GOP lawmakers say MSPB ruling ‘standing in the way’ of VA firing poor performers quickly

House Republicans are challenging the latest legal decision to limit the Department of Veterans Affairs’ ability to fire employees, under a law Congress passed more than five years ago.

The 2017 VA Accountability Act and Whistleblower Protection Act gives the VA secretary the ability to fire, demote or suspend employees covered under the law, based on misconduct or performance issues.

But the Merit Systems Protection Board, in a decision last month, ruled that an entire category of medical personnel aren’t subject to the VA’s fast-track removal process under the law.

MSPB, in its Jan. 4 ruling, decided the VA can’t use the 2017 law to expedite the firing of “hybrid” Title 38 employees.

Hybrid Title 38 employees are treated as medical personnel under Title 38 in matters of appointment, advancement and pay issues. However, they fall under Title 5, like much of the federal workforce, when it comes to issues that include performance appraisal, leave, hours of duty and adverse actions.

Title 38 hybrid positions include physical therapists, respiratory therapists, occupational therapists, pharmacists and licensed practical nurses.

Tammika Richardson, a GS-5 nursing assistant, brought her case to MSPB after the VA fired her, based on charges of being absent without leave and failure to follow leave request procedures.

MSPB is returning the appeal to the administrative judge who first heard the case, but lawmakers are challenging the ruling, arguing that MSPB made exceptions to the law that Congress didn’t specify in its legislation.

House VA Committee Chairman Mike Bost (R-Ill.) and Rep. Darrell Issa (R-Calif..) are calling on the Biden administration to challenge the MSPB’s ruling.

Bost and Issa, in a letter to VA Secretary Denis McDonough, said lawmakers wrote the bill “in a way that clearly lists the specific positions it did not want included in the authority.”

“Title 38 hybrid employees were not excluded from the section. However, the MSPB chose to construe the statute in such a way that is incongruent with its structure and prevents VA from using Section 714 to remove, demote or suspend certain hybrid employees for poor performance or misconduct,” the lawmakers wrote.

Former President Donald Trump highlighted the VA Accountability Act in his 2018 State of the Union address. Trump said at the time that his administration removed more than 1,500 VA employees “who failed to give our veterans the care they deserve.”

VA employees, however, raised concerns that the VA’s interpretation of the legislation didn’t give them enough time to improve performance.

Bost said the MSPB’s recent decision to prohibit VA from firing hybrid employees “is in clear violation of the law and reduces accountability at the department”

“The Secretary has a responsibility to guarantee that the VA workforce is top notch and if they’re not, he needs the tools to fix it. Right now, the MSPB’s decision is standing in the way of that,” Bost said.

Issa said Congress passed the legislation to target poor performers, after whistleblowers in 2014 found the VA covered up data showing long wait times for veterans seeking care in Phoenix, Arizona.

“Where there is no accountability, good governance won’t be found. The VA has struggled for years to fulfill its obligations, and after dozens of veterans died waiting for care, Congress instituted reforms that empowered the department to dismiss its worst employees and hold others accountable,” Issa said.

The MSPB ruling is just the latest in a series of rulings in recent years that have narrowed the scope of what the VA is able to do under the VA Accountability Act and Whistleblower Protection Act

The Court of Appeals for the Federal Circuit set a higher bar for the VA to fire employees, after it ruled in April 2021 that VA officials must prove an employee’s alleged misconduct “by a preponderance of the evidence” before it can proceed with disciplinary action or firing.

Prior to that ruling, the VA interpreted the legislation to mean it could remove employees on the basis of “substantial evidence,” of a much lower burden of proof.

The same appellate court, in a separate decision, also ruled the VA must use a set of criteria, known as the “Douglas factors,” to help decide whether an employee’s proposed punishment is appropriate for the level of misconduct.

In this case, the appeals court ruled the VA has to consider 12 mitigating factors before disciplining or firing an employee accused of misconduct.

Those factors include an employee’s past disciplinary record, and whether the proposed punishment is consistent with what other employees have faced for the same kinds of offenses.

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