Brenner v. DVA
990 F.3d 1313
Fed. Cir.2021Background
- Lawrence Brenner, a GS-14 VA attorney assigned to the Collections National Practice Group (CNPG), was removed by the VA under 38 U.S.C. § 714 (the 2017 VA Accountability Act) for poor performance (timeliness and professional responsibility) and related allegations (including backdating GCLAWS entries).
- Many of the incidents relied on by the VA occurred both before and after the Act’s effective date (June 23, 2017); Brenner had prior good ratings (FY2016 fully successful) and a serious disability-related absence in 2015.
- The VA’s deciding official upheld the proposed removal in September 2018 under § 714; Brenner appealed to the MSPB and then to the Federal Circuit after the MSPB affirmed.
- The MSPB declined to review the reasonableness of the penalty, construing § 714 as precluding penalty review, and applied § 714 to conduct predating the Act’s effective date.
- The Federal Circuit vacated and remanded: it held the MSPB must review the agency’s penalty choice as part of a § 714 substantial-evidence review and that § 714 cannot be applied retroactively to conduct that occurred before June 23, 2017.
Issues
| Issue | Brenner's Argument | VA's Argument | Held |
|---|---|---|---|
| Whether MSPB may review the reasonableness of a penalty imposed under § 714 | Brenner: MSPB may and must review penalty choice as part of § 714 substantial-evidence and legal review | VA: § 714 forbids MSPB from mitigating or reviewing penalty; review limited to whether underlying conduct occurred | Held: MSPB must review the penalty as part of its § 714 substantial-evidence/accordance-with-law review (Sayers controlling); MSPB erred by refusing to consider penalty |
| Whether § 714 may be applied to conduct occurring before its effective date (retroactivity) | Brenner: § 714 cannot be applied retroactively; pre‑Act conduct must be adjudicated under Chapters 43/75 | VA: removal reflected an ongoing pattern, some conduct post‑Act; § 714’s procedures are substantially similar to Chapter 43 so retroactivity is not problematic | Held: § 714 may not be applied retroactively to conduct before June 23, 2017; MSPB erred by relying on pre‑Act incidents under § 714 |
| Whether the VA proved untimeliness charges using the correct standard | Brenner: Agency failed to prove timeliness under the DMC/OGC service‑level agreement standard | VA: relied on agency assertions and identified many untimely responses | Held: MSPB affirmed on timeliness but applied an incorrect standard; on remand MSPB must apply correct standard and reassess substantial‑evidence support |
| Whether the deciding official’s involvement required recusal or caused due process error | Brenner: Mr. Hipolit should have recused given prior involvement and statements | VA: prior familiarity does not disqualify a deciding official; no statutory recusal requirement | Held: No harmful procedural error; background knowledge alone does not require recusal under § 714 |
Key Cases Cited
- Sayers v. Department of Veterans Affairs, 954 F.3d 1370 (Fed. Cir. 2020) (§ 714 requires MSPB review of the agency’s penalty choice as part of substantial‑evidence/accordance‑with‑law review)
- Harrington v. Department of Veterans Affairs, 981 F.3d 1356 (Fed. Cir. 2020) (applying Sayers and reiterating penalty‑review requirement)
- Lovshin v. Department of the Navy, 767 F.2d 826 (Fed. Cir. 1985) (distinguishing Chapter 75 removals from performance removals and outlining Chapter 75 protections)
- Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558 (Fed. Cir. 1985) (limits on MSPB mitigation authority under Chapter 43)
- Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985) (presumption against restricting judicial review absent clear congressional intent)
- Motor Vehicle Manufacturers Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard requires rational connection between facts and agency choice)
- Landgraf v. USI Film Products, 511 U.S. 244 (1994) (retroactivity inquiry: whether new law attaches new legal consequences to past conduct)
- Lachance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999) (MSPB mitigation authority and limits on independent penalty setting)