Case: 19-2032 Document: 59 Page: 1 Filed: 03/09/2021 United States Court of Appeals for the Federal Circuit ______________________ LAWRENCE BRENNER, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent ______________________ 2019-2032 ______________________ Petition for review of the Merit Systems Protection Board in No. NY-0714-19-0007-I-1. ______________________ Decided: March 9, 2021 ______________________ ALAN EDWARD WOLIN, Wolin & Wolin, Jericho, NY, ar- gued for petitioner. ELIZABETH ANNE SPECK, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for respondent. Also repre- sented by JEFFREY B. CLARK, ALLISON KIDD-MILLER, ROBERT EDWARD KIRSCHMAN, JR.; AARON ROBISON, Office of General Counsel, United States Department of Veterans Affairs, Sacramento, CA. ______________________ Case: 19-2032 Document: 59 Page: 2 Filed: 03/09/2021 2 BRENNER v. DVA Before NEWMAN, O’MALLEY, and WALLACH, Circuit Judges. WALLACH, Circuit Judge. Petitioner, Lawrence Brenner, seeks review of a final decision of the Merit Systems Protection Board (“MSPB”) affirming the U.S. Department of Veterans Affairs’ (“VA”) decision to remove Mr. Brenner from his position as Gen- eral Attorney, GS-14, with the VA’s Collections National Practice Group (“CNPG”) pursuant to 38 U.S.C. § 714, en- acted as part of the Department of Veterans Affairs Ac- countability and Whistleblower Protection Act of 2017 (“the Act”), Pub. L. No. 115–41, 131 Stat. 862. See Brenner v. Dep’t of Veterans Affairs, No. NY-0714-19-0007-I-1, 2019 WL 1315751 (M.S.P.B. Mar. 18, 2019) (J.A. 7–54). 1 We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). We vacate and remand. BACKGROUND I. Statutory Framework Generally, federal agencies “have two procedural routes available to them” to remove an employee: 5 U.S.C. Chapter 75 (for misconduct and poor performance) and 5 U.S.C. Chapter 43 (for poor performance). Harris v. Sec. & Exch. Comm’n, 972 F.3d 1307, 1315 (Fed. Cir. 2020); see Sayers v. Dep’t of Veterans Affairs, 954 F.3d 1370, 1378–79 (Fed. Cir. 2020). Further, as of 2017, the VA has a third 1 An administrative judge issued an initial decision on March 18, 2019, which became final when Mr. Brenner did not file a petition for review. J.A. 7; see also 5 C.F.R. § 1201.113(a) (providing that “[t]he initial decision of the judge will become the [MSPB]’s final decision [thirty-five] days after issuance” unless, inter alia, “any party files a petition for review”). Therefore, we refer to the Initial De- cision as the MSPB’s Final Decision. Case: 19-2032 Document: 59 Page: 3 Filed: 03/09/2021 BRENNER v. DVA 3 procedural route available to it: the Act, as codified at 38 U.S.C. § 714. Each route entails different procedures and, therefore, different protections for federal employees. See Sayers, 954 F.3d at 1377–79. First, “Chapter 75 . . . is concerned with removals and other disciplinary action.” See Lovshin v. Dep’t of Navy, 767 F.2d 826, 830 (Fed. Cir. 1985) (en banc); see 5 U.S.C. § 7512 (listing “[a]ctions covered” by Chapter 75). It has “been in the civil service law essentially unchanged since 1912[.]” Lovshin, 767 F.2d at 830. It provides for removal “only for such cause as will promote the efficiency of the …
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