Federal Circuit Rules VA Must Use Higher Evidence Standard, Apply Douglas Factors
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
On February 24, 2022, the United States Court of Appeals for the Federal Circuit issued Bannister v. Department of Veterans Affairs and Bryant v. Department of Veterans Affairs. These two complementary opinions followed the court’s 2021 precedent in determining the procedures the Department of Veterans Affairs (the VA) and the Merit Systems Protection Board (the Board) must follow to support disciplinary actions under 38 U.S.C. § 714.
In Bannister v. Department of Veterans Affairs, the VA issued Ms. Bannister, a staff pharmacist, a notice of proposed removal under 38 U.S.C. § 714 for alleged conduct unbecoming a federal employee. In August 2020, the VA issued a final decision sustaining the charge of conduct unbecoming but mitigating the proposed penalty to a 30-day suspension. Importantly, the deciding official stated that the charge was “supported by substantial evidence.”
Bannister appealed her suspension to the Board. An administrative judge affirmed the agency, stating that the agency “proved by substantial evidence” that the conduct occurred. The administrative judge’s initial decision became the final decision of the Board. Bannister subsequently appealed to the Federal Circuit, where she raised the argument that the VA did not apply the correct standard of proof in determining whether the charge was supported by the evidence.
As the court explained, 38 U.S.C. § 714 was enacted by Congress in 2017 to expedite the procedures used by the Secretary of Veterans Affairs when removing, demoting, or suspending employees when warranted by the individual’s conduct. Section 714 instructs that, on appeal to the Board, “the administrative judge shall uphold” a decision by the VA “to remove, demote, or suspend an employee . . . if the decision is supported by substantial evidence.” §714(d)(2)(A). In August 2021, the Federal Circuit issued Rodriguez v. Department of Veterans Affairs, which clarified that the ‘substantial evidence’ standard of proof referenced in section 714 applies only to the standard of review applied by administrative judges and the Board. So, preponderance of the evidence, a higher burden of proof, is the “minimal appropriate burden of proof” the VA may use in determining whether alleged misconduct occurred in section 714 disciplinary actions.
As applied to Bannister, the court stated that the VA deciding official’s use of ‘substantial evidence’ as the standard of proof was “in error,” and it therefore vacated the portion of the Board’s decision affirming that the agency proved the conduct occurred.
Next, in Bryant v. Department of Veterans Affairs, the VA issued Mr. Bryant, a VA police officer, a notice of proposed removal under 38 U.S.C. § 714 for conduct unbecoming a federal employee. In July of 2020, the VA issued a final decision sustaining the charge of conduct unbecoming and removing Bryant from his position. The deciding official stated that the charge “was supported by substantial evidence.” Additionally, the deciding official did not address the Douglas factors when sustaining the removal penalty. The Douglas factors refer to twelve factors that agencies must consider when determining whether a penalty is reasonable.
Bryant appealed his removal to the Board. An administrative judge found that the agency proved the charge by substantial evidence and also upheld the removal penalty without addressing the Douglas factors. The Board adopted the decision of the judge, and Bryant appealed to the Federal Circuit. At the Federal Circuit, Bryant argued that the VA applied the wrong standard of proof in upholding the charge and that the VA and the Board did not apply the Douglas factors as they were required to.
In dealing with Bryant’s first argument, the court established that Bryant’s removal was carried out under section 714 and came to the same conclusion as it did in Bannister. Again following its decision in Rodriguez, the court determined that the agency was still required to prove the charge by a preponderance of the evidence. Because the deciding official in Bryant used ‘substantial evidence’ as the standard of proof, the court held that the deciding official erred and it vacated that portion of the Board’s decision.
The court subsequently addressed Bryant’s argument that the VA and the Board were required to apply the Douglas factors in weighing the reasonableness of his removal. Section 714(d)(2), a part of the expedited VA disciplinary processes enacted in 2017, states that, when a VA employment action is under review, the administrative judge and the Board “shall not mitigate the penalty prescribed” by the VA. This new provision prompted questions about whether the VA or the Board needed to consider the Douglas factors when taking disciplinary actions. The Federal Circuit answered this question in Connor v. Department of Veterans Affairs in August 2021, when it held that “[section] 714 did not alter preexisting law” regarding the Douglas factors and that “the VA and the Board must continue to apply the relevant Douglas factors in considering the reasonableness of the penalty.” Neither the deciding official nor the Board applied the Douglas factors to Bryant’s removal and, as such, the court vacated the penalty portion of the Board’s decision.
Find the full cases here: Bannister v. Department of Veterans Affairs and Bryant v. Department of Veterans Affairs.
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