By William Wiley

In one of the last scenes in The Hunt for Red October, Jack’s with the good Russians in the Red October when Viktor Tupolv, captain of the bad Russians in another submarine, against the wishes of his crew, arms his torpedoes in their tubes before firing them. You see, the reason this is a bad idea is that if the pre-armed torpedoes don’t immediately hit their target, they can circle back and destroy the submarine that initially fired them. Which, of course, is what happens in the movie, thereby destroying the Russian submarine and crew while allowing the Red October to escape to the good old US of A. Just before the pre-armed torpedoes complete their circle and are about to explode the Russian sub, knowing that death is imminent, one of the crew members turns angrily to Captain Tupolev, and says, “You arrogant ass: you’ve killed us!” Then, “Boom,” the end, just like real life is supposed to work.

Right now, you are probably asking yourself “Where the devil is Wiley going with this one? Isn’t this supposed to be a newsletter about federal employment law?” Well, watch this segue, those of you who are faint of heart readers.

Some of you might remember that back in 2010, this newsletter sounded the alarm bell when the two “new” members of MSPB issued three decisions that threw the business of federal employment law for a loop.  Known as The Terrible Trilogy, the cases of Lewis/Villada/Woebcke redefined the importance of comparative penalties in the Douglas factor analysis defending the penalty selection, essentially requiring agencies – for the first time in history – to implement the same penalties for similar misconduct throughout an agency. Since 1981, penalties given to other similarly-situated employees had always been one of many considerations in determining whether a penalty was reasonable. Post-Trilogy, that consideration was raised to a very high level, requiring agencies that fire employees for misconduct to lose their cases and have to reverse the removals if on appeal the employee-appellant could point to other cases like his in which the agency did not implement a removal. Reversal was to become the outcome even if otherwise the employee had engaged in misconduct if the evidence demonstrated disparate penalties.

Man, oh, man, did this reporter have a criticizing fit when The Trilogy was issued. First, it is physically impossible to track all the misconduct within an agency, and then assure that everyone gets the same penalty. Can’t humanly do it because you’d have to know all the MISCONDUCT (not just all DISCIPLINE) within an agency, and somehow centralize all of the agency’s decision making. Second, within weeks, smart agencies realized that discipline within the philosophy of The Trilogy made the most sense if the agency always administered the most severe discipline option available. As a practical matter, an agency could best defend itself if it always terminated for a particular act of misconduct, thereby keeping the bar set high for the next similar acts of misconduct. Doing anything less than removal today could hamstring an agency well into the future for years.

Officially, The Terrible Trilogy remains good law at the Board today. In 2012, new Member Robins wisely dissented from the direction this philosophy was taking, arguing that The Trilogy “attempts to promote a universal consistency in penalty setting, without identifying any legitimate individual interest or broad value under the Civil Service Reform Act that is being promoted.” Boucher v. USPS, 118 MSPR 640 (2012). Unfortunately, Member Robbins is only one vote on a three-member Board, and The Trilogy lives on, despite his disagreement.

Which brings us to appeal decisions released just this month. As most everyone who has had access to the news media these past couples of years knows, our friends at the Department of Veterans Affairs have caught Congressional-Hell because of what has been seen as unaccounted-for gross managerial misconduct on the part of certain senior executives at DVA. So loud has been the outcry that Congress created a law that allows the Secretary of DVA to fire SESers with relatively little due process and a truncated appeal to a single MSPB administrative judge. The goal was to make it easier for DVA to hold its senior leadership accountable by enforcing discipline based on perceived acts of misconduct, with exceedingly little oversight.

DVA has been trying to take advantage of this new law. It has disciplined several SESers within the past 18 months, the appeal results of three of which were released just last week (two demotions and a removal). And guess what: all three were reversed by the Board’s judges, and two of the three reversals (the analysis of the third has not yet been released) were based in large part on the disparate penalty philosophy of The Terrible Trilogy. Yes, charges of misconduct were sustained in both cases. However, even in spite of the proven misconduct, the judges applied The Trilogy, found other employees who in the opinion of the judges were similar-enough to the appellants to warrant the same discipline, and who DVA had chosen not to discipline because the Deciding Official at DVA saw the misconduct of the others to be significantly less harmful. When confronted with such disparity, the judges dutifully applied The Terrible Trilogy and reversed DVA’s demotions of the two individuals. Rubens v. DVA, PH-0707-16-0151-J-1 (2016) and Graves v. DVA, CH-0707-16-0180-J-1 (2016).

Focus on the essence of this situation for a moment:

  1. Congress wants it to be easier for DVA to discipline its senior leadership.
  2. DVA has embarked on an effort to comply with this Congressional mandate.
  3. However, DVA has been frustrated in doing so by MSPB’s Terrible Trilogy philosophy.

As a result of these reversals, it was reported last week that the leadership of DVA is going to try to get its SES appointees removed from Title V of the United States code so that the nasty old MSPB will no longer have jurisdiction over DVA’s attempts to hold its employees accountable . In other words, DVA wants MSPB to go away in large part because of The Terrible Trilogy, the exact cases the FELTG newsletter warned the world about back in 2010. If DVA leadership manages to get Congressional action to move MSPB out of the picture for its SESers, how long will it take for DVA to recognize the huge benefit of no MSPB oversight, and push for legislation that would apply the no-MSPB approach to ALL of its employees? And after that, how long will it be before other agencies see that DVA can hold its employees accountable more easily than can they, and then they will ask for similar MSPB-exclusion from Congress for their agencies?

Captain Tupolev arrogantly launched his torpedoes armed in their tubes, thereby destroying himself and his crew when they circled around. The Board Members at MSPB arrogantly issued The Terrible Trilogy in 2010, mandating that all agency discipline be the same. The Trilogy has now circled around, in the eyes of some allowing senior government managers who have engaged in misconduct to escape accountability for their misconduct. And the result may well be that MSPB becomes irrelevant to government oversight as agencies apply to Congress to be excluded from its jurisdiction. In fact, the day may well come when Congress sees no need for an MSPB whatsoever because of the impediments to accountability that it creates as it decides cases, and the dearth of agencies willing to be constrained by its wacko decisions like The Terrible Trilogy. If that happens, do you know what we’ll all hear in the distance because of what the Board has done to itself?

Boom! [email protected]

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