Helman v. Dep't of Veterans Affairs

• Decision Date: 09 May 2017
• Docket Number: 2015-3086
• Citation: 856 F.3d 920
• Parties: Sharon M. HELMAN, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent v. Veterans of Foreign Wars, AMVETS, Iraq and Afghanistan Veterans of America, National Association for Uniformed Services, Reserve Officers Association, Non–Commissioned Officers Association, Marine Corps League, Army Reserve Association, Marine Corps Reserve Association, U.S. Army Warrant Officers Association, Special Forces Association, Jewish War Veterans of the United States, Intervenors
• Court: U.S. Court of Appeals — Federal Circuit

856 F.3d 920

Sharon M. HELMAN, Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS, Respondent
v.
Veterans of Foreign Wars, AMVETS, Iraq and Afghanistan Veterans of America, National Association for Uniformed Services, Reserve Officers Association, Non–Commissioned Officers Association, Marine Corps League, Army Reserve Association, Marine Corps Reserve Association, U.S. Army Warrant Officers Association, Special Forces Association, Jewish War Veterans of the United States, Intervenors

2015-3086

United States Court of Appeals, Federal Circuit.

Decided: May 9, 2017

856 F.3d 923

Eric Richard Nitz , MoloLamken LLP, Washington, DC, argued for petitioner. Also represented by Robert Kelsey Kry, Jeffrey A. Lamken ; Debra Lynn Roth, James Philip Garay Heelan, Julia Helen Perkins , Shaw, Bransford & Roth P.C., Washington, DC.

Mark R. Freeman , Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Mark B. Stern ; Hillary Stern, Benjamin C. Mizer , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington DC; Hansel Jaidev Cordeiro , Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Michael T. Morley , Coolidge–Reagan Foundation, Washington, DC, argued for intervenors.

Before Prost, Chief Judge, Clevenger and Chen, Circuit Judges.

Prost, Chief Judge.

Sharon M. Helman, the former Director of the Phoenix Veterans Affairs Health Care System, appeals a decision of the Merit Systems Protection Board ("MSPB" or "Board"). The Deputy Secretary of the Department of Veterans Affairs ("DVA") removed Ms. Helman from her position under 38 U.S.C. § 713, and a MSPB administrative judge subsequently affirmed her removal. Ms. Helman sought review from the full Board. Citing § 713(e)(2), the Board refused to take any further action on Ms. Helman's appeal. Ms. Helman timely petitioned for our review of the constitutionality of the statute governing her removal and the process afforded to her under that statute.

We conclude that by prohibiting Board review under § 713(e)(2), Congress vests significant authority in an administrative judge in violation of the Appointments Clause. We also conclude that § 713(e)(2) and two related portions of § 713(e) are severable and, thus, the proper remedy for the constitutional flaw in § 713 is to sever those portions of the statute and leave the remainder of the statute intact. We remand for the MSPB to take appropriate action on Ms. Helman's petition for review of the administrative judge's initial decision.

BACKGROUND

I

In 2014, Congress began investigating reports that senior executives in the DVA had manipulated hospital performance metrics by maintaining secret wait lists of veterans who needed care. Dissatisfied with the pace of the DVA's disciplinary efforts, legislators proposed a variety of reforms, including measures designed to make it easier for the Secretary of Veterans Affairs to remove or demote senior executives in the agency for poor performance. These proposals culminated in the enactment of § 707 of the Veterans Access, Choice, and Accountability Act, which sets forth new rules for the removal or transfer of DVA Senior Executive Service employees. Veterans Access, Choice, and Accountability Act of 2014, Pub. L. No. 113–146, § 707, 128 Stat. 1754, 1798 (2014) (codified in relevant part at 38 U.S.C. § 713 ) ("Veterans Access Act").

Prior to the enactment of the Veterans Access Act, senior executives at the DVA could only be removed according to the removal scheme established by the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq .See id. §§ 7541–43. Under Title 5, the DVA is limited to taking an adverse action against a senior executive only "for misconduct, neglect of duty, malfeasance, or failure to accept a directed

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reassignment or to accompany a position in a transfer of function." Id. § 7543(a). The executive against whom such an action is taken is entitled to appeal to the MSPB, id. § 7543(d), to a hearing, id. § 7701(a)(1), and to be represented by an attorney, id. § 7701(a)(2), among other rights. Upon receiving the case, "[t]he Board may hear any case appealed to it or may refer the case to an administrative law judge ... or other employee of the Board designated by the Board to hear such cases." Id. § 7701(b)(1). These employees of the Board are called administrative judges. See 5 C.F.R. § 1201.4 (defining the term "judge" to include such employees). In practice, the Board refers most, if not all, of its cases to administrative judges. See MSPB, Judge's Handbook 10 (2007). According to MSPB policy, the administrative judge will adjudicate the appeal and render an initial decision within 120 days. Id. at 1. The executive then has thirty days to petition the Board to review the initial decision. 5 U.S.C. § 7701(e)(1). Once the Board issues a final decision, the executive may then file a petition for review of the final decision in this court. Id. § 7703.

As part of the Veterans Access Act, Congress created a new executive removal scheme, codified at 38 U.S.C. § 713, to make it easier for the DVA to remove or demote its senior executives. At a high level, § 713 differs from the removal provisions of Title 5 in two respects: (1) it creates a process for the removal or transfer of senior executives by the Secretary for poor performance with limited executive protections, 38 U.S.C. § 713(a) –(d)(1), (f) –(g) ; and (2) it creates a process for an expedited MSPB review of a removal or transfer carried out under the statute, id. § 713(d)(2) –(e).

First, with respect to the removal and transfer process, § 713 provides the Secretary with broader authority to remove or transfer a senior executive if "the performance or misconduct of the individual warrants such removal." Id. § 713(a)(1) (emphasis added).¹ A senior executive removed or transferred under § 713 is not entitled to the thirty-day written notice requirement or the seven-day response period that are provided under Title 5. Id. § 713(d)(1). Section 713 eliminates the moratorium on removals and transfers within 120 days of the appointment of a new agency head or, in some circumstances, the employee's most immediate supervisor. Id. § 713(f)(2). Executives transferred under § 713 may only receive the annual rate of pay applicable to their new position, id. § 713(b)(1), whereas Title 5 allows the individual to receive the highest of various basic rates of pay, 5 U.S.C. § 3594(c)(1)(B)(i)–(iii). Finally, § 713 prohibits placing executives on administrative leave. 38 U.S.C. § 713(b)(2).

Second, with respect to the MSPB appeal process, § 713 creates an accelerated timeline for appeals to the MSPB and shortens the MSPB appeals themselves. For example, where Title 5 provides thirty days to appeal an adverse action to the MSPB, 5 C.F.R. § 1201.22(b)(1), § 713 only provides seven, 38 U.S.C. § 713(d)(2)(B). Section 713 also requires the MSPB, pursuant to 5 U.S.C. § 7701(b)(1), to refer all appeals to an administrative judge who "shall issue a decision not later than 21 days after the date of the appeal." 38 U.S.C. § 713(e)(1). Additionally, the removal or transfer may

856 F.3d 925

not be stayed during the appeal to the administrative judge, id. § 713(e)(4), and the Secretary and the Board must ensure that the appeal is expedited, id. § 713(e)(6) ; see also Veterans Access Act § 707(b)(1), (3), 128 Stat. at 1754, 1800 (requiring the Board to promulgate rules for the processing of expedited appeals under § 713 and authorizing the Board to waive any regulation as necessary for that purpose). Section 713 denies senior executives any type of pay, bonus, or benefit during their appeals. 38 U.S.C. § 713(e)(5). In contrast to Title 5, administrative judges' decisions under § 713 are final and Board or judicial review is prohibited. Id. § 713(e)(2) ("Notwithstanding any other provision of law, including section 7703 of title 5, the decision of an administrative judge ... shall be final and shall not be subject to any further appeal.").

II

Ms. Helman was the Director of the Phoenix Veterans Affairs Health Care System, which is operated by the DVA. On November 10, 2014, Deputy Secretary Gibson notified Ms. Helman in writing of a pending action to remove her from federal service pursuant to § 707 (codified at 38 U.S.C. § 713 ). The Deputy Secretary identified a number of charges of "misconduct that warrant[ed] removal from federal service." J.A. 90–93. The charges included: lack of oversight, conduct unbecoming a senior executive, and failure to report gifts. Ms. Helman had "five business days after receipt of th[e] notice to submit a written response showing why the charges [we]re unfounded and any other reasons why [her] removal should not be effected." J.A. 94. She timely responded through counsel. On November 24, 2014, Deputy Secretary Gibson notified Ms. Helman that, after "carefully consider[ing] [he]r written reply and the evidence," he had "decided to remove [her] from federal service effective immediately." J.A. 112–14.

Ms. Helman appealed her removal to the MSPB. Within the 21–day period required by § 713(e)(1), the designated administrative judge reviewed the parties' arguments and evidence and...