Fedweek

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In a pair of cases, a federal appeals court has reinforced protections for VA employees in discipline, citing its 2021 holding that in choosing discipline the department must conclude that the “preponderance” of the evidence—the majority—supports that choice.

The U.S. Court of Appeals for the Federal Circuit in case Nos. 21-1832 and 21-1896 overturned decisions by MSPB hearing officers that had upheld the VA after reviewing the penalty choice under a lower standard of whether only “substantial” evidence supported it.

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The issue relates to a 2017 law giving VA 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.

However, the appeals court held last year that while the VA need only show substantial evidence to the MSPB to support its choice, in initially making that choice the department must conclude that the preponderance of the evidence supports it. At the time, there were predictions that the ruling called into question numerous disciplinary actions the VA had taken using the lower standard.

That proved to be true with the recent pair of cases, which the court sent back to the MSPB for reconsideration of whether the VA met the higher standard in choosing the penalty. In one of the cases it further specified that employees can base their appeals on that issue even though they hadn’t raised it previously, since the law hadn’t been clearly decided before the 2021 rulings.

The appeals from the hearing officer decisions went directly into court because the MSPB governing board at the time was empty and unable to decide on appeals.