Legislation that would limit appeal rights of fired department senior executives has stalled.
The head of the Senate Veterans’ Affairs Committee is pushing for a floor vote on major legislation that would limit the rights of senior executives at the Veterans Affairs Department to appeal their removal.
Less than a week after the department announced that it would no longer use the expedited authority in a 2014 law to fire senior executives because of constitutional concerns, Sen. Johnny Isakson, R-Ga., urged his colleagues to support the Veterans First Act, and help bring it to the floor for an immediate up-or-down vote. The legislation, crafted by Isakson and the panel’s ranking member Richard Blumenthal, D-Conn., would take away the rights of VA senior executives to appeal major disciplinary actions, including firing, to the independent Merit Systems Protection Board. Instead, under the bill, affected senior executives would have the opportunity to appeal adverse actions to an internal department review board, giving the VA secretary more authority over removals, suspensions and demotions.
“This is the only piece of reform legislation moving through Congress today that can withstand the current constitutional scrutiny that the VA relied on in abandoning its expedited firing authority,” Isakson wrote in the June 21 letter. “With the VA now using only the accountability authorities that proved inadequate in the past, the need for these reforms is more urgent than ever.”
The Senate Veterans’ Affairs Committee passed the bill quickly this spring, but there is no indication that the bill is headed for a floor vote any time soon.
“There is not a scheduling announcement at this time,” regarding the Veterans First Act, said Stephanie Penn, a spokeswoman for Senate Majority Leader Mitch McConnell, R-Ky., on Wednesday.
Isakson and other lawmakers, including House Veterans’ Affairs Committee Chairman Jeff Miller, R-Fla., were outraged over the Obama administration’s recent decision not to enforce the accountability provisions in the two-year-old Veterans Access, Choice, and Accountability Act. That law aims to expedite the disciplinary and appeals process for VA senior executives by reducing it, but critics have said it violates employees’ due process rights, as well as the Constitution’s Appointments Clause. In early June, 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.
The VA used the Choice Act – which requires MSPB to render a decision in 21 days in appeals cases involving VA senior executives – to fire Helman. But 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.
Last Friday, the VA made it clear that it would not continue to use that expedited firing authority under the 2014 law because of the Justice Department decision.
“It would be irresponsible to continue using that authority [under the Choice Act] when other methods for disciplining senior executives exist," VA Deputy Secretary Sloan Gibson said. "In fact, doing so would only hinder VA’s ability to hold senior officials accountable who have engaged in wrongdoing and make those actions stick.”
The Veterans First Act, which also includes expansions and enhancements for veterans’ health, benefits and education, would move certain senior executives -- senior medical directors within the Veterans Health Administration and directors of the Veterans Integrated Service Network -- out of Title 5 into Title 38. It also would expedite firing for all department employees by reducing the amount of time an employee has to respond to proposed disciplinary actions.
The bipartisan legislation has 44 co-sponsors and the support of several veterans’ organizations.