In two opinions issued on August 12, 2021, the United States Court of Appeals for the Federal Circuit found that the Department of Veterans Affairs erroneously interpreted the provisions of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 when disciplining its employees. The purpose of the 2017 law, codified at 38 U.S.C. § 714, was to provide for expedited discipline of VA employees, strip MSPB of its authority to mitigate the VA’s chosen penalty, and to impose a less rigorous burden of proof on the agency at the appellate level than a traditional MSPB appeal.

The Biden administration recently announced that it would extend Title 5 federal employee protections to workers at the Transportation Security Administration (TSA). This includes granting them collective bargaining rights, access to the Merit Systems Protection Board (MSPB), and aligning their wages with the General Schedule.

The United States Court of Appeals for the Federal Circuit described the litigation of a case it adjudicated on May 14, 2021 as “the decade-long journey of a hard-working man who served his country honorably, only to face workplace discrimination on the basis of that service.” In its opinion, the Federal Circuit held that the Merit Systems Protection Board (MSPB) erred in finding that the candidate’s nonselection for a position at the Department of the Navy would have occurred “regardless of his prior military service.”

Before a federal employee can be terminated for unacceptable performance, the employing agency must provide the employee with an opportunity to demonstrate acceptable performance.

McKenzie Holmes was a U.S. Postal Service (“USPS”) employee from 1989, until his removal in 2018. At the time of his removal, he worked as a city carrier at the Fort Dearborn Station in Chicago.

A VA police officer was removed by the Department of Veterans Affairs under the 2017 “accountability” law 38 U.S.C. § 714 that limited review of VA’s actions against general schedule employees. The removal was based on conduct occurring prior to the enactment of the law. The employee appealed to the MSPB, and the MSPB affirmed the removal. On December 7, 2020, the United States Court of Appeals for the Federal Circuit vacated the MSPB’s decision, and remanded the case to the MSPB with instructions to remand the case further back to the agency.

The MSPB cannot consider an agency’s interpretation or presentation of evidence to decide whether an individual-right-of-action presents a non-frivolous allegation of whistleblower reprisal, the Federal Circuit clarified in a recent holding.

In 2018, the United States Court of Appeals for the Seventh Circuit held the MSPB acted arbitrarily and capriciously when it dismissed an ATF employee’s Individual Right of Action appeal. The Seventh Circuit’s 2018 opinion found that the employee “properly alleged a ‘protected disclosure’ and exhausted his administrative remedies so that the Board had jurisdiction to evaluate the merits of his claim.” The MSPB AJ denied relief, and the employee appealed to the Seventh Circuit again. On July 16, 2020, the appeals court again held that the MSPB acted arbitrarily, capriciously, and contrary to law. This time, the remand to the MSPB was only on the extent of relief to the employee.

This week on 60 Minutes, Norah O’Donnell and the CBS investigative team did a deep dive into the federal agency responsible for providing federal employees with appeal rights should they be disciplined, demoted, or fired: the Merit Systems Protection Board (MSPB). Since 2017, the MSPB has lacked a quorum of board members, preventing it from fully functioning. For over a year, the board has not had any members at all.