Written by: David Fulleborn
Court Reverses Client’s Removal from the VA based upon the VA and MSPB’s Improper Application of the Department of Veterans Affairs Accountability and Whistleblower Protection Act
On March 31, 2020, the United States Court of Appeals for the Federal Circuit issued a significant victory for VA employees, and Hoyer Law Group client Dr. Jeffrey Sayers in particular. A copy of the opinion is available here.
The Court reversed the removal of Dr. Jeffrey Sayers, finding that the Department of Veterans Affairs (“VA”) and Merit System Protection Board (“MSPB”) impermissibly applied the Department of Veterans Affairs Accountability and Whistleblower Protection Act ( “Act”) retroactively. The Court further clarified that the MSPB retains the authority to examine the appropriateness of adverse actions taken against VA employees and to correct clearly excessive punishment.
The Act, signed into law on June 23, 2017, and codified at 38 U.S.C. § 714, streamlines the discipline and removal process for VA employees by shortening deadlines, lessening the burden of proof to a “substantial evidence” standard, and at least according to the VA, by restricting the MSPB to examining only the veracity of the underlying allegations against a VA employee and not the appropriateness of any adverse employment action. Before the Act, the VA had to meet a “preponderance of the evidence” standard, which essentially requires the Agency to prove that its version of events is more likely than not to have occurred – basically a 51% likelihood. The somewhat nebulous substantial evidence standard is more lenient – something less than a 50% likelihood.
The VA Improperly Removed Dr. Sayers
In September 2017, the VA proposed to remove Dr. Sayers, then serving as the Chief of Pharmacy Services for the Greater Los Angeles Health Care System, for policy violations occurring in pharmacies under Dr. Sayer’s authority in 2016. The VA also cited additional violations that occurred in early 2017, during a time that the Agency had detailed Dr. Sayers away from his position. Dr. Sayers objected to his removal, which the VA upheld by relying upon a retroactive application of the Act to lessen its burden to prove Dr. Sayers’ alleged misconduct.
Dr. Sayers timely appealed his removal to the MSPB. The MSPB administrative law judge, too, retroactively applied the Act’s lower standard for removal and refused to entertain any arguments that the VA’s punishment of Dr. Sayers was excessive, even if he did commit the bad acts alleged of him. The administrative law judge relied in large part upon the provisions of the Act found at 38 U.S.C. §§ 714(d)(2)(B) and 714(d)(3)(C) to find that the MSPB lacks the authority to examine the appropriateness of punishments selected by the VA. Sections 714(d)(2)(B) and 714(d)(3)(C) provide:
Notwithstanding title 5 or any other provision of law if the decision of the Secretary is supported by substantial evidence, the [administrative judge and MSPB, respectively] shall not mitigate the penalty prescribed by the Secretary.38 U.S.C. §§ 714(d)(2)(B), 714(d)(3)(C)
Dr. Sayers had argued that even if the allegations against him were true, his removal was not justified according to the VA’s progressive discipline policy.
Dr. Sayers Takes The Issue Up On Appeal
Dr. Sayers appealed the MSPB’s decision to the United States Court of Appeals for the Federal Circuit, arguing that the VA and MSPB erred by giving the Act retroactive effect, and by interpreting the Act as prohibiting the MSPB from protecting VA employees from excessive and inappropriate punishment. The Court agreed with Dr. Sayers, reversing his termination and remanding his case back to the MSPB.
The Court’s Analysis
In its opinion, the Court first addressed the effect of the Act on the authority of the MSPB. The Court examined the language and purported effect given by the VA and MSPB to § 714(d)(2)(A) and § 714(d)(3)(B), which state that MSPB administrative judges and the MSPB itself “shall uphold the decision of the Secretary [of the VA] to remove, demote, or suspend an employee under subsection (a) if the decision is supported by substantial evidence.” The Court also examined the language of § 714(d)(2)(B) and § 714(d)(3)(C), quoted supra.
Noting the VA and MPSB’s erroneous application of the Act, the Court wrote:
When correctly interpreted, § 714 requires the [MSPB] to review whether the Secretary had substantial evidence for his decision that an employee’s action warranted the adverse action. The [MSPB] 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.
The Court then recited a plethora of case law, similar statutes, historical practice, and legislative history in support, and observed that the VA and MSPB’s application of the Act departs from even “basic precepts of administrative law and judicial review.” The Court continued to rebuke the VA and MSPB: “The longstanding acceptance of penalty review, with or without mitigation authority, comes with good reason: it avoids absurd, unconstitutional results.” (Emphasis added). The Court further noted that:
The government’s reading—allowing the agency to remove an employee for the tiniest incident of misconduct so long as the agency could present substantial evidence that the trifling misconduct occurred—could ‘gut due process protections’ in a way Congress did not intend.Hughes, Circuit Judge
In addition to discussing at length the unconstitutionality of the VA and MSBP’s position, the Court also observed the practical problems of the government’s erroneous application of the Act: “If the government were to allege several specifications supporting a charge that merits removal, but only met its burden showing substantial evidence for the most minor specification, an employee with an otherwise perfect record could remove over a trivial incident.” In other words, if the VA terminates an employee for allegedly stealing $1 million and also being late to work one day, but was found not to have committed theft by the MSPB, the employee would effectively be fired for being late one day.
Having clarified the proper application of the Act, the Court also dispensed with the VA and MSPB’s improper retroactive use of the Act. The Court performed a law school textbook application of Landgraf v. USI Film Prods, 511 U.S. 244 (1994). First, the Court observed that “The statute plainly lacks an ‘unambiguous directive’ or ‘express command’ that the statue is to be applied retroactively.”
Next, the Court examined whether the application of the Act to Dr. Sayers’ case would result in a retroactive effect that would “impair rights [that Dr. Sayers] possessed when he acted.” The Court made a “commonsense, functional judgment about ‘whether the new [Act] attaches new legal consequences to events completed before its enactment.’” The Court correctly found that “By requiring the [MSPB] to apply the substantial evidence standard in reviewing the removal decision, instead of the preponderance of the evidence standard normally required for misconduct removals under 5 U.S.C. § 77019(c), and by preventing any mitigation of a penalty that substantial evidence supports, § 714 affects employees’ substantive rights to relief from improper removal.” Accordingly, the Court concluded that “Dr. Sayers is entitled to the legal protections in place during the period in which the alleged misconduct occurred because Congress did not provide a clear statement that it intended to modify retroactively VA employees’ rights to those protections.”
Would You Like To Learn More?
Hoyer Law Group, PLLC, and the Whistleblower Law Firm, PA, represents Dr. Sayers. Founding partner Dave Scher argued the case on appeal. Hoyer Law Group, PLLC, expresses its sincerest thanks to Rushab Sanghvi, with the Office of General Counsel for the American Federation of Government Employees, who argued for amicus curiae American Federal Government Employees, AFL-CIO.
Hoyer Law Group, PLLC, has extensive experience representing federal employees. We have helped numerous VA employees, ranging from food service staff to healthcare professionals employed under Title 38 of the United States Code, and even VISN Directors. To learn more about our federal employee practice, which includes appealing adverse actions, combatting discrimination, and protecting whistleblowers, click here.