Court tosses VA's expedited firing authority

A federal appeals court this week threw out part of a 2014 law that makes it easier for the Department of Veterans Affairs to fire employees. Now VA Secretary David Shulkin is renewing his call for the Senate to pass accountability legislation that enhances the power of agency leaders.

The U.S. Court of Appeals for the Federal Circuit ruled on May 9 that a provision of the 2014 VA Choice and Accountability Act that eliminates review of certain agency employee terminations by the Merit Systems Protection Board is unconstitutional. The court found that the law vests too much authority in MSPB administrative judges, in violation of the appointments clause of the constitution.

The law came about in the wake of the scandal over appointment system fraud at the Phoenix VA Medical System. The case in question was brought by Sharon Helman, the director of the Phoenix system, who was removed from her position on the orders of Deputy Secretary Sloane Gibson.

Helman's successful appeal doesn't mean that she gets her job back. All the court decision does is put her fate in the hands of the full board of the MSPB. However, the MSPB is currently operating without a quorum and can't hear cases, so the final outcome of the case will have to wait until President Donald Trump appoints more board members.

According to a VA statement, "the former director's removal remains in effect at this time."

Shulkin is hoping the case will prod Senate lawmakers to take up the VA Accountability First Act of 2017, which expands and enhances the secretary's power to terminate employees.

"Today's 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," Shulkin said.

Shulkin thanked the House of Representatives for passing the bill, and added, "we look forward to the Senate taking up the legislation and helping to ensure passage as soon as possible."