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By: FEDweek StaffTwo recent federal court decisions could call into question the legal basis for numerous disciplinary actions taken against VA employees in recent years, says the Senior Executives Association.
In a pair of cases, the Federal Circuit appeals court held that when taking disciplinary action under special provisions of a 2017 law, the deciding VA official must be able to cite more than merely “substantial” evidence in favor of the decision; it said the standard is the “preponderance” of the evidence, that is, the majority.
The court also reiterated a prior ruling that while the MSPB cannot lessen penalties the department chooses under that law, it still should apply its traditional set of standards for assessing whether the penalty was reasonable under the circumstances.
Said the SEA, “Now we know thousands of disciplinary actions over the last four years were taken by the VA based on an unlawfully low evidentiary standard. Undoubtedly, many employees who were removed, suspended, or demoted will want to challenge their decisions in light of these legal developments. If their disciplinary actions are proved inconsistent with these Federal Circuit decisions, these employees will be entitled to reinstatement and back pay.”
“Most importantly, when Congress ignores legal realities in favor of perceived accountability, it damages the lives of real people. There is no telling how many VA employees had their rights undermined because of the VA’s ill-conceived interpretation of the law,” it said.
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