DoJ sees familiar constitutionality challenges in VA accountability bill

The Justice Department has some concerns about the constitutionality of some provisions in the Senate’s new accountability legislation for the Veterans Affairs Department.

VA received those concerns from Justice over the weekend, who is suggesting minor edits to the senior executive firing provisions in the Senate’s VA Accountability and Whistleblower Protection Act.

DoJ is concerned that having a VA employee review a senior executive’s disciplinary case, rather than a politically appointed official, could violate the appointments clause in the U.S. Constitution.

“There’s a bit of an issue in the part of this bill that deals with grievance process after a senior executive action and directs that the secretary will ensure that the grievance process is handled by a VA employee,” Meghan Flanz, acting general counsel for VA,  told the Senate Veterans Affairs Committee during a May 17 legislative hearing on the bill. “That would put an inferior officer, not a presidentially-appointed, Senate-confirmed individual in a position of reviewing decisions by the VA secretary.”

Under the new Senate bill, senior executives could no longer appeal removals and disciplinary actions to the Merit Systems Protection Board.

“We’re just trying to avoid the same litigation outcome that we had with the Choice Act,” Flanz said.

It’s the same concern former Attorney General  Loretta Lynch raised last year about a provision in the VA Access, Choice and Accountability of 2014, which ultimately renders an administrative judge’s decision final in a senior executive’s disciplinary appeal before the MSPB.

The U.S Court of Appeals for the Federal Circuit ruled last week that specific provision in the VA Choice Act is, in fact, unconstitutional. The decision came after the former director of the VA’s Phoenix, Arizona, medical center, Sharon Helman, filed a petition. The court ordered the MSPB to review the administrative judge’s original decision for Helman’s case.

DoJ has told VA it believes they can make changes to this language without impeding the intent of the legislation, said Jennifer Lee, deputy undersecretary for health for policy and services at the Veterans Health Administration.

“We have a bill that wreaks the apolitical civil service and is justified only by pretending that the most extreme examples of misconduct are occurring all over the place. In fact, instances of outrageous misconduct are rare.”

Yet despite Justice’s concerns, senators seem optimistic about the bill’s prospects.

“We’ve worked through some thorny issues,” Senate VA Committee Chairman Johnny Isakson (R-Ga.) said of the accountability bill. “We’ve navigated some rough seas, but thanks to Sen. [Jon] Tester (D-Mont.) and the other members of the minority, as well as the members of the majority, we have come forward with good legislation.”

And the bill’s sponsors, and VA, reiterated: they don’t believe the legislation would let the department’s managers get away with firing any employee who challenges them, nor does it impede on VA workers’ rights.

“Nothing in this bill is designed to punish them, stigmatize them or hurt them,” said Sen. Marco Rubio (R-Fla.), one of the legislation’s co-sponsors. “On the contrary, it’s designed to reward those who work so hard.”

Yet the American Federation of Government Employees (AFGE), which represents many VA employees, said the bill is the first step in weakening merit system principles for the civil service.

“We understand that bashing federal employees and taking away their rights makes for good politics, but it does make for bad government,” AFGE National president J. David Cox told the committee. “I promise you, that under this bill more employees will be fired for bad reasons than for good reasons. You want to make it easy for VA managers to fire people. You’ve bought into complaints that firing is too hard for them.”

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