justice scales on a table

VA’s whistleblower protection act cannot be applied retroactively, court says

A federal appeals court ruled on March 31 that the Department of Veterans Affairs had improperly employed a 2017 workforce law to fire pharmacy doctor Jeffrey Sayers.

Sayers had been chief of pharmacy services for the Greater Los Angeles (GLA) Health Care System in 2016 when VA inspectors uncovered policy violations in the pharmacies he managed and ordered him to take corrective action. When Sayers failed to make changes, he was detailed from the chief of pharmacy services position pending further review. A second review nine months uncovered “violations of VA policy so numerous and concerning that the team did not even review the internal control systems,” the court wrote. Sayers was subsequently removed.

The Merit Systems Protection Board and an administrative judge affirmed Sayers’ removal, saying the repeated violations showed failure to follow instructions and perform assigned duties.

Although Sayers argued that his removal was an unreasonable penalty and out of line with the VA’s progressive discipline policy, the administrative judge affirmed his removal.

In its review, the U.S. Court of Appeals for the Federal District found that the VA had retroactively applied the Department of Veterans Affairs 2017 Accountability and Whistleblower Protection Act to Sayers’s case by punishing him for acts allegedly committed before the law took effect.

That act gave the VA new, streamlined authority for disciplining employees for misconduct or poor performance, and it lessens the burden of proof required to those workers. It also placed limitations on the review of disciplinary actions by the Merit Systems Protection Board.

“We ultimately hold that § 714 [the Whistleblower Protection Act], properly construed, has impermissible retroactive effect, and that Congress did not authorize the statute’s retroactive application,” the court wrote. “Because we conclude that § 714 cannot be applied retroactively -- and Dr. Sayers’s conduct underlying his removal took place before its enactment -- we vacate his removal and remand to the Board for further proceedings.”

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