AUGUST 2021 Conner v. Department of Veterans Affairs

Since the enactment of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (the Act), 38 USC § 714, questions have remained about its application. The enactment of this statute essentially made it much easier for the Department of Veterans Affairs to remove employees for alleged misconduct without following long-standing Supreme Court precedent of Douglas v. Veterans Affairs, 5 M.S.P.R. 280, 305-306 (1981).

Federal employees were entitled to a much stricter due process entitlement regarding their rights during an agency disciplinary proceeding against them. The long-standing precedent of Douglas enumerated the 12 Douglas factors that agencies are bound by to consider during a disciplinary proceeding.

The 2017 714 statute stripped away many of an employee’s due process rights and granted the agency an easier path to remove an employee without the checks and balances federal employees enjoyed when defending a discipline and penalty action.

Since inception of the 714 statute the agency had maintained a position that the Douglas factors no longer applied during the discipline and penalty stage when it removed an employee.

The Conner case was appealed to the Federal Circuit Court who affirmed that the Douglas factors do apply to the VA during the discipline process. This is the first time the court had corrected the agency’s erroneous belief that the Douglas factors did not apply. This will significantly change the agency discipline process moving forward.