Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk“ program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to email@example.com.
The VA took a firm public position that despite the special firing authority Congress passed last summer, VA senior executives retained a constitutional right to their jobs and thus were entitled to pre-termination due process. Then, VA litigated the opposite position before an MSPB judge when it fired my law firm’s client, Sharon Helman, who has been vilified as the person responsible for ordering secret wait lists on which veterans died waiting for care while she collected big bonuses.
After months of public castigation by Congress and the media, the VA fired Ms. Helman, but not for charges that she manipulated wait time data to increase the size of her bonus. Rather, the charges against Ms. Helman were that she failed to take action or notify her superiors about the backlog of primary-care patient appointments. On December 22, the MSPB judge ruled that the VA failed to prove either allegation. That was after an extensive OIG investigation, further investigation by the FBI when Congress demanded that the FBI go to Phoenix to find a culprit, and with five VA attorneys assigned to her removal action. While Ms. Helman’s facts are unique to her, the VA’s contradictory public and private position on an employee’s constitutional rights may not be.
There are several constitutional issues raised by the new VA statute, entitled Removal of Senior Executives of the Department of Veterans Affairs for Performance or Misconduct. Here, I focus on the issue of whether the statute continues to confer a constitutional property right of employment to VA executives, and if so, what process is due them pre-termination.
The VA “scandal” provided a long awaited opportunity for some in Congress to eliminate or reduce job rights for career Executive Branch employees who may only be fired “for cause,” and instead convert Executive Branch employees to at-will status. Congress, the political branch of government, is at-will employment. That means congressional staffers have no job right and can be fired for any reason, or no reason, unlike the career employees of the Executive Branch, the non-political branch of our government, who can only be fired for cause. A government employee who can only be fired “for cause” has a property interest in their job, meaning that firing that employee is a government taking of property and that the employee is constitutionally entitled to pre-taking (pre-termination) notice and a meaningful opportunity to respond to the government’s reasons for the taking (termination).
The “for cause” requirement is to shield the performance and execution of duties by career Executive Branch employees, the employees who execute and enforce the laws of the United States, from partisan influence. But some congressmen and senators, have voiced opinions that Executive Branch employees should be treated like employees of the Legislative Branch. The vilification of Sharon Helman and other VA executives provided an opportunity to give it a go.
So last year, Congress passed the new VA firing statute. It was a compromise, for the very reason that some in Congress did not want to politicize the career ranks. Under the new statute “[t]he Secretary may remove an individual employed in a senior executive position at the Department of Veterans Affairs from the senior executive position if the Secretary determines the performance or misconduct of the individual warrants such removal.”
The statute does not provide pre-termination notice of the charges and an opportunity to respond. Rather, in a vacuum, the plain language of the statute would allow the secretary to fire VA executives immediately and without notice. Because the statute does not require pre-termination process, many said the statute turned the VA executive workforce into at-will employment, meaning they could be fired for any reason or no reason. Others debated that regardless of whether the statute required pre-termination notice and an opportunity to respond, the constitution still required pre-termination due process (notice and an opportunity to respond).
Then, in a move that surprised and angered some in Congress, the VA issued internal procedures that provide executives notice of reasons for the termination and five days “to respond in writing,” and they state, “[t]he Secretary or his designee will give full and impartial consideration to the Senior Executive’s reply, if any, and all evidence of record,” before firing the executive. VA Secretary Robert McDonald defended those internal procedures by letter to Congress and VA Deputy Secretary Sloan Gibson defended them to Congress in live hearing testimony as being constitutionally required.
Congress was outraged by this five-day period. Others opined that five days was a legally insufficient amount of time to muster a defense, and thus violated the executive’s right to pre-termination due process.
Here is a basic primer on constitutional property rights in order to understand the important ruling of the MSPB judge in Ms. Helman’s appeal versus the legal position taken by the VA’s top attorneys. If you are a career, non-probationary employee, the current statute governing your employment states that you can only be fired for cause –proven misconduct or unacceptable performance. You have a statutory right to notice of the charges and of the evidence against you, and a right to both a written and oral reply before your agency decides to terminate you. For most Executive Branch employees, if you are terminated, you have the right to appeal your termination to the MSPB, before which the agency must prove you did what you were charged with before an administrative judge. If the MSPB’s judge rules to affirm the agency action against you, you have a statutory right to appeal to the three member presidentially appointed Board members of the MSPB. If the Board rules against you, you have the statutory right to appeal that decision to a federal appeals court. All of this process was granted by Congress in the Civil Service Reform Act of 1978 (CSRA), and mirrors the traditional well accepted administrative review process of most agency actions. Again, the reason for the job protection was to ensure a workforce free from partisan influence.
The Congress of 1978 passed the CSRA a few years after the U.S. Supreme ruled in the seminal case of The Board of Regents v. Roth. In Roth (no relation to me), the Supreme Court held that when an individual’s government employment may only be terminated for cause, that employee has a property interest in his or her job, which cannot be taken away without due process. A few years after Congress passed the CSRA, the Supreme Court in another seminal case, Cleveland Board of Education v. Loudermill, announced that when a government employer confers a property interest in employment to an individual by way of imposing a “for cause” termination requirement, the U.S. Constitution requires the employer to provide pre-termination process to the employee, i.e., notice of the charges and a “meaningful” opportunity to respond to them, along with some amount of post-termination review. The CSRA of 1978 provides the very pre and post-termination process required by the Supreme Court. Every law student is taught these two cases in law school as they represent the seminal Supreme Court decisions on when a person is entitled to due process for a governmental taking of property, and what amount and kind of process that person is due. Until Sharon Helman, most of us thought the Supreme Court had settled the law some 30-40 years ago, even the VA’s public position agreed.
Secretary McDonald had signed a letter to House Committee on Veterans Affairs Chairman Jeff Miller dated November 4, 2014, justifying why the VA was providing senior executive fired under the new statute a five-day notice period stating, “[a]defensible removal process must include fundamental due process. It would be unconstitutional to fire a career employee without telling him or her why and providing an opportunity to respond.” Secretary McDonald also acknowledged that VA executives fired under the new statute still “have a Constitutionally-protected property right in their continued employment. As a result…[the authority under the new statute]must be exercised consistent with Constitutional due process, including a meaningful notice and an opportunity to be heard before employment is terminated.” And in that same letter, Secretary McDonald expressly referenced Ms. Helman and stated the VA “will move swiftly, within the bounds established by law, to bring these matters to closure.”
On November 13, 2014, three days into Ms. Helman’s pre-termination reply period, Deputy Secretary Gibson was pressed during a live hearing of the House Committee on Veterans Affairs as to why the VA had enacted procedures that provided senior executives with a five-day notice period of a proposed disciplinary action and an opportunity to respond. He explained to Congressman Miller that VA counsel’s “clear and unequivocal” advice had been that the case law mandated meaningful pre-termination due process. According to Deputy Secretary Gibson, the case law is “very clear that we have to provide a reasonable opportunity to respond to charges…That was shortened to five days. The view is that if we fail to provide that opportunity to respond that the MSPB will view that as a failure to provide due process, and therefore overturn the decision.”
Deputy Secretary Gibson further described the balance struck in Loudermill, stating that “We came up with five days because we understood that the intent of Congress was to move expeditiously. But we also balanced that against the requirement to provide due process or risk that our decisions be overturned. That simple.” Gibson further stated:
I think it’s important to understand what the new law does, and what the new law does not do. The new law does shorten the time to resolve an appeal. The law does not give VA leaders the authority to remove executives at will. Any removal must still meet stringent evidentiary standards, and provide due process. It does not do away with the appeal process.
It should be no surprise given the congressional and media campaign vilifying Ms. Helman and demanding her termination, we argued the pre-termination process the VA provided to her was not meaningful, as the termination was pre-determined for political reasons, in violation of both her constitutional right to due process and of the VA’s internal procedures requiring that her response and the evidence be given impartial consideration before the VA decide termination. The cards were stacked against Ms. Helman, with no fair shot at convincing the VA not to fire her. They then fired her, as expected.
Before the MSPB Judge, the VA argued in response that Ms. Helman was not entitled to any pre-termination due process as the new statute stripped that all away. The VA attorneys filed a pleading specifically arguing that it was not required to afford any senior executive it plans on firing under the new statute any process, meaningful or otherwise: “Therefore, the Chief Administrative Judge in this matter has no choice other than to hold that the requirement of pre-decisional notice of the factors under consideration and a meaningful opportunity to respond to them is no longer applicable in light of the new statutory disciplinary scheme….” The foundation of their argument was that the new statute failed to provide any such process, so no process was required.
However, the VA attorneys ignored and simply failed to address the well-established Supreme Court precedent that whether the government must provide pre-taking due process is determined by the Constitution, not by the statute granting the job right. And on that basis, the MSPB judge ruled against the VA. Specifically, the judge first held that the new VA statute created a property right in a VA executive’s employment. The judge pointed to the statutory language that authorizes the Secretary to remove an executive “if the Secretary determines the performance or misconduct of the individual warrants such removal,” and found that this places conditions on the removal of an executive, being that “the Secretary must determine there are misconduct or performance problems. Thus, even under the new statute, agency SES employment is not ‘at-will’ employment…Agency SES employees, including the appellant here, have a continued property interest in their employment.” Addressing the VA’s argument directly, the Judge then continued that “[t]he agency is correct that Congress did eliminate the express requirements for notice and an opportunity to respond in [the new statute], but as the Federal Circuit explained, the existence of the property interest does not depend on the choice of the procedures Congress created to remove it…In short, the procedural portion of the [new statute]did not undo the dictates of the Fifth Amendment to the Constitution, nor could they. As the Supreme Court stated in Loudermill, ‘[t]he right to due process is conferred, not by legislative grace, but by constitutional guarantee.’”
Having found that Ms. Helman continued to have a property right in her employment with the VA, the judge then applied Loudermill to hold that “[a]t some point prior to [her removal], the agency was required by the Due Process Clause of the Fifth Amendment to our Constitution to provide the appellant ‘oral or written notice of the charges against [her], an explanation of the employer’s evidence, and an opportunity to present [her]side of the story.’… This opportunity must be a genuine opportunity to persuade…An opportunity to present one’s side of the story is no opportunity at all if no one is willing to listen to and consider what is presented.”
Most striking about the argument by VA attorneys in this case was not that they failed to acknowledge these basic principles of the Due Process Clause when arguing against Ms. Helman being entitled to any constitutional protections. Rather, it was that in this private proceeding against Ms. Helman, VA attorneys argued against the Constitution applying to firings under the new statute to gain a litigating advantage over her, after their bosses (the Secretary and Deputy Secretary) expressly and publicly told Congress that they instituted the five-day notice period because VA attorneys informed them that they were constitutionally obligated to provide such pre-termination process. How could VA attorneys take one position publicly and the complete opposite legal position in a private proceeding and not even acknowledge their conflicting positions?
There is one final aspect to the legal position of the VA attorneys related to this issue. As I explained above, the VA Letter that self-imposed a five-day notice period and allowed an executive the opportunity to submit a written response also states that “[t]he Secretary or his designee will give full and impartial consideration to the Senior Executive’s reply, if any, and all evidence of record.” During a status conference with the MSPB judge, the issue of whether the VA had to follow this Letter by providing notice and a “full and impartial consideration” to the reply arose. VA attorneys argued the VA was not legally bound to abide by these published procedures. Specifically, the attorneys argued that although Ms. Helman was afforded the five days to submit a reply, the VA was not legally required to provide her with an impartial consideration and decision. The judge questioned the attorneys further on that point and asked whether they were taking the position that the consideration of her reply to the charges could be “a sham,” to which the most senior VA attorney argued affirmatively. The judge then directed the parties to brief the issue of whether the constitutional requirements aside, once the VA issued these rules for processing the new removal actions, it had to follow its own rules. Our argument was based on the Supreme Court’s 1957 opinion in Service v. Dulles, holding that an agency head is bound by the procedural rules he places on himself. The VA failed to even mention this case in its response to the MSPB. The judge ruled against the VA and held that it must follow the procedural rules it placed on itself.
Whether Secretary McDonald and Deputy Secretary Gibson intended to deceive Congress or whether the VA’s attorneys intended to deceive the MSPB judge is unclear. What’s clear from Ms. Helman’s case is the VA believes it can engage in “sham” removal proceedings. If you are an executive at the VA, you should know that the MSPB Judge’s ruling in Ms. Helman’s case requiring the proceeding not be a sham is not binding on the next MSPB judge, as the new VA statute eliminates full Board review of judge’s decisions. Only decisions issued by the Board members are binding authority, and Congress intentionally eliminated that review for you.
For those of you who are not VA employees, imagine Congress granted your agency the same firing authority it gave the VA. Would your agency respect your property rights?