Two employees removed for the same underlying problem can walk into hearings with very different odds. The variable is the statute the agency chose. A Maryland Federal Employee attorney reading a proposed removal looks for that citation before anything else, because it sets the agency’s burden of proof, decides whether the Merit Systems Protection Board can soften the penalty, and determines which procedural failures are fatal.
What is the difference between Chapter 43 and Chapter 75?
Chapter 43 of Title 5 covers removals and demotions for unacceptable performance. Chapter 75 covers adverse actions taken for such cause as will promote the efficiency of the service, which sweeps in misconduct and, in practice, performance too.
The burdens differ. Under Chapter 43 the agency needs only substantial evidence, meaning enough relevant evidence that a reasonable person could accept the conclusion. Under Chapter 75 it must prove its case by a preponderance of the evidence, showing the charge is more likely true than not. Both standards appear in 5 U.S.C. § 7701(c)(1).
Agencies get to choose. The Federal Circuit confirmed in Lovshin v. Department of the Navy that an agency may pursue a performance problem under either chapter, and that choice is not appealable.
Why does substantial evidence matter so much?
Substantial evidence is the lowest burden in the federal employment system, and it lets an agency prevail on a record you would call thin.
The effect shows up in close cases. If the evidence about whether you met a standard cuts both ways, a Chapter 43 case can still be sustained. The same record under Chapter 75 may fail, because the agency has to tip the scale rather than merely put something on it.
What the agency gains in burden it gives back in prerequisites. Chapter 43 works only if the foundation was built correctly, and that foundation is where these cases are won.
Can the MSPB reduce a penalty it thinks is too harsh?
Only under Chapter 75. The Board has no authority to mitigate a Chapter 43 removal.
Chapter 75 requires the agency to prove that the conduct occurred, that there is a nexus between it and the efficiency of the service, and that the penalty is reasonable. Reasonableness is measured against the twelve factors from Douglas v. Veterans Administration, a 1981 Board decision that still governs. They include the seriousness of the offense, your years of service and past record, consistency with penalties imposed on others, and your potential for rehabilitation.
Under Chapter 43, none of that applies. Prove unacceptable performance in one critical element after a valid opportunity period and the removal stands, whether you have thirty years of outstanding ratings or three.
What has to be wrong with a PIP to beat a Chapter 43 removal?
A performance improvement plan, sometimes called an opportunity period or demonstration period, is the agency’s obligation to give you a fair shot at the standard. Defects in it defeat the removal even when the performance was genuinely poor. The recurring problems:
- Critical elements were never communicated in writing at the start of the appraisal period, so there was no valid standard to fail.
- The standard was absolute or unmeasurable, or it described only failure rather than what success looks like.
- The agency assigned work during the plan that made the standard impossible to meet.
- No meaningful assistance, counseling, or feedback was provided during the period.
- The decision relied on performance outside the plan window.
One requirement is newer. In Santos v. NASA, decided by the Federal Circuit in 2021, the court held the agency must prove your performance was unacceptable before it imposed the plan, not only during it. Agencies that treated the plan as a formality often cannot make that showing.
What should you check in your proposal notice?
Both chapters entitle you to at least 30 days of advance written notice, a minimum of seven days to reply orally or in writing, representation of your choosing, and a written decision from an official at a higher level than the one who proposed the action.
The reply is not a formality. It is your only chance to shape the record before the deciding official commits, and under Chapter 75 it is where mitigation arguments belong. An MSPB appeal must be filed within 30 days of the effective date or receipt of the decision, whichever is later.
Two situations sit outside this framework. Employees still in their probationary year have very limited appeal rights under either chapter. And employees at the VA Maryland Health Care System in Baltimore, Perry Point, and Loch Raven may be covered by 38 U.S.C. § 714, which applies a substantial evidence standard to conduct and performance alike.
What if the agency charges both?
Agencies sometimes bring a Chapter 75 conduct charge alongside a performance narrative, and the mix creates openings.
Where a charge is really about performance dressed up as misconduct, the agency has taken on the higher burden without gaining Chapter 43’s insulation from mitigation. Where several charges are brought and only some are sustained, the Board reconsiders whether the penalty still fits. A removal resting on four charges that survives on one is a candidate for reduction.
The statute cited in your notice tells you which case you are actually defending, and the difference between substantial evidence with no mitigation and preponderance with Douglas review is often the difference between reinstatement and a closed file. If you have received a proposal notice or been placed on a performance plan at SSA, NIH, Aberdeen, or another Maryland federal workplace, have a Maryland Federal Employee attorney review it while the reply window is still open.
