VA Defends Its Firing Law in Court Against Multiple Constitutional Challenges

The Veterans Affairs Department is fighting on multiple fronts to preserve a power Congress afforded it less than two years ago, attempting to knock down multiple legal challenges to the constitutionality of a provision enabling it to more easily fire employees.

VA this week filed a written rebuttal in one case and held oral arguments in another defending its use of the 2017 VA Accountability and Whistleblower Protection Act in two separate federal courts. In both cases, a former VA employee is looking to fault the department for misapplying the law and, further, the underlying principles of the measure as unconstitutional. President Trump has consistently highlighted the law, which marks the most significant change to civil service statutes in decades, as one of his signature legislative achievements.

The cases potentially could have far-reaching impact, as either of the federal circuit courts could issue a precedent-setting ruling on the constitutionality of the 2017 law. A previous effort to ease the firing of just Senior Executive Service employees at VA signed into law by President Obama was eventually struck down in federal court, and the department stopped using the authority.

Jeffrey Sayers, a former Veterans Affairs Department pharmacist for 37 years and until recently the chief of pharmacy in the Los Angeles area, brought his case to the U.S. Court of Appeals for the Federal Circuit after an executive branch judge upheld VA’s decision to fire him. VA is simultaneously fighting a challenge in a different court on the Federal Circuit, where Allyn Mogil said the department overstepped its authority in removing him. Mogil and VA exchanged oral arguments on Tuesday.

In both cases, the former employees said they were not afforded appropriate due process because of the swiftness with which they were terminated. Sayers, for example, said he was not provided with an adequate opportunity to improve performance. Mogil noted that VA disregarded the Douglas factors typically applied to fired civil servants, which his legal team claimed was never the intention of lawmakers in passing the Accountability Act.

The 2017 law allows VA to remove any employee on an expedited time frame using a reduced burden of proof. Federal agencies typically have to demonstrate a “preponderance of evidence,” meaning it is more likely than not that the employee is guilty, but the law allowed VA to instead demonstrate only “substantial evidence.”

Another provision of the law raised in both cases is a prohibition on the Merit Systems Protection Board, the quasi-judicial agency that adjudicates adverse actions against federal employees, from mitigating penalties VA has doled out. Both Sayers and Mogil originally took their cases to MSPB, where administrative judges said the law prevented them from changing a termination to a lower penalty like a suspension. In both cases, the judges upheld VA’s firings.

VA removed Mogil, an engineering technician in Minneapolis, after a longstanding disagreement with his office-mate over lighting led him to destroy the light switches in the room with a hammer. While Mogil admitted guilt, he said his previous efforts to resolve the situation were ignored, he apologized to his coworkers and he acknowledged he was out of line. In his appeal of the MSPB decision affirming the firing, he said the administrative judge erred in declining to consider the degree of the penalty. He argued if either VA’s charge or the reasonableness of the penalty were not substantiated, the judge must not uphold the department’s action.

Sayers was fired for a failure to follow orders after he allegedly did not correct a faulty element of the patient record system he was using to fill prescriptions. VA found the alleged negligence harmed two veterans. Sayers was subsequently cited for alleged violations such as using expired equipment and not properly locking away pharmaceuticals. He has denied all the charges against him.

His legal team at The Whistleblower Law Firm argued that even if he were guilty, VA improperly applied the Accountability Act to his case retroactively. VA dismissed this argument, noting Sayers did not raise it in his original case. Additionally, Sayers’ attorneys said that while MSPB itself cannot mitigate a penalty, it can remand the case back to VA to take such an action.

“It is both confounding and unconstitutional that a presidentially appointed and Senate confirmed officer, who is charged with upholding and protecting merit systems principles, would have no choice but to accept the penalty determination of a deciding official ... who is not a principal officer of the United States.”

VA said such a step would be overly burdensome and defeat the purpose of the law.

“This reading would lead to a game of administrative ping-pong that would prolong the ultimate resolution of disciplinary proceedings, a result clearly at odds with Congress’s desire for expeditious action in this area,” VA said.

Sayers’ team implored the appeals court to issue a broad decision that would have far-reaching impact on the constitutionality of the law and its implementation, noting that MSPB has no members on its central board and therefore cannot issue any precedent-setting rulings to guide decision-making by administrative judges.

“Though the act has been used to remove thousands of agency employees, neither the Board nor this Circuit Court has issued a precedential decision that would provide consistency to the entirely inconsistent and flawed rulings by the Board’s administrative judges,” Sayers’ attorneys said. They also asked the court to rule on the issue of retroactivity to ensure “consistent applications of a law that has been used unjustly and applied inconsistently.”

They also argued that the lower evidentiary threshold, coupled with all other reforms in the Accountability Act, has violated protections guaranteed to all federal civil servants.

“They are not afforded due process of the law,” the lawyers said. “Employees who have dedicated over three decades of their lives to federal service are no better off than at-will employees.”

VA pointed to the language lawmakers used when debating the measure, saying it has followed both the letter of the law and congressional intent.

Sayers' “misconduct is exactly the sort that the Accountability Act was designed to address,” the department said.