STATE OF THE UNION AND THE YEAR TO COME
Noted from President Trump's SOTU address last night were his mention of the 2017 Department of Veterans Affairs legislation expediting procedures to remove VA employees. Was he impliedly urging Congress to take additional steps? Will that legislation be replicated for other agencies or, perhaps, the entire civil service? For those who aren't familiar with the statute, it permits employees to be removed with MSPB review based on substantial evidence and no mitigation, equating adverse actions with performance-based actions. Actually, under the statute, a performance-based action would have more structural protection (reasonable performance standards, an opportunity to improve) than an adverse action under the VA system. A properly structured performance case is tough to beat. An adverse action presents greater opportunities for challenge as the system is now structured.
Also, from the president's message was an exhortation for speedy action by the Senate on 400 pending nominations. Among those are the three nominees for the MSPB, re-nominated this year after their nominations stalled last year. Problems with the two Republican nominees developed, to the extent the process is publicized, with objections to those two nominees by labor unions based on issues concerning the nominees' qualifications and, for one of the nominees, a critique by a federal judge of the nominee's pleadings submitted in defense of an EEO case against the agency where that nominee is employed as an attorney.
The Union letters, from last year, before the current re-nominations, are:
Now, an editorial cautionary note: in the course of an litigator's career, it will occur that an adjudicator, be it an MSPB AJ, or the Board, an ALJ, or a federal judge will become disturbed at some component of an advocate's representation. There are several possible results: nothing is said, nothing is done; a verbal admonition in court or in chambers; a referral to a bar disciplinary entity (resulting in due process review for the advocate); a direct sanction (which may itself be appealable); or a comment in a judicial decision or order. The last is the most difficult: it is not appealable; it is essentially public and indelible; and over the course of a career, it is likely unavoidable at some point. So, some care must be exercised in judging an advocate by an isolated adjudicator's comment; at least, before an assessment is made, the pleadings and circumstances that led to the comment must be independently reviewed.