Department of Veterans Affairs Issues Memo Scaling Back Use of 2017 Law Allowing for Expedited Removals
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
The Department of Veterans Affairs will no longer rely on a 2017 law to discipline and fire employees, Government Executive reported. The 2017 VA Accountability and Whistleblower Protection Act (the “act” or the “law”) was signed into law by President Trump in June 2017, and it was intended to expediate punishment of VA employees by allowing discipline to take effect through a less rigorous process than traditional civil service processes. Namely, the law sped up removal proceedings, lowered the burden of proof, and eliminated the Merit System Protection Board’s authority to mitigate the imposed penalty. It ran into several legal challenges, though. These cases, and their effects on the law, are listed below.
· Sayers v. Department of Veterans Affairs: The Federal Circuit Court of Appeals held that the MSPB had authority to review disciplinary decisions and that the law does not apply retroactively to behavior preceding the enactment of the law.
· Harrington v. Department of Veterans Affairs – The Federal Circuit determined that the MSPB should review whether the VA retroactively applied the law even if the employee fails to make this argument.
· Brenner v. Department of Veterans Affairs – The Federal Circuit again held that the 2017 law could not be applied retroactively, and that the MSPB must consider the reasonableness of penalties brought pursuant to the law.
· Rodriguez v. Department of Veterans Affairs – The Federal Circuit held that disciplinary decisions must be supported by a higher standard of proof—preponderance of the evidence—than is specified in the act.
· Connor v. Department of Veterans Affairs – The Federal Circuit held that the VA deciding official and the MSPB were required to consider the Douglas factors when determining the reasonableness of a penalty.
· Richardson v. Department of Veterans Affairs – The MSPB determined that the VA cannot use the law to terminate “hybrid” Title 38/Title 5 employees.
The VA has apparently taken notice of the narrowing effect of these cases, as well as the strain of litigating the provisions of the 2017 law. Government Executive reported that, in its March 2023 memo, the VA stated, “As a result of these decisions, there are few remaining practical differences between the use of [the law] and traditional title 5 adverse action authorities.” The memo reportedly further stated “the complexities of using [the law] have created confusion regarding the application and processing of the relevant adverse action requirements.”
Accordingly, as Government Executive reported, the memo stated that the law will no longer be used to discipline GS level employees as of April 3, 2023. The law will still be used to enforce personnel decisions that were issued prior to April 3, though, and probationary employees may still be subject to discipline under the law. Additionally, the memo explained that senior executives may still face expediated discipline and removal, given that the disciplinary process applicable to these individuals is based on 38 U.S.C. § 713, a different section of the 2017 law.
Find the full Government Executive report here.
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