By Spring 2019 M-VETS Student-Advisor
Problems within the Department of Veterans Affairs (VA), and specifically, the Veterans Health Administration, have received ample amounts of media attention over the last two decades. Following an investigation by the Office of the Inspector General into a scandal involving several senior executives at the Phoenix Veterans’ Affairs (“VA”) Hospital in 2014, Congress passed the Veterans Access, Choice, and Accountability Act (“VACAA”). VACAA contained a provision that required a simplified and expedited removal process for VA Senior Executive Service (“SES”) employees. The specific provision, contained within 38 U.S.C. §713 (“§713”), created immediate controversy because it severely limited the appeal rights of SES employees who faced a proposed removal action. The provision was so contentious that the Department of Justice declined to offer a defense argument in the first significant legal challenge to the provision in Helman v. Department of Veterans Affairs, going so far as to state publicly that the provision was “unconstitutional.”
After the Court of Appeals for the Federal Circuit (“CAFC”) ruled that a portion of §713 violated the Appointments Clause of the Constitution in Helman, Congress responded by passing the VA Accountability and Whistleblower Protection Act of 2017 (“VAAWPA”). Legislators designed the law to address the constitutional problems raised by the Helman court and add even more disciplinary penalties for SES employees that the VA finds guilty of misconduct. While these laws were important legislative steps forward for holding VA executives accountable, questions regarding VAAWPA’s constitutionality remain. This article briefly summarizes the Helman court’s ruling, its impact on VAAWPA, and lingering questions that resulted from those events.
The Helman Complaint
With VACAA, Congress intended to simplify and expedite the removal process of SES employees that the Civil Service Reform Act of 1978 (“Title 5”) formerly covered. §713 differed from Title 5 in several key aspects that significantly impacted response and appeal procedures for VA executives that faced proposed removal. First, §713 effectively eliminated the 30-day written notice and 7-day response periods required for proposed removal actions under Title 5, i.e. the VA could impose shorter time periods. Next, under Title 5, SES employees could appeal agency removal decisions to the Merit Systems Protection Board (“MSPB”) for review by an MSPB administrative judge (“AJ”). Furthermore, if the MSPB AJ ruled in favor of the agency, SES employees could request review of the decision to the entire three-member, presidentially appointed panel of the MSPB Board (“Board”) as well as the CAFC. §713 expressly prohibited Board or judicial review of final decisions by MSPB AJs. Moreover, under §713, if a MSPB AJ did not issue a decision within 21 days of receiving an appeal, the VA’s removal decision became final, i.e. the VA could make the final decision on removal with no further review.
In the wake of the Phoenix VA Hospital scandal, the Deputy Secretary (“Secretary”) of the VA proposed removal of Ms. Sharon M. Helman (“Helman”), the Director of the Phoenix Veterans Affairs Health Care System for “misconduct that warranted removal from federal service.” Helman timely responded to the proposed removal action within the Secretary-imposed deadline of “5 business days after receipt of the notice.” The Secretary responded with a final decision to remove Helman from federal service effective immediately. This entire sequence of events occurred within 14 days between November 10 and November 24, 2014. After Helman timely appealed her removal to the MSPB, an AJ issued a final decision that upheld the removal. Because the AJ’s decision was final, the Board denied Helman’s request for review pursuant to §713.
Helman petitioned to the CAFC for review of her case, arguing in-part that: I) §713 violated the Appointments Clause of the Constitution because it impermissibly allowed an AJ to implement or overturn the decision of a cabinet-level official without review; and II) §713 did provide her with a meaningful post-termination hearing in violation of her due process rights.,
The Helman Decision
a. VACAA Violated the Appointments Clause
The Helman court took up the question of whether §713 impermissibly vested, in MSPB AJs, powers that must be excised by an appointed “Officer of the United States” in violation of the Appointments Clause. Congress cannot appoint an employee that performs duties that can only be performed by an employee that must be appointed by the President. Congress may delegate the hiring of “inferior officers” to Heads of Departments. Those employees who are subordinate to inferior officers are not subject to the Appointments Clause. Whether an employee in the federal government qualifies as an officer is a question of what type of authority that the employee exercises.
In Helman, both parties agreed that the MSPB hired AJs as “employees” as opposed to going through an official procedure to appoint them as “officers.” Helman argued that because §713 expressly denied her further review of a MSPB AJ’s final decision to the Board or other judicial review, it vested “significant authority” to the MSPB AJ. The court reviewed this argument against the backdrop of Freytag v. Comm’r of Internal Revenue, in which the Supreme Court found that because the special trial judges (“STJs”) for the Tax Court have the authority to conduct trials, exercise significant discretion, and render decisions of the Tax Court, they “exercise independent authority” and thus qualify as inferior officers under the Appointments Clause. Comparing the decision in Freytag, the Helman court found that MSPB AJs exercise the same “significant discretion and independent authority” as that of the STJs, noting that an AJ who can issue a final decision with no further review was “no longer a subordinate to any officer.” Thus, the court held that §713 violated the Appointments Clause because it impermissibly vested “significant authority” in MSPB AJs. The court concluded by severing the unconstitutional portions of §713 and remanding the case to the Board.
b. Deferring on Due Process Challenge
In lieu of a remand to the Board, the Helman court declined to rule on Helman’s claims that §713 denied her sufficient due process. Nevertheless, Helman set forth some salient points regarding the “unreasonably rushed” timeframe of §713 that impeded her from presenting a defense. First, she contended that, due to the 21-day response deadline imposed by §713, a petitioner cannot possibly present a meaningful defense for AJs to consider. Furthermore, since the MSPB AJs must make a decision within a 21-day time frame, she argued that they cannot possibly give meaningful consideration to the evidence and arguments. Helman noted that even the AJ that presided over the proceeding called the 21-day timeframe “patently unreasonable.” Perhaps the most persuasive point that Helman made was by simply stating that §713 renders the VA’s decision final if the AJ does issue a decision within the 21-day timeframe.  Thus, if the AJ did not file a decision by the deadline for any reason, even those reasons that are not within the control of the petitioner, the VA’s decision becomes final by operation of law. Given that some of the cornerstones of due process are the right to be heard “at a meaningful time,” and in a “meaningful manner,” Helman set forth what appeared to be a legitimate claim that §713 may have fallen short of giving her a meaningful chance to present a defense.
VAAWPA – Did Congress Fix Constitutional Issues or Create New Ones?
Congress responded to the Helman decision by passing VAWPAA, which revamped §713 by completely eliminating MSPB review of SES removal actions and giving SES employees the right to obtain judicial review of any final VA decision. Furthermore, VAWPAA gave SES employees the right to challenge SES removal actions through a Secretary-defined grievance process. The grievance process effectively replaced SES employees’ right to MSPB review of a removal action.
While the grievance process offers a level of review in lieu of the MSPB, it offers new challenges to SES employees that may result in challenges on constitutional grounds. First, it remains to be seen whether Congress is constitutionally permitted to take away the right to MSPB review of removal actions for Title 5 employees. Second, the grievance process is not defined by the provision. Thus, the Secretary is free to establish any procedural requirements that he or she may or may not deem necessary. Third, the provision does not require the Secretary to establish a uniform procedure. Thus, each SES employee is not guaranteed the same procedural features. Fourth, the provision does not require that a presumably neutral deciding official will preside over the grievance process. Thus, the VA official who decided the penalty may also decide the outcome of the grievance. One of the benefits of MSPB review is that a neutral body presides over the appeal. Lastly, it appears that the Secretary may decrease the timeframe for the grievance process appears to at least one day shorter than the 21-day timeframe for MSPB review that VACAA required.
While it is understandable that Congress wanted to avoid more problems with MSPB review of VA SES removal actions, replacing such review with a grievance procedure that is not subject to Title 5 process requirements might be asking for more constitutional challenges. Ideally, any future successful constitutional challenges to VAAWPA will result in a SES removal process that is efficient and constitutionally sound. As President Trump has declared, “[w]e will not rest until all of America’s great veterans can receive the care they so richly deserve.”
 See, e.g., Michael Pearson, The VA’s troubled history, CNN (May 2014), https://www.cnn.com/2014/05/23/politics/va-scandals-timeline/index.html
 See Wesley Lowery et al., ‘Troubling’ report sparks new wave of calls for VA chief’s resignation, Washington Post., (May 2014), https://www.washingtonpost.com/politics/troubling-report-sparks-new-wave-of-calls-for-va-chiefs-resignation/2014/05/28/b6af712c-e699-11e3-a86b-362fd5443d19_story.html?utm_term=.af67a3420d8a
 Pub. L. No. 113-146, 128 Stat. 1754.
 Id., §707, 128 Stat. 1798 (codified in relevant part at 38 U.S.C. § 713).
 See, e.g., Ashton Habighurst, Enhancing Accountability at the Department of Veterans Affairs: The Legality of the Veterans Access, Choice, and Accountability Act of 2014 under the Due Process Clause, 64 Cath. U. L. Rev. 1045, 1073 (2015) (“[T]he Veterans Access, Choice, and Accountability Act of 2014 raises several due process concerns.”).
 856 F.3d 920 (Fed. Cir. 2017).
 See Nicole Orgysko, DOJ says key VA Choice provision for SES appeals is unconstitutional, FEDERAL NEWS NETWORK, (Jun. 2016), https://federalnewsradio.com/workforce-rightsgovernance/2016/06/doj-says-key-va-choice-provision-ses-appeals-unconstitutional/.
 Pub. L. No. 115-41, 131 Stat. 863 (2017).
 See Donovan Slack, Trump signs VA bill to protect whistleblowers, expedite firing of problem workers, USA TODAY, (Jun. 2017), https://www.usatoday.com/story/news/politics/2017/06/23/trump-seeks-to-expedite-discipline-protect-whistleblowers-veteransaffairs/420688001/.
 See Nicole Orgysko, DoJ sees familiar constitutionality challenges in VA accountability bill, FEDERAL NEWS NETWORK, (May 2017), https://federalnewsnetwork.com/veterans-affairs/2017/05/doj-sees-familiar-constitutionality-challenges-in-va-accountability-bill/.
 The Helman court expressly stated that the petitioner was “free to pursue” additional constitutional claims that it declined to address. 856 F.3d at 938.
 All references to “§ 713” are referring to statutory language within VAACA.
 856 F.3d at 924. See also 5 U.S.C. §§7541–43.
 Id. at 925.
 Id. at 926.
 Helman also argued that because MSPB AJs are officers of the United States, and the President does not appoint them, the MSPB appointed AJs in violation of the Appointments Clause. Id. Because the court found that the authority vested by §713 was unconstitutional, it declined to rule on “the broader constitutional question of whether administrative judges hearing appeals subject to Board review under § 7701 of Title 5 are inferior officers.” Id. The recent Supreme Court decision in Lucia v. Securities and Exchange Commission appears to have provided direct guidance on this issue. See 585 U.S. ___ (2018).
 All references to “§ 713” are referring to statutory language within VAACA unless otherwise noted.
 856 F.3d at 927-30. (“The Appointments Clause provides that: [The President] . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States . . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”)
 Id. at 928.
 See Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976). (“[A]ny appointee that exercises significant authority pursuant to the laws of the Unites States is an ‘Officer of the United States.’”).
 856 F.3d at 928, n3.
 Id. at 929.
 501 U.S. 868 (1991)
 Id. at 928-29.
 Id. at 929-30.
 Id. at 930-36. To date, the case has yet to be heard by the Board due to lack of a quorum. See Matthew Tully, With Two Nominees, the MSPB May Soon Have Its Quorum, FedSmith.com, (Mar. 2018), https://www.fedsmith.com/2018/03/19/two-nominees-mspb-may-soon-quorum/.
 856 F.3d at 936-38.
 See Corrected Principal Brief of Petitioner Sharon M. Helman at 59-60, Helman v. DVA, No. 15-3086, Oct. 1, 2015 (“Helman Brief”). Helman pointed to the Ninth Circuit, which held that a 10-day deadline for filing an appeal violated due process. Id. at 63 (citing to Gonzalez-Julio v. INS, 34 F.3d 820, 823-24 (9th Cir. 1994)).
 Id. at 60.
 Id. at 63.
 Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
 VAWPAA states that SES employees “may obtain judicial review” of removal actions. 38 U.S.C. §713(b)(5).
 VAWPAA states that SES employees may “grieve the action in accordance with an internal grievance process that the Secretary, in consultation with the Assistant Secretary for Accountability and Whistleblower Protection, shall establish for purposes of this subsection. . . . The Secretary shall ensure that the grievance process . . . takes fewer than 21 days.” 38 U.S.C. §713(b)(1)(C).
 See Matthew Tully, VA Accountability and Whistleblower Protection Act Tackles the Issue of Firing Insufficient Workers Without Pitfalls, FedSmith.com, (Jun. 2017) https://www.fedsmith.com/2017/06/21/va-accountability-whistleblower-protection-act-tackles-issue-firing-insufficient-workers-without-pitfalls/.
 In a recent CAFC decision that addressed another VA SES removal action related to the Phoenix VA Hospital scandal, the court remarked, “Statements credited to Mr. Gibson [VA Deputy Secretary] in the New York Times, for example, are greatly troublesome . . . Mr. Gibson’s alleged statements paint a picture showing Mr. Robinson to be responsible, in part, for the “wait-time scandal” and that Mr. Gibson made up his mind about Robinson’s guilt before he was served with the second proposal of removal . . . Thus, it appears that Gibson publicly announced Robinson’s termination before Robinson even knew about the proposed removal.” Robinson v. Department of Veterans Affairs, No. DE-0752-16-0351-I-1, slip op. at 23 (Fed. Cir. 2019).
 See footnote 48 supra.
 See The White House, President Donald J. Trump Is Putting Our Veterans First, (Nov. 2017), https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-putting-veterans-first/.