Congress continues its attack on the due process rights of federal employees and the Merit Systems Protection Board.
In early July, the House passed the Government Reform and Improvement Act, H.R. 4361, which was supposed to be a short bill on information technology modernization. Instead, lawmakers packed it with major changes to the civil service system, all in the spirit of chipping away at federal employees’ due process rights and the reach of the Merit Systems Protection Board, one of the most efficient and well-run bodies in the federal government.
Congress must be intent on ensuring that the best and brightest are not drawn to the civil service, and definitely not to the leadership positions in the Senior Executive Service. The most worrisome aspects of the bill are Title III, which extends the probationary period for all federal employees from one to two years; and Title IV, which expands to the rest of the federal government provisions in the 2014 Veterans Access, Choice and Accountability Act that limit the MSPB appeal rights of SES members of the Veterans Affairs Department.
Let’s start with Title III. New employees who are fired during their probationary period have no right to appeal to the MSPB. If the probationary period is extended from one to two years, agencies could fire employees for any reason or no reason during that two year period, as though they were “at will” employees in the private sector. This change would only further enable poor supervisors and deter them from doing their job to train and assess employees. I challenge Congress to find a Fortune 500 company with a similar policy. Any private company would identify and weed out a bad fit or a poor performer immediately instead of permitting them to linger for two years. Positive change must come from the top down, by requiring federal managers to actually manage the workforce, not sit back and let problems fester, which under this bill they would be permitted to do for a whole additional year.
The most problematic part of the bill, though, is Title IV, which curtails the due process and MSPB appeal rights for all senior executives. The bill expands the scheme Congress imposed upon the VA’s Senior Executive Service members under the Choice Act, and similarly shortens the notice and reply period for adverse actions; shortens the time to appeal an adverse action to the MSPB (from 30 days to 7); and shortens the time the MSPB administrative judge has to adjudicate an appeal from 120 days to 21 (and if the AJ can’t meet that insane deadline, the agency’s adverse action decision stands and the MSPB has to explain to Congress why it couldn’t meet the 21-day deadline). Meanwhile, the VA has announced that it will no longer use the expedited firing authority in the Choice Act because the Justice Department has determined the Choice Act provisions conflict with the Appointments Clause of the Constitution.
President Obama has threatened to veto the Government Reform and Improvement Act, but Rep. Jeff Miller, R-Fla., already has proposed a new bill that would eliminate entirely MSPB appeal rights for SES members at the VA, and truncate the MSPB appeal rights of the VA’s general schedule employees. Congress doesn’t seem bothered by that hoary old document called the Constitution when it comes to closing off employees’ access to the MSPB (where the government wins 99 percent of the time, making Congressional ire toward due process rights all the more inexplicable).
These developments should be of grave concern to all federal employees. That ominous noise you hear is the sound of your civil service protections going down the drain.
Debra D’Agostino is a founding partner of The Federal Practice Group Worldwide Service. 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.
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