VA Streamlined Discipline Authority Reined in by Court

The law giving VA streamlined disciplinary authority was applied to employee misconduct that occurred before the effective date. See how the appeals court has ruled.

The case is Sayers v Department of Veterans Affairs (CAFC No. 2018-2195, 3/31/20). The facts are as they were explained in the court’s opinion.

Dr. Sayers served as the Chief of Pharmacy Services for the Greater Los Angeles VA Health Care System (GLA) about 14 years before running into problems following a review of his operation in mid 2016. The review team reported several violations of VA policy in the five pharmacies under Dr. Sayers. VA ordered the doctor to correct the violations immediately, and when he failed to do so, he was detailed while the matter was further reviewed. (Opinion p. 3)

The detailed review found numerous, concerning violations, attributed to Dr. Sayers’ leadership. In September 2017, GLA removed Dr. Sayers under the new streamlined procedures provided to VA under Section 714 of the Department of Veterans Affairs Accountability and Whistleblower Protection Act. This law also placed some limits on appeals to the Merit Systems Protection Board (Board) and ability of the Board to mitigate penalty.

The Board’s administrative judge concluded that the VA’s charge against Dr. Sayers—failure to perform assigned duties—was sustained by 8 of 9 reasons specified. She also found the charge of failure to follow instructions was also sustained by the one reason underlying that charge. She further concluded that under Section 714 that the Board “does not have the authority to mitigate the penalty…” (p. 4)

In his court appeal, Dr. Sayers argued that it was in error to remove him under Section 714 because the misconduct with which he was charged occurred before the date of enactment of the 2017 law. Since the law was silent on retroactivity, there should be a presumption against retroactivity. Therefore, the new law’s streamlined procedures and limitations on mitigation of the penalty by MSPB should not apply. (p. 5)

In short, the appeals court has agreed with Dr. Sayers, holding that the law cannot be applied retroactively and has vacated the Board’s decision and Dr. Sayers’ removal. Of importance is the court’s additional holding that Section 714 requires the Board, in reviewing whether the VA had substantial evidence for the discipline taken, requires it to also review the choice of penalty. As the court stated, “The Board cannot meaningfully review that decision if it blinds itself to the VA’s choice of action…An adverse ‘decision’ based on misconduct has meant a decision to impose a certain penalty since long before the enactment of [Section] 714.” (p. 8)

Without knowing how many VA employees may have been disciplined for actions that occurred before Section 714 took effect, it is difficult to scope the impact of the refusal to apply this statute retroactively.

However, that part of the decision holding that the Board must review the penalty as part of its appeal consideration even though Section 714 restricts it from mitigation, could have wider ramifications for VA. Some may find it surprising that the court reached this issue since the retroactivity part of its ruling inevitably led to setting aside Dr. Sayers’ removal, arguably making it unnecessary for the court to even address the Board’s penalty mitigation authority.

There is a curious footnote (#6) in the decision that blurs its impact on the issue somewhat: “Since we hold that [Section] 714 does not apply to Dr. Sayers because of its impermissible retroactive effect, we do not opine on the appropriate remedy in a hypothetical future case in which the Board finds a penalty unsupported by substantial evidence. It should be obvious, however, that the Board cannot revise the agency’s choice of penalty to its own preferred alternative.”

This summary necessarily omits a lot of the court’s deliberations. For the practitioner, there is an extensive analysis of the legislative history contained in the court’s opinion, particularly on the issue of the Board’s scope of review and ability to mitigate penalty.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.