Is There a Statute of Limitations for Federal Employee Misconduct?

A common question among federal employees facing disciplinary action is: "How far back can the agency go?" Whether it is a travel voucher error from 2021 or an off-duty incident from three years ago, the timing of an agency’s proposal for discipline may be a critical factor in your defense.

Unless your agency policy or union contract stipulates otherwise, there is no statute of limitations for issuing discipline to federal employees who allegedly engaged in misconduct. The passage of time generally does not preclude, or otherwise prohibit, an agency disciplinary action. Unlike the rigid timelines found in criminal law or civil litigation, the federal personnel system operates under a completely different set of rules.

The Reality: No General Statute of Limitations for Federal Employee Misconduct

Unless a specific agency policy or a collective bargaining agreement (CBA) dictates otherwise, there is no statutory "statute of limitations" for issuing discipline to federal employees for misconduct. The mere passage of time does not automatically bar an agency from taking an adverse action nor does time immunize an employee from an agency action.

While this may seem inherently unfair to a professional with a long history of service, the law provides a specific equitable shield to protect employees from "stale" charges: The Defense of Laches. However, there are caveats and the protection is somewhat limited.

What is the Laches Defense?

Derived from the principle that "equity aids the vigilant, not those who slumber on their rights," Laches is an equitable defense used to bar a claim due to an unreasonable delay in asserting it. Put another way, it is an equitable doctrine that serves as a check on an agency's power to initiate disciplinary actions after an excessive period of time has passed. While federal personnel law lacks a formal statute of limitations for misconduct, laches prevents an agency from "sleeping on its rights" to the detriment of the employee.

In the context of federal employment law, an appellant asserts that the agency waited too long to initiate disciplinary action, and that this delay has unfairly harmed their ability to efficiently mount a defense. According to the Merit Systems Protection Board (MSPB), this defense is only successful when the delay is both unreasonable or unexcused and has prejudiced the employee. Pueschel v. Department of Transportation, 113 M.S.P.R. 422 (2010).

The argument of Laches may manifest in a number of ways. For example, one aspect is that the appellant may claim defense prejudice in that he is unable to present a full and fair defense on the case merits due to the loss of records, the death of a witness, or the unreliability of memories.

The Two-Prong Test for Laches

To successfully assert a laches defense, the burden of proof lies with the employee. You must demonstrate two distinct elements:

1. Unreasonable Delay: The agency knew (or should have known) of the misconduct but failed to act within a reasonable timeframe.

2. Prejudice: The delay caused actual harm to your case or your economic standing.

Expanding on the Two Types of Prejudice

The courts and the MSPB recognize two specific forms of prejudice that can invalidate an agency’s late or "untimely" disciplinary action:

• Defense Prejudice: This occurs when the passage of time makes it impossible to receive a full and fair hearing. Common examples include the loss of critical records, the death or unavailability of a key witness, or the natural fading of memories regarding events that occurred years prior. Cornetta v. United States, 851 F.2d 1372 (Fed. Cir. 1988).

• Economic Prejudice: This focuses on the financial consequences. If an agency's delay in taking action results in a significantly larger back-pay liability or other monetary shifts that would not have occurred had they acted promptly, the court may find economic prejudice.

The "Three-Year Rule" and Recent MSPB Trends

How long is "too long"? The MSPB has historically been lenient toward agencies. In the recent case of Kolenc v. HHS (2023), (nonprecedential final order from the U.S. Merit Systems Protection Board (MSPB) the Board addressed a situation where misconduct occurred in early 2011, but the agency did not propose removal until January 2014—a nearly three-year gap.

In Kolenc, the agency removed the appellant based on four charges. The following charges and specifications were proven:

• Misuse of a government vehicle (38 specifications).

• Failure to follow an assigned tour of duty (50 specifications).

• Unauthorized absences (3 specifications).

• Submitting inaccurate time and attendance records (5 specifications).

The record in kolenc indicates that the three-year gap between the misconduct and the second removal action was largely due to the procedural history of the case and the agency’s initial (but legally flawed) attempt to remove him earlier.

The appellant argued that the delay, approximately three years between the misconduct in 2011 and the disciplinary proposal in 2014, barred the removal. The Board rejected this defense for the following reasons:

• Delay was not Unreasonable: The Board noted that a three-year period between misconduct and the initiation of action is generally not considered unreasonable.

• Failure to Prove Prejudice: The appellant made a "conclusory statement" that he could not remember his exact activities on specific days.

• Presence of Objective Evidence: Because the agency relied on extensive video and documentary evidence, the Board determined the appellant's lack of memory did not materially prejudice his ability to defend himself.

The Board found the delay was not unreasonable, citing precedential cases such as Social Security Administration v. Carr (1998) and Special Counsel v. Santella (1994). These cases established that a three-year period between the misconduct and the initiation of action is generally considered acceptable by the Board, provided the agency can justify the timeline.

Justification for an agency delay in its timeline can manifest in several forms. The most prevalent justification, particularly in investigations involving law enforcement officers, is the duration of the associated investigation that ultimately substantiates or uncovers misconduct. In certain instances, the employee may have been unavailable for an extended period. In other instances, the agency may be awaiting the outcome of a criminal-related investigation that ultimately substantiates some form of non-criminal misconduct with a nexus to employment.

Note on Using Leave Entitlements as a "Blocking Mechanism"

As former employee and labor relations practitioners, we frequently encountered numerous instances in which employees believed they could either stop or delay their terminations or suspensions by invoking specific leave entitlements or certain protected processes, such as those provided by the Family Medical Leave Act (FMLA), the recently enacted Paid Parental Leave (PPL) program, and Reasonable Accommodation (RA) processes. Agencies will typically address these circumstances differently based on internal practices and even agency regulations. Some agencies will delay the action until the leave entitlement or RA process is exhausted. Other agencies will propose your removal while you are in an approved FMLA leave status. The bottom line is that the agency has always had wide discretion as to the timing of a personnel action.

The bottom line is that there is no explicit provision in the law or federal regulations that prohibits a federal agency from proposing or finalizing a removal action while an employee is on approved Family and Medical Leave Act (FMLA) leave or even in the RA process. Both Office of Personnel Management (OPM) regulations and Merit Systems Protection Board (MSPB) case law establish that FMLA does not serve as a "shield" to insulate an employee from disciplinary or adverse actions that would have occurred regardless of their leave status. However, again, many agencies will wait until to leave entitlement or otherwise "protected status" is exhausted to avoid direct claims of retaliation or reprisal.

The "No Greater Rights" Doctrine

The foundational principle in both Title 5 (OPM) and Title I (DOL) FMLA regulations is that an employee on FMLA leave is not entitled to any greater job security than they would have had if they had remained at work. This is known as the "No Greater RIghts Doctrine".

• OPM Regulation (5 C.F.R. § 630.1210(h)): "An employee has no greater right to restoration or to other benefits and conditions of employment than if the employee had been continuously employed during the period of family and medical leave."

  
  

• DOL Regulation (29 C.F.R. § 825.216(a)): "An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment."

  
  

If an agency can demonstrate that the misconduct allegations were documented and that the removal action would have been initiated regardless of the employee’s medical leave or reasonable accommodation application, the agency is within its rights to proceed. But remember, it only applies to misconduct cases. Cases involving performance (Chapter 43 and even 38 USC 714) get messy for agencies if the employee claims their performance deficiency is due to medical issues.

How InformedFED Can Help

Our Expertise, Your Advantage

Our expertise lies in providing comprehensive consultative and transactional administrative litigation services. We meticulously analyze and prepare your complaint, appeal, relevant documents, evidence files, and strategies to ensure that you can effectively safeguard your career, your union members, and pursue damages when appropriate and do so cost-effectively.

Our services include support for, but are not limited to:

• Discipline and Adverse Actions: Developing compelling written and oral responses to proposed removals, suspensions, and performance-based actions. These written responses will serve as the foundation for any appeal or complaint submitted to the Merit Systems Protection Board (MSPB), Equal Employment Opportunity Commission (EEOC), Agency grievance procedure, or arbitration.

• EEO Complaints: Initiating and managing informal and formal complaint stages, including mediation, investigations, reviewing Reports of Investigation (ROI), and assisting during the hearing stage.

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Why Federal Employees and Unions Choose InformedFED

• The Cost-Control Model: We eliminate massive upfront financial risks by offering flat-fee services and low-minimum hourly retainers, making expert support affordable even for issues where the financial recovery wouldn't justify a high-priced attorney.

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