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Home › Workplace › Responding to a Proposed Action
Workplace · Topic 16 · Performance Management & Adverse Actions

Your reply goes to the agency, not the Board, which is why it still works.

The penalty rules changed on 5 October and a great deal of commentary treated that as the end of the Douglas arguments. It is not. That rule governs how the Board reviews a penalty on appeal. Your reply is addressed to a deciding official inside your agency who has not decided anything yet — and what persuades that person is exactly what it was before.

One chance
The only stage where the decision is still open
Both
Written and oral reply do different work — take both
Two parts
Answer the charges and the penalty separately
Unchanged
What persuades a deciding official, after October
Read this first

Get the evidence file before you draft. A reply written against your understanding of the charges rather than against what the agency actually has will miss the case being made, and the window is not long enough to write the argument twice.

I What the reply window actually is

Under 5 U.S.C. 7513(b) you are entitled to a reasonable time to answer orally and in writing, and to furnish affidavits and other documentary evidence in support of the answer.

That is a narrow-sounding right that carries enormous weight, for one structural reason: it is the only point in the process at which the person who has not yet decided anything is required to listen to you. After the decision the argument is about whether the agency was wrong. During the reply it is about what the agency should do.

Proposing and deciding are different officials

The person who proposed the action and the person who decides it are ordinarily not the same. Your reply is addressed to the deciding official, who typically has no history with you and is reading the file cold. That is an advantage worth using deliberately — they have not formed the view the proposing official has, and your submission may be the only account of events they encounter that is not the agency's.

II Get the evidence file first

The proposal must state the specific reasons for the action, and you are entitled to review the material relied on to support them. Request it in writing, immediately, and date the request.

Two things follow from having it.

You learn what the agency actually thinks it has, which is frequently narrower or different from what the charge language implies. And if the material is not provided, or is provided so late that you cannot use it, that is itself a procedural argument — documented by your dated request.

If the reply period is too short to review what you receive, ask for an extension in writing. Agencies routinely grant them, and a refusal is again part of the record. See documenting everything.

III Structuring the written reply

Address the charges and the penalty separately, in that order. This is the most common structural mistake and it costs people outcomes.

PartWhat it does
1. The chargesEach charge and specification in turn — what is accurate, what is not, what is missing
2. The penaltyEven if a charge is sustained, why removal is not the appropriate response

Collapsing the two makes any concession on the facts read as a concession on the outcome. Keeping them apart lets you say, in effect: this part is accurate and this part is not, and either way the penalty is disproportionate. Those are separate questions and the deciding official must answer both.

Practical points that matter more than eloquence. Attach documents rather than describing them. Be specific about dates, times and names. Do not speculate about motive — if you believe the action is retaliatory, that is an affirmative defense with its own track, not a rhetorical flourish. And write for someone who knows nothing about your office.

IV Reply Window Planner

The window is shorter than it looks once the evidence request and drafting are accounted for. Enter your dates to see what is actually left.

5 U.S.C. 7513(b) · Reply Planning

How Much Time Do I Really Have?

Planning aid only. Confirm every date against your own notice and agency policy.

Date of the proposal notice
Reply period given
Days to get the evidence file
Representative engaged?
Oral reply offered?
9 days
Working time actually left to draft
Reply due
22 Sep 2026
written and oral
Request evidence by
9 Sep 2026
in writing, dated
Pressure
Tight
ask for an extension
Notice date8 Sep 2026
Evidence expected by13 Sep 2026
Days to draft after evidence9 days
Oral replyOffered

V What October changed, and what it did not

On 5 October 2026 the Board's new standard took effect: whether a penalty falls within the tolerable limits of reasonableness in light of the totality of the circumstances, with no required set of factors. The full picture is in adverse actions.

Here is the distinction that decides how much of this affects you:

Your replyAn MSPB appeal
Goes toDeciding official, in your agencyThe Board
Governed byAgency policy and judgement5 CFR 1201.56(b)(3)
Douglas reasoningStill persuadesNo longer required of the Board
TimingNowAfter the decision
Why the factors still belong in your reply

Nothing in the rule prevents an agency from continuing to use structured internal aids to organise a penalty decision, or from issuing detailed written decisions. What can no longer be demanded is recitation of an enumerated list as a condition of a penalty's validity — a constraint on the Board, not on what convinces a deciding official. Length of service, a clean record, the clarity of any warning, potential for rehabilitation, the adequacy of a lesser sanction: these are arguments a human being with authority can act on, and they work exactly as well in October as they did in August.

One thing genuinely did shift for the appeal that may follow. Comparator evidence — pointing to colleagues who received lighter discipline for similar conduct — became optional and narrower before the Board. It remains a strong argument to your agency. If it is central to your case, raise it in the reply and discuss the appeal implications with a representative.

VI The oral reply

Take it if it is offered. The written reply and the oral reply do different jobs and neither substitutes for the other.

The written reply is the permanent record — attached to the file, quoted in the decision, read later by anyone reviewing the case. The oral reply is your only chance to be a person rather than a document in front of the official who decides.

Practical guidance: bring your written reply and refer to it rather than reading it aloud. Bring your representative. Keep it short and answer what is asked. Do not argue with the proposing official's characterisation of your motives — describe what happened. And take notes, or have your representative take them, because what is said in the meeting is part of the record too.

VII Affirmative defenses

Some arguments are not about the charges at all — they are about the agency's conduct.

DefenseWhere it runs
DiscriminationEEO process, own deadlines
Whistleblower retaliationOSC and IRA appeals
Prohibited personnel practiceOffice of Special Counsel
Harmful procedural errorRaised in the reply and on appeal

Raise them in the reply where they are genuinely part of your account — a defense first appearing on appeal invites the question of why it went unmentioned when you had the chance. But raising it in the reply does not substitute for filing it properly on its own track, each of which has its own deadline. Sequencing here is genuinely tricky and is a conversation to have with a representative before anything goes in writing.

VIII Settlement during the window

The reply window is when the agency's incentive to settle is highest: the case is still theirs to lose and the cost of proceeding is still ahead of them.

Common outcomes are a lesser penalty, a resignation in lieu of removal, or a clean record agreement. Every one involves giving something up — usually appeal rights — so establish precisely what is being waived before signing anything. A last chance agreement in particular trades your job for your appeal rights, and the waiver is enforceable.

IX The playbook

SituationWhat to do
Notice just arrivedRequest the evidence file in writing today, and date the request.
Evidence not providedThat is a procedural argument. Your dated request is the proof.
Reply period too shortAsk for an extension in writing. A refusal joins the record.
Drafting the replyCharges first, penalty second. Never collapse the two.
Some charges are accurateSay so. Credibility on the facts is what makes the penalty argument land.
Oral reply offeredTake it. It is the only chance to be a person rather than a file.
Worried Douglas is deadNot for your reply. That reasoning still persuades a deciding official.
Disparate treatment is your caseRaise it now, and discuss the appeal implications with a representative.
Considering a defenseRaise it in the reply, but file it properly on its own track too.
Offered a settlementEstablish exactly which rights you are waiving before signing.
Action checklist

Working the reply window

  • Diary the reply deadline the day the notice arrives.
  • Request the material relied on, in writing, and keep the dated request.
  • Engage a representative before drafting, not after the decision.
  • Read the evidence file before writing a word of the reply.
  • Answer each charge and specification separately.
  • Attach documents rather than describing them.
  • Argue the penalty as a separate question from the charges.
  • Use the Douglas reasoning — it still persuades a deciding official.
  • Take the oral reply, and take notes during it.
  • Before signing any settlement, list exactly what you are giving up.

Frequently asked questions

The period after a proposal notice in which you may answer the charges before a decision is made. Under 5 U.S.C. 7513(b) an employee is entitled to a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer. It is the single highest-leverage stage of an adverse action, because it is the only point at which the person who has not yet decided anything is required to listen to you.

No, and this is the most commonly misunderstood consequence of that rule. The new tolerable limits of reasonableness standard governs how the Merit Systems Protection Board reviews a penalty on appeal. Your reply is not addressed to the Board. It is addressed to a deciding official inside your agency who has not yet decided. The reasoning that persuades that person — that the charge overstates what happened, that your record is long and clean, that a lesser penalty would correct the behaviour — is exactly what it was before.

Both, where they are offered, because they do different work. The written reply is the permanent record: it is what gets attached to the file, quoted in the decision, and read later by anyone reviewing the case. The oral reply is the only opportunity to be a person rather than a document in front of the official who decides. A deciding official who has met you and heard your account is deciding about someone real, and that matters more than any single argument in the written submission.

Yes, and you should request it in writing immediately. The proposal must state the specific reasons for the action, and you are entitled to review the material relied on to support those reasons. Do not begin drafting before you have it. A reply written against your understanding of the charges rather than against the actual evidence file will often miss what the agency thinks it has, and the reply window is not long enough to write the argument twice.

Address the charges and the penalty separately, and in that order. Take each charge and each specification in turn, saying plainly what is accurate, what is inaccurate and what is missing, with documents attached rather than described. Then, and only then, address the penalty: even where a charge is sustained, whether removal is the appropriate response is a separate question the deciding official must answer. Collapsing the two is the most common structural mistake, because it makes any concession on the facts look like a concession on the outcome.

Very. Nothing in the 2026 rule prevents an agency from continuing to use structured internal aids to organise a penalty decision, and the twelve factors remain a sound framework for arguing that a penalty is disproportionate. Length of service, a clean prior record, the clarity of any warning given, potential for rehabilitation and the adequacy of alternative sanctions are all arguments a deciding official can act on. What changed is what the Board must require of itself on appeal, not what persuades an agency.

Raise them in the reply where they are genuinely part of your account, because a defense first appearing on appeal invites the question of why it was not mentioned when you had the chance. Discrimination, retaliation for protected disclosures, harmful procedural error and a violation of a prohibited personnel practice all run on their own tracks with their own deadlines, so raising them in the reply does not replace filing them properly. Discuss sequencing with a representative before you commit anything to writing.

Often, and the reply window is when the agency's incentive to settle is highest, because the case is still theirs to lose and the cost of proceeding is still ahead of them. Common outcomes include a lesser penalty, a resignation in lieu of removal, or a clean record agreement. Every one of these involves giving something up, usually appeal rights, so understand precisely what is being waived before signing — a last chance agreement in particular trades your job for your appeal rights.