By William Wiley, April 18, 2018

Consider this hypothetical. Wife gets home one night and says to Hubby, “Honey, the car is broken.” Hubby, being something of a shade tree mechanic, jumps from his Barcalounger and heads for the garage. First, he replaces the car battery. Then, he tunes the engine. Finally, he replaces the fuel pump because he knows that this particular model of automobile often has fuel pump problems. Proudly, he tells Wife about all the good things that he has done to fix the car. And that’s when Wife says, “But Honey, the problem is the rear axle is busted.”

The approach that Hubby took, attempting to fix something before identifying what is wrong, is exactly what Congress is doing relative to improving our ability to hold employees accountable within the civil service. Our leaders have already extended the probationary period in DoD from one year to two and are considering a similar extension for the entire executive branch. Separately, the President recently signed a bill into law that applies only to the Department of Veterans Affairs (DVA) that reduces the evidence burden in misconduct removals from preponderance to substantial, shortens the notice and appeals periods so that removals move a bit more quickly through the system, and takes away the authority for judges and arbitrators to mitigate removals to some lesser penalty if a removal is seen as too severe. And finally, Congress has taken away most of the authority for an agency to offer an employee administrative leave in exchange for the employee quitting without the agency having to defend a removal through the litigation process.

Yet, I see no evidence that our leaders have taken the time to check the rear axle before making these changes. Personally, I’ve run into few situations in which a longer probationary period would make a significant difference in our ability to hold individuals accountable. Shortening the notice and appeal periods mostly disadvantages the slower employee who can’t get his act together to defend himself. Otherwise, that’s not of much help, either. We still have to defend the agency’s removal no matter how fast or slow the employee is in filing an appeal.

What our leaders should be doing is looking at situations in which agencies have a problem holding employees accountable, identifying the bumps in the road, then passing legislation to smooth out those bumps, to whatever degree Congress wants them smoothed. Since the folks on The Hill seem to be too busy right now to do this sort of background work, here at FELTG we’ll show them how it’s done, in case they ever get a little spare time. While Congress may prefer the “Fire, Ready, Aim!” approach, we’re big believers in “Ready, Aim, Fire!” when it comes to changing the civil service.

Here’s a somewhat typical case with a mid-level of complexity that might give us some ideas as to what is wrong with the civil service accountability system. The agency fired the employee based on three charges:

A. Failure to perform duties, 11 specifications.
B. Failure to perform supervisory duties, 5 specifications.
C. Failure to perform duties in a timely manner, 1 specification.

As a removal is an adverse action appealable to the US Merit Systems Protection Board, the employee appealed and received a decision from an MSPB administrative judge. The judge held:

A. Failure to perform duties, 11 specifications.
• Judge: Sustained 1, dismissed 10 specifications.
B. Failure to perform supervisory duties, 5 specifications.
• Judge: Sustained 0, dismissed all 5 specifications and thereby the charge.
C. Failure to perform duties in a timely manner, 1 specification.
• Judge: Sustained the 1 specification.

Given that the judge sustained only 2 of the original 3 charges, and only 2 of the original 17 specifications, he found removal to be too severe and mitigated the termination to a demotion.

On subsequent appeal to the three Presidentially-appointed Board members, the Board agreed with the judge: two out of three charges affirmed, and mitigation of the removal to a demotion.

On subsequent appeal to the Federal Circuit Court of Appeals, the court affirmed only one of the two charges sustained by the Board. Therefore, it remanded the case to the Board to reconsider an appropriate penalty. There, the case will rest indefinitely because the Board now lacks enough members to issue decisions due to two unfilled member vacancies. Mott v. DVA, No. 2017-1222 (January 26, 2018).

Let’s dissect the decisions made in this case and see if we can pick up any hints as to what’s wrong with the civil service accountability system.

1. The length of time involved here and the expense to the government and the employee to get a resolution of this matter is horrendous. The employee was fired in November 2013. As of today, the eventual resolution of the case remains undecided for over four years, with it likely being a total of FIVE YEARS before a reconstituted Board is able to issue a final decision. Geez, Louise. It takes only three years to get through law school. In the early 16th century, Magellan circumnavigated the globe in three and a half years. World War II ended with fewer than four years of United States involvement. Who could possibly argue that in comparison, it makes sense to take longer to resolve a civil service dispute?

2. The employee was removed in November 2013. Without holding a hearing, the judge ordered her restored to a lower-grade by his initial decision in April 2016. When I was Chief Counsel to the Chairman at MSPB, judges had to issue decisions within 120 days, including any time it took to hold a hearing. Why did this no-hearing case sit with the judge for over TWO YEARS? I’ve reviewed tens of thousands of judge’s decisions in my career, and I can find nothing in this one that explains the excessive length of the delay.

3. Of the 11 specifications brought under Charge A, 7 required the employee to meet a performance standard of at least 85% utilization. The agency’s evidence shows that she actually performed at the 91% utilization level. Congress recently changed the law so that DVA needs only substantial proof level to prove a charge, not the higher-level of a preponderance of the evidence. In this case, the proof is at the ZERO level. It does no good to lower a standard if the agency cannot produce ANY evidence at all.

4. The other three Charge A specifications that were not sustained by the judge were based on a similar finding, that the agency produced ZERO evidence to support the specifications. Folks, this is not a careful balancing of “some evidence goes this way and other evidence goes that way.” If it were, DVA would benefit from the lower burden of substantial evidence. However, when there is NO PROOF to support a specification, a lower substantial-evidence burden is irrelevant.

5. Regarding the five specifications the agency put forward to support Charge B, two of them did not make it beyond a telephonic status conference. That’s how badly they were framed; they were so non-specific that they violated due process. Woof. DVA sends some of its best and brightest practitioners to our FELTG training programs where we teach that specificity in charges is absolutely essential. What happened here? Are you guys letting non-FELTG-certified practitioners draft proposed removals? Law changes aren’t going to help that.

6. Two other Charge B specifications failed because even though the misconduct was described in the proposal notice, no witness testified to support the incident, nor did agency counsel argue the specifications in closing brief. That’s ZERO evidence if you’re counting. If you have been certified by FELTG to practice MSPB law, you might remember our “colorful bubbles” diagram. We use colorful bubbles to demonstrate graphically that the agency probably will lose if its arguments and evidence change as the action moves through the redress process. Here, the evidence and arguments changed between the proposal/decision notices and the case before the judge. This is a classic mistake not likely to be made by FELTG-certified practitioners.

7. In another Charge B specification, the agency alleged that the employee had a poor relationship with a subordinate. Again, the judge found that the agency presented ZERO evidence to support this claim.

8. The employee was fired from a GS-7 position. The judge ordered her restored (on an interim basis, pending the eventual outcome of her appeal) to a lower graded position, something less than a GS-7. Yet today, a web search shows someone with the appellant’s name at her original work location holding a GS-9 position. So, we are continuing to fight about …?

9. There are three steps in our civil service redress and accountability system if a removal is
involved:

I. Judge’s decision
II. Board’s decision
III. Court’s decision

In this case, the employee was successful at Step I. Two years ago, the judge ordered her restored to employment, albeit at a lower grade level than the level from which she was fired. However, the employee believed the mitigated demotion also to be unwarranted, so she (not DVA) pressed forward to Step II the Board, and Step III the Court (and now back to the Board), attempting to have the demotion reduced to some lesser penalty or set aside altogether. Of course, that is her right to challenge a penalty she believes to be too severe. But consider the taxpayer cost of this continued litigation.

10. The judge in this case is highly respected. By my reckoning, he is the most senior judge at MSPB today. He’s been a Board administrative judge for more than 30 years. Yet, the court found that he had made a freshman’s mistake when deciding the case (considering evidence outside of the record, aka “extra-record” evidence). If we have a civil service accountability oversight system so complex that even this judge might make a critical error, something indeed is wrong with the program.

These ten items alone give us focus regarding changes that need to be made, and changes that have little value. For example, most of the statutory changes being considered on The Hill today that would expand the DVA new procedures to the rest of the executive branch will do us little good. Lowering the burden of proof from preponderance to substantial is useless if an agency presents no evidence at all to support a charge. Shortening the notice period and the appeal timelines does not help if the employee manages to file an appeal anyway. Extending the probationary period from one to two years is irrelevant to firing a longer-term career employee as was the case here.

The only worthwhile change currently in place at DVA and potentially in play for the rest of the agencies is the abolishment of the Board’s authority to reduce a penalty. Without mitigation authority in this case, once we have a single specification being upheld (with the court’s decision, we are now down to 1 out of 17 specifications), we are done. This removal would have been upheld by the judge (who affirmed 2 of 17 specifications), and there would be no court remand because there would be no need for MSPB to reconsider the penalty given that a specification failed due to judge error. That is a HUGE benefit to the agency.

If you believe that an agency should be able to fire a 15-year civil servant with no prior discipline because she failed to comply with a single supervisory instruction, you should be dancing in the streets. If you believe that our civil servants deserve a higher degree of protection, you are in for a big disappointment once the DVA procedures are enacted for your agency. The world, she is changing.

Speaking of changing, check this out. The court’s Mott decision has dropped a little bomb in our business of civil service law. Here are the well-established principles at issue:

  • •Bad employees can be fired for either unacceptable performance or misconduct.
  • If fired for misconduct, the agency’s burden of proof is “preponderance.” 5 CFR 1201.56(b)(1)(ii). The procedures are found at 5 USC Chapter 75.
  • If fired for poor performance, the agency’s burden of proof is “substantial.” 5 CFR 1201.56(b)(1)(i). The procedures are found at 5 USC Chapter 43.
  • An agency is free to take a performance-based removal using the procedures found at 5 USC Chapter 75. When doing so, it is bound to the “preponderance” burden of proof. Lovshin v. Navy, 767 F.2d 826 (Fed. Cir. 1985).

In this case, DVA chose to take the Lovshin approach with the employee, invoking 5 USC Chapter 75 procedures to fire the employee for bad performance. The judge and the Board adjudicated the decision as a Chapter 75 removal. However, here’s a direct quote from the Federal Circuit’s decision:

The VA bears the burden of proving its charge in an action based on unacceptable performance by substantial evidence. See 5 CFR 1201.56(b)(1)(i) (2015).

Oh, lordy. Where did this rule come from? Is the court trying to tell us that we need only substantial evidence if we use Chapter 75 for a performance removal? They’ve certainly never said that before. Or, is this law so confusing that the United States Court of Appeals for the Federal Circuit simply misread the facts of the case and applied the wrong statute? And their fact-checkers did not catch it before issuing the decision? Neither answer is a good answer, no matter which one is correct. They both tell us the accountability oversight procedures for the civil service need some serious tweaking to make them more usable while still being fair to the employee.

We’ve said it before here at FELTG, and we’ll say it again. What Congress needs to do is get together the smartest, most experienced people it can find who know the federal workforce. Lock them in a room, stock the place with Red Bull and pizza, and don’t let them see the light of day until they come up with a comprehensive, soup-to-nuts, reform plan for the civil service. Require this group to base their recommendations on facts, not speculation. Reconsider the philosophy of just how much protection federal workers really need balanced against the needs of agency management to run the place. Check to make certain that it is the back axel that needs repair, and don’t mess around with anything else. Do this and America will be a greater country for the effort. Wiley@FELTG.com

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