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MSPB Statement Regarding VA SES Decisions
Recently, heightened attention has been paid to rulings by United States Merit Systems Protection Board (MSPB) administrative judges involving appeals filed by Senior Executive Service employees at the Department of Veterans Affairs under the Veterans Access, Choice and Accountability Act of 2014 (the 2014 Act). In response to these rulings, some have suggested that MSPB is protecting poor performing employees at the Department of Veterans Affairs. These suggestions are baseless and unfair.
February 11, 2016
As an independent, quasi-judicial agency, MSPB is required to apply laws created by Congress and legal precedent, as established by Federal courts, when adjudicating appeals. With respect to burdens of proof applied by MSPB, they are contained in title 5 of the United States Code. Moreover, it should be noted that the 2014 Act made no changes to these burdens of proof. Indeed, as MSPB noted in its August 21, 2014 Report to Congress, the 2014 Act made only two changes to the MSPB adjudication process: 1) it shortened the time under which appellants must file appeals and which MSPB administrative judges must issue decisions; and 2) it removed the full Board from the MSPB adjudication process. The 2014 Act did not change any statutory burden of proof to be applied in these appeals. Therefore, unless the law is changed, these statutory burdens of proof continue to apply, as they do in all other appeals filed at MSPB.