A Federal Employee's Guide: How to Respond to a Proposed Suspension (14 Days or Less)
- InformedFED Chief
- 2 days ago
- 6 min read
Receiving a "Notice of Proposed Suspension" is a stressful event a federal employee can face. It's a formal proposal to place you in a temporary nonpay, nonduty status and in some cases, it can have career implications. In some cases, it’s not that serious in reality. This situation can feel overwhelming, but you are not without rights.
Understanding what a suspension is and what your rights are is the first step to navigating this process effectively and deciding whether it is worth the effort to appeal.
❓ What Counts as a Suspension?
A suspension is formally defined as the temporary placement of an employee in a nonpay, nonduty status. (Abbott v. U.S. Postal Service, 114 LRP 28204 (MSPB 2014), citing 5 USC 7501 (2)). Importantly, this definition also covers the placement of an employee on sick or annual leave against their will or other unpaid absences. (Yarnell v. Department of Transportation, 108 LRP 43224, 109 MSPR 416 (MSPB 2008)).
This article focuses on proposed suspensions of fourteen days or less. Any proposal for fifteen days or more is classified as an "adverse action" and follows different procedures. For both suspensions of 14 days or less and an adverse action, you are entitled to specific due process rights.
⚖️ Your Due Process Rights for Suspensions of 14 Days or Less
If an agency wishes to suspend you (as defined by 5 USC 7501 (1)) for 14 days or less, you are entitled to the following:
Advance Written Notice: You must receive a notice that clearly indicates the specific reasons for the proposed action.
Reasonable Opportunity to Respond: You have the right to respond to the charges orally, in writing, or both. This response period is typically 14 calendar days. However, under the trump administration policy changes, we are seeing this response period reduced to seven calendar days.
Representation: You have the right to use a consultant to assist you in crafting your response and exercising your rights or be directly represented by a designated individual, such as a union representative (if you are in a bargaining unit) or an attorney.
Access to Consultation: You have the right to seek professional consultation regarding your case.
A Written Final Decision: After you reply, you must receive a written final decision from the "deciding official" that explains the specific reasons for whatever action is taken.
Notice of Appeal Rights: The final decision must properly inform you of all your appeal rights.
Reply vs. Appeal: Knowing Your Options and Jurisdiction
It is critical to understand the difference between a "reply" and an "appeal," as the terms are not interchangeable.
1. The "Reply" (Pre-Decision)
When you receive a Notice of Proposed Suspension, your first step is to "reply" to the deciding official. This is your chance to argue your case before a final decision is made. The deciding official must give your reply and any additional information you submit proper and due consideration. This is the optimum time and venue to strongly advocate for yourself. This is where you want the situation to end regardless of how "good" you think your appeal is.
2. The "Appeal" (Post-Decision)
If you are unsatisfied with the final agency decision (the letter you receive from the deciding official after your reply), you may then "appeal" in an appropriate venue of your choice.
For suspensions of 14 days or less, your appeal options are generally limited. The Merit Systems Protection Board (MSPB) only has jurisdiction to review suspensions of more than 14 days ( 5 USC 7512 and 5 USC 7513 (d)).
Therefore, your appeal options for a short suspension are largely confined to:
Grievance Procedures: This can be an internal agency grievance process or, if you are a bargaining unit employee, a contractual grievance process under your Master Agreement. Ultimately, your union may approve your case for arbitration.
Equal Employment Opportunity (EEO) Complaint: If you believe the suspension was motivated by discrimination (based on race, color, religion, sex, national origin, age, disability, etc.) or in reprisal for a prior EEO activity.
USERA: A complaint under the Uniformed Services Employment and Reemployment Rights Act, if applicable.
Whistleblower Reprisal: If you allege the suspension is in reprisal for whistleblowing, you can file an Individual Right of Action (IRA) complaint with the Office of Special Counsel (OSC) and, in some cases, subsequently to the MSPB.
Critical Warning: Be very careful when choosing your path. Certain methods of appeal, such as filing a union grievance versus an EEO complaint, may be mutually exclusive. You must understand which option you are choosing before you file.
📋 A Step-by-Step Action Plan: What to Do Immediately
If you are issued a Notice of Proposed Suspension, your actions in the first 24-48 hours are critical, especially with limited response times, if you choose to respond to a proposed suspension. This checklist is not all-inclusive and depends on your specific facts and circumstances.
DO NOT refuse to meet with a management official to avoid being issued the notice. You do not have the right to refuse the meeting, and doing so could lead to an additional charge of insubordination.
DO NOT argue when receiving the notice. Simply accept the paperwork. Signing for receipt does not mean you agree with the proposal. The person issuing the notice (likely the proposing official) is not there to debate you.
DO ensure the notice includes the "evidence file." If it does not, immediately ask for the complete evidence file (all information the agency relied upon in proposing the action).
DO make three complete, collated copies of the notice and the entire evidence file.
DO contact your union representative immediately (if you are a bargaining unit member) or seek professional consultation or legal counsel (if you are non-bargaining unit).
DO read the entire notice of proposed suspension carefully. Pay close attention to the section explaining how, where, and when to present your oral and/or written reply.
DO obtain a copy of your collective bargaining agreement (union contract), if applicable. Review the sections on discipline, grievances, and arbitration.
DO schedule an appointment with the deciding official if you intend to make an oral reply. This should be done by you or your representative.
DO begin preparing your written reply to the deciding official.
DO determine if there is additional evidence or information you need to request from the agency to prepare your defense.
DO request an extension of time in writing from the deciding official if you need one. Do not just assume an extension will be granted. Get a confirmation.
DO consider a qualified second opinion if you have concerns that your representative is not addressing. This can provide invaluable recommendations.
DO finalize and present your written and/or oral response to the deciding official within the specified timeline.
DO await the deciding official's final written decision.
Critical to Respond to a Proposed Suspension
Not all proposed suspensions are created equal, but all require a response. It is understandable to feel reluctant to confront the issue, but you must act quickly and begin preparing your reply.
Even if you do not intend to challenge the facts of the proposed action, a strong reply can be used to mitigate the penalty. You may be able to argue for a lesser suspension, a letter of reprimand, or an alternative outcome. These arguments typically rely on your previous exceptional performance and/or seniority. However, this will not happen if no reply is provided. Your reply is your single best opportunity to influence the outcome before a final decision is made.
How Consultants from InformedFED Can Help
Navigating a proposed suspension can be complex, and you don't have to do it alone. While you have the right to a union representative or an attorney, you can also seek assistance from professional consultants.
Consultants at InformedFED are subject-matter experts with decades of experience in federal employment matters and academic credentials. They provide expert consulting and support services specifically for federal and other public sector employees facing disciplinary actions. They are not attorneys but can collaborate directly with you, your union representative, or your legal counsel.
Here is how an InformedFED consultant can specifically help you respond to a proposed suspension:
Initial Consultation: They can provide an expert evaluation of your agency's proposed action, analyze the evidence file, and ensure all your due process rights are asserted.
Preparing Your Written Reply: They can prepare a comprehensive, professional written response to the deciding official that addresses each charge and presents your supporting evidence effectively. This response will become part of the official record and can be used in any further appeal.
Preparing for Your Oral Reply: They can coach you on how to present your case clearly and confidently when you meet with the deciding official.
Negotiation and Settlement: They can help you in negotiating a potential settlement or a Last Chance Agreement (LCA) with the agency, with the goal of mitigating the penalty and improving your future employability.
InformedFED also offers a free initial consultation. Request one by clicking here.
