On Tuesday, the Appeals Court for the Federal Circuit ruled that the firing of former Phoenix Veterans Affairs (VA) Director Sharon Helman, a convicted felon, was unconstitutional. While this does not mean Helman will return to work, the ruling may strike a powerful blow against VA accountability reform.
“Today’s ruling underscores yet again the need for swift congressional action to afford the Secretary effective and defensible authority to take timely and meaningful action against VA employees whose conduct or performance undermines Veterans’ trust in VA care or services,” VA Secretary David Shulkin declared in a statement. He praised H.R. 1259, the VA Accountability First Act of 2017 — which has passed the U.S. House of Representatives but not the U.S. Senate — as “a vital step toward providing the tools necessary to address misconduct while ensuring due process.”
The problem is, the Federal Appeals Court ruling struck down portions of a 2014 law meant to expedite the firing process at the VA as unconstitutional, and the act before Congress seems vulnerable to the very same legal attacks.
Sharon Helman was at the center of the original VA scandal in 2014, and was fired by VA Secretary Robert McDonald in November of that year, after the Veterans Access, Choice, and Accountability Act of 2014 became law in August. Under Helman’s tenure, the Phoenix branch became the national epicenter of the scandal, with veterans dying because of long waits for care.
McDonald fired Helman for three reasons: charges related to falsified appointment data, retaliation against whistleblowers, and the failure to disclose gifts on her conflict-of-interest statements. Here’s where it gets interesting: a merit system judge threw out the first two charges, but upheld her termination based on the unreported gifts.
In other words, Helman got off scot free from the scandal, but was fired because she accepted $50,000 in gifts without reporting them. The gifts came from Dennis “Max” Lewis, a former VA executive who had mentored Helman before going into private business as a lobbyist with a company that secured millions of dollars in VA contracts. The gifts included a $11,000 family vacation to Disneyland, spa and resort visits, air fare, and concert tickets. Helman was sentenced to two years probation in 2016.
But Helman challenged her termination, and in June of last year, U.S. Attorney General Loretta Lynch informed Congress that her Justice Department would not contest Helman’s claim that the federal firing procedures used against her were unconstitutional. Rep. Jeff Miller (R-Fla.), chairman of the House Committee on Veterans’ Affairs, declared, “Today, the Obama Administration sent a message loud and clear to felons. You will be coddled and protected at the Department of Veterans Affairs, which even before this decision was routinely tolerating egregious behavior among employees.”
Tuesday’s Federal Appeals Court decision repeated that message, but with even more disastrous effect. The court did not just rule Helman’s firing unconstitutional — it struck down a provision of the 2014 reform bill which expedited the firing process for bad employees. The problem is, a similar provision exists in the 2017 bill, which means that this court ruling could effectively nullify the current measure before Congress, before it even becomes law.
According to the court, the 2014 law gave an administrative judge the “final and unreviewable discretion to affirm or overturn the decision of a cabinet-level official,” namely the VA Secretary. The court cited the 1991 Supreme Court case Freytag v. Commissioner to illustrate the differences between an officer of the United States under Article II Section 2 of the Constitution and a mere employee, “a lesser functionary who is subordinate to officers of the Untied States.”
Because the ultimate firing decision is “a significant duty that can only be performed by officers of the United States” and not a “ministerial task,” and the administrative judges in question are “hired as employees,” this section of the 2014 law “is unconstitutional under the Appointments Clause.”
Any federal public servant, when fired, can appeal the decision to the Merit Systems Protection Board (MSPB) for review. This special protection often results in bad employees being able to stay on the government dole, receiving pay on administrative leave while their case is adjudicated in courts. Public sector unions argue that this is an important due process protection, but in cases of clear abuse of power or felonies, an expedited system seems necessary.
The 2014 law called for such an “expedited review,” stipulating that an administrative judge “shall issue a decision not later than 21 days after the date of the appeal.”
The 2017 bill also contains such language, noting that “any removal, demotion or suspension … may be appealed to the Merit Systems Protection Board,” but an “administrative judge shall expedite any such appeal under such section and, in any such case, shall issue a final and complete decision not later than 45 business days after the date of the appeal.”
If it is unconstitutional to vest the “final decision” in an administrative judge, then this expedited process — currently law under the 2014 reform and set to become law again in the 2017 bill — is null and void. It is arguable that the VA accountability measures currently before the Senate would already be toothless before they even came to a vote.
Perhaps this weakness is a major reason why the 2017 act has not yet come to a vote in the Senate. Sources tell PJ Media that Sen. Marco Rubio (R-Fla.) is working on a new VA accountability bill that would not be vulnerable to such attacks.
Unless the Senate drafts a different bill, the Supreme Court would have to strike down this ruling in order to give the VA Accountability Act of 2017 a fighting chance to do what it is supposed to do — give the VA secretary the ability to fire, demote, or suspend bad employees in a timely and decisive manner. If the process cannot be expedited, the purpose of the legislation is severely undercut.
Alternatively, if the Senate passes the 2017 accountability act and if President Donald Trump signs it, Congress and the president should declare definitively that they do not consider this federal court ruling binding, and that in keeping with their pledge to uphold the Constitution, they consider this expediting provision to be fully constitutional. While many consider the courts to have the final say on whether laws are constitutional, there is precedent that Congress and the president have this same authority, and the Republicans and Trump should use it in this case.
In response to the court’s ruling, Concerned Veterans for America (CVA) Policy Director declared, “This is a sad example of how convoluted and absurd the VA’s current personnel policies are.”
“Sharon Helman personally oversaw one of the worst VA scandals in American history and is a felon serving probation for crimes she committed while Phoenix VA director. The grounds for Helman’s termination should be unquestionable,” Caldwell added. “We urge the Senate to move on strong accountability measures like the VA Accountability First Act, which will empower the VA Secretary with the ability to rapidly fire criminal employees like Sharon Helman and to take back their undeserved bonuses. We should no longer debate whether or not poorly performing or even criminal VA employees should remain on the VA’s payroll.”
In April, a VA employee was caught watching porn on the job, and VA Secretary Shulkin was not able to fire him immediately. Other VA scandals continued during this past year, with the Houston VA falsifying wait times, an Oklahoma veteran dying with maggots in his wound, and the report that VA employees worked over 1 million hours for unions on the taxpayers’ dime.
The VA — and other departments, like the Environmental Protection Agency (EPA) — needs serious civil service reform, especially in light of this federal court decision. Unfortunately, it seems the public sector unions will fight tooth and nail against reform, seeing accountability as a denial of their employees’ rights. Expect a protracted battle on something that should be common sense.