finding that the Board could not sua sponte convert a 38 U.S.C. § 714 removal appeal to a 5 U.S.C. chapter 75 removal appeal because it would be “inherently unfair”
How later courts described this case
- finding that the Board could not sua sponte convert a 38 U.S.C. § 714 removal appeal to a 5 U.S.C. chapter 75 removal appeal because it would be “inherently unfair”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2023 MSPB 1
Docket No. AT-0714-21-0109-I-1
Tammika S. Richardson,
Appellant,
v.
Department of Veterans Affairs,
Agency.
January 4, 2023
Jacqueline Turk-Jerido, Tuskegee, Alabama, for the appellant.
Sophia E. Haynes, Esquire and Teri Walker, Decatur, Georgia, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 This appeal is before the Board on interlocutory appeal from the
April 21, 2021 Order of the administrative judge staying the proceedings and
certifying for Board review his finding that the agency cannot rely on the
provisions of 38 U.S.C. § 714 to remove the appellant, a hybrid employee as
defined in 38 U.S.C. § 7401(3). For the reasons set forth below, we AFFIRM the
administrative judge’s ruling, and FIND that the agency cannot rely on 38 U.S.C.
§ 714 to remove a hybrid employee appointed pursuant to 38 U.S.C. § 7401(3).
If the agency wishes to remove the appellant based on the same or similar
2
allegations, it must do so pursuant to the procedures in 5 U.S.C. chapter 75, as
required by 38 U.S.C. § 7403(f)(3). We VACATE the administrative judge’s
order staying the proceedings, and we RETURN the appeal to the administrative
judge for further adjudication consistent with this Opinion and Order.
BACKGROUND
¶2 The appellant was a GS-5 Nursing Assistant hired under the legal authority
of 38 U.S.C. § 7401(3). Initial Appeal File (IAF), Tab 4 at 13, 57. Accordingly,
she was a hybrid employee, which is a category of Veterans Health
Administration (VHA) employees who are subject to both Title 38 and Title 5.
U.S. Department of Veterans Affairs v. Federal Labor Relations Authority, 9 F.3d
123, 126 (D.C. Cir. 1993); see James v. Von Zemenszky, 284 F.3d 1310, 1314
(Fed. Cir. 2002). The parties have not disputed that the appellant qualified as a
hybrid employee at the time of her removal. See IAF, Tab 6 at 8, Tab 22 at 6,
Tab 23 at 2 n.2.
¶3 Pursuant to 38 U.S.C. § 714, the agency removed the appellant from her
position based on charges of absence without leave and failure to follow leave
request procedures. IAF, Tab 4 at 13, 15-18. The appellant filed a Board appeal
challenging the removal. IAF, Tab 1. Subsequently, the administrative judge
questioned whether the agency could rely on 38 U.S.C. § 714 to remove a hybrid
employee, and ordered the agency to show cause why the Board should not
resolve the appeal using the standards and procedures under Title 5, rather than
the standards and procedures applicable to appeals adjudicated under 38 U.S.C.
§ 714. IAF, Tab 5 at 4. The agency filed a response. IAF, Tab 6. In the
summary of telephonic prehearing conference, the administrative judge set forth
the standard for a claim of harmful procedural error, and noted that the appellant
raised an affirmative defense of retaliation for having filed a grievance. IAF,
Tab 15 at 8-9. A hearing was held. IAF, Tabs 17, 20 (Hearing Audio
Recordings). The parties submitted closing arg uments. IAF, Tabs 21-22.
3
¶4 The administrative judge then issued an Order Certifying Interlocutory
Appeal finding that a question had arisen as to whether the agency was authorized
to remove the appellant, a hybrid employee under 38 U.S.C. § 7401(3), using
38 U.S.C. § 714 procedures. IAF, Tab 23. After evaluating the relevant statutes,
including 38 U.S.C. §§ 714, 7401(3), and 7403(f)(3), and the interplay of these
provisions, the administrative judge concluded that 38 U.S.C. § 7403(f)(3)
precludes the agency from using its authority under 38 U.S.C. § 714 to take an
adverse action against an employee appointed under 38 U.S.C. § 7401(3).
Id. at 1-10. The administrative judge also stayed further processing of the case
while the interlocutory appeal was pending before the Board. Id. at 11.
¶5 More than 7 months later, on December 3, 2021, the appellant filed a
submission in which she provided the Secretary of Veterans Affairs’ November 2,
2021 “Notice to All [American Federation of Government Employees (AFGE)]
Employees.” IAF, Tab 24 at 4. The Notice stated that:
In a recent arbitration decision, Arbitrator Hyman Cohen found that
the Department of Veterans Affairs violated the Federal Servic e
Labor-Management Relations Statute . . . when it failed in 2017 to
bargain over the procedures and appropriate arrangements of th e
implementation of 38 U.S.C. § 714 and ordered Agency to
electronically post the terms of the Award.
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL bargain, retroactively, on request of the Union with
respect to all bargaining unit employees adversely affected b y the
Accountability Act which became effective on June 23, 2017.
WE WILL make any employee whole who, in any agreement reached
by the parties, is determined to have suffered a loss of pay, benefits,
allowances or differentials because of the Agency’s unlawful
conduct.
WE WILL NOT interfere with, restrain or coerce bargaining unit
employees in the exercise of the rights assured them by the Federal
Services Labor-Management Relations Statute.
Id.
4
¶6 The appellant did not include the referenced arbitration decision or any
other documents upon which the Secretary’s Notice was based, nor did she
explain the effect of the Secretary’s Notice on this appeal. Accordingly, we
ordered the parties to file additional pleadings to address these outstanding issues.
IAF, Tab 25. We specifically directed the agency to address, among other things,
the effect of the Secretary’s November 2, 2021 Notice on this appeal and its
intentions regarding this matter going forward. Id. at 2-3.
¶7 The appellant filed a response and included the Federal Labor Relations
Authority’s (FLRA) decision in American Federation of Government Employees
National Veterans Affairs Council #53 v. Department of Veterans Affairs ,
71 F.L.R.A. 410 (2019). IAF, Tab 27 at 8-12. There, the FLRA vacated
Arbitrator Cohen’s earlier finding that the agency did not have a duty to bargain
and therefore did not violate the parties’ agreement or 5 U.S.C. § 7116(a)(5) by
unilaterally implementing the Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L.
No. 115-41, 131 Stat. 862, codified in relevant part at 38 U.S.C. § 714. Id.
at 8-11. It appears that this FLRA decision led to the arbitrator’s decision
referenced in the Secretary’s November 2, 2021 Notice.
¶8 The agency filed a reply, which included the March 11, 2021 arbitration
decision referenced in the Secretary’s Notice. IAF, Tab 29 at 6 -49. However,
instead of responding to the Board’s specific inquiry about the agency’s
intentions going forward, the agency asserted that the appellant “[did] not
submit[] any argument on the question of jurisdiction” and argued that the appeal
should be dismissed for lack of jurisdiction. 1 Id. at 4.
¶9 Despite the agency’s nonresponsive narrative submission, the agency
conceded in its submissions that the appellant was covered by a collective
1
The Board’s jurisdiction is not an issue in this removal appeal regardless of whether
the removal is based on Title 5 or 38 U.S.C. § 714.
5
bargaining agreement between the agency and AFGE 110 Local. IAF, Tab 4 at 8.
Because it is not clear how the Secretary’s November 2, 2021 Notice impacts th is
matter or specifically applies to the appellant, we will proceed with our analysis
of the legal issue presented in the Order Certifying Interlocutory Appeal.
ANALYSIS
The administrative judge properly certified his ruling for interlocutory appeal.
¶10 An interlocutory appeal is an appeal to the Board of a ruling made by an
administrative judge during a proceeding. 5 C.F.R. § 1201.91. An administrative
judge may certify an interlocutory appeal to the Board on his own motion or upon
the motion of either party. Id. The Board’s regulations provide for certification
of a ruling for review when “[t]he ruling involves an important question of law or
policy about which there is substantial ground for difference of opinion” and
“[a]n immediate ruling will materially advance the completion of the proceeding,
or the denial of an immediate ruling will cause undue harm to a party or the
public.” 5 C.F.R. § 1201.92.
¶11 The criteria for certifying an interlocutory appeal are met in this case. The
issue of whether the agency has the authority under 38 U.S.C. § 714 to remove a
hybrid employee is an important question of law about which there is substantial
ground for difference of opinion and an immediate ruling on that question will
materially advance the completion of this proceeding. Therefore, the
administrative judge properly certified his ruling for interlocutory appeal.
See, e.g., In re Tinker AFSC/DP v. Department of the Air Force, 121 M.S.P.R.
385, ¶¶ 11-12 (2014) (discussing the standard and finding that the administrative
judge properly certified her ruling for interlocutory appeal).
As a hybrid employee, the appellant is covered by 38 U.S.C. § 7403(f)(3).
¶12 Appointments of medical professionals in the VHA are governed by
38 U.S.C. § 7401. Section (3) of 7401 governs the appointments of Nursing
Assistants, like the appellant, among other positions. The statute at 38 U.S.C.
6
§ 7403 discusses, among other things, appointments for health care professionals,
including those in positions listed in 38 U.S.C. § 7401(3). In particular,
38 U.S.C. § 7403(f)(1)(A) states that “the Secretary may . . . use the authority in
subsection (a) to establish the qualifications for and . . . to appoint individuals to
positions listed in section 7401(3) of this title.” Section 7403(f)(3) of Title 38
provides that:
Notwithstanding any other provision of this title or other law, all
matters relating to adverse actions . . . involving individuals
appointed to such positions, whether appointed under this section or
section 7405(a)(1)(B) 2 of this title . . . shall be resolved under the
provisions of title 5 as though such individuals had been appointed
under that title. 3
¶13 The clause “individuals appointed to such positions” in 38 U.S.C.
§ 7403(f)(3) is modified by “whether appointed under this section or
section 7405(a)(1)(B) of this title.” 38 U.S.C. § 7403(f)(3). As noted above,
both 38 U.S.C. § 7403(f)(1)(A) and section 7405(a)(1)(B) refer explicitly to
positions listed in 38 U.S.C. § 7401(3), and not to any other positions based on
other statutory provisions.
¶14 However, because the legal authority cited in the appellant’s appointment
Standard Form 50 (SF-50) was 38 U.S.C. § 7401(3), IAF, Tab 4 at 57, her
2
Section 7405(a)(1)(B) of Title 38 provides that the Secretary “may employ, without
regard to civil service or classification laws, rules, or regulations, personnel . . . [o] n a
temporary full-time basis, part-time basis, or without compensation basis, persons in
. . . [p]ositions listed in section 7401(3) of this title.” Neither party alleges, and it does
not appear from the appellant’s appointment Standard Form 50, IAF, Tab 4 at 57, that
this provision is applicable to the appellant.
3
Section 7403(f)(3) of Title 38 was enacted as part of the Department of Veterans
Affairs Health-Care Personnel Act of 1991, the purpose of which was to amend Title 38
to “improve the capability of the [agency] to recruit and retain physicians and dentists
through increases in special pay authorities [and] to authorize collective bargaining
over conditions of employment for health-care employees,” among other things. Pub.
L. No. 102-40, 105 Stat. 187. That Act was later modified in the Veterans Health Care,
Capital Asset, and Business Improvement Act of 2003. Pub. L. No. 108-170, 117 Stat.
2042.
7
appointment SF-50 does not specifically show that she was “appointed under this
section [meaning section 7403 or section 7403(f)] or section 7405(a)(1)(B),”
which led us to question whether the appellant was covered by 38 U.S.C.
§ 7403(f)(3) prior to the enactment of the VA Accountability Act. Our reviewing
court has held that “the SF-50 is not a legally operative document controlling on
its face an employee’s status and rights.” Grigsby v. Department of Commerce,
729 F.2d 772, 776 (Fed. Cir. 1984). Moreover, the agency appears to concede
that, prior to the enactment of the VA Accountability Act, 38 U.S.C. § 7403(f)(3)
would have required Title 5 procedures to apply to the removal of a hybrid
employee like the appellant. 4 IAF, Tab 6 at 5. Additionally, both the U.S. Court
of Appeals for the Federal Circuit (Federal Circuit) and the Board have
acknowledged that in cases arising after 2003, but prior to the enactment of the
VA Accountability Act, 38 U.S.C. § 7403(f)(3) applied to employees, like the
appellant, who held positions under 38 U.S.C. § 7401(3). See, e.g., Kelley v.
Merit Systems Protection Board, 379 F. App’x 983, 984 (Fed. Cir. 2010) (citing
38 U.S.C. § 7403(f)(3) and concluding that “[b]ecause [her] appointment as a
Social Worker is covered by 38 U.S.C. § 7401(3), her appeal rights are governed
by title 5”) 5; Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209, ¶¶ 9,
12-15 (2010) (citing 38 U.S.C. § 7403(f)(3) for the proposition that employees in
38 U.S.C. § 7401(3) positions retain many Title 5 protections, including adverse
action rights, and finding that Title 5 competitive veterans’ preference
requirements also apply to appointments to section 7401(3) positions). Finally,
4
The agency appears to cite to the 1991 version of the statute in its response to the
order to show cause. IAF, Tab 6 at 5. The agency does not contend that 38 U.S.C.
§ 7403(f)(3)—or the clause “appointed under this section”—was inapplicable to the
appellant before the enactment of the VA Accountability Act.
5
The Board may follow a nonprecedential decision of the Federal Circuit when, as her e,
it finds its reasoning persuasive. E.g., Morris v. Department of the Navy, 123 M.S.P.R.
662, ¶ 13 n.9 (2016).
8
the Federal Circuit has described the agency’s hybrid employees as falling under
38 U.S.C. §§ 7401(3) and 7403(f)(1)(A). Athey v. United States, 908 F.3d 696,
698 n.1 (Fed. Cir. 2018). For these reasons, we find that 38 U.S.C. § 7403(f)(3)
is applicable to the appellant.
The agency cannot rely on the provisions of 38 U.S.C. § 714 to remove the
appellant, a hybrid employee in a position covered by 38 U.S.C. § 7401(3).
¶15 On June 23, 2017, Congress enacted the VA Accountability Act to “improve
accountability of [agency] employees.” Pub. L. No. 115-41, 131 Stat. 862, § 202.
The VA Accountability Act was a response to “some situations where a few
[agency] employees have done some egregious things that need to be addressed,”
including a situation “that took place in Phoenix, [Arizona], in terms of
appointments[ 6]; the rash number of suicides and mishandling of pharmaceuticals
in the Atlanta office of Clairmont . . . [and] the situa tion of transfers in
Philadelphia, [Pennsylvania], where people were transferred rather than
disciplined and were paid their moving expenses and cost -of-living adjustments
upward.” 163 Cong. Rec. S3261-01, S3267 (daily ed. Jun. 6, 2017) (statement of
Sen. Isakson).
¶16 The VA Accountability Act provided the agency with an expedited
procedure to remove employees based on misconduct or performance issues.
Importantly, 38 U.S.C. § 714(a)(1) provides that “[t]he Secretary may remove,
demote, or suspend a covered individual who is an employee of the Department if
the Secretary determines the performance or misconduct of the covered individual
warrants such removal, demotion, or suspension.” Section 714 (h)(1)(B) defines a
“covered individual” as, among other things, “an individual occupying a position
at the Department, but does not include . . . an individual appointed pursuant to
6
The agency facility in Phoenix “had widespread mismanagement and misconduct by
employees,” including a situation in which “veterans . . . died while they were stuck on
secret waiting lists.” 163 Cong. Rec. S3261-01, S3280 (daily ed. Jun. 6, 2017)
(statement of Sen. Rubio).
9
sections 7306, 7401(1), 7401(4), or 7405 of this title.” 7 Notably, however, this
provision in 38 U.S.C. § 714(h)(1)(B) does not expressly reference 38 U.S.C.
§ 7401(3), which covers hybrid employees like the appellant.
¶17 In its response to the order to show cause, the agency made the following
arguments to support its position that it was authorized to remove a hybrid
employee under 38 U.S.C. § 714: (1) Congress intended for hybrid employees to
be included under the broad definition of a “covered individual” in 38 U.S.C.
§ 714; (2) 38 U.S.C. § 714 was enacted later in time to specifically address
accountability in the agency; (3) the plain language of 38 U.S.C. § 714 supports
that hybrid employees should be covered; and (4) other ad ministrative judges
have upheld actions taken against hybrid employees under 38 U.S.C. § 714.
IAF, Tab 6 at 4-8. The administrative judge addressed and rejected the agency’s
arguments in the Order Certifying Interlocutory Appeal. 8 IAF, Tab 23 at 7-10.
We have considered these arguments; however, for the following reasons, we
agree with the administrative judge and conclude that the agency cannot rely on
the provisions at 38 U.S.C. § 714 to remove a hybrid employee appointed
pursuant to 38 U.S.C. § 7401(3).
¶18 “In a statutory construction analysis, the starting point is the plain l anguage
of the statute.” Miller v. Office of Personnel Management, 903 F.3d 1274, 1281
(Fed. Cir. 2018). It is a long-standing rule of statutory construction that the plain
language of a statute must be treated as controlling absent a clear legislative
intent to the contrary. Miller v. Department of the Army, 987 F.2d 1552, 1555
7
Neither party asserts that any of the exceptions in 38 U.S.C. § 714(h)(1) is applicable
to this matter.
8
Regarding argument (4), we agree with the administrative judge that Board initial
decisions are of no precedential value and cannot be cited or relied on as controlling
authority. Fitzgerald v. Department of the Air Force, 108 M.S.P.R. 620, ¶ 15 (2008);
IAF, Tab 23 at 9-10. Moreover, the initial decisions cited by the agency do not
specifically analyze the issue before us or even reference 38 U.S.C. § 7403(f)(3).
Therefore, the agency’s reliance on these decisions is not persuasive.
10
(Fed. Cir. 1993); Tucker v. Department of Health & Human Services , 73 M.S.P.R.
278, 286 (1997) (same). The administrative judge focused on 38 U.S.C.
§ 7403(f)(3) in his Order Certifying Interlocutory Appeal, finding that the plain
language of section 7403(f)(3)—which specifically states that it applies to “all
matters” relating to adverse actions involving hybrid employees and applies
“[n]otwithstanding any other provision of this title or other law” —supports the
conclusion that the agency must follow the provisions of Title 5 whenever it takes
an adverse action against a hybrid employee appointed under 38 U.S.C.
§ 7401(3). IAF, Tab 23 at 4-5, 10.
¶19 However, the agency asserted that 38 U.S.C. § 714 is the operative statute,
not 38 U.S.C. § 7403(f)(3). In pertinent part, the agency argued that by not
specifically excluding hybrid employees appointed pursuant to 38 U.S.C.
§ 7401(3) from the definition of a “covered individual” in 38 U.S.C. § 714(h), as
it did other types of employees, the statute intended to cover hybrid employees.
IAF, Tab 6 at 5-7. The agency further asserted that the inclusion of hybrid
employees in the definition of a covered individual “illustrates[] Congress’ plain
and unambiguous intent to apply the disciplinary authority to [h]ybrid
employees.” Id. at 5. We understand the agency to be applying the maxim of
statutory interpretation expressio unius est exclusio alterius , meaning “the
expression of one thing is the exclusion of the other.” Graves v. Department of
Veterans Affairs, 123 M.S.P.R. 434, ¶ 13 (2016). Under this maxim, when
Congress has enumerated specific things to which a statute applies, it should not
be assumed that other things that could have been listed were meant to be
included; rather, the specific mention of certain things implies the exclusion of
others. Cleaton v. Department of Justice, 122 M.S.P.R. 296, ¶ 11 (2015), aff’d,
839 F.3d 1126 (Fed. Cir. 2016). Thus, when a statute enumerates certain
exceptions to a general rule, it is preferable not to interpret the statute as
containing other, unenumerated exceptions. Edwards v. Department of Homeland
Security, 110 M.S.P.R. 243, ¶ 13 (2008); see King v. Briggs, 83 F.3d 1384, 1388
11
(Fed. Cir. 1996). Construing the plain language of 38 U.S.C. § 714, 38 U.S.C.
§ 7401(3) is clearly not mentioned as an exclusion to “covered individuals.”
Thus, from this maxim, the specific mention of sections 7306, 7401(1), 7401(4),
and 7405 as exceptions to the definition of a covered individual in 38 U.S.C.
§ 714(h)(1)(B) means the inclusion of 38 U.S.C. § 7401(3) in the definition.
¶20 Nevertheless, we cannot consider 38 U.S.C. § 714 in a vacuum. Indeed,
Congress enacted 38 U.S.C. § 7403(f)(3) more than 26 years before it enacted
38 U.S.C. § 714. It is well settled that Congress is presumed to be aware of
existing laws when it passes new legislation. Poole v. Department of the Army,
117 M.S.P.R. 516, ¶ 23 (2012); see Goodyear Atomic Corporation v. Miller,
486 U.S. 174, 184-85 (1988) (“We generally presume that Congress is
knowledgeable about existing law pertinent to the legislation it enacts.”).
Moreover, “it can be strongly presumed that Congress will specifically address
language on the statute books that it wishes to change.” U.S. v. Fausto, 484 U.S.
439, 453 (1988). Yet, the plain language of 38 U.S.C. § 714 does not expressly
repeal 38 U.S.C. § 7403(f)(3) or even mention that provision. In contrast to
38 U.S.C. § 714(c)(3), which specifically states that the “procedures under
chapter 43 of title 5 shall not apply to a removal, demotion, or suspension under
this section,” 38 U.S.C. § 714 does not contain any similar language that would
convey a congressional intent to repeal 38 U.S.C. § 7403(f)(3) or disavow the
application of 5 U.S.C. chapter 75 procedures to hybrid employees appointed
under 38 U.S.C. § 7401(3).
¶21 The absence of any reference in 38 U.S.C. § 714 to 38 U.S.C. § 7403(f)(3)
or 5 U.S.C. chapter 75 procedures, particularly in contrast to the explicit language
addressing chapter 43 procedures, is similar to the circumstances presented in
Wilson v. Department of Veterans Affairs, 2022 MSPB 7. There, the Board
discussed the potential impact of the 10-business-day time limit for filing a Board
appeal in 38 U.S.C. § 714(c)(4)(B) on the processing of mixed cases, and it noted
that the VA Accountability Act was silent regarding the procedures and time
12
limits described in 5 U.S.C. § 7702 for when employees can file mixed-case
complaints of discrimination followed by appeals to the Board. Id., ¶¶ 17, 23.
The Board viewed such silence—in contrast to the explicit language in 38 U.S.C.
§ 714(d)(10) regarding the timelines if an employee grieves an action through a
collective bargaining agreement—to suggest that Congress did not intend to alter
the time limits for mixed-case appeals set forth in 5 U.S.C. § 7702 when it
enacted 38 U.S.C. § 714. Id., ¶ 23. The Board ultimately concluded that
Mr. Wilson’s mixed-case appeal, which was filed nearly 11 months after the
agency action, was timely filed pursuant to 5 U.S.C. § 7702(e)(2) and was not
foreclosed by the time limit set forth in 38 U.S.C. § 714(c)(4)(B). Id., ¶¶ 11, 25.
Here, we similarly find that Congress’s silence on the application of 38 U.S.C.
§ 7403(f)(3) or 5 U.S.C. chapter 75 procedures to hybrid employees suggests that
Congress did not intend to change the 5 U.S.C. chapter 75 appeal rights provided
to hybrid employees, like the appellant, who were in positions covered by
38 U.S.C. § 7401(3). For these reasons, we are not persuaded by the agency’s
plain language argument regarding 38 U.S.C. § 714.
¶22 We have also considered whether 38 U.S.C. § 7403(f)(3) was repealed by
implication. This is not the first time that a tribunal has confronted how a newly
enacted statute affects related laws that it does not reference. In Morton
v. Mancari, 417 U.S. 535, 537-39, 545 (1974), the U.S. Supreme Court addressed
the alleged inconsistency between a prior act providing an employment
preference for qualifying Native Americans in the Bureau of Indian Affairs with
the later enacted Equal Employment Opportunity Act (EEO Act) requiring that
Federal employment decisions be free from discrimination. The Court declined to
find that the EEO Act repealed the preexisting statute by implication. Id.
at 549-50. Rather, in the absence of an affirmative showing of an intent by
Congress to repeal the prior statute, it read the statutes as permitting the
employment preference for Native Americans to continue along with the “general
rule prohibiting employment discrimination on the basis of race.” Id. at 550. In
13
so finding, the Court observed that repeals by implication are disfavored. Id.
at 549-51. “When there are two acts upon the same subject, the rule is to give
effect to both if possible.” Id. at 551 (quoting United States v. Borden Company,
308 U.S. 188, 198 (1939)). An intention by Congress to repeal a statute “must be
clear and manifest.” Id. The Court concluded that, “when two statutes are
capable of co-existence, it is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard each a s effective.” Id. at 551;
see Isabella v. Department of State, 109 M.S.P.R. 453, ¶ 12 (2008) (same); see
also Von Zemenszky v. Department of Veterans Affairs, 80 M.S.P.R. 663, 668-69,
673-74 (1999) (holding that, if Congress had intended to exempt VHA healthcare
professionals appointed under 38 U.S.C. § 7401(1) from the preexisting reduction
in force rules of the Veterans’ Preference Act of 1944 when it created the VHA, it
would have done so in explicit terms).
¶23 The Court recognized factors that might lead to a repeal by implication,
although it found them inapplicable in Morton. 417 U.S. at 550-51. These
included when the statutes at issue are “irreconcilable,” or when the older statute
is broader in scope than the newer, more specific statute. Id. A repeal by
implication is appropriate only when statutes are irreconcilable or “the enactment
so comprehensively covers the subject matter of the earlier statute that it must
have been intended as a substitute”; a statute addressing a “narrow, precise, and
specific subject is not submerged by a later enacted statute covering a more
generalized spectrum.” Todd v. Merit Systems Protection Board, 55 F.3d 1574,
1577-78 (Fed. Cir. 1995); Bergman v. Department of Transportation,
101 M.S.P.R. 607, ¶ 6 (2006) (holding that specific statutory language aimed at a
particular situation ordinarily controls over general statutory language). We find
that is not the situation presented here.
¶24 First, 38 U.S.C. § 7403(f)(3) and 38 U.S.C. § 714 are not in irreconcilable
conflict. Both statutes are reconcilable and are capable of coexisten ce. IAF,
Tab 23 at 6-7. This is because 38 U.S.C. § 7403(f)(3) covers only adverse actions
14
against hybrid employees in positions listed in section 7401(3), while the agency
may use 38 U.S.C. § 714 when it takes adverse or performance-based actions
against employees covered by section 714. 9
¶25 Second, we have considered the agency’s assertion that 38 U.S.C. § 714 is a
“more specific and detailed statute” than section 7403(f)(3). IAF, Tab 6 at 5.
From this argument, the administrative judge acknowledged the general rule of
statutory construction that a more specific statute is presume d to take precedence
over a more general statute. IAF, Tab 23 at 8 (citing Glassman v. Department of
Labor, 101 M.S.P.R. 373, ¶ 6 (2006)). The administrative judge concluded,
however, that even though 38 U.S.C. § 714 is more specific than 38 U.S.C.
§ 7403(f)(3) with respect to adverse actions that are implicated therein, 38 U.S.C.
§ 7403(f)(3) applies to a more limited group of employees than the definition of a
“covered individual” as defined in 38 U.S.C. § 714(h). IAF, Tab 23 at 8. He
therefore concluded that this rule of statutory construction is contrary to the
agency’s position and supports finding that 38 U.S.C. § 7403(f)(3) should take
precedence over 38 U.S.C. § 714. IAF, Tab 23 at 8. We agree.
Section 7403(f)(3) of Title 38 addresses a narrow, precise, specific subject—
adverse actions against the agency’s hybrid employees. Section 714 covers a
more generalized spectrum of situations, namely adverse and performance -based
actions against any of the agency’s employees covered by section 714. Thus,
38 U.S.C. § 7403(f)(3) “is not submerged” by the later enacted 38 U.S.C. § 714.
Todd, 55 F.3d at 1577-78; Bergman, 101 M.S.P.R. 607, ¶ 6.
9
Because of our plain language analysis, supra ¶¶ 18-21, and our conclusion that
38 U.S.C. § 7403(f)(3) and 38 U.S.C. § 714 can coexist, we find unpersuasive the
agency’s assertion that our interpretation of these provisions would “lead to an absurd
result.” IAF, Tab 6 at 5.
15
¶26 Moreover, the legislative history cited by the agency fails to evince a clear
and manifest congressional intent to repeal 38 U.S.C. § 7403(f)(3) or disavow the
application of 5 U.S.C. chapter 75 procedures to hybrid employees appointed
pursuant to 38 U.S.C. § 7401(3). The agency noted that there are references to
the inclusion of hybrid employees in the legislative history of the VA
Accountability First Act of 2017, H.R. 1259, 115th Cong. (1 st Sess. 2017),
an unenacted House bill that, according to the agency, was “nearly identical” to
the VA Accountability Act, Pub. L. No. 115-41, 131 Stat. 862, § 202, the latter of
which was codified at 38 U.S.C. § 714. IAF, Tab 6 at 5-6. The agency identified
two statements made by the Honorable David P. Roe regarding the unenacted
House bill. See H.R. Rep. 115-34(I), at *3, 17 (2017) (“Section 3 [dealing with
the removal, demotion and suspension of employees based on perfo rmance or
misconduct] would amend title 38, U.S.C., and create section 719, which would
provide the VA Secretary with the authority to remove, demote, or suspend any
title 5, hybrid title 38, or SES VA employee for performance or misconduct”);
163 Cong. Rec. H2114-01 (daily ed. Mar. 16, 2017) (statement of Rep. Roe)
(stating that “the disciplinary procedures and avenues to appeal set up by this bill
are the only avenues in place for title 5 and hybrid title 38 employees to dispute
proposed removals, demotions, and suspensions for longer than 14 days”).
¶27 Notably, however, the agency has not identified any similar legislative
history on this issue involving the VA Accountability Act. The two statements
from Representative Roe regarding the unenacted House bill , without more, do
not persuade us that there is clear and manifest legislative intent to repeal
38 U.S.C. § 7403(f)(3). See, e.g., Rodriguez v. United States, 480 U.S. 522, 525
(1987) (“Even if unrebutted, these passing references [in the legislative history of
18 U.S.C. § 3147] would not constitute the ‘clear and manifest’ evidence of
congressional intent necessary to establish repeal by implication.”).
¶28 None of the agency’s arguments warrant a different outcome. For the
reasons described herein, the agency has not persuaded us that it has the authority
16
under 38 U.S.C. § 714 to remove for misconduct a hybrid employee appointed
under 38 U.S.C. § 7401(3).
If the agency wishes to proceed with an adverse action against the appellant, it
must do so in accordance with the procedures described in 5 U.S.C. chapter 75, as
required by 38 U.S.C. § 7403(f)(3).
¶29 The agency based the removal action on 38 U.S.C. § 714 procedures, IAF,
Tab 4 at 15, 29, and we have found that the agency cannot rely on that statutory
framework to remove the appellant, a hybrid employee appointed under
section 7401(3). The Federal Circuit has held that Ҥ 714 notably does not
override § 7701(c)(2)(C), which requires the decision to accord with the law.”
Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1376 (Fed. Cir. 2020).
¶30 Because we find that the removal action taken pursuant to 38 U.S.C. § 714
was not in accordance with law, we have considered whether to remand the
appeal for further adjudication pursuant to 5 U.S.C. chapter 75. The
administrative judge, perhaps anticipating this situation, gave the agency notice
of its burden in a removal action under 5 U.S.C. chapter 75, IAF, Tab 15 at 6-8, a
hearing was held, and the record appears to have closed. However, we do not
believe that converting the appeal from a 38 U.S.C. § 714 action to one under
5 U.S.C. chapter 75 appeal at this stage is the appropriate course of action.
Instead, if the agency wishes to take an adverse action against the appellant, it
must do so in accordance with the procedures of 5 U.S.C. c hapter 75, as required
by 38 U.S.C. § 7403(f)(3).
¶31 In reaching this conclusion, we have considered the analogous situation in
which a case began as a 5 U.S.C. chapter 43 performance -based action and,
during the pendency of the appeal, the agency sought to convert, or the Board
sua sponte converted, the action to one taken under 5 U.S.C. chapter 75. See,
e.g., Lovshin v. Department of the Navy, 767 F.2d 826, 843 (Fed. Cir. 1985) (en
banc) (noting that, generally, an agency may rely on either 5 U.S.C. chapter 75 or
chapter 43 to take a performance-based action). The Board has followed the
17
determination of the Federal Circuit that “[t]he Board may not simply substitute
Chapter 75 for Chapter 43 or vice versa after the parties have presented their
evidence” because, among other things, such “after-the-fact switches [are]
inherently unfair.” Hanratty v. Federal Aviation Administration, 780 F.2d 33, 35
(Fed. Cir. 1985) 10; see Wilson v. Department of Health & Human Services,
770 F.2d 1048, 1053-55 (Fed. Cir. 1985) (finding that the performance -based
demotion taken under chapter 43 was improper based on an invalid perfo rmance
standard and rejecting the Government’s request to remand Ms. Wilson’s appeal
to the Board for reconsideration under chapter 75 on the same record as the
original chapter 43 action); see also Kopp v. Department of the Air Force,
33 M.S.P.R. 624, 627-29 (1987) (holding that an agency could not first assert at
the petition for review stage that a performance-based action taken under
chapter 43 should also be considered under chapter 75, and finding that the
agency removed the appellant under chapter 43 but did not afford him the chapter
43 procedures to which he was entitled); cf. Ortiz v. U.S. Marine Corps,
37 M.S.P.R. 359, 360, 362-63 (1988) (explaining that it was appropriate to
convert a chapter 43 removal to one under chapter 75 before the hearing had
occurred because the agency had not lost on an issue and then belatedly tried to
prove its charges on another legal basis).
¶32 It would be “inherently unfair” in this matter to convert the 38 U.S.C. § 714
removal appeal and allow the agency to proceed under chapter 75 after the
hearing was held and the record closed, Hanratty, 780 F.2d at 35, especially in
light of several due process concerns. Importantly, under chapter 75, the
appellant would have been entitled to “at least 30 days’ advance written
notice . . . stating the specific reasons for the proposed action” and “a written
10
In Hanratty, 780 F.2d at 34-35, the court determined that the Board’s presiding
official erred when he recharacterized the chapter 43 removal appeal as a chapter 75
adverse action appeal after the hearing and the close of the record.
18
decision and the specific reasons therefor.” 5 U.S.C. §§ 7513(b)(1), (4). Not
only was the appellant given less than 30 days’ advance written notice, IAF,
Tab 4 at 15, 29, but it also appears that she was not fully apprised of the penalty
factors that the deciding official considered. For example, during the deciding
official’s testimony, he revealed that, in addition to the penalty considerations
mentioned in the notice of proposed removal, IAF, Tab 4 at 31, he also
considered the appellant’s prior discipline, comparator evidence, and her potential
for rehabilitation, IAF, Tab 17, Hearing Audio Recording, Day 1 (testimony of
the deciding official). There is no indication in the record that the appellant was
on notice that he would consider such evidence, which would be a potential due
process violation. See, e.g., Howard v. Department of the Air Force,
118 M.S.P.R. 106, ¶¶ 4-7 (2012) (finding that the deciding official’s
consideration of the appellant’s allegedly poor performance as an aggravating
factor without providing such notice constituted a due process violation); Lopes
v. Department of the Navy, 116 M.S.P.R. 470, ¶ 5 (2011) (explaining that when an
agency intends to rely on aggravating factors, such as prior discipline, as the
basis for the imposition of a penalty, such factors should be included in the
advance notice of adverse action so that the employee will have a fair opportunity
to respond to those factors before the deciding official).
19
ORDER
¶33 We affirm the administrative judge’s finding that the agency cannot rely on
38 U.S.C. § 714 to remove a hybrid employee appointed pursuant to 38 U.S.C.
§ 7401(3), we vacate the order that stayed processing of this matter, and we
return the appeal to the administrative judge for further adjudication in
accordance with this Order.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.