Board Again Significantly Scales Back Marquee Federal Employee Firing Law

The Veterans Affairs Department's capacity to quickly fire employees under a 2017 law was narrowed by tens of thousands of workers due to a recent board ruling, marking the latest in a series of findings that have restricted the use of the reforms over the last several years. 

Employees hired into “hybrid” Title 38 roles are not eligible for expedited dismissal under the 2017 VA Accountability and Whistleblower Protection Act, the Merit Systems Protection Board ruled last week. That includes those in health care positions such as audiologists, social workers, nurse assistants, physical therapists and others. 

Those workers have historically been brought into the department under special procedures within Title 38 of the U.S. Code, but subsequently receive the protections entitled to non-health care workers under Title 5. VA in 2021 attempted to remove Tammika Richardson, a nursing assistant, for absence without leave and other issues using the hastened firing authority granted in the 2017 law. 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 argued Congress—which passed the measure with broad bipartisan support—intended to cover all health care staff, including those in hybrid positions. The board disagreed, suggesting lawmakers were silent on the issue to signal those workers were not meant to be included. 

The accountability law, which President Trump repeatedly hailed as a signature legislative accomplishment and a key piece of civil service reform, now carries just a fraction of the weight it did when first implemented. Since its enactment, federal courts have ruled VA must use a higher evidentiary standard to prove its case against employees and cannot apply the law retroactively. They also ruled that judges can 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 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.

In Richardson’s case, MSPB said VA must start anew if it wants to bring disciplinary action. Because of various due process concerns, the board said, the department cannot simply convert its punishment to a removal under the old process. 

Trump—who is now once again running for president and promised to continue to target civil servants—and some of the architects of the accountability law 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 measure will be able to fulfill its purpose of quickly removing employees. 

Congress passed the law after VA abandoned a previous effort aimed at quickly firing the department’s senior executives once federal courts rendered that law mostly toothless. 

With Republicans now controlling the House, efforts to ease the process of removing federal workers are likely to ramp up. They have resurrected the "Holman Rule," which allows individual lawmakers to propose reducing the number of federal workers at specific agencies or cut their compensation as a provision of or an amendment to an appropriations bill. The House on Tuesday also authorized the Select Subcommittee on the Weaponization of the Federal Government within the House Judiciary Committee.

“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.”