On the same day President Trump plunged the nation into crisis by sacking the FBI director, a court ruling demonstrated the importance of due process for federal employees being fired.
As a political appointee, James B. Comey didn’t have the same protection as civil servants. If some in Congress get their way, those regular working folks, particularly in the Department of Veterans Affairs, would be almost as defenseless as he was.
While the Civil Service disciplinary process can be long and slow, it protects the public, not just employees, by guarding agencies from becoming tainted by politically motivated workplace punishments.
The U.S. Court of Appeals for the Federal Circuit put a detour in efforts to fire feds faster with its decision Tuesday. It says VA senior executives can appeal terminations to the Merit Systems Protection Board (MSPB). They were denied that right in 2014 with a law that allowed appeals to administrative judges, but not to board members.
But that detour is not the end of the road for efforts to truncate due process. Bipartisan legislation in the Senate would circumvent the ruling by eliminating any MSPB appeal, including by administrative judges, for VA senior executives.
The court case involves Sharon Helman, the former director of the VA Medical Center in Phoenix who appealed her firing. She was part of the scandal over the coverup of long patient wait times that led to the Veterans Access, Choice, and Accountability Act of 2014. Among its provisions eviscerating due process rights for VA’s senior executives is one that prohibits their appeals of administrative judge rulings regarding personnel actions to the board.
The court ruling “strengthens the rights of our civil servants,” said Rep. Gerald E. Connolly (D-Va.). “While I supported the legislation as it applied uniquely to the VA to ensure badly needed accountability among senior managers I respect the logic underpinning the court’s opinion.”
Helman argued, and the court agreed, that a provision in the 2014 law violated the Constitution’s Appointments Clause by blocking presidentially appointed officers, in this case the board members. The decision did not overturn her dismissal, but it does allow the MSPB to consider her case. That’s more theoretical than real, however, because the three-member board has only one, not enough for a quorum.
“Great day in America,” was Senior Executives Association President Bill Valdez’s reaction to the ruling. The association agrees federal employees should be held accountable, but there are “sufficient structures in place to do that,” Valdez said, adding procedures should be uniform across government.
Veterans Affairs Secretary David J. Shulkin did not rejoice. The “ruling underscores yet again the need for swift congressional action to afford the Secretary effective and defensible authority to take timely and meaningful action against VA employees whose conduct or performance undermines Veterans’ trust in VA care or services,” his statement said.
Sens. Johnny Isakson (R-Ga.), and Jon Tester (D-Mont.), chairman and ranking member, respectively, of the Senate Veterans’ Affairs Committee, agreed with Shulkin.
“Any appeals by senior VA executives would no longer be brought before the Merit Systems Protection Board, but instead would be handled directly by the VA secretary under an expedited timeline,” explains a statement about legislation they and others introduced Thursday.
That essentially makes the boss, who fires employees, both prosecutor and judge. Judicial review would remain an option, but that’s a more complicated and expensive avenue than the administrative remedy MSPB provides.
Speeding discipline sounds good, but what would an abbreviated due process mean for employee rights and, ultimately, a nonpartisan workforce?
“You’re eliminating two layers of review,” said Debra D’Agostino, a lawyer with the Federal Practice Group, referring to administrative judges and the MSPB. “I think it would be a big decrease” in workplace protections.
The House has approved the VA Accountability First Act that would expedite firings of employees at VA, which is the guinea pig for rash measures. It would lower the department’s burden of proof against employees in some instances and significantly reduce the amount of time allowed for appeals, including MSPB decisions.
“Now more than ever, we must uphold the principle that there be strong safeguards protecting the civil service from politically motivated firing,” said J. David Cox Sr., president of the American Federation of Government Employees, which represents VA employees but not its senior executives.
“Under the legislation being considered, nurses, housekeepers, and cemetery workers at the VA could be fired with the same ease that President Trump fired Mr. Comey,” Cox added about House and Senate bills. “The case against them can be as weak and ‘trumped up’ as the reasons cited in the president’s termination notice to Mr. Comey.”