The federal government was dealt another blow in its effort to more easily fire employees after a court once again ruled a key reform law was being unfairly implemented.
The Veterans Affairs Department used a too-low evidentiary standard to justify the firing of a patient advocate employee, the U.S. Court of Appeals for the Federal Circuit ruled on Thursday, remanding the case back to an independent appeals board. The ruling was the latest in a series of setbacks for the VA Accountability and Whistleblower Protection Act, a law Congress passed with broad bipartisan support—and then-President Trump heralded—in 2017.
The case involved Ariel Rodriguez, a Florida-based VA employee who was fired after he took part in a heated exchange with a patient. The argument began after the patient came in to discuss a payment and escalated to the point that VA police became involved. Officers escorted Rodriguez back to his office, but he later returned to continue yelling and cursing at the individual. VA ultimately fired Rodriguez for his actions, calling a subordinate to ask her to change her witness statement and for giving a misleading account to investigators.
Rodriguez appealed the case to the Merit Systems Protection Board, which upheld his dismissal. Before the federal circuit, Rodriguez argued the VA official who signed off on his firing improperly relied on a “substantial” standard of evidence rather than the “preponderance” of it. The “substantial” level requires only that a “reasonable person” could agree with the case presented, while the “preponderance” demands that a majority of evidence supports the case. A key element of the 2017 accountability law lowered the burden of proof to the substantial standard for appeals before MSPB. Rodriguez argued the VA deciding official also using that standard ran counter to his rights, and the appeals court agreed.
The lower standard of proof did not apply to internal VA decision making, the court ruled, setting a new precedent that VA must achieve a higher burden to justify a firing. The same court previously said in a footnote on another case that the department was free to use either standard, but said on Thursday that aside was non-binding and non-essential to its larger case. VA officials determining whether to move forward with a proposed disciplinary action must determine whether the evidence presented meets the preponderance standard, the court said, suggesting MSPB send Rodriguez’s case back to the department for that purpose.
It further ruled that VA must consider the Douglas Factors—the criteria that all federal agencies must use when determining employee punishments—in Accountability Act cases. The department had argued the law exempted it from those considerations, but the court ruled against it.
James Solomon, an attorney at Solomon, Maharaj and Kasimati, which represented Rodriguez in the case, said the court’s decision “opens the door to hundreds, if not thousands, of legal challenges for actions that have already been taken.”
In 2020, the federal circuit appeals court ruled that VA could not apply the law retroactively and appellate judges could review whether VA’s selected punishment fit an employee’s alleged misbehavior. A key part of the law as drafted by Congress sought to force the court to accept VA’s selected degree of discipline so long as the evidence supported that misconduct occurred. The Federal Labor Relations Authority earlier this year reaffirmed an earlier decision that found VA violated its collective bargaining agreement with the American Federation of Government Employees when it eliminated “performance improvement plans” from the pre-disciplinary process. The decision required VA to reinstate all employees fired without first being provided such a plan.
At the time of its passage, Trump hailed the accountability law as a key piece of civil service reform. He and some of its architects in Congress suggested it could provide a blueprint for future governmentwide changes. After repeated successful challenges to the core of the law, it is now unclear how effectively the bill will be able to fulfill its purpose of quickly removing employees.
“I think this Act will serve as a case study and a lesson to Congress and the executive agencies,” Solomon said. “This reactionary attempt to substantially reduce employee rights was done without careful consideration of established precedent and will likely result in more challenges than it prevents.”
source: NextGov
