Could Attorney General Decision Help Fired VA Senior Executive Get Her Job Back?

The Justice Department this week declined to defend a key part of a 2014 law that aimed to make it easier to fire senior executives at the Veterans Affairs Department, opening the door to future challenges from affected employees and delivering another blow to a statute some consider unconstitutional.

Attorney General Loretta Lynch said the department would not challenge a main legal argument put forth by lawyers for Sharon Helman, the former senior executive who ran VA’s Phoenix health care system when the scandal over falsifying wait lists erupted in 2014, and whose case is now before the U.S. Court of Appeals for the Federal Circuit.

While the department “will continue to defend the vast bulk” of the 2014 Veterans Access, Choice and Accountability Act, Lynch said, the decision is a positive one for Helman, who could ultimately get her VA job back.

The department fired Helman in 2014 under the expedited removal authority included in the Choice Act; Helman appealed that decision to the Merit Systems Protection Board, which upheld the agency’s decision, not because of misconduct related to the wait times but because she had improperly accepted gifts from a lobbyist. Helman then appealed the MSPB’s decision to the Federal Circuit, where it’s been in limbo for the last year.

Helman has argued that her firing under the Choice Act was unconstitutional because it violated the Appointments Clause, which empowers the president to politically appoint “officers of the United States” with the “advice and consent” of the Senate. Under the Choice Act, however, MSPB administrative judges, who are federal employees, have the final say in the employee’s appeal at that level. In other cases involving the MSPB, employees can appeal the administrative judge’s decision to the agency’s board members who are politically-appointed. (In both circumstances, employees can take their appeal to the Federal Circuit after MSPB renders a decision.)

The Choice Act aims to expedite the disciplinary and appeals process for VA senior executives by curtailing it, but critics have said it violates employees’ due process rights, as well as the Appointments Clause.

The Justice Department, at least in Helman’s case, believed it couldn’t effectively challenge the Appointments Clause argument as it relates to the Choice Act. Section 707 of the law “vests a federal employee with the final authority – unreviewable by any politically accountable officer of the Executive Branch – to determine whether to uphold the removal of a DVA [Veterans Affairs Department] senior executive, which includes the power to overrule the decision of a Cabinet-level officer,” said the May 31 letter from Lynch to Patricia Bryan, the Senate’s legal counsel. “That scheme, which impairs the president’s ability to supervise the execution of the federal civil service laws, is inconsistent with the Appointments Clause.” The brief that DoJ lawyers filed in the Court of Appeals in the Helman case said the department “declines to defend the constitutionality of an Act of Congress only with the greatest reluctance.”

Lynch said Justice will recommend that the Court of Appeals invalidate the provisions within the Choice Act that conflict with the Appointments Clause in the Constitution, in particular the language in the law under the section titled “Expedited Review by an Administrative Judge” that states: “Notwithstanding any other provision of law, including section 7703 of title 5, the decision of an administrative judge under paragraph (1) shall be final and shall not be subject to any further appeal.” The brief called on the Court of Appeals to remand the case to MSPB for further consideration.

That decision has serious implications for future appeals cases that VA senior executives might bring under the law, and certainly weakens that portion of the Choice Act. The law has been tested over the last few months, with MSPB overturning the demotions and the removal of three senior executives disciplined under it.

House Veterans’ Affairs Committee Chairman Jeff Miller, R-Fla., one of the main architects of the 2014 Choice Act, said he was “outraged” by the Justice Department’s decision “given the fact that President Obama enthusiastically supported this law.” Many other Democrats in the House and Senate did as well, and at the time, praised the senior executive accountability provisions in the Choice Act.

“This decision only underscores the urgent need for civil service reform across the federal government that enables leaders to swiftly and efficiently discipline those who can’t or won’t do their jobs – an ability that is presently almost nonexistent,” Miller said in a statement. “While this matter is still pending in federal court, we will immediately begin exploring legislative remedies to thwart the Obama administration’s blatant advocacy on behalf of those whose mismanagement, malfeasance and crimes may have contributed to veteran and taxpayer harm.” 

Helman pleaded guilty earlier this year to lying on her government financial disclosure form about the gifts she received from a lobbyist when she worked at VA. She received probation with no prison time as part of a plea deal.

Other lawmakers and veterans’ advocacy groups were quick to criticize Lynch’s decision, with Senate Veterans Affairs’ Committee Chairman Johnny Isakson, R-Ga., calling it “disappointing” and using it as an opportunity to tout his Veterans First Act. That legislation, now pending consideration by the full Senate, includes accountability provisions for the department’s senior executives and employees, and would reform parts of the Choice Act. “The Veterans First Act allows for stronger accountability without raising this constitutional challenge,” Isakson said in a statement, pointing out that the bill “removes the MSPB from the appeal process for senior executives altogether.”

Concerned Veterans for America said the administration’s decision amounted to a “surrender to special interests and entrenched bureaucrats” and was “an insult to all veterans.”

But groups like the Senior Executives Association said the Justice decision in the Helman case was “rooted in the founding principle of our government: that the influence of partisan politics cannot negate the rights of American citizens outlined and protected in our Constitution.” The SEA’s general counsel is Shaw Bransford and Roth, the law firm also representing Helman.

“There were numerous attempts by SEA and other organizations—including a letter to the president from the Senate-confirmed leaders of the MSPB—to draw attention to the constitutional issues within the Choice Act, but these efforts were repeatedly ignored,” said SEA Interim President Jason Briefel in a statement. “Unfortunately, it’s taken two years of wasted taxpayer resources and money to bring us to a conclusion that was foreseen and forewarned by many.”

Justice had to file its brief in the Helman case with the Court of Appeals by June 1. It’s not clear when the court will render a decision.