954 F.3d 1370
Fed. Cir.2020Background
- Dr. Jeffrey Sayers served as Chief of Pharmacy Services, VA Greater Los Angeles; VA site visits in 2016 uncovered policy violations and he was detailed from the chief position.
- A subsequent VA review found numerous additional violations; the GLA Chief of Staff proposed removal under the VA Accountability and Whistleblower Protection Act, codified at 38 U.S.C. § 714.
- The VA Director sustained the charges and removed Sayers effective November 7, 2017; Sayers appealed to the Merit Systems Protection Board (MSPB) and an administrative judge upheld the removal under § 714.
- The AJ found substantial evidence supporting most specifications and declined to mitigate the penalty, citing § 714(d)(2)(B)’s bar on mitigation.
- Sayers appealed to the Federal Circuit, arguing § 714 cannot be applied retroactively to misconduct that occurred before § 714’s enactment (June 23, 2017).
- The Federal Circuit held that (1) § 714 requires the Board to review the agency’s entire adverse-action decision (including the penalty) and (2) applying § 714 to pre-enactment conduct would have impermissible retroactive effect; it vacated the removal and remanded to the Board.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 714 may be applied retroactively to conduct that occurred before its enactment | Sayers: statute is silent on retroactivity; presumption against retroactivity protects his property interest in employment so § 714 cannot apply to pre-enactment misconduct | VA: removal was proposed after enactment; Congress did not prohibit applying § 714 to conduct predating the statute | Held: § 714 would have impermissible retroactive effect on employment rights and cannot be applied to Sayers’ pre-enactment conduct |
| Proper scope of MSPB review under § 714: may the Board review only factual support for charges or also the agency’s penalty choice? | Sayers: § 714 bars mitigation but Board must still review entire decision, including penalty legality and reasonableness | VA: § 714(d)(2)(B) limits the Board to factual review; penalty is not reviewable so long as substantial evidence supports charges | Held: § 714 requires review of the entire adverse-action decision (including penalty) for substantial evidence and for compliance with law; the AJ erred in treating the penalty as irrelevant |
| Whether the reduction in standard of proof and prohibition on mitigation are merely procedural | Sayers: these changes affect substantive rights (burden/relief) and thus cannot be applied retroactively without clear congressional direction | VA: procedural application suffices because removal was initiated after enactment | Held: the change in evidentiary standard and elimination of mitigation affect substantive employment rights and trigger the presumption against retroactivity |
Key Cases Cited
- Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (establishes presumption against retroactive statutory application and tests for retroactivity)
- I.N.S. v. St. Cyr, 533 U.S. 289 (2001) (first step: Congress must clearly direct retroactive application; cautions about substantive effects)
- Martin v. Hadix, 527 U.S. 343 (1999) (applies Landgraf framework to determine retroactivity and presumption against retroactivity)
- Lindh v. Murphy, 521 U.S. 320 (1997) (distinguishes procedural versus substantive statutory changes)
- Lindahl v. Office of Pers. Mgmt., 470 U.S. 768 (1985) (statutory interpretation can preserve pre-existing review where Congress’ language is ambiguous)
- Lisiecki v. Merit Sys. Prot. Bd., 769 F.2d 1558 (Fed. Cir. 1985) (interpreting limited MSPB review under chapter 43; discussed and distinguished)
- McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320 (Fed. Cir. 2005) (review of Board legal conclusions is de novo)
- Purifoy v. Dep’t of Veterans Affairs, 838 F.3d 1367 (Fed. Cir. 2016) (standards for reviewing MSPB decisions)
- Stone v. F.D.I.C., 179 F.3d 1368 (Fed. Cir. 1999) (recognition of property interest in continued employment)
- Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002) (illustrates statutory limits on appellate review of factual determinations)