Congress recently passed the bipartisan Veterans Affairs Accountability and Whistleblower Protection Act after its last try at reforming the VA’s civil service system, the Choice Act, was deemed unconstitutional. This new effort appears not to violate the Constitution—a low threshold—but it also is unlikely to improve the quality of care veterans receive or even significantly improve management at VA.
Title I of the bill creates the Office of Accountability and Whistleblower Protection to receive whistleblower disclosures, refer these disclosures to offices equipped to investigate them, such as the Office of Inspector General, receive allegations of misconduct and retaliation and make recommendations for discipline when allegations are substantiated.
In other words, the new office would be another fox guarding the henhouse. While nothing in the bill seems to prohibit VA employees from making protected disclosures or complaints of whistleblower retaliation to the U.S. Office of Special Counsel, it is not clear why a whistleblower experiencing retaliation would want to place the matter in the hands of the VA instead of an outside, independent agency like OSC, which has been dogged in protecting VA whistleblowers in recent years. OSC has also repeatedly voiced concerns about inadequate investigations into whistleblower concerns by the VA inspector general. For example, while the IG found problems with medical appointment scheduling, it never looked at whether these scheduling issues were putting patients in danger.
Title II of the bill attempts to enhance the accountability of senior executives and employees at VA by limiting appeal rights—apparently Congress believes less scrutiny of VA management decisions will yield better management.
Section 201 allows the VA secretary to fire or demote a member of the Senior Executive Service if the secretary determined that the executive’s conduct or performance warrants it. However, the entire notice, reply, and decision process may not exceed 15 days, and the senior executive’s only avenue for appeal is to file an internal grievance and then await some unidentified “judicial review.” The evident problems with this section are:
- Limiting the notice, reply, and decision process to 15 days does nothing to address the real cog in the system, which is what occurs before the notice is issued. For example, in the case of VA senior executive Diana Rubens, eight months passed between the time Congress directed the department to look into allegations of misconduct and when the deputy secretary proposed discipline. Once the proposal was issued, a decision was made within 22 days. So cutting the notice, reply, and decision time in that case to 15 days would have shaved seven days of that process, but this law would have done nothing about the absurdly long period (eight months) to investigate the allegations and decide what to do about them.
- Providing an internal grievance process to appeal a decision by the secretary is an obviously toothless process. It would be untenable to believe that the secretary’s subordinates would reverse the secretary’s decision, and the secretary is just as unlikely to reverse himself.
- Finally, providing undefined “judicial review,” presumably to the U.S. Court of Appeals to the Federal Circuit (which is one step down from the Supreme Court), is especially ill-advised. An administrative body, the U.S. Merit Systems Protection Board, already exists for this very purpose. In the case the MSPB gets it wrong, the law provides for an appeal to be filed with the Federal Circuit. Cutting out the MSPB potentially and unnecessarily clogs the Federal Circuit’s docket and lengthens the appeals process, leaving the VA with lingering uncertainty. While the MSPB’s regulations require a speedy review process, in 2016, the Federal Circuit took an average of 11 months to decide a case.
Section 202 purports to make it easier to fire VA employees. I would argue that the highest functioning agencies are adept at firing poor performers within existing civil service protections and without trampling employees’ rights. This fails to address the actual issues impeding the performance of the VA. For example, (b)(2)(A) prohibits a demoted employee from being placed on administrative leave while they appeal that decision. I cannot conceive how a demoted employee would ever end up on administrative leave while appealing such a decision. In some cases, agencies place employees on administrative leave during investigations or while they are deciding whether to fire (not demote) an employee, but after the decision is made, it is put into effect, and that’s that. Any appeal rights only kick in once an action has been taken. A fired employee is fired (and thus unpaid) during any appeal. A demoted employee is demoted (and is thus paid less) during any appeal.
The most obvious example of this bill’s misguided efforts, however, comes from a section titled “Expedited Review,” which provides that an administrative judge at the MSPB must issue a decision “not later than 180 days after the date of the appeal.” Currently, the MSPB requires its Administrative Judges to adjudicate all appeals within 120 days. This means the current rule is 60 days faster than what this new bill provides. In 2015 (before the MSPB was bombarded with furlough appeals), its administrative judges issued decisions within an average of 93 days. Only Congress could decide that lengthening a process by 60 more days is “expediting” it.
Noticeably, the shortest section of this bill is Section 209, “Improvement of Training for Supervisors.” The brevity of this section speaks for itself.
Congress is once again giving the appearance of concern for veterans without doing much to actually improve care. What the VA needs is full funding to cover ballooning patient needs. Aging Vietnam War veterans require an increasing amount of medical care while the ongoing wars in Afghanistan and Iraq have left countless veterans in need of urgent care as well as continuing services for chronic conditions and mental health. It’s pretty simple: The increased need for services requires increased services.
Debra D’Agostino is a founding partner of the Federal Practice Group. She has more than a decade of experience in employment law and has represented clients in matters before the EEOC, MSPB, the U.S. Court of Appeals for the Federal and D.C. Circuits and the U.S. Court of Federal Claims.