Ask FELTG: Does an agency violate a Federal employee’s due process when the same supervisor serves as both the proposing and deciding official?

February 3, 2026

Thanks for the question. Before we answer let’s do a quick overview of the due process requirements for Federal employees who are potentially being disciplined via an adverse action:

  1. Notice of the charge(s) and proposed penalty, presented by a proposing official (PO);
  2. An opportunity to respond to the proposal, and to be represented; and
  3. An impartial decision by a deciding official (DO).

5 USC §§ 7503(b); 7513(b).

In cases under Chapter 75, there is no requirement that the PO and DO be different individuals, and although most agencies do not assign both roles to the same person, it occasionally happens.

The Board has consistently held that it is not a violation of the appellant’s due process rights when the role of the PO and DO is performed by the same person because “[the] law does not presume that a supervisor who proposes to remove an employee is incapable of changing his or her mind upon hearing the employee’s side of the case.” DeSarno v. Department of Commerce, 761 F.2d 657, 660 (Fed. Cir. 1985). Even if a DO is familiar with the facts of a case – including an expressed predisposition to harsh punishment if the charge is proven – there is no due process violation as long as the discipline was not decided before considering the employee’s response. Martinez v. Department of Veterans Affairs, 119 M.S.P.R. 37, ¶ 11 (2012). See also Robinson v. Department of Veterans Affairs 923 F.3d 1004 (Fed. Cir. 2019)(the fact that a Deputy Secretary served as both the PO and the DO did not violate the employee’s due process rights).

A quick note: 5 U.S.C. § 4303(b)(1)(D)(ii) requires the DO in a performance-based removal to be a higher-level official than the PO, unless the PO is the head of the agency.

As you can tell, the details matter, and we’ll discuss these nuances – and more – in several upcoming classes.

Have a question? Ask FELTG. info@feltg.com

 

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This information is for educational purposes only and is not legal advice. Contacting FELTG does not create an attorney-client relationship. Please consult an attorney for legal advice.