With two precedential decisions, the U.S. Court of Appeals for the Federal Circuit gutted parts of the Department of Veterans Affairs Accountability and Whistleblower Protection Act, 38 U.S.C. § 714, which had been used to severely curtail the rights of VA employees. When President Trump signed the Act into law in 2017, it was widely seen as a test case for future legislation that might apply to the civil service at large, so the Federal Circuit’s decisions should be welcome news for federal employees at all agencies.
Along with expediting the timeframe VA officials had to decide on proposed adverse actions, including limiting the employee’s time to reply to the charges, the VA also asserted that the Act allowed it to take adverse actions using the much lower “substantial evidence” standard, rather than the typical “preponderance of the evidence” standard. This meant that to sustain a removal action against a VA employee, the deciding official would need to find only a “mere scintilla” of evidence supporting any charges, which meant the VA could remove employees based on nothing more than uncorroborated allegations from a supervisor about an employee’s conduct.
Additionally, the VA asserted that the law precluded the U.S. Merit Systems Protection Board from reviewing its selection of penalty for reasonableness, which is typically done through the application of the Douglas factors, which are a series of factors regarding potential mitigating evidence such as length of service and performance on the job. The VA argued that it could, for example, fire an employee for one instance of tardiness and the Board would be precluded from lessening that penalty to something more reasonable, like a letter of reprimand.
The Federal Circuit rejected both of these positions. In Rodriguez v. Dep’t of Veterans Affairs, No. 19-2025 (8/12/21) the Federal Circuit held that the VA cannot take an adverse action against an employee without finding it has preponderant evidence to sustain the charges against the employee. The Court explained that the Act’s “substantial evidence” standard only applied to the Board in reviewing the VA’s decision to sustain a charge.
In Connor v. Dep’t of Veterans Affairs, No. 21-1064, (8/12/21), the Court held that the VA is not exempt from having to consider the Douglas factors in selecting an appropriate penalty, and that the Board may also apply the Douglas factors in considering whether any chosen penalty was reasonable.
Although the mood in both the White House and Congress has shifted in favor of employees, Congress would be wise to carefully consider the Court’s reasoning in both of these decisions before proposing any additional civil service reform legislation, as the Court went out of its way to explain the importance of both the preponderance of evidence standard and the Douglas factors in protecting the due process rights of federal employees. At the end of the day, recent times have shown us how critical having a non-political civil service is to the proper functioning of the federal government, and our long standing civil services protections provide necessary safeguards.
Debra D’Agostino is a founding Partner of the Federal Practice Group. She has nearly 20 years of experience representing federal employees in matters before the EEOC, MSPB, OSC, and the U.S. Court of Appeals for the Federal, Fourth, and D.C. Circuits.