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Federal Appeals Board Has Major Concerns With Firing Provisions in New VA Law

Small agency tasked with enforcing those provisions raises questions about their constitutionality and wisdom.

President Obama on Thursday signed a bill to overhaul the Veterans Affairs Department, including provisions to ease the firing of senior executives at the agency.

While getting an agreement through Congress was certainly no walk in the park, the truly hard part must now begin: implementing the reforms.

One major part of the law will make it easier for VA to fire or demote employees in the Senior Executive Service. VA Secretary Bob McDonald, sworn into the position last week, can now fire any SESer immediately. As part of the compromise between Senate Democrats and House Republicans, the affected employee maintains the right to an expedited appeal.

Obama iterated his support for the firing provision at the bill’s signing ceremony at Ft. Belvoir, Va.

“If you engage in an unethical practice, if you cover up a problem, you should be fired, period,” Obama said. “It shouldn’t be that difficult.” 

Executing the appeals process falls on a small, quasi-judicial agency known as the Merit Systems Protection Board. Executives will have seven days to file their appeal to MSPB, which in turn will have 21 days to issue a ruling. If MSPB fails to issue a ruling in that timeframe, the firing would stand, the employee would have no further recourse and MSPB would have to report to Congress why it could not meet its deadline.

The increased workload comes at an inopportune time for the 200-employee agency: MSPB is still dealing with the unprecedented wave of appeals it received after the Defense Department and other agencies furloughed employees last summer. MSPB Chairwoman Susan Tsui Grundmann told Government Executive it has only adjudicated 6,000 of the 33,000 furlough-related appeals it received.

“It is adding more to the workload of our administrative judges,” Grundmann said of the VA bill, though she remained optimistic. “Can we do it? Yes we can.”

She noted, however, there will be some issues. Under current federal statute, MSPB has 120 days to adjudicate a case, meaning the agency will have to issue VA rulings 83 percent faster than it currently does. The discovery period alone -- when agency officials and employees gather and share evidence with each other -- typically takes 25 to 45 days. In the new, VA-specific system, it will last just 10 days, Grundmann said.

MSPB plans to issue an interim rule spelling out its plans “in the next week or two.”

While Grundmann said MSPB supports the overall law and acknowledged the provisions relevant to her agency are part of a “much more comprehensive bill that is a good thing for veterans,” she had several concerns with the firing provisions.

Normally when employees appeal a negative personnel action to MSPB, the first ruling is made by an administrative judge at the regional level. If that ruling is unfavorable to the employees, then they can challenge it to the three-member, presidentially appointed, Senate-confirmed panel. The new law strips VA senior executives of this secondary appeal right. Whatever the administrative judge rules is final.

Removing the panel from the equation raises a “larger question of constitutionality,” Grundmann said.

“We’ve communicated our concerns to the White House,” she said. “We don’t create the laws, we just…implement them.” Grundmann expects the constitutionality of removing the secondary appeal, which she said raises due process concerns, to be litigated outside of MSPB. She and the two other members of the central MSPB panel, all of whom were appointed by President Obama, sent a letter to the White House to air their grievances.

Grundmann said the expedited firings -- affected VA senior executives would be fired immediately, with paychecks cut off the day of the termination -- could challenge the meritocratic system at the core of the civil service.

“There is a possibility,” she said, adding, “I’m not saying it will happen -- VA will clean house,” when a new administration takes office. She also said the law creates a slippery slope: “If it’s VA today, what agency is next?”

The logistical issues also pose a serious problem for MSPB. Hiring more judges might be possible in the long term, but it is not an option in the immediate future as there is not enough time to train them. Grundmann said a lot of unknowns remain, but MSPB will have to push any VA cases to the front of line so it can rule on them quickly.

“We don’t know how many cases we’re going to get,” she said. “We don’t know how quickly we’re going to receive them. We don’t know if we’ll receive them all on Day 1.” She added, “This is an entirely new situation.”

All those variables will determine whether MSPB can take on a potential wave of appeals from VA, the existing backlog of furlough appeals and its regular workload from agencies across government.

“Is it going to be an issue?” Grundmann asked. “I don’t know.”

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