Following is an excerpt from MSPB’s testimony before a recent Senate hearing raising concerns about pending bills to speed up the disciplinary process and limit appeal rights for employees of the VA.
MSPB’s interest in S. 1082 and S. 1117 derives primarily from its statutory responsibility to adjudicate appeals filed by federal employees in connection with certain adverse employment actions. Generally, after a federal agency imposes an adverse personnel action upon a federal employee, such as removal or demotion, and the federal employee chooses to exercise his or her statutory right to file an appeal with MSPB, MSPB will begin the adjudication process. In the case of a federal employee who is removed from his or her position, that individual is no longer employed by the federal government, and is not receiving pay, at the time he or she files an appeal with MSPB or at any point during the subsequent MSPB adjudication process.
Once an appeal is filed, an MSPB administrative judge1 in one of MSPB’s regional or field offices will first determine whether MSPB jurisdiction exists over the appeal. If jurisdiction does exist, the MSPB administrative judge may conduct a hearing on the merits and then issue an initial decision addressing the federal agency’s case and the appellant’s defenses and claims. Thereafter, either the appellant or the named federal agency may file a petition for review of the MSPB administrative judge’s initial decision with the Board, which will review the initial decision and then issue a final decision of the MSPB. Both the Board and MSPB administrative judges adjudicate appeals in accordance with statutory law, federalregulations, precedent from United States federal courts, including the Supreme Court of the United States and the United States Court of Appeals for the Federal Circuit, and MSPB precedent.
S. 1082 – The “Department of Veterans Affairs Accountability Act of 2015”
In pertinent part, S. 1082 would allow the Secretary of the Department of Veterans Affairs (“Secretary” and “Department”) to remove or demote an individual who is an employee of the Department if the Secretary determines the performance or misconduct of the employee warrants such removal or demotion. If the Secretary removes or demotes such an employee, the Secretary may:
* Remove the employee from the civil service (as defined in section 2101 of title 5); or
* Demote the employee by means of: o A reduction in grade for which the employee is qualified and that the Secretary determines is appropriate; or
A reduction in annual rate of pay that the Secretary determines is appropriate.
Section 2(a) of the bill provides that the procedures listed in 5 U.S.C. § 7513(b) (“Cause and Procedure”) and chapter 43 of title 5 (“Performance Appraisal”) “shall not apply” to a removal or demotion referred to in that section.
Under 5 U.S.C. § 7513(b)(1)-(4) and (d), a federal employee against whom certain adverse actions are proposed (including removal and demotion) is generally entitled to: 1) at least 30 days advance written notice stating the specific reasons for the federal agency’s proposed action; 2) not less than 7 days to respond to the proposed adverse action; 3) be represented by an attorney or other representative before the federal agency; 4) a written decision and the specificreasons therefor by the federal agency; and 5) file an appeal to MSPB under 5 U.S.C. § 7701.
Under 5 U.S.C. § 4303(b)(1), a federal employee who is subject to removal or a reduction in grade for unacceptable performance is generally entitled to: 1) at least 30 days advance written notice of the federal agency’s proposed action identifying certain information; 2) be represented by an attorney or other representative before the federal agency; 3) a reasonable time to answer orally and in writing to the proposed adverse action; 4) a written decision by the federal agency specifying the instances of unacceptable performance which has been concurred in by an employee who is in a higher position that proposes the removal or reduction in grade; and 5) appeal to MSPB under 5 U.S.C. § 7701.
Section 2(a) of S. 1082 permits employees who are either removed or demoted by the Secretary to appeal that personnel action to MSPB “under section 7701 of title 5.” Any such appeal must be filed with MSPB “not later than seven days after the date of such removal or demotion”2 and the MSPB will be required to refer the appeal to an MSPB administrative judge for adjudication. An MSPB administrative judge would be required to issue a decision “not later than 45 days after the date of the appeal,” and that decision “shall be final” and not subject to further review, either by the Board or a United States federal court. In the event that an MSPB administrative judge does not issue a final decision within 45 days, the decision of the Secretary to remove or demote the employee becomes final and the employee has no further right to appeal.
S. 1117 – The “Ensuring Veteran Safety Through Accountability Act of 2015”
S. 1117 would expand the existing authority of the Secretary to remove or demote senior executive employees at the Department – granted in Section 707 of the Veterans Access, Choice, and Accountability Act of 2014 (“2014 Act”) – to positions at the Department listed in 38 U.S.C. § 7401 “that [are] not … senior executive position[s].” Thus, in order to provide technical views on S. 1117, a brief discussion of Section 707 of the 2014 Act is first necessary.
The pertinent provisions of Section 707 of the 2014 Act are similar, however not identical, to the provisions of S. 1082 addressed above. Under Section 707 of the 2014 Act:
* The Secretary may remove an individual employed in a senior executive positon at the Department of Veterans Affairs from the senior executive position if the Secretary determines the performance or misconduct of the individual warrants removal; and
* If the Secretary so removes such an individual, the Secretary may: A) remove the individual from the civil service (as defined in section 2101 of title 5); or B) … transfer the individual from the senior executive position to a General Schedule position at any grade of the General Schedule for which the individual is qualified and that the Secretary determines is appropriate.
Section 707 of the 2014 Act also provides that “the procedures under section 7543 of title 5 shall not apply” to removals and transfers under that section. 38 U.S.C. § (c)(1). Under 5 U.S.C. § 7543(b), senior executive service employees employed by agencies other than the Department who are subject to a charge of misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of a function are generally entitled to the following rights: 1) at least 30 days advance written notice stating the specific reasons for the federal agency’s proposed action; 2) not less than 7days to respond to the proposed adverse action; 3) to be represented by an attorney or other representative before the federal agency; 4) a written decision and the specific reasons therefor by the federal agency; and 5) to file an appeal to MSPB under 5 U.S.C. § 7701.
Similar to S. 1082, upon either removal or transfer, a senior executive service employee of the Department may appeal to the MSPB “under section 7701 of title 5” not later than seven days after the date of such removal or transfer. Also similar to S. 1082, an MSPB administrative judge must “expedite” these appeals and issue a decision “not later than 21 days after the date of the appeal.” If an MSPB administrative judge fails to issue a decision within 21 days, the Secretary’s decision to either remove or transfer the senior executive service employee becomes final. Finally, a senior executive service employee of the Department has no right to appeal the MSPB administrative judge’s decision to the Board or a United States federal court.
Views on S. 1082 and S. 1117
As stated above, both S. 1082 and S. 1117 would eliminate a covered employee’s right to notice and any opportunity to respond prior to the imposition of an adverse personnel action. In May 2015, MSPB released a study3 entitledWhat is Due Process in Federal Civil Service Employment? The report provides an overview of current civil service laws for adverse actions and, perhaps more importantly, the history and considerations behind the formation of those laws. It also explains why, according to the Supreme Court of the United States, the Constitution requires that any system which provides that a public employee may only be removed for specified causes must also include an opportunity for the employee – prior to his or her termination –to be made aware of the charges the employer will make, present a defense to those charges, and appeal the removal decision to an impartial adjudicator. We encourage Members of the Committee and their staffs who have interest in these issues to read this report.
In the landmark decision Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the Supreme Court held that while Congress (through statutes) or the president (through executive orders) may decide whether to grant protections to employees, they lack the authority to decide whether they will grant due process rights once those protections are granted. Stated differently, when Congress establishes the circumstances under which employees may be removed from positions (such as for misconduct or poor performance), employees have a property interest in those positions. Loudermill, 470 U.S. at 538-395. Specifically, the LoudermillCourt stated:
Property cannot be defined by the procedures provided for its deprivation any more than can life or liberty. The right to dueguarantee. While the legislature may elect not to confer a property interest in public employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without the appropriate procedural safeguards.
Id. at 541.
The Court explained that the “root requirement” of the Due Process Clause is that “an individual be given an opportunity for a hearing before he is deprived of any significant property interest,” and that “this principle requires some kind of a hearing prior to the discharge of an employee who has a constitutionally protected property interest in his employment.” Id. at 542.
According to the Court, one reason for this due process right is the possibility that “[e]ven where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect.” Id. at 542. The Court further held that “the right to a hearing does not depend on a demonstration of certain success.” Id. at 544.
I further note that the requirements of the Constitution have shaped the rules under which federal agencies may take adverse actions against federal employees, as explained by the Supreme Court of the United States, United States Courts of Appeal, and United States District Courts. Accordingly, should Congress consider modifications to federal civil service laws, many of which have been in place for more than one hundred years, MSPB respectfully submits that the discussion be an informed one, and that all constitutional requirements be considered.
Finally, I note that the constitutionality of Section 707 of the 2014 Act is currently the subject of litigation at the United States Court of Appeals for the Federal Circuit. Helman v. Dep’t.of Veterans Affairs, Case No. 15-3086 (Fed. Cir. 2015). The plaintiff in that litigation is alleging that Section 707 is unconstitutional primarily on two grounds:
* By permitting the Department to remove a tenured federal employee without any pre-removal notice or an opportunity to respond, and by severely limiting post-removal appeal rights, Section 707 violates an employee’s right to constitutional due process as articulated by the Supreme Court; and
* By removing the Board from the MSPB appellate review process and permitting MSPB administrative judges (General Schedule employees) to make a final decision binding an executive branch agency which is not reviewable by a presidential appointee, Section 707 violates the Appointments Clause contained in Article II, Section 2 of the United States Constitution.
As noted above, similar to Section 707 of the 2014 Act, Section 2(a) of S. 1082 would allow the Secretary to eliminate the requirement that the Department provide the pre-adverse action rights found in 5 U.S.C. § 7513(b) and 5 U.S.C. § 4303(b)(1). Section 1(a) of S. 1117 would also allow the Secretary to eliminate the requirement that the Department provide those rights, along with the rights provided in 5 U.S.C. § 7503 (pre-adverse action rights for employees in connection with suspensions of 14 days or less), 38 U.S.C. § 7461(b) (pre-adverse action rights for Department employees in positions listed in 5 U.S.C. § 7401 in connection with adverse actions), and 38 U.S.C. § 7462 (pre-adverse action rights for Department employees in positions listed in 5 U.S.C. § 7401 in connection with professional conduct or competence). It is my understanding the Federal Circuit is currently considering whether it has jurisdiction over the lawsuit concerning Section 707 of the 2014 Act. If it determines that jurisdiction exists, a panel of federal appellate judges will proceed to consider the merits of the claims alleged.
