Court Determines That The MSPB Can Review The VA’s Choice Of Penalty Against Its Employees.

Recently, the Federal Circuit Court of Appeals released an important decision for employees of the Department of Veterans Affairs who may find themselves the subject of disciplinary action. In 2017, Congress made effective the Department of Veterans Affairs Accountability and Whistleblower Protection Act, which made it easier for the VA to terminate its employees and also made more difficult employees’ ability to challenge their terminations with the Merit Systems Protection Board (MSPB). In Sayers v. Department of Veterans Affairs, the VA terminated Dr. Sayers from his position in 2017 for conduct that occurred in 2016. He challenged his termination with the MSPB. The MSPB applied the standards in the Department of Veterans Affairs Accountability and Whistleblower Protection Act when deciding to uphold Dr. Sayers’s removal from the VA. The Federal Circuit ruled that the MSPB could not rely on the Department of Veterans Affairs Accountability and Whistleblower Protection Act in deciding whether the VA properly removed Dr. Sayers because the conduct for which Dr. Sayers was removed occurred prior to the enactment of the Act and the Act cannot be applied retroactively. Importantly, the Court also made clear that the MSPB is not bound by the VA’s choice of penalty and can instead choose to impose a lesser penalty. As the Court explained, “When correctly interpreted, § 714 [of the Act] requires the Board to review whether the Secretary had substantial evidence for his decision that an employee’s actions warranted the adverse action. The Board cannot meaningfully review that decision if it blinds itself to the VA’s choice of action. Deciding that an employee stole a paper clip is not the same as deciding that the theft of a paper clip warranted the employee’s removal.” A full copy of the Court’s decision is available here: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-2195.Opinion.3-31-2020_1560799.pdf

If you are a federal government employee who has been proposed for discipline or already disciplined, The Wick Law Office can help.