Pentagon & Congress

Federal court strikes down VA firing rules

WASHINGTON — As lawmakers prepare for another push on accountability legislation for the Department of Veterans Affairs, a federal court on Tuesday struck down Congress' previous work on the issue as unconstitutional.

The ruling from the U.S. Court of Appeals for the Federal Circuit comes in response to the firing of Sharon Helman, former director of the Phoenix VA medical center at the middle of the 2014 wait times scandal. The court ruled her dismissal must be reconsidered by an appeals board, possibly reinstating her to the leadership post.

But the decision also delivers another blow to lawmakers' 2014 attempt to ease firing rules for the department, which included a speedier process to dismiss senior executives accused of negligence, incompetence or criminal behavior.

Officials from President Barack Obama's administration had repeatedly questioned the constitutionality of the rules, saying they unfairly limited workers' appeals rights. Supporters argued that the existing rules were too cumbersome and confusing, allowing problem employees to linger on the VA payroll for months or years.

House lawmakers earlier this year passed new accountability legislation for the department for all employees — not just VA's group of several hundred senior executives — that included new appeals timelines. But House Democrats have voiced concerns that their chamber's bill is still too restrictive, limiting federal workers' rights in the interest of political convenience.

Similar legislation is expected to be unveiled in the Senate in coming days. Tuesday's Helman decision is likely to amplify that urgency.

In a statement Tuesday evening, VA Secretary David Shulkin said 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."

Shulkin has already publicly endorsed the new House accountability bill.

The leaders of the Senate Veterans’ Affairs Committee — chairman Johnny Isakson, R-Ga., and ranking member Jon Tester, D-Mont. — released a joint statement promising swift action on the topic, saying their goal is to draft new rules that "will allow the VA to adequately hold employees accountable for wrongdoing and withstand legal scrutiny."

Concerned Veterans for America, a frequent critic of the Obama administration and arguably the most vocal of the veterans organizations on the accountability issue, blasted Helman as a "criminal" and said the federal court decision should spur lawmakers to act quickly on reforms.

"We should no longer debate whether or not poorly performing or even criminal VA employees should remain on the VA’s payroll," said Dan Caldwell, policy director for the group. "Veterans will continue suffering until Congress acts."

President Trump made accountability at the VA a key talking point on the campaign trail, and recently established a new office within the department dedicated to enforcing existing firing rules and reviewing potential fixes to VA employment policies.

But Tester on Tuesday reiterated concerns of eliminating employees’ rights with hasty moves.

"The VA needs the ability to fire poorly performing employees, and do so in a way that protects constitutional due process, and makes sure that court decisions stick," he said in a statement. "This ability is critical to ensuring veterans can access the best possible care at the VA."

Leo Shane III covers Congress, Veterans Affairs and the White House for Military Times. He can be reached at

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