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A federal appeals court has again backed VA employees challenging actions the department took under a 2017 law giving management a stronger hand in disciplinary decisions, a law that at the time was seen as a potential model to be applied government-wide.

The law shortened the notice and response time within the VA, shortened the time that the MSPB can consider an appeal, required that the department need only show “substantial” evidence supporting its decision in an appeal to the MSPB, and said that the MSPB cannot lessen a penalty the department chooses, only either affirm or overturn it.


In one case, No. 2021-1064, the Court of Appeals for the Federal Circuit reiterated a ruling from last year saying that even though that law does not allow the MSPB to mitigate a penalty, the MSPB still must consider its reasonableness. In that process, the MSPB is to use a long-establish list of factors that can work for or against the employee called the “Douglas factors”—and if it finds the penalty to be unreasonable, it is to send the case back to the VA for a redetermination.

The court majority held that the hearing officer correctly considered those factors—although a dissenting judge would have sent the case back to the MSPB, saying there was no evidence that the department considered one of those factors that was at issue, the consistency of the penalty with that of prior similar cases.

In the other case, No. 2019-2025, the court made the same observation regarding the need to consider the Douglas factors and further found that the hearing officer had failed to do so.

The court further held that while the VA need only show “substantial” evidence to the MSPB to support its choice of penalty, in making that choice the department must conclude that the “preponderance” of the evidence—the majority—supports it. In making that ruling, the court overturned the VA’s interpretation of the law, which the hearing officer had accepted, that only substantial evidence was required at the internal decision stage.

In both cases, the appeal from the hearing officer decision went directly into court because the MSPB governing board is empty and unable to decide on appeals.

The court had ruled last year that the department may not apply its enhanced disciplinary powers under that law to conduct or performance dating to before the law was enacted.

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