Above, the Southeast Louisiana VA medical center in New Orleans. The VA said that use of the authorities will end April 3. Image: JHVEPhoto/Shutterstock.com
By: FEDweek StaffThe VA has said that it will stop using provisions of a 2017 law giving VA management a stronger hand in disciplinary decisions, a law that was seen at the time of its passage as a potential model to be applied to other agencies, as well.
That law, passed in the wake of a number of scandals at the VA over the preceding years, 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.
Unions representing VA employees had complained from the outset that while the scandals had largely involved managerial and executive-level officials, in practice the provisions were used disproportionately against front-line employees.
In a press conference last week, VA Secretary Denis McDonough said the department now views standard civil service disciplinary policies as sufficient. The 2017 law “wasn’t really helping us necessarily manage our workforce as much as it was getting us in front of federal judges, getting us in front of administrative bodies,” he said.
Those cases resulted in a number of decisions narrowly interpreting the department’s powers under the law. For example, in 2020 the Federal Circuit appeals court ruled that the provisions could not be applied to performance or conduct predating the law’s enactment; in 2021 that court held that in a challenge the VA must show that the “preponderance” of the evidence supports its choice of discipline even though it needs only “substantial” evidence to take an action.
In 2022, the MSPB held that the law’s shortened time frame for employees to file appeals do not apply if the employee alleged both violations of civil service protections and anti-discrimination law. And earlier this year the MSPB ruled that the authorities do not apply to “hybrid” VA employees—those covered partly by standard Title 5 federal employee policies and partly by Title 38 policies applying in certain medical fields.
The VA said that use of the authorities will end April 3, and that any actions taken under them prior to that date could still be pursued under them. Its action leaves the policies on the books for possible enforcement by a future administration, however.
New Orleans, Louisiana, USA – February 12, 2022: Department of Veterans Affairs Southeast Louisiana Veterans Health Care System medical Center in New Orleans, Louisiana, USA.
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