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The MSPB has issued its first ruling on a law enacted in 2017 limiting appeal rights of VA employees, adopting a federal court ruling that had been issued in the five-year period the merit board lacked a quorum up to two months ago.
The 2017 law—enacted in response to scandals over the prior several years—among other things shortened to 10 business days (from the standard 30) the time VA employees have to appeal final disciplinary actions to the MSPB, lowered the burden of proof for management in such appeals, and required that MSPB could either only accept or reject the chosen penalty, and not choose a lesser one.
In 2020, the Federal Circuit appeals court ruled that those provisions did not apply to discipline based on conduct that predated enactment of that law on June 23, 2017. In its decision, the MSPB (in 22 MSPB 7) applied that principle in reversing a demotion, saying that the events the agency cited occurred over at least eight months, and that no more than one of those months fell after that date.
The MSPB further held that the law’s shortened time frame for employees to file appeals do not apply if the employee already has alleged both violations of civil service protections and anti-discrimination law—so-called “mixed” cases falling under the jurisdiction of both the MSPB and the EEOC.
In addition, the MSPB agreed with a hearing officer that the employee had made disclosures that qualified as whistleblowing but further found, contrary the hearing officer’s conclusion, that the VA failed to show that it would have taken the same action regardless.
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