Merit board head says with new VA law ‘we are absolutely in new territory’

Columnist August 10, 2014

Susan Tsui Grundmann and her colleagues on the Merit Systems Protection Board (MSPB) find themselves in an unusual position.

The small, quasi-judicial executive branch agency describes itself as “the guardian of Federal merit systems.” Now, however, the three members of the board are prohibited from guarding a small group of federal employees — Senior Executive Service (SES) members in the Department of Veterans Affairs — from merit-system abuse.

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

A law signed last week by President Obama, after overwhelming approval by Congress, makes the bipartisan panel irrelevant to VA senior executives facing demotion or firing. The Veterans’ Access to Care through Choice, Accountability, and Transparency Act is designed to strengthen services for veterans from a department beset by scandal involving the cover-up of long wait times for care. An understandably angry Congress unreasonably retaliated by slashing the civil service appeal rights available to VA SES members.

If Senior Executive Service officials at VA feel their demotion or termination violates merit principles, they now have just one week to appeal to the MSPB. MSPB administrative judges must rule on appeals within 21 days. Those are much quicker cutoffs than the timelines available to other federal employees. If a judgment can’t be made within 21 days, the department wins and the employee loses by default.

Do you smell a fig leaf?

The deadlines could be impossibly tight in many cases. But if that’s not punitive enough, VA senior executives no longer are allowed to appeal rulings by administrative judges to the full board, as feds generally can.

That leaves Grundmann and the other presidentially appointed board members irrelevant to a process they are charged with upholding.

Grundmann, whom the MSPB calls “chairman” despite the obvious inaccuracy, talked with the Federal Diary about the new law and its impact on the Merit Systems Protection Board. A bit restrained, as federal officials are, the former National Federation of Federal Employees general counsel nonetheless indicated her displeasure with the law’s provisions affecting her agency, while praising other parts of the measure. Here is some of what she said, edited for length:

“Three board members . . . who are all presidentially appointed and Senate confirmed have been removed from the process entirely. Having said that, we are absolutely in new territory.

“Our average processing time at the [administrative judge] trial level is 93 days, so it’s pretty fast already. Our internal rules require that the administrative judge finish the case in 120 days. What the VA legislation does [is take] off more than 80 percent of our processing time” from the administrative judge process.

Other federal employees can appeal an administrative judge’s ruling to the full board and potentially to federal court, which can take much longer. VA senior executives no longer have that option.

Grundmann: “There’s a larger question regarding the constitutionality of the legislation, by eliminating the three board members who are tasked with reviewing these cases and providing some sort of continuity between each case. We’ve communicated our concerns to the White House, but we don’t create the law here. These larger issues are clearly going to be litigated.”

The law raises issues outside of the department.

“One of our concerns is really beyond the VA,” Grundmann said. “The federal civil service system is a meritocracy. It was created to address the ills associated with the spoils system, where government employees got their jobs in return for political support.”

Then she issued this warning:

“It is possible — I don’t know if it is likely — but it is possible that when a new secretary comes to the VA that he or she can clean house at the highest levels with no notice and an expedited review.

“We have to remember where we came from in the 19th century. Let’s not go back there again.”

The board already is playing catch-up to about 33,000 appeals from federal employees who were furloughed during last year’s budget-cutting period known as sequestration. So far, about 6,000 of those cases have been resolved, according to Grundmann. Some workers, “a small percentage,” she said, have prevailed because they should have been exempted from furlough but were not.

In addition to the remaining furlough appeals, Grundmann said MSPB has 5,000 other cases to consider on a variety of issues. But now, will those cases have to step back to allow those from VA to meet the congressionally imposed timeline?

“The answer is yes,” Grundmann said, “because the legislation is going to require us to do it.”

Twitter: @JoeDavidsonWP

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.

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