Prior to leaving my previous firm, I had the pleasure of representing Dr. Sayers and wrote the briefs submitted in this appeal before the Federal Circuit Court of Appeals. Today, I am extremely happy for Dr. Sayers, VA employees, and federal employees generally. I am proud of the work I did on this case and am very appreciative of Mr. David Scher of Hoyer Law Firm, who represented Dr. Sayers at oral arguments, and AFGE, who submitted an amicus brief on Dr. Sayers's behalf as well as participating in oral arguments.
After several months of waiting, the Federal Circuit has issued by far the most substantial 714 opinion to date; they reversed Dr. Sayers's removal and struck down two common applications of the law. This decision will have a direct and substantial effect on hundreds of VA employees and strengthens employment rights for all federal employees.
The Federal Circuit decided the main issue in this case was whether the law, which is a new removal procedure to more quickly and easily fire employees, could be applied retroactively. They decided that no, the law could not be applied retroactively to conduct arising prior to the enactment of the DVA Accountability and Whistleblower Protection Act of 2017, which was signed June 23, 2017. For VA employees, this means that the VA cannot remove you under Section 714 based on specifications taking place before June 23, 2017. Anyone who has received a proposed removal including such specifications or who is in the process of appealing a disciplinary decision based on such specifications should consult an attorney as soon as possible. For other federal employees, this strengthens precedent that stripping you of employment protections does not open you up to disciplinary charges based on older conduct.
The Federal Circuit also issued a more ambiguous but wider sweeping ruling that the MSPB must review the reasonableness of the penalty, not just the underlying facts. Language in the law states that the MSPB will review the disciplinary decision based on a "substantial evidence" standard, which is a lower standard of review than the more common preponderance of evidence standard. The VA and the majority of MSPB's administrative judges have concluded that reviewing the "decision" for substantial evidence is limited to a review of the factual allegations. This means that if the VA decided to remove an employee for showing up a minute late to work on a first offense, the administrative judge would still uphold the removal as long as there was a reasonable possibility that the factual issue--whether the employee was one minute late--was true. The Federal Circuit disagreed and held that the administrative judge must review the penalty determination as part of the overall decision.
In Dr. Sayers's case, as in many others, the administrative judge wrote that Section 714 precluded her from even considering whether the penalty was reasonable. Following this new decision, the MSPB must analyze whether the facts actually support the severity of the penalty selected. In this case and many others, it is obvious that the MSPB did not complete this analysis based on their express refusal to do so.
What will be interesting going forward is the level of analysis required. When adjudicating Title V disciplinary actions, the MSPB had employed the "Douglas Factor" test to determine if the penalty was legally excessive. Without a clear directive from the Federal Circuit, it is possible that administrative judges need only state that they considered the penalty and found it to be reasonable, but it is also possible that they must reverse any decision that does not include some sort of analysis similar to the full Douglas Factor test. This would require the deciding official and the administrative judge to provide a written explanation of both aggravating and mitigating factors.
Another point left open for discussion is what happens in cases where the administrative judge finds that the penalty is excessive. The Federal Circuit pointed to the plain language of the law stating that the MSPB cannot alter a punishment by mitigating to a less excessive penalty, but chose to leave the question of what the MSPB must do for another time. This does not leave many possibilities, as the MSPB can neither affirm nor modify the decision, so it seemingly must be reversed. Traditionally, if a case is reversed for a procedural reason or certain constitutional reasons, then the agency can fix the error and bring the action a second time. However, if the MSPB reverses a case for substantive reasons, like the agency failing to prove the alleged facts, then the agency cannot bring another action based on those same allegations. Historically, the MSPB has not had to reverse excessive penalties as they could mitigate such penalties to an appropriate level. Following the Federal Circuit's decision, it is unclear whether a reversal based on an excessive penalty will allow the agency to bring another action with either a lower level of penalty or more specifications in an attempt to further justify a higher penalty, or if the agency may not bring another action using the same specifications.
The Federal Circuit did not touch on all the arguments raised in the briefings and there are still many outstanding issues with the new law that must be clarified. However, this case represents the biggest victory over Section 714 to date and is a huge step in the right direction.
-James Solomon