VA SES Appeals Changes Finalized

On October 22, the Merit Systems Protection Board (MSPB) issued a final rule implementing procedures for handling adverse actions against Senior Executive Service employees at the Department of Veterans Affairs (79 Fed.Reg. 63,031-63,032).The rule left unchanged the MSPB’s interim final rule issued on August.The MSPB had to rush to draft its interim final rule regulations in order to meet a 14-day deadline specified in the statute creating this new adverse action procedure.

Section 707 of P.L. 113-146 strips away many of the civil service protections for those SES employees who work at the VA.This new statute–to be codified as 38 U.S.C. § 713–allows the Secretary of VA to either remove SES employees outright from federal service, or to demote them out of the SES and to a GS position that the Secretary picks.

SES employees subject to a Section 707 adverse action are barred from receiving paid administrative leave during the pendency of their appeals of the adverse action. They also lose almost all of their post-adverse action appeal rights.They can appeal to the MSPB, but only have seven calendar days to file (the normal MSPB appeal deadline is 30 calendar days).Once at the MSPB, the MSPB administrative judge only has 21 calendar days to issue a decision on the appeal–and if the administrative judge fails to issue a decision in that time, the Secretary’s adverse action decision becomes final by default.Normally, MSPB administrative judges have 120 calendar days to issue a decision, and even this timeframe is regarded by many attorneys as moving fairly quickly.The decision of the administrative judge is deemed final and cannot be appealed to the MSPB itself on the Petition for Review mechanism, leaving Board members no chance to review the substance of any decision by their administrative judge.

Many attorneys suspect that the only way that the MSPB would be able to issue any decision within 21 calendar days would be to eliminate any discovery at the MSPB, turning the MSPB appeal process into essentially a grievance process based primarily on the record that the VA puts together to support its adverse action.Since discovery is necessary for most employees to challenge many forms of illegality in adverse actions (for example, discrimination and whistleblower reprisal), Section 707 risks stripping affected employees of their ability to make those arguments.

Section 707 further prohibits the MSPB or the Office of Special Counsel from seeking stays of adverse actions (a remedy available in whistleblower reprisal and other Prohibited Personnel Practice cases).Section 707 otherwise fails to clarify how its provisions interact with normal discrimination statutes and whistleblower reprisal protections.This ambiguity risks the possibility that Section 707 would be deemed to preempt any EEO or whistleblower protections for VA SES employees subject to a Section 707 action (and to preclude any judicial review whatsoever of the MSPB administrative judge’s decision).

The MSPB took the opportunity in the Interim Final Rule to restate its concerns about the possible unconstitutionality of Section 707.Mirroring criticisms it raised with the White House, the MSPB questioned the constitutionality of making administrative judges’ decisions under Section 707 final and unreviewable, thus limiting the Board’s ability to supervise the work of its own administrative judges.To limit the negative effects of Section 707 decisions on normal MSPB adverse action appeals, the rule makes all administrative judge decisions under Section 707 nonprecedential and prohibits any citation to Section 707 cases as precedent in non-Section 707 cases.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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