Appeals Court Sustains Agency Action in its First “714” Decision

A recent [non-precedential] decision by the U.S. Court of Appeals for the Federal Circuit; Hairston v. DVA, Fed. Cir. (2018-2053 Mar. 8, 2019), rejected the appellants due process claim, and sustained the agency action of removal on a charge of “conduct unbecoming of a federal employee.” According to the good folks over at cyberFEDS® this is the appellate courts first “714” decision.

For those of you not familiar with 38 U.S.C. §714. The statute is a result of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017, signed by President Trump that same year. The legislation is only applicable to employees of the Department of Veterans Affairs (although Republicans on Hill are looking to enact some version of the legislation government-wide). The act shortened the timeframes (mostly by shortening the reply periods employees were allotted under previous statutory requirements) for all disciplinary and adverse actions for full-time permanent Title 38 employees, and by also expediting the review process for appeals to the MSPB. More importantly, the new legislation also lowered the burden of proof required to sustain an agency action from preponderance of the evidence to substantial evidence.

The case was a petition for review (PFR) of a Merit Systems Protection Board (MPSB) administrative judge’s decision to sustain the agency action of removing the employee in the case (see MSPB PH-0714-18-0186-I-1). Due to the current lack of quorum at the MSPB, the United States Court of Appeals for the Federal Circuit, is the federal appellate court with jurisdiction to decide on PFR’s under 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).

According to the case background, the appellant had allegedly kissed and harassed a nurse in the medical center where he worked. After his conduct had been reported by a different nurse from the one he had allegedly kissed, the appellants supervisor instructed him not to return to the nurse’s work area. Both nurses in this case reported seeing the employee in their work area later that day. VA police were called and an investigation was conducted. On January 26, 2018, DVA management issued a notice of proposed removal based on charges of conduct unbecoming and failure to follow instructions. Hairston submitted a written reply to the agency and on February 7, 2018, VA management sustained the charges against the employee. Hairston was removed from the agency on February 9, 2018. Hairston then appealed his removal to the MSPB. Upon review, the administrative judge found that substantial evidence supported the conduct unbecoming charge but not the failure to follow instructions charge. Nonetheless the AJ sustained the agency’s removal action.

Hairston, in his PFR of the AJ’s decision, raised several arguments, one of which argued that the administrative judge erred and violated equal protection and due process by failing to conduct a mitigation analysis under Douglas v. Veterans Administration, 5 MSPB 313 (1981). However, in their decision, the court stated:

“38 U.S.C. § 714, enacted as part of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017, provides that in reviewing a removal, ‘if the decision of the Secretary is supported by substantial evidence, the administrative judge shall not mitigate the penalty prescribed by the Secretary.’ 38 U.S.C. § 714(d)(2)(B) (emphasis added). Here, the administrative judge found that Mr. Hairston’s removal on the conduct unbecoming charge was supported by substantial evidence. The administrative judge was therefore not required or permitted to mitigate the penalty.”

You can read the appellate courts full decision here:

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