Federal Circuit: No Waiver of Sayers Arguments in VA Removal Case
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
A VA police officer was removed by the Department of Veterans Affairs under the 2017 “accountability” law 38 U.S.C. § 714 that limited review of VA’s actions against general schedule employees. The removal was based on conduct occurring prior to the enactment of the law. The employee appealed to the MSPB, and the MSPB affirmed the removal. On December 7, 2020, the United States Court of Appeals for the Federal Circuit vacated the MSPB’s decision, and remanded the case to the MSPB with instructions to remand the case further back to the agency.
On June 23, 2017, Congress enacted the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017, which established 38 U.S.C. § 714, among other provisions. Section 714 speeds up removal proceedings, lowers VA's burden of proof at the Board from a preponderance of the evidence to substantial evidence, and eliminates the Board's authority to mitigate VA's imposed penalty.
Between briefing and the ultimate decision in this case, the appeals court decided Sayers v. Department of Veterans Affairs, 954 F.3d 1370 (Fed. Cir. 2020). The Sayers decision included two holdings that applied to the officer’s case. First, “we held that the proper interpretation of § 714 requires the Board to review the entire decision below, including the choice of penalty.” Second, “we held that § 714 does not apply to proceedings instituted based on conduct occurring before its enactment.”
After the Sayers decision, the officer submitted the Sayers opinion to the appeals court as supplemental authority in support of his appeal.
The Sayers decision clarified that although Section 714 precludes the MSPB from exercising its typical authority to mitigate an unreasonable penalty to the maximum reasonable penalty available to the agency, the MSPB was still under a mandate to review the penalty as part of its review of the adverse action. The appeals court in Sayers noted that “[t]he Board cannot meaningfully review [a] decision if it blinds itself to the VA’s choice of action.” As an illustration of the importance of the penalty to the overall decision to remove an employee, the appeals court offered that “[d]eciding that an employee stole a paper clip is not the same as deciding that the theft of a paper clip warranted the employee’s removal.” Applying Sayers to this case, the appeals court held that because “[t]he Board did not conduct a key portion of the analysis under the proper interpretation” of Section 714, remand was required.
In Sayers, the employee also argued that because the alleged misconduct took place before enactment of Section 714, the Board erred in affirming the employee’s removal. The employee argued that because the statute was silent on retroactivity, the presumption against retroactivity should thus apply “since the statute’s standard of proof and limitations on penalty mitigation detrimentally affect his property right to agency employment.” The appeals court agreed.
The agency argued in this case that because the officer did not raise the issue of retroactivity, the argument was waived and the appeals court should not consider the issue and the VA should be allowed to apply the statute retroactively despite the appeals court’s opinion in Sayers.
But the appeals court noted that “[w]aiver is a discretionary issue,” based on several considerations. Those considerations include: (1) whether the issue involves a pure question of law; (2) whether the proper resolution is beyond any doubt; (3) whether the employee had no opportunity to raise the objection before appeal; (4) whether the issue presents significant questions of general impact; or (5) whether the interest of substantial justice is at stake.
According to the appeals court, “[m]ost of these elements apply” to the officer’s case. The issue is a pure question of law, since “neither party disputes the fact that the relevant events transpired before enactment of” Section 714. The proper resolution was “beyond any doubt,” since “[o]ur opinion in Sayers directly states” that Section 714 cannot be applied retroactively. The appeals court conceded that the officer could have raised the retroactivity issue before the Board, but held that the defense would have been difficult to anticipate even for sophisticated counsel. Finally, the appeals court held that the officer “had a right to the substantive civil service protections from improper or unjustified removal in effect at the time of his alleged misconduct,” and that ignoring that right would not be in the interest of justice.
Because “the Department of Veterans Affairs cannot remove [the employee] under [Section 714] without impermissibly applying the statute retroactively,” the United States Court of Appeals for the Federal Circuit vacated the employee’s removal and remanded the case to the MSPB with instructions for the MSPB to remand the matter to the agency.
Read the full case: Harrington v. Department of Veterans Affairs.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.