Fired, Restored, Promoted, Fired Again, and Restored Again – The Unique Tale of One VA Employee

A recent MSPB case illustrates the negative impact the backlog has had on case decisions.

I see far too often, as a federal employment attorney, that employees suffer at the hands of improper agency action, or worse, suffer due to the crazy and often difficult-to-understand nature of Merit Systems Protection Board (MSPB) appeals. I wanted to highlight a recent case our firm is handling that demonstrates the difficult and sometimes nonsensical nature surrounding the MSPB appeals process, with specific reference to how the craziness of the MSPB delay in adjudicating claims has and will certainly continue to harm unaware federal employees as they clear through their case backlog.

Croft v. Department of Veterans Affairs—Case Background and Issue at a Glance

On August 11, 2017, the Department of Veteran Affairs (VA) removed an employee from her position, which she swiftly appealed, and, in an initial decision (ID) issued on July 27, 2018, the action was reversed. Pursuant to the interim relief in the ID, the employee was restored to her previous position pending the outcome of the agency’s petition for review (PFR) to the Board.

For the next five (5) years, the employee was able to work at her restored position, even competing and being selected for a promotion in early 2021. Due to the lack of quorum at the Board, the PFR sat idle for all those years, and the employee was able to experience some kind of normalcy in their life.

However, on August 24, 2023, the Board reversed the initial decision and held that the 2017 removal action was appropriate (Croft v. VA). The VA then issued a letter less than a week later, on August 30, 2023, informing the employee of her immediate termination from federal service. Thus, the agency effected the employee’s second removal on September 1, 2023, with an instant appeal from the employee following on November 10, 2023.

Case Resolution

On January 30, 2024, the Administrative Judge reversed the VA’s action on September 1, 2023, and the employee was ordered to receive full back pay, be reinstated to her previously promoted position, and have access to her previous job benefits.

What makes a case like this so interesting is that there was very little case law upon which to base any arguments, since here, essentially what the VA was trying to get away with was immediately terminating the employee from a new and different position than she was previously terminated from just because the Board reversed a 5-year-old decision removing her from that prior position. There were no cases at the MSPB addressing this issue, and it wasn’t even known if the MSPB would have jurisdiction over the appeal since it happened such a long time ago for an employee who was no longer in the position that they were once removed from.

Fortunately, the Board did find that they had jurisdiction over the matter since the employee’s new position, which she had held for more than one year, entitled her to the Board’s appeal rights under the law.

What is very concerning to me is how the VA managers handled this matter. I have previously testified before Congress about how the VA treats its employees, but this was a new low, in my humble opinion. Here you have an employee who, for five (5) years, performed well not only in the GS-9 position she was initially restored to but who got promoted to a different GS-11 position while her case was ongoing.  Despite her great performance and her promotion, the VA leadership thought it was wise to terminate this loyal employee, a veteran herself, and put her on the street without any pay on one day’s notice. I continue to be disgusted at how the VA treats its employees, especially its veteran employees.  

While this article is a gross oversimplification of the case, issues like these illustrate how the delay in MSPB adjudicating claims will continue to harm federal employees looking for some form of recourse.

Additionally, cases like these should also inspire federal employees to seek to challenge improper adverse agency actions, even if they are off-book issues with no clear case law. In our case, it was a seven-year-long matter that was for a position the employee no longer held, but rather than resigning to the will of the VA, we were able to make solid fact-based arguments and summarily win in less than four (4) days of the record closing on the issue. As the old adage goes, you can’t win if you don’t play.

A Word of Warning for MSPB Appeals

While you are not required to have an attorney represent you when appealing an agency’s decision, it is highly recommended to do so since, while these cases may seem simple at first, they can quickly expand into years-long conflicts and require multiple filings and appeals.

In our firm’s experience, agency lawyers often tend to treat their managers like private clients, attacking aggrieved employees zealously with little regard for the ethical standard that government attorneys are expected to hold themselves to. Both with the VA and other government agencies, there are numerous examples of agency attorneys extending legal proceedings, bullying federal employees, and not complying in good faith with discovery, compounding costs and legal stress in hopes of dissuading further legal challenges.

What’s worse is that by exhausting the litigation process, many private attorneys might be dissuaded from taking these cases, leaving federal employees denied quality legal representation. As such, if you are looking to challenge the federal government due to improper adverse actions, it’s important that you give yourself every advantage and strongly consider allying with someone experienced in navigating these complex legal proceedings.

If you have additional questions about the MSPB appeals process or what you should do if you have a case currently pending in the Board’s backlog, our team of attorneys is available to assist today.

About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel. To schedule a meeting with one of the firm’s federal employment law attorneys call (202) 787-1900. The information in this column is not intended as legal advice.