On Tuesday, September 16, 2014, the National Employment Lawyers Association (NELA) submitted comments to the Merit Systems Protection Board (MSPB) about the new procedures for appeals by VA managers.MSPB’s new procedures are necessary because this Summer, Congress passed the Veterans’ Access to Care through Choice, Accountability, and Transparency Act of 2014, Public Law 113-146 (the Act). President Obama signed it on August 7, 2014, and it took effect immediately. Section 707 of the Act creates new rules for the removal or transfer of Senior Executive Service employees of the Department of Veterans Affairs (covered SES employees) for performance or misconduct. This new section is codified as 38 U.S.C. 713. Under 38 U.S.C. 713(a), the Secretary of the VA may remove or transfer a covered SES employee for performance or misconduct. The employee then has a right to appeal to the MSPB within 7 days. 38 U.S.C. 713(d)(2)(B). The MSPB administrative judge must issue a decision within 21 days. 38 U.S.C. 713(e). If a decision is not issued within 21 days, the Secretary’s decision is final. 38 U.S.C. 713(e)(3). An administrative judge’s decision is not subject to any further appeal. 38 U.S.C. 713(e)(2).
Paragraph (b) of section 707 of the Act requires the MSPB to issue procedures for processing these appeals, and MSPB did that on August 19, 2014. MSPB created a new set of regulations, 5 CFR Part 1210, just for appeals under this Act. The comments with the new regulations state, “the MSPB questions the constitutionality of any provision of law that prohibits presidentially-appointed, Senate-confirmed Officers of the United States Government from carrying out the mission of the agency to which they were appointed and confirmed to lead.”
MSPB expresses some frustration with the severe constraints Congress placed on it for these appeals. Congress was apparently unaware that when a federal agency fires an employee, that employee does not get to continue working during a civil service appeal to the MSPB. The employee would already be out of the Agency during the time the appeal is pending. To us, as advocates for federal employees, it is disturbing that Congress would lash out against the civil service system in response to evident agency neglect to use the tools already available to address misconduct and poor performance.
Still, as Congress did pass the law, and MSPB has to follow the law, KCNF attorneys joined with other NELA members to prepare these comments. The comments make clear that, “NELA strongly opposes Section 707 as an abrogation of due process and as a slippery slope to eroding civil service protections[.]”
NELA urged the Board to adopt a new 5 C.F.R. § 1210.20(e) stating that, “5 CFR §§ 1201.3(c), 1201.154(a), 1208.11, 1209.2(d) shall have no application to appeals under Section 707, and Section 707 appeals shall not be considered to be an election of remedies barring pursuit of other statutory or regulatory appeal or complaint processes.” This proposed rule would preserve for whistleblowers the right to pursue a claim of reprisal under the Whistleblower Protection Act even if the Section 707 proceeding resulted in an adverse outcome (such as failure of the MSPB hearing judge to issue a decision within 21 days). It would also preserve the right of employees to pursue claims of discrimination through the EEO process and the rights of veterans to pursue their USERRA claims.
NELA also urged the Board to amend 5 C.F.R. § 1201.20(c) to state also that, “A decision by an administrative judge under this Part shall not have the effect of res judicata or collateral estoppel in any proceeding not filed pursuant to 38 U.S.C. § 713(e)(2).” Since the 21-day process fails to comply with basic due process, the outcome should not prevent anyone from pursuing other remedies. See Hansberry v. Lee, 311 U. S. 32, 40 (1940).
NELA also asked the Board to be more specific about the information the VA should provide automatically has part of its “response file.” Since there is so little time for discovery during the 21 days, NELA urged the Board to spell out the information often needed in appeals, particularly exculpatory information, and require the VA to produce it. NELA urged the Board to permit depositions since they are central to preparing cases that hinge on credibility determinations.
NELA is also concerned that the short time for a decision would lead to rushed hearings and micromanagement of the case by administrative judges. NELA asked the Board to allow each side a minimum of three (3) hours to present their case, with the time to be allocated however that party wants.
NELA asked the Board to provide that the Agency would pay for a transcript of the hearing, and provide the transcript to all parties, the Inspector General, and to the congressional committees. Congress passed this Act because of the scandal of poor service from VA facilities. Congress wants more accountability for the VA, and sharing the transcripts would be a step in that direction.
Finally, NELA noted that Congress’ concern about delays in processing appeals is a concern more apt for some other agencies that handle federal employee appeals, such as EEOC and the Department of Labor’s Office of Administrative Law Judges (OALJ). NELA urged Congress to increase funding for these agencies and the MSPB so they will have adequate staff to process appeals more timely.
Andrew J. Perlmutter, Chair of the Rulemaking Committee of NELA’s Federal Employee Rights Practice Group, coordinated the comments. KCNF attorneys George M. Chuzi, Elaine L. Fitch, Nina Ren and myself contributed to these comments. Other contributors included Susan E. Jewell, Elbridge W. Smith, Doris J. Dabrowski, Joseph Kaplan, Danielle Bess Obiorah and Edward M. Passman. NELA’s Executive Director, Teri Chaw, signed the comments on behalf of NELA. We thank all of them for this well written and thoughtful contribution to public policy. The comments can also serve as a reference for future public debate on attempts to curb the civil rights of federal employees.
As of this writing, there are no other comments posted about these rules.
By Richard Renner