On May 9, 2025, a new executive order was issued concerning the Department of Veterans Affairs (VA). While most of the executive order focused on a proposed new VA facility in Los Angeles, buried in the executive order were instructions for the VA to resume imposing discipline using enhanced disciplinary authorities under Public Law 115-41.
Under Section 4 of the executive order, the VA was directed to “take appropriate action against individuals who have committed misconduct, making full use of and in accordance with the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (Public Law 115-41); and investigate and take steps to rectify the previous administration’s decision to rehire and reinstate back pay for employees previously fired for misconduct and direct such savings back toward care, benefits, and services for veterans, in accordance with all applicable laws.” Public Law 115-41 was previously analyzed in this blog. To summarize its disciplinary provisions, Public Law 115-41 revised expedited disciplinary authorities for VA SES employees (38 U.S.C. § 713) and many other categories of VA employees (38 U.S.C. § 714), and further included provisions affecting the retirement annuities, bonuses and relocation expenses from employees with alleged disciplinary or performance issues in certain circumstances. OPM had issued an interim final rule concerning the bonus and relocation expenses provisions on January 15, 2025, although any revisions to the final rule after public comments had not been issued as of the date of this blog entry.
These particular statutory authorities have not been materially revised since their original enactment in 2017. Between 2017 and 2023, the VA’s attempts to utilize these statutes faces numerous successful challenges in the courts, and before the Merit Systems Protection Board (MSPB) and the Federal Labor Relations Authority (FLRA). Due in part to the statute not standing up in litigation, as reported in the press, the VA had abandoned use of the statutory authorities in 2023. The deficiencies in the statute that had yielded these adverse litigation outcomes have not been fixed, leaving disciplinary actions potentially open to similar challenges (although those challenges based on union collective bargaining agreements may be affected by the Administration’s attempt to cancel collective bargaining rights for many VA employees, which is presently in litigation).
Further, attempts to reverse remedies provided to VA employees in prior litigation may face challenges. The general principle is that ‘double jeopardy’ does not strictly apply to federal employee disciplinary actions; while an employee generally cannot be disciplined twice for the same action where both punishments remain in force, that restriction does not apply in cases where the employee’s original discipline was later rescinded with back pay, especially where the prior rescission was on procedural grounds. However, some or all of the employees previously rehired with back pay by the VA either because the VA was forced to provide those remedies after losing a lawsuit, or else as part of a settlement agreement to resolve litigation. For those employees, attempts to recoup back pay or retroactively cancel their rehire could constitute breaches of the relevant remedial orders or settlement agreements, which could give rise to breach litigation.
If you are a VA employee facing possible discipline, and wish to seek legal advice, consider contacting Gilbert Employment Law to request an initial consultation.