STATEMENT FOR THE HEARING RECORD 

SUBMITTED BY

SUSAN TSUI GRUNDMANN

CHAIRMAN

U.S. MERIT SYSTEMS PROTECTION BOARD

TO THE

U.S. SENATE COMMITTEE ON VETERANS’ AFFAIRS 

COMMITTEE HEARING TO CONSIDER

PENDING HEALTH CARE AND BENEFITS LEGISLATION 

WEDNESDAY, SEPTEMBER 16, 2015
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Chairman Isakson, Ranking Member Blumenthal and distinguished 

Members of the United States Senate Veterans’ Affairs Committee 

(“Committee”). Thank you for the opportunity to present written testimony on 

behalf of the United States Merit Systems Protection Board (“MSPB”), an 

independent, quasi-judicial agency in the executive branch of the federal 

government. As the Chairman of MSPB, I am pleased to present written 

testimony for the record for this hearing on health care and benefits legislation 

pending before the Committee. Chairman Isakson has asked that MSPB present 

written testimony on each agenda item for which MSPB has a position or an 

interest and that “of particular interest to the Committee is MSPB’s views on S. 

1856 and any constitutional concerns.” 

As an initial matter, as I have stated in previous written testimony for the 

record to this Committee, under statute, MSPB is prohibited from providing 

advisory opinions on any hypothetical or future personnel action in the executive 

branch of the federal government. 5 U.S.C. § 1204(h) (“The Board shall not issue 

advisory opinions.”). Accordingly, this testimony should not be construed as an 

indication of how I, any other presidentially-appointed, Senate confirmed Member

of the three-Member Board at MSPB Headquarters in Washington, D.C. 

(“Board”), or an MSPB administrative judge would rule in any pending or future 

matter before MSPB. Instead, I would respectfully request that the Committee 

consider this testimony technical in nature. 

Also, I note that as a quasi-judicial agency, MSPB does not have the legal 

authority to determine the constitutionality of federal statutes. The Civil Service 

Reform Act grants both MSPB and federal courts with authority to review certain 

adverse personnel actions taken against employees in the federal government. 

However, with respect to the question of whether a statute itself is constitutional, 

MSPB’s primary responsibility is to develop a record, take evidence, and find 
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facts that could assist a federal court in determining that question. Elgin v. 

Treasury, 132 S.Ct. 2126, 2138 (2012). Thus, consistent with the Committee’s 

request, I am happy to provide my personal views and/or concerns regarding the 

constitutionality of one of the bills pending before the Committee, though I stress 

that the ultimate determination of any such question would need to be made by a 

federal court and would likely depend on the facts and circumstances of a 

particular case. 

A. MSPB’s Interest in S. 1856, The “Department of Veterans Affairs 

Equitable Employee Accountability Act of 2015” 

MSPB’s interest in S. 1856, the “Department of Veterans Affairs Equitable 

Employee Accountability Act of 2015,” introduced by Ranking Member 

Blumenthal, derives from its statutory responsibility to adjudicate appeals filed by 

federal employees in connection with certain adverse employment actions. As I 

have previously explained to the Committee, generally, after a federal agency 

imposes an adverse personnel action upon a federal employee, such as removal or 

demotion, and the federal employee chooses to exercise his or her statutory right 

to file an appeal with MSPB, MSPB will begin the adjudication process. In the 

case of a federal employee who is removed from his or her position, that 

individual is no longer employed by the federal government, and is not receiving 

pay, at the time he or she files an appeal with MSPB or at any point during the 

subsequent MSPB adjudication process.

Once an appeal is filed, an MSPB administrative judge 1 in one of MSPB’s 

regional or field offices will first determine whether MSPB jurisdiction exists over 

the appeal. If jurisdiction does exist, the MSPB administrative judge may conduct 

a hearing on the merits and then issue an initial decision addressing the federal 

 1

MSPB administrative judges are federal employees under the General Schedule 

System employed by MSPB. They are not “administrative law judges” appointed 

under 5 U.S.C. § 3105 nor federal judges. 
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agency’s case and the appellant’s defenses and claims. Thereafter, either the 

appellant or the named federal agency may file a petition for review of the MSPB 

administrative judge’s initial decision to the Board, which will review that 

decision and then issue a final decision of the MSPB. Both the Board and MSPB 

administrative judges adjudicate appeals in accordance with statutory law, federal 

regulations, precedent from United States federal courts, including the Supreme 

Court of the United States and the United States Court of Appeals for the Federal 

Circuit, and MSPB precedent. 

B. S. 1856 – The “Department of Veterans Affairs Equitable Employee 

Accountability Act of 2015”

In pertinent part, S. 1856 would provide the Secretary of the Department of 

Veterans Affairs (“Secretary” and “Department”) with the authority2 to:

1. Suspend without pay an employee 3 of the Department if the Secretary 

determines the performance or misconduct of the employee is a clear 

and direct threat to public health or safety; and 

2. Remove an employee suspended in the manner referenced above if the 

Secretary determines that removal is necessary in the interests of public 

health or safety.

After suspension, but prior to removal, a covered employee is entitled to the 

following rights under S. 1856: 

 2 The authority provided to the Secretary in S. 1856 is “in addition to the authority 

provided under section 713 and subchapter V of chapter 74 of [title 38 of the 

United States Code] and with title 5 [of the United States Code] with respect to 

disciplinary actions for performance or misconduct.” Thus, if S. 1856 were 

enacted into law, it would provide the Secretary with an alternative procedure with 

which to take disciplinary action, but that procedure would not be mandated. 

3 S. 1856 defines an employee as “any individual occupying a position within the 

Department under a permanent or indefinite appointment and who is not serving a 

probationary or trial period.”
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1. Not later than 30 days after the date of the suspension, a written 

statement of the charges against the employee; 

2. A reasonable opportunity, but not less than 7 business days, to answer 

the charges orally and in writing and to furnish affidavits and other 

documentary evidence in support of the answer; 

3. At the request of the employee, not later than 15 business days after 

such request, a formal review by a Department authority where the 

employee may be represented by an attorney or other representative; 

4. A review of the case by the Secretary before a final adverse decision 

against the employee is made; 

5. As soon as practical, a decision of the Secretary with respect to the 

charges against the employee; and 

6. A written statement of the decision of the Secretary that includes the 

specific reasons for the removal. 

S. 1856 further provides that in the event that the Secretary determines that 

the suspension or removal is either not warranted or constitutes a prohibited 

personnel practice, the employee shall receive back pay “equal to the total amount 

of pay” that the employee would have received during the period that the 

suspension or removal was in effect, minus any compensation earned by the 

employee through other employment. 

Finally, S. 1856 would allow an employee suspended or removed to appeal 

the final decision of the Secretary to the Merit Systems Protection Board, “under 

section 7701 of title 5” and to “obtain judicial review of a final order or decision 

of the Merit Systems Protection Board under [5 U.S.C. § 7703]. ” S. 1856 

provides no limitation on the manner in which MSPB may review an appeal 4

. 

 4 S. 1082 and S. 1117, legislation similar to S. 1856, would prohibit the threemember Board, which consists of presidentially-appointed, Senate confirmed 

political appointees, from reviewing appeals filed at MSPB by covered employees. 

Specifically, MSPB administrative judges (career federal employees), and not 

Senate confirmed political appointees, would be in a position to make a final 

determination on behalf of an executive branch agency. As I noted in my previous 
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C. MSPB’s Views on The “Department of Veterans Affairs Equitable 

Employee Accountability Act of 2015”

1. Due Process Considerations

On June 23, 2015, MSPB submitted written testimony to this Committee 

presenting views on S. 1117, The “Ensuring Veterans Safety Through 

Accountability Act of 2015,” which Senator Johnson introduced, and S. 1082, The 

“Department of Veterans Affairs Accountability Act of 2015,” which Senator 

Rubio introduced. Both bills generally provide the Secretary with expanded 

authority to remove or demote employees at the Department and also provide 

limited MSPB appeal rights to those employees and no right to judicial review. 

In my view, the primary difference between S. 1856 and the two bills 

referenced above is that S. 1856 would require the Department to provide an

employee who is suspended with the right to notice and an opportunity to respond 

prior to his or her ultimate removal. I note that S. 1856 does not require that a 

covered employed be provided with these rights prior to his or her suspension

without pay 5

. The language of S. 1856 tracks the language of 5 U.S.C. § 7532, the

statutory provision that allows the head of an agency to suspend employees 

 

testimony, an identical provision of law enacted in 2014 is currently being 

challenged at the United States Court of Appeals for the Federal Circuit on the 

grounds that, by prohibiting the Board members from participating in the MSPB 

adjudicatory process, the law violates the Appointments Clause contained in 

Article II, Section 2 of the United States Constitution.

5 In Gilbert v. Homar, 520 U.S. 924, 933-34 (1997), the Supreme Court concluded 

that, under the circumstances of that case, a public employee’s right to due process 

was not violated when he was suspended without advance notice. It noted, 

however, that “[o]nce the [suspension] charges were dropped, the risk of 

erroneous deprivation [of due process rights] increased substantially.” Id. at 935. 

Accordingly, it remanded the case to the court of appeals to determine whether, 

under the facts of the case, the hearing was sufficiently prompt to satisfy the 

requirements of due process. In other words, the lesson of Homar is that basic due 

process is situationally dependent on the facts of each case. 
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without pay when it is determined that such action is necessary in the interests of 

national security. (This is different from the standard set forth in S. 1856: a threat 

to, or in the interest of, “the public health or safety.”) After the employee is 

afforded similar post-suspension rights as required under S. 1856, he or she may 

be removed. 5 U.S.C. § 7532(b) and (c). In Dep’t of Navy v. Egan, 484 U.S. 518, 

532-33 (1988), the Supreme Court stated that the procedure established under 5 

U.S.C. § 7532 is “harsh and drastic for both the employee and the agency head.” I 

am not aware, however, of any decision by a federal court concluding that the 

procedure provided for in 5 U.S.C. § 7532 is unconstitutional on its face. 

As I noted in my previous written testimony to the Committee, in May 

2015, MSPB released a study6 entitled What is Due Process in Federal Civil 

Service Employment? The report provides an overview of current civil service 

laws for adverse actions and, perhaps more importantly, the history and 

considerations behind the formation of those laws. It also explains why, according 

to the Supreme Court of the United States, the Constitution requires that any 

system which provides that a public employee may only be removed for specified 

causes must also include an opportunity for the employee – prior to his or her 

termination –to be made aware of the charges the employer will make, present a 

defense to those charges, and appeal the removal decision to an impartial 

 6 In addition to adjudicating appeals filed by federal employees, MSPB is required 

under statute to:

Conduct, from time to time, special studies relating to the civil service and to the 

other merit systems in the executive branch, and report to the President and to 

Congress as to whether the public interest in a civil service free of prohibited 

personnel practices is being adequately protected. 5 U.S.C. § 1204(a)(3).
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adjudicator. We encourage Members of the Committee and their staff who have 

interest in these issues to read this report 7

. 

In the landmark decision of Cleveland Board of Education v. Loudermill, 

470 U.S. 532 (1985) the Supreme Court held that while Congress (through 

statutes) or the president (through executive orders) may decide whether to grant 

protections to employees, they lack the authority to decide whether they will grant 

due process rights once those protections are granted. Stated differently, when 

Congress establishes the circumstances under which employees may be removed 

from positions (such as for misconduct or malfeasance), employees have a 

property interest in those positions. Loudermill, 470 U.S. at 538-398

. Specifically, 

the Loudermill Court stated: 

Property cannot be defined by the procedures provided for its 

deprivation any more than can life or liberty. The right to due 

process is conferred, not by legislative grace, but by constitutional 

guarantee. While the legislature may elect not to confer a property 

interest in public employment, it may not constitutionally authorize 

the deprivation of such an interest, once conferred, without the 

appropriate procedural safeguards. 

Id. at 541. 

The Supreme Court explained that the “root requirement” of the Due 

Process Clause is that “an individual be given an opportunity for a hearing before 

he is deprived of any significant property interest,” and that “this principle 

 7 This report can be found at: 

http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=1166935&version=11

71499&application=ACROBAT

8 The Loudermill case involved a state employee, not a federal employee. 

Nevertheless, while the Federal Government is covered by the Fifth Amendment 

and the states by the Fourteenth Amendment, the effect is the same. See Lachance 

v. Erickson, 522 U.S. 262, 266 (1998); Stone v. Federal Deposit Insurance Corp., 

179 F.3d 1368, 1375-76 (Fed. Cir. 1999). 
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requires some kind of a hearing prior to the discharge of an employee who has a 

constitutionally protected property interest in his employment.” Id. at 542. 

According to the Supreme Court, one reason for this due process right is the 

possibility that “[e]ven where the facts are clear, the appropriateness or necessity 

of the discharge may not be; in such cases, the only meaningful opportunity to 

invoke the discretion of the decisionmaker is likely to be before the termination 

takes effect.” Id. at 542. The Supreme Court further held that “the right to a 

hearing does not depend on a demonstration of certain success.” Id. at 544. 

I also noted in my previous testimony that the requirements of the 

Constitution have shaped the rules under which federal agencies may take adverse 

actions against federal employees, as explained by the Supreme Court, U.S. Courts 

of Appeal, and U.S. District Courts. I suggested that should Congress consider 

modifications to these rules, many of which have been in place for more than one 

hundred years, it should ensure that the discussion surrounding those changes be 

an informed one, and that all Constitutional requirements be considered. By

considering S. 1856 as an alternative to S. 1082 or S. 1117, I believe the 

Committee is ensuring that an informed discussion take place. 

2. Additional Considerations

Moreover, as stated above, S. 1856 defines an employee as “any individual 

occupying a position within the Department under a permanent or indefinite 

appointment and who is not serving a probationary or trial period.” I believe this 

definition would include Department employees with positions listed in 38 U.S.C. 

§ 7401. Generally, these positions involve employees who provide health care 

services at the Department. It is my understanding that the Department currently 

employs nearly 190,000 health care professionals. Under existing law, a 

significant number of these employees do not possess the right to appeal adverse 

personnel actions to MSPB. Instead, they are subject to a separate internal 

disciplinary procedure provided for at 38 U.S.C. § 7461, et seq. Under that 
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procedure, health care professionals at the Department may appeal adverse 

personnel actions to internal disciplinary appeal boards at the Department and 

thereafter to a United States federal court. Thus, if S. 1856 were enacted into law, 

similar to S. 1082 and S. 1117, it would provide the Secretary with the discretion 

to invoke a disciplinary process that would provide MSPB appeal rights to a 

significant number of employees who currently do not possess those rights. 

This concludes my written testimony for the record. I am happy to address 

any questions for the record that Members of the Committee may have.