AFGE scored a major win after the appeals court ruled that the Department of Veterans Affairs had improperly applied a new law expediting an employee’s removal.
In Sayers v. VA, the U.S. Court of Appeals for the Federal Circuit ruled that the VA cannot retroactively apply the 2017 VA Accountability and Whistleblower Protection Act, as it did when it removed Jeffrey Sayers, the chief of pharmacy services for the Greater Los Angeles (GLA) health care system. The court also ruled that the penalties set by the VA are eligible for review by the Merit Systems Protection Board (MSPB).
“When correctly interpreted, § 714 requires the Board to review whether the Secretary had substantial evidence for his decision that an employee’s actions warranted the adverse action. The Board cannot meaningfully review that decision if it blinds itself to the VA’s choice of action,” the court said. “Deciding that an employee stole a paper clip is not the same as deciding that the theft of a paper clip warranted the employee’s removal.”
This is a major victory for VA employees and our union. Even though the chief pharmacist was a supervisor and not an AFGE member, AFGE took an active role in the lawsuit because it impacts all VA employees including our members. In addition to filing our own brief and participating in oral argument, AFGE provided input to Sayers’ attorney for his argument on penalty assessment.
The Trump administration has waged a war against federal workers. In June 2017, President Trump signed into law the Veterans Affairs Accountability Act, promising to help the VA get rid of unethical managers and help veterans get their health care faster. The legislation allegedly was in response to the wait list scandal in which managers manipulated wait list data to qualify for big bonuses.
But nearly two years after the bill became law, it has been a massive failure – as AFGE predicted. The law was meant to be a tool to help the agency get rid of unethical managers, but instead it has been used to empower managers to fire low-level employees, many of whom are veterans themselves.
In Sayers’ case, the VA in 2016 reassigned him from the chief pharmacist position and later terminated him using the new law to speed up his removal. He appealed his removal to the MSPB, arguing that the VA couldn’t retroactively apply the law and that the agency violated his due process rights and the VA’s own policy of progressive discipline. The administrative judge rejected Sayers’ argument, prompting him to appeal his case to the appeals court.
AFGE applauds the appeals court for upholding justice.
“This is a major and well-deserved victory against so-called accountability in the Department of Veterans Affairs,” said AFGE President Everett Kelley. “In practice, the administration's signature accountability legislation hasn't improved care for veterans, but instead has only sped the firing of frontline employees, over a third of whom are veterans themselves, contributing to ballooning vacancies within the department. Those vacancies now stand dangerously high at nearly 50,000 -- just as the nation is depending on the VA to surge health care resources to help a medical system overwhelmed by a pandemic.”
“This court decision makes it a little easier for employees to receive a fair outcome while AFGE continues to fight on Capitol Hill to reverse this horrific law,” he added.