SHARON M. HELMAN, Petitioner
DEPARTMENT OF VETERANS AFFAIRS, Respondent
VETERANS OF FOREIGN WARS, AMVETS, IRAQ AND AFGHANISTAN VETERANS OF AMERICA, NATIONAL ASSOCIATION FOR UNIFORMED SERVICES, RESERVE OFFICERS ASSOCIATION, NON-COMMISSIONED OFFICERS ASSOCIATION, MARINE CORPS LEAGUE, ARMY RESERVE ASSOCIATION, MARINE CORPS RESERVE ASSOCIATION, U.S. ARMY WARRANT OFFICERS ASSOCIATION, SPECIAL FORCES ASSOCIATION, JEWISH WAR VETERANS OF THE UNITED STATES, Intervenors
for review of the Merit Systems Protection Board in No.
Richard Nitz, MoloLamken LLP, Washington, DC, argued for
petitioner. Also represented by ROBERT Kelsey Kry, Jeffrey A.
Lamken; Debra Lynn Roth, James Philip Garay Heelan, Julia
Helen Perkins, Shaw, Bransford & Roth P.C., Washington,
R. Freeman, Appellate Staff, Civil Division, United States
Department of Justice, Washington, DC, argued for respondent.
Also represented by Mark B. Stern; Hillary Stern, Benjamin C.
Mizer, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington DC; HANSEL JAIDEV
CORDEIRO, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
Michael T. Morley, Coolidge-Reagan Foundation, Washington,
DC, argued for intervenors. Before Prost, Chief Judge,
Clevenger and Chen, Circuit Judges.
M. Helman, the former Director of the Phoenix Veterans
Affairs Health Care System, appeals a decision of the Merit
Systems Protection Board ("MSPB" or
"Board"). The Deputy Secretary of the Department of
Veterans Affairs ("DVA") removed Ms. Helman from
her position under 38 U.S.C. § 713, and a MSPB
administrative judge subsequently affirmed her removal. Ms.
Helman sought review from the full Board. Citing §
713(e)(2), the Board refused to take any further action on
Ms. Helman's appeal. Ms. Helman timely petitioned for our
review of the constitutionality of the statute governing her
removal and the process afforded to her under that statute.
conclude that by prohibiting Board review under §
713(e)(2), Congress vests significant authority in an
administrative judge in violation of the Appointments Clause.
We also conclude that § 713(e)(2) and two related
portions of § 713(e) are severable and, thus, the proper
remedy for the constitutional flaw in § 713 is to sever
those portions of the statute and leave the remainder of the
statute intact. We remand for the MSPB to take appropriate
action on Ms. Helman's petition for review of the
administrative judge's initial decision.
2014, Congress began investigating reports that senior
executives in the DVA had manipulated hospital performance
metrics by maintaining secret wait lists of veterans who
needed care. Dissatisfied with the pace of the DVA's
disciplinary efforts, legislators proposed a variety of
reforms, including measures designed to make it easier for
the Secretary of Veterans Affairs to remove or demote senior
executives in the agency for poor performance. These
proposals culminated in the enactment of § 707 of the
Veterans Access, Choice, and Accountability Act, which sets
forth new rules for the removal or transfer of DVA Senior
Executive Service employees. Veterans Access, Choice, and
Accountability Act of 2014, Pub. L. No. 113-146, § 707,
128 Stat. 1754, 1798 (2014) (codified in relevant part at 38
U.S.C. § 713) ("Veterans Access Act").
to the enactment of the Veterans Access Act, senior
executives at the DVA could only be removed according to the
removal scheme established by the Civil Service Reform Act of
1978, 5 U.S.C. § 1101 et seq. See id.
§§ 7541-43. Under Title 5, the DVA is limited to
taking an adverse action against a senior executive only
"for misconduct, neglect of duty, malfeasance, or
failure to accept a directed reassignment or to accompany a
position in a transfer of function." Id. §
7543(a). The executive against whom such an action is taken
is entitled to appeal to the MSPB, id. §
7543(d), to a hearing, id. § 7701(a)(1), and to
be represented by an attorney, id. §
7701(a)(2), among other rights. Upon receiving the case,
"[t]he Board may hear any case appealed to it or may
refer the case to an administrative law judge ... or other
employee of the Board designated by the Board to hear such
cases." Id. § 7701(b)(1). These employees
of the Board are called administrative judges. See 5
C.F.R. § 1201.4 (defining the term "judge" to
include such employees). In practice, the Board refers most,
if not all, of its cases to administrative judges.
See MSPB, Judge's Handbook 10 (2007).
According to MSPB policy, the administrative judge will
adjudicate the appeal and render an initial decision within
120 days. Id. at 1. The executive then has thirty
days to petition the Board to review the initial decision. 5
U.S.C. § 7701(e)(1). Once the Board issues a final
decision, the executive may then file a petition for review
of the final decision in this court. Id. §
of the Veterans Access Act, Congress created a new executive
removal scheme, codified at 38 U.S.C. § 713, to make it
easier for the DVA to remove or demote its senior executives.
At a high level, § 713 differs from the removal
provisions of Title 5 in two respects: (1) it creates a
process for the removal or transfer of senior executives by
the Secretary for poor performance with limited executive
protections, 38 U.S.C. § 713(a)-(d)(1), (f)-(g); and (2)
it creates a process for an expedited MSPB review of a
removal or transfer carried out under the statute,
id. § 713(d)(2)-(e).
with respect to the removal and transfer process, § 713
provides the Secretary with broader authority to remove or
transfer a senior executive if "the performance
or misconduct of the individual warrants such removal."
Id. § 713(a)(1) (emphasis added). A senior
executive removed or transferred under § 713 is not
entitled to the thirty-day written notice requirement or the
seven-day response period that are provided under Title 5.
Id. § 713(d)(1). Section 713 eliminates the
moratorium on removals and transfers within 120 days of the
appointment of a new agency head or, in some circumstances,
the employee's most immediate supervisor. Id.
§ 713(f)(2). Executives transferred under § 713 may
only receive the annual rate of pay applicable to their new
position, id. § 713(b)(1), whereas Title 5
allows the individual to receive the highest of various basic
rates of pay, 5 U.S.C. § 3594(c)(1)(B)(i)-(iii).
Finally, § 713 prohibits placing executives on
administrative leave. 38 U.S.C. § 713(b)(2).
with respect to the MSPB appeal process, § 713 creates
an accelerated timeline for appeals to the MSPB and shortens
the MSPB appeals themselves. For example, where Title 5
provides thirty days to appeal an adverse action to the MSPB,
5 C.F.R. § 1201.22(b)(1), § 713 only provides
seven, 38 U.S.C. § 713(d)(2)(B). Section 713 also
requires the MSPB, pursuant to 5 U.S.C. § 7701(b)(1), to
refer all appeals to an administrative judge who "shall
issue a decision not later than 21 days after the date of the
appeal." 38 U.S.C. § 713(e)(1). Additionally, the
removal or transfer may not be stayed during the appeal to
the administrative judge, id. § 713(e)(4), and
the Secretary and the Board must ensure that the appeal is
expedited, id. § 713(e)(6); see also
Veterans Access Act § 707(b)(1), (3), 128 Stat, at 1754,
1800 (requiring the Board to promulgate rules for the
processing of expedited appeals under § 713 and
authorizing the Board to waive any regulation as necessary
for that purpose). Section 713 denies senior executives any
type of pay, bonus, or benefit during their appeals. 38
U.S.C. § 713(e)(5). In contrast to Title 5,
administrative judges' decisions under § 713 are
final and Board or judicial review is prohibited.
Id. § 713(e)(2) ("Notwithstanding any
other provision of law, including section 7703 of title 5,
the decision of an administrative judge . . . shall be final
and shall not be subject to any further appeal.").
Helman was the Director of the Phoenix Veterans Affairs
Health Care System, which is operated by the DVA. On November
10, 2014, Deputy Secretary Gibson notified Ms. Helman in
writing of a pending action to remove her from federal
service pursuant to § 707 (codified at 38 U.S.C. §
713). The Deputy Secretary identified a number of charges of
"misconduct that warrant[ed] removal from federal
service." J.A. 90-93. The charges included: lack of
oversight, conduct unbecoming a senior executive, and failure
to report gifts. Ms. Helman had "five business days
after receipt of th[e] notice to submit a written response
showing why the charges [we]re unfounded and any other
reasons why [her] removal should not be effected." J.A.
94. She timely responded through counsel. On November 24,
2014, Deputy Secretary Gibson notified Ms. Helman that, after
"carefully consider[ing] [he]r written reply and the
evidence, " he had "decided to remove [her] from
federal service effective immediately." J.A. 112-14.
Helman appealed her removal to the MSPB. Within the 21-day
period required by § 713(e)(1), the designated
administrative judge reviewed the parties' arguments and
evidence and issued a written decision analyzing each charge
and specification. The administrative judge declined to
sustain the charge of lack of oversight, but found that the
agency had proved the remaining charges. The administrative
judge also discussed and rejected each of Ms. Helman's
affirmative defenses, including her contention that her
removal violated her constitutional right to due process. Ms.
Helman sought an extension of time to appeal the
administrative judge's decision to the full Board. The
Clerk of the Board, citing the finality of the administrative
judge's decision under § 713(e)(2), indicated that
the MSPB would take no further action on her appeal. Ms.
Helman subsequently filed this petition for review.
of Foreign Wars et al. moved this court for permission to
intervene, or at a minimum, to participate as amici curiae in
this appeal. Ms. Helman and the government both opposed
the motion to intervene but did not oppose allowing
participation as amici. This court, concluding that
intervention was warranted in the unique circumstances of
this case, granted the motion to intervene and allowed for
generally have jurisdiction over appeals of a final decision
of the MSPB under 28 U.S.C. § 1295(a)(9), pursuant to 5
U.S.C. § 7703(b)(1). Ms. Helman and the government agree
that Ms. Helman properly seeks review in this court of a
"final order or decision of the Board" within the
meaning of § 7703(b)(1)(A) and that § 713(e)(2)
cannot preclude judicial review of Ms. Helman's
constitutional claims. Intervenors maintain, however, that
this court does not have jurisdiction-not even to review Ms.
Helman's constitutional claims-because of the language of
§ 713(e)(2). See 38 U.S.C. § 713(e)(2)
("the decision of an administrative judge . . . shall be
final and shall not be subject to any further appeal").
We have considered the Intervenors' arguments and find
them to be unpersuasive.
Supreme Court has consistently declined to interpret
provisions like § 713(e)(2) to preclude judicial review
of colorable constitutional claims. See Webster v.
Doe, 486 U.S. 592, 603 (1988); Johnson v.
Robison, 415 U.S. 361 (1974). The Court has explained
that "where Congress intends to preclude judicial review
of constitutional claims its intent to do so must be
clear." Webster, 486 U.S. at 603. Here, while
Congress intended to prohibit judicial review of the merits
of MSPB administrative judges' decisions, nothing in the
statute or its legislative history indicates that Congress
intended to take the additional step of precluding judicial
review of constitutional questions. Accordingly, we have
jurisdiction over Ms. Helman's constitutional claims
under 28 U.S.C. § 1295(a)(9), pursuant to 5 U.S.C.
Helman asks this court to review the constitutionality of 38
U.S.C. §713. In particular, she contends that § 713
violates the Appointments Clause because it impermissibly
"vest[s] in an administrative judge-a mere employee and
career civil servant-unreviewed discretion to
implement or overturn the decision of a cabinet-level
official." Pet'r's Br. 1. Ms. Helman argues in
the alternative that the administrative judges' exercise
of this authority violates the separation of powers required
by the Constitution. The alternative argument is based on Ms.
Helman's contention that the administrative judge is
insulated by multiple layers of for-cause removal
restrictions, in violation of Free Enterprise Fund v.
Public Co. Accounting Oversight Board, 561 U.S. 477
(2010). The government, for its part, agrees with Ms. Helman
that such "final and unreviewable discretion" is
"significant authority [that] can only be exercised by a
properly appointed Officer of the United States."
Resp't's Br. 19. The government agrees with Ms.
Helman that an MSPB administrative judge is not appointed as
an officer of the United States. Thus, the government
concedes, § 713 is "inconsistent with the
Appointments Clause" to the extent that it vests a
federal employee with the authority to render final,
unreviewable decisions. Id. The government points
out, correctly, that Ms. Helman's alternative separation
of powers argument is moot in this appeal if we find a
violation of the Appointments Clause.
in contrast, argue that § 713 is constitutional. First,
Intervenors contend that MSPB administrative judges are not
officers of the United States because they do not
"exercise a 'portion of the sovereign authority of
the federal Government.'" Intervenors' Br. 12.
Rather, Intervenors maintain, MSPB administrative judges only
"review certain employees' terminations" and
that "does not implicate the Government's sovereign
authority to punish, regulate, license, or otherwise execute
or enforce federal law against the public." Id.
at 13. Second, Intervenors argue that § 713 does not
confer "significant authority" upon administrative
judges because "[t]he authority to make decisions
relating to an extremely small group of people, under
exceedingly rare circumstances, concerning a narrow range of
employment-related issues can hardly be deemed
'significant authority.'" Id. Finally,
Intervenors maintain that, even if MSPB administrative judges
are inferior officers, their appointment is constitutionally
valid because (1) "department heads [are] able to
delegate their authority to appoint inferior officers, "
or (2) "MSPB cured any constitutional defects in [the
administrative judge's] appointment by implicitly
ratifying it over the course of his employment throughout the
past nine years." Id. at 14.
parties also suggest varying remedies to the alleged
constitutional flaw in § 713. The government argues that
because "[t]he core of the constitutional defect in
[§] 713 is the provision that renders the decision of
the administrative judge final and unreviewable by the Board,
" Resp't's Br. 40, this court need only sever
that provision and "two related portions of [§]
713(e) whose operation is expressly keyed to the finality of
the administrative judge's decision, " id.
at 42. Ms. Helman contends that § 713 must be
invalidated in its entirety because severance "would
produce a statute that Congress would not have enacted,
rewrites a congressional compromise, and directly contravenes
Congress's goals." Pet'r's Reply Br. 2.
Intervenors argue, if we are to find a portion of § 713
unconstitutional, that the best course of action is to
"invalidate the MSPB's delegation of its authority
to hire AJs and give the MSPB an opportunity to directly
appoint, or ratify the appointment of, [the administrative
judge who presided over Ms. Helman's hearing]."
Id. at 13-14 (internal citation omitted).
order to address the constitutionality of § 713, we
first identify the constitutional flaw, if any, in the
statute. With respect to this question, we agree with Ms.
Helman and the government and conclude that by prohibiting
Board review, Congress vests significant authority in an
administrative judge in violation of the Appointments Clause.
We carefully considered the Intervenors' arguments on
this point but find them to be unpersuasive. Second, upon
identifying the portions of the statute that are indeed
unconstitutional, we determine whether those invalid portions
are severable from the remainder of the statute. In
addressing this question, we agree with the government that
the problematic portions of the statute are severable and,
thus, the proper remedy to the constitutional flaw in §
713 is to sever those portions of the statute and leave the
remainder intact. We carefully considered the
Intervenors' remedial arguments but find them to be
unpersuasive. Finally, once we conclude that the invalid
portions of the statute are ...