The former director of the Department of Veterans Affairs facility in Phoenix is taking court action against her firing, which resulted from the scandal over the cover-up of long patient wait times.
Sharon Helman’s attorney, Debra L. Roth, filed a legal motion filed this week with the U.S. Court of Appeals for the Federal Circuit arguing that the Veterans Access, Choice and Accountability Act of 2014 severely limited Helman’s due process rights.
The act applies only to VA senior executives. It allows them just seven days to appeal termination. A Merit Systems Protection Board administrative judge must decide on that appeal within 21 days or the VA decision stands. These time frames are significantly shorter than those that apply to other federal employees.
Helman argues the law “required her to challenge her removal in a severely truncated proceeding with no meaningful opportunity for discovery or development of a record.”
The law also excludes the presidentially appointed members of the MSPB from the appeals process for VA senior executives. Helman argues that violates the “appointments clause” of the Constitution, by taking away authority from officials who are appointed by the president and confirmed by the Senate.
The Justice Department, representing the VA, said Helman’s case should be dismissed because the law says the administrative judge’s decision is “final and shall not be subject to any further appeal.”
Rep. Jeff Miller (R-Fla.), chairman of the House Committee on Veterans’ Affairs and author of the challenged law, said the notion it is unconstitutional “is preposterous and…hinges on arcane legal arguments and tortuous logic to defend dysfunctional civil service rules, that contributed to VA’s accountability crisis in the first place.”
Miller added: “Basic common sense dictates that VA should have the ability to quickly fire failing senior executives for cause, that’s why 511 members of Congress plus the President of the United States took action to give the VA secretary that power by passing the Veterans Access, Choice and Accountability Act.”