The Unique Legal World of Title 38 Veterans Administration Doctors and Nurses

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By on September 10, 2018 in Human Resources with 0 Comments

Close up of the plate on a VA building reading '810 Vermont Ave NW United States Department of Veterans Affairs'

Did you know that the statute the Federal Government was authorized to hire you under has a crucial effect on your rights and protections as a federal employee? One of the best examples of these differences can be found by taking a closer look at the Veterans Administration employees. 

The Veterans Administration hires employees under four main types of authority: 1. Title V of the United States Code ; 2. Title 38 Section 7401 of the United States Code; 3. Title 38 Section 7401 Hybrid; 4. Title 38 Section 7801 – Veterans Canteen Employees. 

The typical non-VA federal employee is hired under Title V of the U.S. Code. Title V employees have many rights, including the right to appeal the to the Merits System Protection Board (MSPB) if that employee suffers a 15-day or more suspension, a demotion, or has been terminated from his or her position. At the Veterans Administration, Title V employees include non-medical personnel like clerks and general office staff.

By contrast, Veterans Administration medical professionals (i.e. Doctors and Nurses) are hired under the authority of Title 38 and must navigate a complex and very different legal system than the typical Title V employee.

For example, Pines Federal represented a Veterans Administration physician whom the Agency had proposed and decided to remove from her position based on her alleged physical mistreatment of a veteran patient. Had that same employee been hired under Title V authority, she would have been able to appeal to the MSPB. Yet, as a Title 38 Employee, the only option the doctor had to appeal to the MSPB was if she filed a Whistleblower case. 

Interestingly, this doctor actually had special and unique rights to appeal her removal to a venue that Title V employees do not have access; Disciplinary Appeals Board (DAB). This board is made up of 3 peers, and in this particular case was comprised of 3 doctors located at 3 other Veterans Administrations facilities. Wow, an actual jury of her peers!

In fact, this venue is often a much fairer venue to appear before than the MSPB. Appearing before a court of your peers is very different than appearing before an MSPB Judge who has hundreds of cases on his docket. As a firm, we have been very successful in pursuing DAB appeals. 

Ironically, with the present state of legal affairs under the recent VA Accountability Act, a Title 38 Employee might be better off being charged with a patient care violation as opposed to a Title V or Title 38 employee being charged with a general disciplinary charge. The reason for this is that under the new VA Accountability Act it has become extremely difficult to overcome the burdens of proof necessary to disprove charges before the MSPB, however, a hearing for a DAB can increase the chances greatly of overcoming any false accusations. 

© 2018 Eric Pines. All rights reserved. This article may not be reproduced without express written consent from Eric Pines.

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About the Author

For over twenty years, federal employee attorney Eric Pines has been a trusted advocate and advisor to federal employees throughout the United States and the world. The firm represents federal employees from all agencies including Veterans Administration Title 38 Doctors and Nurses with an emphasis on assisting disabled federal employees from all federal agencies.

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