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Bost, Issa Demand VA Address Problematic MSPB Decision

Today, Rep. Mike Bost (R-Ill.), the Chairman of the House Committee on Veterans’ Affairs, and Rep. Darrell Issa (R-Calif.), released the following statements after they sent a letter to Department of Veterans Affairs (VA) Secretary Denis McDonough regarding a recent Merit System Protection Board (MSPB) decision impacting the Department of Veterans Affairs (VA) removal of hybrid employees:

“When the President signed the bipartisan VA Accountability and Whistleblower Protection Act in 2017, it gave VA the authority to remove employees for poor performance or misconduct to ensure veterans receive the best services. This law applies to most VA employees, including hybrid ones,” said Chairman Bost. “However, the MSPB’s recent decision to prohibit VA from firing hybrid employees is in clear violation of the law and reduces accountability at the Department. We need answers. The Secretary has a responsibility to guarantee that the VA workforce is top notch and if they’re not, he needs the tools to fix it. Right now, the MSPB’s decision is standing in the way of that.”

“Where there is no accountability, good governance won’t be found. The VA has struggled for years to fulfill its obligations, and after dozens of veterans died waiting for care, Congress instituted reforms that empowered the department to dismiss its worst employees and hold others accountable,” said Rep. Issa. “The Biden Administration, however, has failed to meet this moment and continued to allow bureaucrats to stand in the way of veterans access to quality healthcare. Chairman Bost and I will ensure that laws enacted by Congress won’t be ignored.”

Concerned Veterans for America (CVA) also expressed support for the letter the Members sent to VA Secretary McDonough.

“Once again the Merit System Protection Board (MSPB) has clearly ignored the letter and spirit of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 and has instead sided with unaccountable VA bureaucrats over veterans. This hurts veterans, their faith in VA, and good VA employees who are stuck working with co-workers who deserve to be fired due to their poor performance and malfeasance. Congress should investigate this pattern of MSPB obstruction and decide if the MSPB itself needs reform legislation so that in the future it will carry out the will of Congress,” said Darin Selnick, Senior Advisor, Concerned Veterans for America.

Full text of the letter the Members sent can be found here and below:

Dear Secretary McDonough:

Thank you for your recent letter regarding the January 4, 2023, Merit System Protection Board (MSPB) decision impacting the Department of Veterans Affairs (VA). In the decision the Board stated that VA could not rely on 38 U.S.C. § 714 authority to remove certain hybrid employees because nothing in the statutory text or legislative history clearly demonstrated Congress’ intent to repeal or disavow existing statutory removal procedures.

In 2017, Congress passed the Department of Veterans Affairs Accountability and Whistleblower Protection Act with broad bipartisan support, establishing 38 U.S.C. § 714. Congress wrote Section 714 in a way that clearly lists the specific positions it did not want included in the authority. Title 38 hybrid employees were not excluded from the section. Therefore, Congress intended for Section 714 to apply to all hybrid employees. The House Committee on Veterans’ Affairs made that clear in a bill report for substantially similar legislation that passed the House. However, the MSPB chose to construe the statute in such a way that is incongruent with its structure and prevents VA from using Section 714 to remove, demote, or suspend certain hybrid employees for poor performance or misconduct.

Delivering high quality, timely health care and benefits to veterans must always be our paramount consideration. Congress provided VA this authority to create a more accountable work environment, which empowers employees to deliver on our promise to veterans. Unfortunately, the MSPB disregarded Congress’ clear intent and has undermined accountability at VA.

Please inform us as to whether VA and the Biden Administration intend to appeal this decision.

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