When a federal employee in Virginia receives a notice of proposed removal, the instinct is often to focus on the accusation itself. Was the conduct really that bad? Were the performance ratings fair? Those questions matter, but the first thing a federal employee needs to understand is which legal framework is being used to remove them, because the answer changes almost everything about how they should respond. Virginia federal employee law practitioners see this confusion routinely, and the cost of misunderstanding it can be permanent job loss when a different strategy might have saved the position.
Two Separate Statutory Frameworks, Two Very Different Standards
Title 5 of the United States Code contains two distinct chapters that govern federal employee removals. Chapter 75 applies to adverse actions based on conduct, including misconduct, insubordination, unauthorized absence, and similar behavioral issues. Chapter 43 governs actions taken because of unacceptable performance, meaning the agency’s position is that the employee failed to meet established performance standards.
These are not interchangeable. An agency cannot simply choose which one to use based on convenience. The nature of the underlying basis for the action is supposed to dictate the applicable chapter. In practice, agencies sometimes blur this line, and that blurring can create procedural vulnerabilities that an informed employee, or their attorney, can exploit.
What Chapter 75 Requires
Under Chapter 75, a federal employee facing removal for misconduct is entitled to at least 30 days advance written notice of the proposed action, unless there is an exception for situations posing an immediate threat. The notice must specify the reasons for the proposed removal with enough particularity that the employee can meaningfully respond.
The employee then has the right to review the material relied upon to support the charges, to submit a written response, and to have their response considered by a deciding official who was not the proposing official. After a final decision is issued, a Chapter 75 removal can be appealed to the Merit Systems Protection Board, where the agency bears the burden of proving its charges by a preponderance of the evidence.
At the MSPB, the employee can raise affirmative defenses, including discrimination, whistleblower retaliation, and prohibited personnel practices. If the Board finds in the employee’s favor, it can order reinstatement, back pay, and attorney fees.
What Chapter 43 Requires and Where It Differs
A Chapter 43 removal starts from a fundamentally different premise. Here, the agency is not saying the employee did something wrong in a behavioral sense. It is saying the employee failed to perform their job at an acceptable level. Before an agency can remove someone under Chapter 43, it must first place them on a Performance Improvement Plan, commonly called a PIP.
The PIP must give the employee a reasonable opportunity to demonstrate acceptable performance, typically 30 to 90 days depending on the agency and the position. If the employee fails to improve, the agency can then propose removal. The employee receives 30 days notice, an opportunity to respond, and can ultimately appeal to the MSPB if removed.
The critical difference at the MSPB level is the burden of proof. In a Chapter 43 case, the agency only needs to show by substantial evidence that the performance standards were valid, the employee was given an adequate opportunity to improve, and the employee still failed to meet those standards. Substantial evidence is a lower threshold than preponderance of the evidence. Winning a Chapter 43 appeal is, statistically and practically, harder for most employees.
Why the Distinction Affects How You Should Respond
The chapter being used signals something about the agency’s strategy and, more importantly, about where the legal vulnerabilities lie.
In a Chapter 75 case, the specific wording of the charges matters enormously. If an agency charges an employee with “failure to follow instructions” but the evidence only supports “failure to follow one specific instruction on one occasion,” the charge may be sustained in part but not in full, which can affect the penalty analysis. Challenging the nexus between the charged conduct and the efficiency of the service, or demonstrating that similarly situated employees were treated differently, are the kinds of defenses that actually move the needle in conduct-based cases.
In a Chapter 43 case, the strategic focus often shifts to the PIP itself. Was it designed to help the employee succeed, or was it structured to generate paperwork for a removal the agency had already decided to pursue? Were the performance standards themselves objective and measurable, or vague enough that any evaluator could find failure regardless of actual output? Did the supervisor provide the promised assistance, training, or resources during the improvement period? These questions go to the heart of whether the Chapter 43 process was used lawfully or as a pretextual mechanism to remove an employee the agency simply wanted gone.
When Agencies Get the Chapter Wrong
Occasionally, an agency frames an action as a Chapter 43 performance removal when the real basis is conduct. This sometimes happens because supervisors conflate “he doesn’t do his job well” with “he refuses to do his job,” when those are legally distinct situations. It can also happen because the Chapter 43 framework, with its lower burden of proof at the MSPB, seems procedurally advantageous to the agency.
When that occurs, the employee and their representative can challenge whether the removal was properly brought under Chapter 43 at all. If the MSPB determines that the action was actually conduct-based, the agency may be held to the higher preponderance standard it was trying to avoid.
Responding to a Proposed Action: Timing and Substance
Regardless of which chapter applies, the response to the proposed removal notice is not a formality. It is the first formal record of the employee’s position, and it can introduce evidence, context, and legal arguments that the deciding official must consider before issuing a final decision.
A well-constructed response in a Chapter 43 case might document every instance where the agency failed to provide promised resources during the PIP period, or show that the performance metrics used were applied inconsistently across employees. In a Chapter 75 case, a strong response might challenge the characterization of the conduct, raise mitigating factors like years of service or the absence of prior discipline, or put discrimination on record before the case ever reaches an administrative judge.
Virginia Federal Employee Law and the Stakes of Getting This Right
The federal employment system is built on procedural protections that genuinely matter, but those protections only work if the employee knows which ones apply. Virginia federal employees who receive a proposed removal notice, whether performance-based or conduct-based, are navigating a technical legal framework with real career consequences. The differences between Chapter 43 and Chapter 75 are not academic distinctions. They determine the standard the agency must meet, the defenses available at appeal, and the strategic approach that gives an employee the best chance of keeping their job or securing a favorable outcome.
If you have received a proposed removal or a notice that you are being placed on a PIP, consult with an attorney who handles Virginia federal employee law before you respond. The response window closes, and what you say during that period becomes part of the permanent record.