A move is planned in Congress to further extend restrictions on appeal rights for SES members at the VA–with the department’s apparent blessing, a change in position from its earlier opposition to further limits.
A 2014 law, a response to the patient scheduling and care scandal at the VA, states that appeals from SES members there must be filed within seven days and must be decided by the MSPB hearing officer within 21 days. If no decision is issued in that time, the agency wins automatically. Also, there is no right to appeal to the full three-member merit board or from there into federal appeals court.
Under the plan, which could be turned into legislation soon, SES members at the department would be put under the “Title 38” personnel system for medical personnel there, ending their right to appeal to the MSPB.
Capitol Hill officials have said that VA initiated the idea following three cases in which MSPB hearing officers overturned proposed discipline–one a proposed removal and the other two proposed demotions out of the SES and into the GS.
According to data presented recently to Congress, VA has attempted to take disciplinary action against eight other senior executives since the 2014 change in law. In two cases removal was upheld, in five the executive resigned or retired in lieu of removal and in the other the exec agreed to removal as part of a settlement agreement.
One of the cases in which MSPB upheld a removal is the subject of a federal court suit arguing that the shortened appeal system violates constitutional rights to due process.
