On July 19, 2019, the appellant timely filed this appeal to contest his removal from the position of Health System Administrator, GS-0670-13, from the Department of Veterans Affairs’ (VA or agency) Chattanooga, Tennessee location, effective July 16, 2019. Appeal File (AF), Tab 1. The Board has jurisdiction over this appeal. 38 U.S.C. § 714; 5 U.S.C. § 7701(b)(1). On October 17, 2019, the appellant withdrew his hearing request and asked for a decision on the written record. AF, Tab 21. For the reasons set forth below, the agency’s action is REVERSED.
In Helman v. Dept of Veterans Affairs, No. 2015-3086, issued May 9, 2017, the Court of Appeals for the Federal Circuit held that the accelerated removal procedures of the Veterans Access, Choice and Accountability Act under which Ms. Helman was terminated constituted an unconstitutional delegation of authority to an administrative judge of the Merit Systems Protection Board in violation of the U.S. Constitution’s Appointments Clause. The abbreviated removal appeal procedures in that law were enacted in 2014 to make termination of VA executives easier. The Court held other related provisions of the law to be valid. The due process rights of federal employees arise are constitutionally protected and cannot be summarily revoked. The VA’s care problems do not arise from dishonest, lazy or incompetent employees, but from Congress’s underfunding of the long term costs of military actions. The publicized delays and reporting manipulations are symptoms of that shortage and the underlying problem will not be corrected by making it easier to fire VA employees.
In Synder v. Dept. of Navy, Federal Circuit, April 27, 2017, the Court of Appeals for the Federal Circuit affirmed Merit Systems Protection Board’s approval furloughs of the plaintiff resulting from the October 2013 sequestration. The legal standard applied is that an agency’s furlough decision must “be a reasonable management solution to the financial restrictions placed on the agency” and the agency must “determine which employees to furlough in a fair and even manner.” 5 U.S.C. 7513(a); 5 C.F. R. 1201.56(a)(1)(ii)(2015). This standard had been employed in several earlier cases including Einboden v. Dept. of the Navy, 802 F.2d 1321, 1323 (Fed. Cir. 2015). Federal agencies have the legal authority to furlough employees, but they must do this in the proper manner and the employees remain entitled to recover the pay that they lost.
On February 17, 2017, the Unites States Court of Federal Claims, issued a decision that doubles the back pay due federal employees from the October 2013 government shutdown. Donald Martin, Jr. v. United States, No. 13-843, U.S. Court of Federal Claims, 2017). The class action case was brought under the Fair Labor Standards Act which requires employers, including the Federal government, to pay employees, at least the minimum wage and overtime. The FLSA further provides for a doubling of the back pay due where a violation has been found to be willful. The Court found that the FLSA had been violated and the violation was willful. Congress should recognize that laws that they had previously passed will be violated if they fail to authorize the funding needed to meet the obligations created by those laws.
In Hively v. Ivy Community College of Indiana (7th Cir. 2017) an en banc decision characterized as “momentous” by the dissent, the U.S. Court of Appeals for the Seventh Circuit holds that Title VII of the 1964 Civil Rights Act’s prohibition of discrimination on the basis of sex covers claims of employment discrimination based on sexual orientation. This holding has previously been rejected by other courts, although the Equal Employment Opportunity Commission has advocated for this coverage for several years. The Hively decision means that nearly all employers within the geographical jurisdiction of the 7th Cir. (Illinois, Indiana and part of Wisconsin) cannot refuse to hire, promote or otherwise discriminate against gays, lesbians and presumably transgender individuals. There are decisions rejecting this holding in other jurisdictions. The issue is likely to be decided some day by the U.S. Supreme Court, whose current composition would be likely to uphold with the Hively decision. April 5, 2017.
On December 10, 2014, an Administrative Judge of the Merit Systems Protection Board issued an Initial Decision that reversed our client’s removal and found 1) the Agency abused its discretion in denying the Appellant leave, 2) the Agency discriminated against Appellant on the basis of her disability, and 3) the Agency retaliated against Appellant in removing her. The Appellant was promptly reinstated and the issues of compensatory damages and attorneys were subsequently resolved in mediation.
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
OFFICE OF PERSONNEL
1996 MSPB LEXIS 1167
November 19, 1996