News from Congress: On June 23, 2017, the President signed into law Pub.L. 115-41. The new statute reduces civil service protections for employees of the Department of Veterans Affairs (DVA).
Pub.L. 115-41 renews the push to cut back VA civil service protections, after the prior attempt under the last Administration saw adverse actions reversed at the Merit Systems Protection Board (MSPB) and portions of the statute struck down as unconstitutional.
Pub.L. 115-41 is more expansive than the prior statute. Instead of just applying to Senior Executive Service (SES) employees at DVA, the statute applies to most DVA civil service employees, but different rules apply to different categories of employees.
SES employees and certain other individuals in executive or administrative positions can be removed, suspended, reprimanded, involuntarily reassigned or demoted by the Secretary, with notice and opportunity to respond to the proposal limited to 7 business days and the overall period from proposal to decision limited to 15 business days. Affected DVA employees lose MSPB appeal rights. Instead, adverse actions taken under this mechanism may solely be grieved to a new DVA internal grievance process, with a final decision due within 21 days. Final decisions by DVA are then subject to judicial review.
Certain other DVA employees also suffer cuts to their civil service protections. Under Pub.L. 115-41, affected employees may receive proposed adverse actions from the Secretary, with notice and opportunity to respond to the proposal limited to 7 business days and the overall period from proposal to decision limited to 15 business days. MSPB appeal rights are retained, but the appeal deadline is cut to 10 business days. The MSPB administrative judge must issue a final decision within 180 days. The VA’s burden of proof to support its charges is cut to mere substantial evidence. The MSPB may not mitigate to a lesser penalty (it must uphold the penalty or reverse entirely).
Pub.L. 115-41 moves into statute the DVA whistleblower office created by Executive Order 13,793. The Secretary cannot remove, demote or suspend non-executive whistleblowers with active cases before the Office of Special Counsel (OSC) or the DVA whistleblower office without permission of the relevant whistleblower office.
Pub.L. 115-41 also allows the Secretary to disallow retirement service credit for DVA employees who are convicted of felonies. Pub.L. 115-41 also allows the Secretary to claw back bonuses, awards and relocation expenses paid to DVA employees under certain circumstances.
If you are a DVA subject to a possible adverse action, and wish to discuss your rights, consider contacting Passman & Kaplan to request an initial consultation.
