VA Cannot Use 2017 Accountability Law to Terminate “Hybrid” Employees
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced law since 2013. Mr. Dirks’ law practice concentrates on representing federal officials and employees in all aspects of federal personnel employment law.
MSPB: VA Cannot Use 2017 Accountability Law to Terminate “Hybrid” Employees
A GS-5 Nursing Assistant occupying a “hybrid” Title 38/Title 5 position was terminated from the Department of Veterans Affairs pursuant to the relatively recent expedited removal authorities of 38 U.S.C. § 714 (2017). She appealed her termination, and a question arose as to whether “hybrid” clinical employees like her could be subjected to the termination provisions of the 2017 law. On January 4, 2023, the Merit Systems Protection Board ruled that the 2017 law cannot be applied to the termination of “hybrid” employees.
Hybrid employees are a category of Veterans Health Administration (VHA) medical professional employees who are subject to both Title 38 and Title 5, appointed under 38 U.S.C. § 7401(3). After the employee filed her appeal at the MSPB, an administrative judge asked the agency to show cause why they should not adjudicate the appeal using Title 5 standards and procedures, given the employee’s hybrid status. The agency filed a response, but at the conclusion of the hearing, the administrative judge certified an interlocutory appeal to the full Board, on the question of whether the agency was precluded from using its authority under 38 U.S.C. § 714 to take an adverse action against a “hybrid” employee.
In assessing whether hybrid employees could be fired under Section 714, the Board reviewed the text of two statutes: (1) 38 U.S.C. § 714 (the 2017 accountability law); and (2) 38 U.S.C. § 7403(f)(3) (the statute governing the appointment of hybrid employees). The Board weighed what appeared to be an indirect conflict between the two laws.
Section 714 included a list of employees who were not covered by the statute, and those appointed under 38 U.S.C. § 7401(3) did not make the list. The government argued that this showed Congress meant Section 714 to apply to hybrid employees, and the Board conceded that a statutory interpretation maxim (“when a statute enumerates certain exceptions to a general rule, it is preferable not to interpret the statute as containing other, unenumerated exceptions”) appeared to apply.
However, the Board gave more weight to the plain language of Section 7403, which stated that “[n]otwithstanding any other provision of this title or other law, all matters relating to adverse actions…shall be resolved under the provisions of title 5 as though such individuals had been appointed under that title.” (emphasis added). The Board noted that another maxim of statutory interpretation applied here: “Congress is presumed to be aware of existing laws when it passes new legislation.” Here, the plain language of Section 714 did not expressly repeal the language of Section 7403 directing the agency to process adverse actions for hybrid employees under Title 5, not Title 38.
The Board considered whether Section 714 repealed Section 7403(f)(3) by implication, but found that because the two statutes are “capable of co-existence,” the Board must “regard each as effective” rather than interpreting one as repealing the other.
For the above stated reasons, the Board remanded the case to the administrative judge, but instructed the administrative judge that it would be “inherently unfair” to the employee to simply continue processing the case (in which a hearing had already been held) as if it were taken under Title 5. Instead, the Board found that the appropriate course of action would be to cancel the improper removal action. The Board held that “if the agency wishes to take an adverse action against the [employee], it must do so in accordance with the procedures of 5 U.S.C. chapter 75, as required by 38 U.S.C. § 7403(f)(3).
Read the full case: Richardson v. Department of Veterans Affairs.
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