From the Blog

Adverse Action Quiz: Who is better off?

Assume that two employees get 15-day adverse action suspensions, their union takes each case to arbitration, and both suspensions are overturned. One employee, Smith, had his adverse action overturned and reduced to a letter of reprimand because the union showed that similarly situated employees were only given reprimands for the same violation. However, the other employee, Jones, had her suspension totally overturned by a different arbitrator because of harmful procedural error by the agency deciding official. She did not even get a reprimand. Who is better off? If you think it is Jones, think it through again.

MSPB case law provides that if an adverse action is totally overturned on procedural grounds that the agency has the right to propose action again for the same offense. In other words, MSPB gives the agency another shot to get it right.

“It is well-settled that double jeopardy does not apply to administrative proceedings, and an agency can renew an adverse action based on charges brought in an earlier proceeding where the adverse action in that proceeding was invalidated on procedural grounds. ”See Special Counsel v. Jeffrey M. Smith,116 MSPR 520 (July 12, 2011)

So, under our example, the agency cannot try to take action against Smith because the arbitrator found some measure of substantive guilt.  However, the agency can hit Jones with a new adverse action and put her out on the streets once again to wait for another arbitration decision.  If a union rep wins a total reversal of an adverse action on procedural grounds, s/he might consider making a quick deal with management for a minor penalty if there are signs that the agency is gearing up to take another shot at the employee.  After all, taking initials steps to take a second action against the employee would certainly put the agency in a great bargaining position.

Fedsmill September 8, 2016


In the Jones case, the agency would be liable to Jones for her full back pay and attorney’s fees. Taken together this can be a substantial sum of money and can provide leverage to negotiate a favorable settlement with the agency before it proposes disciplinary action again. A favorable settlement would eliminate the need to arbitrate the case a second time. If a settlement is not reached and the case is arbitrated again and the employee is victorious, then the agency would once again be liable to the employee for full back pay and attorney’s fees. Of course, if the employee loses the arbitration the punishment stands.