Board Once More Significantly Reduces Marquee Federal Employee Firing Law
Thousands of workers will no longer be qualified for expedited removal.
A recent board decision, the latest in a string of decisions that have limited the use of the reforms over the last few years, has reduced the Veterans Affairs Department’s ability to swiftly fire employees in accordance with a 2017 law by tens of thousands of workers.
According to a decision made last week by the Merit Systems Protection Board, employees who are hired into “hybrid” Title 38 roles are not qualified for expedited termination under the 2017 VA Accountability and Whistleblower Protection Act. That includes people working in healthcare positions like audiologists, social workers, nurse assistants, physical therapists, and others.
These employees are now receiving the protections granted to non-healthcare workers under Title 5 of the U.S. Code after historically entering the department through special procedures under Title 38 of the U.S. Code. In 2021, the VA attempted to fire Tammika Richardson, a nursing assistant, for being absent without authorization and other reasons, in accordance with the law’s expedited firing provisions. Richardson brought the case to an MSPB administrative judge, who asked the central board to weigh in on whether the law applied to hybrid employees.
VA claimed that Congress, which supported the legislation broadly on a bipartisan basis, intended to cover all healthcare workers, including those in hybrid roles. The board disagreed, claiming that lawmakers’ silence on the subject was a clear indication that those workers were not intended to be included.
The accountability law, which President Trump has repeatedly lauded as a signature legislative achievement and a critical piece of civil service reform, now carries only a fraction of the weight it did when it was first implemented. Since the law’s passage, federal courts have ruled that VA cannot apply the law retroactively and must meet a higher evidentiary standard when proving its case against employees. Additionally, they decided that judges can examine whether the VA’s chosen punishment fits a worker’s alleged misbehavior. A significant portion of the law, as it was written by Congress, attempted to compel the court to accept the level of punishment chosen by VA, provided that misconduct was proven to have occurred.
When VA removed “performance improvement plans” from the pre-disciplinary process, the Federal Labor Relations Authority determined that VA had violated its collective bargaining agreement with the American Federation of Government Employees. In accordance with the ruling, VA had to rehire every employee who had been fired without first receiving a plan like this.
In Richardson’s case, MSPB ruled that VA must start over if it wants to impose discipline. The board stated that the department cannot merely change its punishment to a removal under the old process due to a number of due process issues.
Some of the architects of the accountability law and Trump, who is now running for president once more and promised to continue to target civil servants, suggested that it might serve as a model for future changes to the entire government. It is currently unclear how well the law will be able to achieve its goal of swiftly dismissing employees after being successfully challenged at least three times.
Congress passed the law after the VA gave up a prior attempt to swiftly fire the department’s senior executives after federal courts rendered that law largely ineffective.
With Republicans now in control of the House, efforts to streamline the process of removing federal employees are likely to increase. The “Holman Rule” has been revived, allowing individual lawmakers to suggest lowering the number of federal employees at particular agencies or their pay as a clause in or amendment to an appropriations bill. The Select Subcommittee on the Weaponization of the Federal Government within the House Judiciary Committee was also approved by the House on Tuesday.
“Today we are putting the deep state on notice,” Rep. Dan Bishop, R-N.C., said from the House floor, of the new panel. “We are coming for you on behalf of everyday Americans.”
