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News from the Whitehouse: DVA SES Adverse Action Protections Cut

News from the Whitehouse:  On August 7, 2014, President Obama signed the Veterans' Access to Care through Choice, Accountability, and Transparency Act of 2014, Pub. L. 113-146.  While most of the statute concerned veterans' care issues, Section 707 of the statute has profound effects on the adverse action protections for Senior Executive Service (SES) employees working at the Department of Veterans Affairs (DVA).

Section 707 strips away many of the civil service protections for those SES employees who work at DVA.  This new statute--to be codified as 38 U.S.C. § 713--allow the Secretary of DVA to either remove DVA SES employees outright from federal service, or to demote them out of the SES and to a General Schedule position that the Secretary picks (hypothetically, even down to GS-1 level).  DVA SES employees subject to a Section 707 adverse action are barred from receiving paid administrative leave during the pendency of their appeals of the adverse action. 

DVA SES employees affected by a Section 707 adverse action lose almost all of their post-adverse action appeal rights.  They can appeal to the Merit Systems Protection Board (MSPB), but only have 7 calendar days to file their appeal (the normal MSPB appeal deadline is 30 calendar days).  Once at the MSPB, the MSPB administrative judge only has 21 calendar days to issue a decision on the appeal--and if the administrative judge fails to issue a decision in that time, the Secretary's adverse action decision becomes final by default.  Normally, MSPB administrative judges have 120 calendar days to issue a decision, and this timeframe is regarded by many attorneys as moving fairly quickly.  The decision of the MSPB administrative judge is deemed final, and cannot be appealed to the MSPB itself on the Petition for Review mechanism, leaving Board members no chance to review the substance of any decision by their administrative judge.  Many attorneys suspect that the only way that the MSPB would be able to issue any decision within 21 calendar days would be to eliminate any discovery at the MSPB, turning the MSPB appeal process into essentially a 'grievance' process based primarily on the record that DVA puts together to support its adverse action.  Since discovery is necessary for most employees to challenge many forms of illegality in adverse actions (for example, discrimination and whistleblower reprisal), Section 707 risks stripping affected employees of their ability to make those arguments.

Section 707 further prohibits the MSPB or the Office of Special Counsel (OSC) from seeking stays of adverse actions (a remedy available in whistleblower reprisal and other Prohibited Personnel Practice cases).  Section 707 otherwise fails to clarify how its provisions interact with normal discrimination statutes and whistleblower reprisal protections.  This ambiguity risks the possibility that Section 707 would be deemed to preempt any EEO or whistleblower protections for DVA SES employees subject to a Section 707 action (and to preclude any judicial review whatsoever of the MSPB administrative judge's decision).

As if these cuts to DVA SES employee due process were not enough, a further provision of Section 707 allows DVA to initiate removal proceedings against SES employees for 120 days after the passage of the statute "notwithstanding [...] any other provision of law." 

While only a limited number of employees are affected by Section 707 for now, the risk exists that foes of civil service protections may use it as a template for future attempts to erode civil service protection elsewhere in the federal workforce. 

If you are a federal employee subject to a possible adverse action, and wish to discuss your rights, consider contacting Passman & Kaplan to request an initial consultation.

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