Ask FELTG: What is the statute of limitations on disciplining an employee for misconduct?

August 19, 2025

We get this question all the time. Unless your agency policy or union contract says otherwise, there’s not a statute of limitations when it comes to issuing discipline to federal employees who engage in misconduct, and the mere fact that time has elapsed does not bar an agency disciplinary action. That said, if the charged misconduct occurred several years ago, the employee can claim an equitable defense known as laches. Cornetta v. United States, 851 F.2d 1372, 1378 (Fed. Cir. 1988) (en banc).

According to Black’s Law Dictionary, laches is an equitable defense that bars a plaintiff’s claim due to unreasonable delay in asserting it, when the delay has prejudiced the defendant. In Federal employment law situations, it’s a defense used by an appellant when the appellant asserts an agency delayed too long in charging discipline, and that delay unfairly harmed the appellant’s ability to defend himself.

According to the MSPB, this defense bars an agency action only when an unreasonable or unexcused delay in bringing the action has prejudiced the appellant. Pueschel v. Department of Transportation, 113 M.S.P.R. 422, ¶ 6 (2010); Social Security Administration v. Carr, 78 M.S.P.R. 313, 330 (1998), aff’d, 185 F.3d 1318 (Fed. Cir. 1999). The party asserting laches must prove both the unreasonable delay and the prejudice. See Nuss v. Office of Personnel Management, 974 F.2d 1316, 1318 (Fed. Cir. 1992); Hoover v. Department of the Navy, 957 F.2d 861, 863 (Fed. Cir. 1992); Pepper v. United States, 794 F.2d 1571, 1573 (Fed. Cir. 1986).

An appellant can claim two types of prejudice:

  • Defense prejudice arises out of an appellant’s inability to present a full and fair defense on the merits due to the loss of records, the death of a witness, or the unreliability of memories of long past events. Cornetta, supra.
  • Economic prejudice focuses on the monetary consequences to the government should the claimant prevail. ; see Bailey v. United States, 144 Ct. Cl. 720, 722 (1959) (discussing the potential economic prejudice suffered by the Government in an employment dispute).

MSPB looked at this issue not too long ago. Consider Kolenc v. HHS, DE-0752-14-0488-I-1 (2023)(NP). The appellant’s misconduct occurred in the first half of 2011, the agency proposed removal in January 2014, and the removal was implemented in June 2014. The appellant claimed too much time had passed and asserted an equitable defense of laches.

The Board found the delay was not unreasonable, citing two precedential cases where it has “held that a 3-year period from the misconduct that formed the basis for a disciplinary action to initiating the action was not unreasonable.” Carr, supra, at 330-331; Special Counsel v. Santella, 65 M.S.P.R. 452, 465-66 (1994).

At FELTG we’ve always said that anything that has happened within the past year is certainly appropriate for discipline, but as you can see, it’s also possible to go back even further. Just be sure you’re prepared to defend your case to the MSPB. info@feltg.com

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.