The U.S. Patent and Trademark Office is headquartered in Alexandria, and many of its employees, especially patent examiners, work under measurable production and quality expectations. When those expectations are not met, the agency may take a performance action, meaning a demotion or removal based on unacceptable work rather than misconduct. Performance cases follow different rules than discipline cases, and that difference is one of the most misunderstood areas of Virginia federal employee law. Below are five things USPTO employees should know, followed by five law firms that represent federal employees.
What should USPTO employees know about performance actions?
1. Which law is the agency using?
Check the notice first. Performance-based demotions and removals usually fall under Chapter 43 of Title 5, which has its own procedures. Agencies can also choose to take a performance-based action under Chapter 75, the general adverse action chapter, as the Federal Circuit recognized in Lovshin v. Department of the Navy (1985). The choice matters: Chapter 75 requires a higher level of proof and allows the penalty to be reduced, while Chapter 43 does not.
2. Were you given a fair chance to improve?
Under Chapter 43, the agency must tell you which critical element you are failing, explain what acceptable performance looks like, and give you a real opportunity to demonstrate it, often called a performance improvement plan. In Santos v. NASA (2021), the Federal Circuit added another requirement: the agency must also prove your performance was unacceptable before the improvement period began. Keep a record of your assignments, workload, training, and any support you asked for and did not receive.
3. What notice must you receive before removal?
Under 5 U.S.C. § 4303, you are entitled to 30 days’ advance written notice identifying specific instances of unacceptable performance, a reasonable time to answer orally and in writing, and a representative. The instances cited must have occurred during the one-year period ending on the date of the notice. A written decision follows, and you can review the evidence the agency relied on.
4. How does the MSPB review a performance action?
Most permanent employees can appeal a Chapter 43 removal or demotion to the Merit Systems Protection Board within 30 days. The agency must support its decision with substantial evidence, a lower standard than in misconduct cases. The Board also generally cannot reduce the penalty in a Chapter 43 case. That makes the evidence about your performance standards, the improvement period, and your actual results the center of the appeal.
5. Do production standards change if you have a disability or face discrimination?
Not automatically. Under the Rehabilitation Act, an agency generally does not have to lower production standards as an accommodation, but it may have to provide accommodations that help you meet them, such as adjusted schedules, equipment, or leave. Request accommodations in writing before or during an improvement period, not after a removal is proposed. If you believe a rating or action was driven by discrimination or retaliation, contact an EEO counselor within 45 days.
Which law firms help federal employees with performance actions?
- The Mundaca Law Firm
- Tully Rinckey
- The Devadoss Law Firm
- Burke Law
- Hogan & Pritchard
1. The Mundaca Law Firm: Virginia Federal Employee Law
The Mundaca Law Firm is led by Francisco E. Mundaca, Esq., Founding Partner, with a Virginia office at 8000 Towers Crescent Drive, Suite 1350-1338, in Tysons. The firm represents federal employees from agencies across Virginia, including the Department of Defense, the Department of Homeland Security, the Department of Veterans Affairs, and intelligence, civilian, and military branches.
Its federal practice covers responses to proposed disciplinary and performance-based actions, MSPB appeals of removals and demotions, EEO discrimination and retaliation complaints, security clearance defense, and whistleblower retaliation complaints before the Office of Special Counsel. The firm also negotiates settlements and litigates when necessary. Consultations are confidential.
2. Tully Rinckey
The firm’s Washington, D.C. office handles federal employment matters among other practice areas.
3. The Devadoss Law Firm
A Washington, D.C. firm whose practice includes federal employee matters.
4. Burke Law
An Alexandria, Virginia firm whose practice includes security clearance matters.
5. Hogan & Pritchard
A Fairfax, Virginia firm whose practice includes employment matters.
What should USPTO employees do when performance becomes an issue?
Start documenting as soon as a supervisor raises concerns, not after an improvement plan begins. Save your production data, quality reviews, emails about workload, and any accommodation requests. When a notice arrives, confirm whether it cites Chapter 43 or Chapter 75, check that the cited instances fall within the one-year window, and calendar the reply and appeal deadlines. If you work at the USPTO and are facing an improvement plan or a proposed performance action, an attorney who focuses on Virginia federal employee law can help you test the agency’s case and prepare your response.
This article provides general information and is not legal advice. Reading it does not create an attorney-client relationship.
