Fedweek

Somewhat reluctantly, MSPB has defined how it will carry out a much-truncated process for SES members at VA to appeal firings and demotions. The interim rules, to be published in tomorrow’s (August 21) Federal Register, are needed to comply with a recent VA reform law that shortens the time for that department’s execs to file an appeal from 30 to 7 days, sets a 21-day deadline for the hearing officer to issue a decision, makes the agency win by default if that deadline isn’t met, and eliminates appeals of hearing officer decisions to the three-member merit board. The board in its rule-making took issue with that last feature in particular, as it had in an earlier letter to the White House, saying it “questions the constitutionality of any provision of law that prohibits presidentially-appointed, Senate-confirmed officers of the United States government from carrying out the mission of the agency to which they were appointed and confirmed to lead.” A legal challenge to that aspect is widely expected. Nonetheless, the notice says by law MSPB must issue the rules, which set shortened deadlines for steps such as the agency response to an appeal, issues regarding legal representation, scheduling of discovery and conferences, and more. They also specify that any decisions made in the shortened process will set precedent only in other cases that go through the same process, and not those handled under normal rules. VA has said it expects to fire some employees under the new process but has given no indication of how many. It’s generally expected that the number won’t be high; the main significance of the policy could lie in the precedent it sets for similar changes in law for other agencies and/or lower levels of employees.