Twelve military and veterans organizations want the opportunity to defend in court a law designed to make it easier to fire senior executives at the Veterans Affairs Department.
The groups, which include the Veterans of Foreign Wars and the Iraq and Afghanistan Veterans of America, have filed a brief with the U.S. Court of Appeals for the Federal Circuit asking to “intervene” in the case involving former Phoenix VA senior executive Sharon Helman because the government last month decided not to defend key parts of the 2014 Veterans Access, Choice, and Accountability Act. The VA used the expedited firing authority in that law – designed to help the department get rid of senior poor performers or those engaged in misconduct faster -- to fire Helman in 2014, but the Justice Department has opted not to defend those aspects of the law because it believes they are unconstitutional.
The move by Justice, and the VA’s subsequent decision to no longer use the expedited firing in the Choice Act, has opened the door to future challenges from affected employees and has delivered another blow to the law. It also could help Helman, who ran VA’s Phoenix health care system when the scandal over falsifying wait lists erupted two years ago, win her job back.
» Get the best federal news and ideas delivered right to your inbox. Sign up here.
The groups argued that they should be able to weigh in on the case, in part, because there isn’t enough conflict between the two sides since the government capitulated to Helman’s argument that her firing under the Choice Act violated the Appointments Clause.
“This Court should not entertain the possibility of invalidating the VACAA [Choice Act] without a full and thorough airing of arguments and authorities on both sides of the issue by party litigants who are actually adverse to each other on that point,” the petition said. “Granting intervention will allow these military and veterans groups to defend their members’ vital interests, while providing the adversarial testing needed for meaningful adjudication of the critical constitutional questions this case presents.”
They also disagreed that the accountability provisions were unconstitutional, arguing that the Appointments Clause doesn’t apply to administrative judges but to “government personnel exercising the nation’s sovereign authority,” a category that excludes administrative judges. The brief added that administrative judges also “do not exercise ‘substantial authority’ pursuant to the laws of the United States.”
The Appointments Clause in Article II of the Constitution empowers the president to politically appoint “officers of the United States” with the “advice and consent” of the Senate. Under the Choice Act, however, Merit Systems Protection Board 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, which is where Helman’s case has been for about a year.)
Even if parts of the Choice Act are unconstitutional, say the military and vets organizations, the proper solution isn’t to overturn the law, but to change MSPB policy.
“Invalidating an internal administrative delegation is a far less extreme remedy than striking down parts of a federal statute—particularly a law that Congress enacted only two years ago,” said the petition, which also noted that Justice’s decision not to defend federal statutes in court was rare.
The government opposes the groups’ motion and is trying to block them from intervening in the appeal.
Helman’s attorneys did not immediately respond for comment.