was harmful
  3. Review Semenov’s claims that the agency violated procedure in changing his performance standards
  4. Determine whether the agency harmed Semenov by violating the provisions of its handbook and the VA Accountability Act
  5. Review Semenov’s claims that the agency discriminated against him because of his national origin
  6. Correct its earlier failures to uphold due process
  7. Review Semenov’s claims of whistleblower retaliation
  8. Apply the Douglas factors to Semenov’s case, to determine whether a lesser punishment would be more appropriate than removal, in the event that the regional office upholds the removal

In many ways, Semenov got lucky. Federal employees don’t always get chances to raise claims of discrimination or whistleblower retaliation at such a late stage. However, the Board ruled that because Semenov’s case was headed back to review at the regional office, both sides would have the opportunity to address these matters. Normally, employees need to make sure they present full and complete arguments at the earlier stages. Appeals don’t typically allow for new evidence.

The central issue

As the Board made clear in its opinion, the central issue in Semenov’s case was the fact that the administrative judge applied the wrong standard of proof. Federal agencies often have the ability to pursue removals according to Chapter 43 or Chapter 75. These have limitations and require different standards of proof. The VA also has the option to pursue removals under the VA Accountability Act, which allows the agency to expedite its disciplinary actions.

Seeing that the VA removed Semenov under the VA Accountability Act, the administrative judge applied the “substantial evidence” standard from Chapter 43. This demands only that the agency provide “substantial evidence” that Semenov failed to meet the requirements of his position and that the requirements were “reasonable, realistic, [and] attainable.”

However, the Board determined that the administrative judge erred in applying the standards from Chapter 43. It said the judge should have applied the standards from Chapter 75, which requires a higher “preponderance of the evidence” standard.

The details always matter

You can’t and shouldn’t expect to win appeals often after administrative judges apply the wrong standard of proof for your case. That just doesn’t happen often. However, it is common for the standard of proof to influence the Board’s consideration. Chapters 43 and 75 use two different standards. A removal action under one is not the same as a removal action under the other. You need to understand how the different standards affect your case.

Semenov’s case is unusual, and the fact the regional office will consider new evidence is highly unusual at this stage. In the end, though, Semenov’s case demonstrates that you can fight for your rights, despite early denials. You can appeal, and if the facts and the law support your argument, you can win.


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