A 2017 law includes lesser standards for management in ordering discipline and a shortened and limited opportunity for certain employees to appeal. Image: Kip C Anderson/Shutterstock.com
By: FEDweek Staff“Hybrid” VA employees—those covered partly by standard Title 5 federal employee policies and partly by Title 38 policies applying in certain medical fields—are not subject to the limited appeals policies under a 2017 law for that department, the MSPB has ruled.
The decision in case No. 23 MSPB 1 is the latest in a number of recent rulings by the merit board on the application of that law as it works through a backlog of cases that built up between the law’s enactment and mid-2022 when the board regained a quorum for issuing appeals.
The decision recounted that the department followed the special procedures under that law—which include lesser standards for management in ordering discipline and a shortened and limited opportunity for the employee to respond and appeal—when moving to fire a nursing assistant.
But a hearing officer, and now the board, pointed to a section of law saying that disciplinary actions against hybrid VA employees “shall be resolved under the provisions of title 5 as though such individuals had been appointed under that title.” The 2017 law did not explicitly repeal that provision, and its silence did not implicitly repeal it either, the rulings said.
The two “are reconcilable and capable of coexistence” and the record of Congress’ consideration when considering passing the 2017 law “also does not show an intent to repeal” the protections for hybrid employees, the MSPB said.
It added that the VA may not simply recharacterize its action as under standard Title 5 procedures, and that if it wanted to continue pursuing the case it would have to restart the process.
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