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News from the Federal Circuit: Part of DVA SES Discipline Law Struck Down

News from the Federal Circuit:  On May 9, 2017, the U.S. Court of Appeals for the Federal Circuit issued its decision in Helman v. Dept. of Veterans Affairs, No. 2015-3086.  The Court struck down part of the statute for expedited removals of Department of Veterans Affairs (DVA) Senior Executive Service (SES) employees as unconstitutional, but left much of the statute in place.

Recent years have seen a spate of fraud, waste and misconduct allegations involving DVA operations, with related whistleblower reprisal issues coming to light as well. As a result, Congress passed a statute truncating adverse action appeal rights for DVA SES employees, as previously analyzed in this blog.   

This new legislation proved controversial when implemented, including rare criticism from the Merit Systems Protection Board itself, which charged that portions of the statute that rendered decisions by its administrative judges unreviewable by the MSPB itself were unconstitutional. 

Ms. Helman, an SES employee of DVA, was removed under these expedited removal and appeal procedures.  Ms. Helman ultimately appealed her removal to the Federal Circuit, raising the Board's constitutionality objections as well as concerns over denial of due process and other claims.  While litigation was ongoing, then-Attorney General Lynch announced that the Department of Justice (DOJ) would not defend the constitutionality of the statute, which caused DVA to announce that it would stop using the special SES removal authority. 

The Federal Circuit ultimately agreed with the MSPB, DOJ and Ms. Helman that the statutory provisions  that rendered decisions by its administrative judges unreviewable by the Board itself were unconstitutional, and struck them down.  However, the Federal Circuit refused to strike down the rest of the statute, instead severing the offending provision.  As a result, for now, the truncated deadlines and shortened hearing procedures remain in place for covered adverse actions.  The court remanded the case to the MSPB for further adjudication of Ms. Helman's due process arguments.

If you are a federal employee subject to a possible adverse action, and wish to discuss your rights, consider contacting Passman & Kaplan to request an initial consultation.

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