Federal Manager's Daily Report

In the first major interpretation of a 2017 law strengthening VA management’s hand in disciplinary cases, a federal appeals court has said that the department may not use those powers for conduct or performance dating to before the law was enacted.

The law shortens the notice and response time at the VA, shortens the time that the MSPB can consider an appeal and requires that the agency need only show “substantial” evidence supporting its decision, rather than the majority.

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The case before the Court of Appeals for the Federal Circuit involved a disciplinary action based on charges related to charges of failure to follow agency policy and instructions dating to before the law was passed. The court said that in the absence of any language in the law allowing retroactive application, there is a presumption that its provisions applied only after its enactment.

It said that a VA employee “is entitled to the legal protections in place” prior to that, and that the agency had been free to initiate discipline under the policies applying at that time.

The further held that the MSPB can consider the agency’s choice of penalty as part of its overall review of the action even though the law specifies that the merit board cannot lessen a penalty, only uphold or reject it. The court said that even while giving the VA more authority, Congress made clear that employees still have due process rights and that otherwise the department could fire an employee for an “extremely trivial offense.”

Under the law, it said, the MSPB is to “review for substantial evidence the entirety of the VA’s removal decision—including the penalty—rather that merely confirming that the record contains substantial evidence that the alleged conduct leading to the adverse action actually occurred.”

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