ARRA News Service
ARRA News Service facebook page  
News for social, fiscal & national security conservatives who believe in God, family & the USA. Upholding the rights granted by God & guaranteed by the U.S. Constitution, traditional family values, "republican" principles / ideals, transparent & limited "smaller" government, free markets, lower taxes, due process of law, liberty & individual freedom. All content approval rests with the ARRA News Service Editor. Opinions are those of the authors. While varied positions are reported, beliefs & principles remain fixed. No revenue is generated for or by this site - no paid ads accepted - no payments for articles. Fair Use doctrine is posted & used.
Editor/Founder: Bill Smith, Ph.D. [aka: OzarkGuru & 2010 AFP National Blogger of the Year]
Contact: (Pub. Since July, 2006)
    Home Page

One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. -- Plato (429-347 BC)

Wednesday, May 10, 2017

Federal Court Rules Firing of Felon Phoenix VA Director Unconstitutional

by Tyler O'Neil: On Tuesday, the Appeals Court for the Federal Circuit ruled that the firing of former Phoenix Veterans Affairs (VA) Director Sharon Helman, a convicted felon, was unconstitutional. While this does not mean Helman will return to work, the ruling may strike a powerful blow against VA accountability reform.

"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," VA Secretary David Shulkin declared in a statement. He praised H.R. 1259, the VA Accountability First Act of 2017 — which has passed the U.S. House of Representatives but not the U.S. Senate — as "a vital step toward providing the tools necessary to address misconduct while ensuring due process."

The problem is, the Federal Appeals Court ruling struck down portions of a 2014 law meant to expedite the firing process at the VA as unconstitutional, and the act before Congress seems vulnerable to the very same legal attacks.

Sharon Helman was at the center of the original VA scandal in 2014, and was fired by VA Secretary Robert McDonald in November of that year, after the Veterans Access, Choice, and Accountability Act of 2014 became law in August. Under Helman's tenure, the Phoenix branch became the national epicenter of the scandal, with veterans dying because of long waits for care.

McDonald fired Helman for three reasons: charges related to falsified appointment data, retaliation against whistleblowers, and the failure to disclose gifts on her conflict-of-interest statements. Here's where it gets interesting: a merit system judge threw out the first two charges, but upheld her termination based on the unreported gifts.

In other words, Helman got off scot free from the scandal, but was fired because she accepted $50,000 in gifts without reporting them. The gifts came from Dennis "Max" Lewis, a former VA executive who had mentored Helman before going into private business as a lobbyist with a company that secured millions of dollars in VA contracts. The gifts included a $11,000 family vacation to Disneyland, spa and resort visits, air fare, and concert tickets. Helman was sentenced to two years probation in 2016.

But Helman challenged her termination, and in June of last year, U.S. Attorney General Loretta Lynch informed Congress that her Justice Department would not contest Helman's claim that the federal firing procedures used against her were unconstitutional. Rep. Jeff Miller (R-Fla.), chairman of the House Committee on Veterans' Affairs, declared, "Today, the Obama Administration sent a message loud and clear to felons. You will be coddled and protected at the Department of Veterans Affairs, which even before this decision was routinely tolerating egregious behavior among employees."

Tuesday's Federal Appeals Court decision repeated that message, but with even more disastrous effect. The court did not just rule Helman's firing unconstitutional — it struck down a provision of the 2014 reform bill which expedited the firing process for bad employees. The problem is, a similar provision exists in the 2017 bill, which means that this court ruling could effectively nullify the current measure before Congress, before it even becomes law.

According to the court, the 2014 law gave an administrative judge the "final and unreviewable discretion to affirm or overturn the decision of a cabinet-level official," namely the VA Secretary. The court cited the 1991 Supreme Court case Freytag v. Commissioner to illustrate the differences between an officer of the United States under Article II Section 2 of the Constitution and a mere employee, "a lesser functionary who is subordinate to officers of the Untied States."

Because the ultimate firing decision is "a significant duty that can only be performed by officers of the United States" and not a "ministerial task," and the administrative judges in question are "hired as employees," this section of the 2014 law "is unconstitutional under the Appointments Clause."

Any federal public servant, when fired, can appeal the decision to the Merit Systems Protection Board (MSPB) for review. This special protection often results in bad employees being able to stay on the government dole, receiving pay on administrative leave while their case is adjudicated in courts. Public sector unions argue that this is an important due process protection, but in cases of clear abuse of power or felonies, an expedited system seems necessary.

The 2014 law called for such an "expedited review," stipulating that an administrative judge "shall issue a decision not later than 21 days after the date of the appeal."

The 2017 bill also contains such language, noting that "any removal, demotion or suspension ... may be appealed to the Merit Systems Protection Board," but an "administrative judge shall expedite any such appeal under such section and, in any such case, shall issue a final and complete decision not later than 45 business days after the date of the appeal."

If it is unconstitutional to vest the "final decision" in an administrative judge, then this expedited process — currently law under the 2014 reform and set to become law again in the 2017 bill — is null and void. It is arguable that the VA accountability measures currently before the Senate would already be toothless before they even came to a vote.

Perhaps this weakness is a major reason why the 2017 act has not yet come to a vote in the Senate. Sources tell PJ Media that Sen. Marco Rubio (R-Fla.) is working on a new VA accountability bill that would not be vulnerable to such attacks.

Unless the Senate drafts a different bill, the Supreme Court would have to strike down this ruling in order to give the VA Accountability Act of 2017 a fighting chance to do what it is supposed to do — give the VA secretary the ability to fire, demote, or suspend bad employees in a timely and decisive manner. If the process cannot be expedited, the purpose of the legislation is severely undercut.

Alternatively, if the Senate passes the 2017 accountability act and if President Donald Trump signs it, Congress and the president should declare definitively that they do not consider this federal court ruling binding, and that in keeping with their pledge to uphold the Constitution, they consider this expediting provision to be fully constitutional. While many consider the courts to have the final say on whether laws are constitutional, there is precedent that Congress and the president have this same authority, and the Republicans and Trump should use it in this case.

In response to the court's ruling, Concerned Veterans for America (CVA) Policy Director declared, "This is a sad example of how convoluted and absurd the VA's current personnel policies are."

"Sharon Helman personally oversaw one of the worst VA scandals in American history and is a felon serving probation for crimes she committed while Phoenix VA director. The grounds for Helman's termination should be unquestionable," Caldwell added. "We urge the Senate to move on strong accountability measures like the VA Accountability First Act, which will empower the VA Secretary with the ability to rapidly fire criminal employees like Sharon Helman and to take back their undeserved bonuses. We should no longer debate whether or not poorly performing or even criminal VA employees should remain on the VA's payroll."

In April, a VA employee was caught watching porn on the job, and VA Secretary Shulkin was not able to fire him immediately. Other VA scandals continued during this past year, with the Houston VA falsifying wait times, an Oklahoma veteran dying with maggots in his wound, and the report that VA employees worked over 1 million hours for unions on the taxpayers' dime.

The VA — and other departments, like the Environmental Protection Agency (EPA) — needs serious civil service reform, especially in light of this federal court decision. Unfortunately, it seems the public sector unions will fight tooth and nail against reform, seeing accountability as a denial of their employees' rights. Expect a protracted battle on something that should be common sense.
Tyler O'Neil is Assistant Editor of PJ Media, Tyler O'Neil is a conservative fundraiser and commentator. He has written for numerous publications.

Tags: PJ Media, Tyler O'Neil, Federal Court Rules, Firing of Felon, Phoenix VA Director, Unconstitutional To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service and "Like" Facebook Page - Thanks!
Posted by Bill Smith at 4:30 PM - Post Link


Post a Comment

<< Home

National Debt
Don't miss anything!
Subscribe to the
ARRA News Service
It's FREE & No Ads!

You will receive a verification email
& must validate you subscribed!

You Then Receive One Email Each AM
With Prior Days Articles / Toons / More

Also, Join us at:

Recent Posts:
Personal Tweets by the editor:
Dr. Bill - OzarkGuru - @arra
#Christian Conservative; Retired USAF & Grad Professor. Constitution NRA ProLife schoolchoice fairtax - Editor ARRA NEWS SERVICE. THANKS FOR FOLLOWING!

Action Links!
Arkansas State Senators
AR State Representatives
Arkansas Governor Office
Arkansas Attorney General
Bankrupting America
US House of Representatives
US Senators
Family Research Council
Sunshine Review

Facebook Accts - Dr. Bill Smith
ARRA News Service
Arkansans Against Big Government
Alley-White Am. Legion #52
Catholics & Protestants United Against Discrimination
End Taxpayer Funding of NPR
Overturn Roe V. Wade
Prolife Soldiers
Project Wildfire 4 Life
Republican Liberty Caucus of Arkansas
The Gold Standard
US Atty Gen Loretta Lynch, aka Eric Holder, Must Go
Veterans for Sarah Palin
Why Vote for Hillary (Satire)
FB Groups:
Arkansas For Sarah Palin
Arkansas Conservative Caucus
Arkansas County Tea Party
Arkansans' Discussion Group on National Issues
Blogs for Borders
Conservative Solutions
Conservative Voices
Defend Marriage -- Arkansas
FairTax Nation
Arkansas for FairTax
Friends of the TEA Party in Arkansas
Freedom Roundtable
Let's Mine AR Lignite NOW!
Pro-Life Rocks - Arkansas
Republican Network
Republican Liberty Caucus of AR
Reject the U.N.


Request Via
Article Comment

Links to ARRA News
A Patriotic Nurse
Agora Associates
a12iggymom's Blog
America, You Asked For It!
Americans for a Free Republic
America's Best Choice
America's Whatchtower
An Ol’ Broad’s Ramblings
ARRA Twitter
As A Matter of Fact
As The Crackerhead Crumbles
Baaad Media!
Black & Right
Blogs For Borders
Blogs for Palin
Blow the Trumpet Ministry
Boot Berryism
Cap'n Bob & the Damsel
Chicago Ray Report
Chuck Baldwin - links
Citizen Pamphleteer
Common Cents
Conservative Hideout
Conservative Observer AZ
Conservative Voices
Conway Real Deal
Defeat Obama's Agenda
Diana's Corner
eGOP News
Florida Pundit
Franklin Online Outreach
Freedom For US Now
Free Zone Media Center
For God and Liberty
Garland County Republicans
Greater Fitchburg For Life
Guns and Religion
Lasting Liberty Blog
Liberal Isn't Amy
Liberty's Lifeline
Maggie's Notebook
Marathon Pundit
Monkey in the Middle
NASA Satellites
No Runny Eggs
Okie Campaigns
Our Voices Arkansas
Patriot's Corner
Publius Forum
Randy's Roundtable
Real Debate Wisconsin
Religion and Morality
Right on Issues that Matter
Right Reason
Rocking on the Right Side
Saber Point
Saline Watchdog
Secure Arkansas
Sentry Journal
Sultan Knish
Stop Obama Satire & Cartoons
The Arkansas Patriot
The Audacity of Logic
The Blue Eye View
The Bobo Files
The Born Again Americans
TEA Party Cartoons
The Conservative Citizen
The Foxhole | Unapologetic Patriot
The Liberty Republican
The Lid
The Looking Spoon
The Maritime Sentry
The O Word
The Path to Tyranny Blog
The Real Polichick
The War on Guns
Truth About Obamacare
Twitter @ARRA
Warning Signs
Women's Prayer & Action

Editor's Managed Twitter Accounts
Twitter Dr. Bill Smith @arra
Twitter Arkansas @GOPNetwork
Twitter @BootBerryism
Twitter @SovereignAllies
Twitter @FairTaxNation

Editor's Recommended Orgs
Accuracy in Media (AIM)
American Committment
American Culture & Faith Institute
American Enterprise Institute
American Family Business Institute
Americans for Limited Government
Americans for Prosperity
Americans for Tax Reform
American Security Council Fdn
AR Faith & Ethics Council
Arkansas Policy Foundation
Ayn Rand Institute
Bill of Rights Institute
Campaign for Working Families
Center for Individual Freedom
Center for Immigration Studies
Center for Just Society
Center for Freedom & Prosperity
Citizens Against Gov't Waste
Citizens in Charge Foundstion
Coalition for the Future American Worker
Competitive Enterprise Institute
Concerned Veterans for America
Concerned Women for America
Declaration of Am. Renewal
Eagle Forum
Family Research Council
Family Security Matters
Franklin Center for Gov't & Public Integrity
Freedom Works
Gingrich Productions
Global Incident Map
Great Americans
Gold Standard 2012 Project
Gun Owners of America (GOA)
Heritage Action for America
David Horowitz Freedom Center
Institute For Justice
Institute for Truth in Accounting
Intercollegiate Studies Institute
Judicial Watch
Less Government
Media Reseach Center
National Center for Policy Analysis
National Right To Work Foundation
National Rifle Association (NRA)
National Rifle Association (NRA-ILA)
News Busters
O'Bluejacket's Patriotic Flicks
Open Secrets
Presidential Prayer Team
Religious Freedom Coalition
Renew America
Ron Paul Institute
State Policy Network
Tax Foundation
Tax Policy Center
The Club for Growth
The Federalist
The Gold Standard Now
The Heritage Foundation
The Leadership Institute
Union Facts

Blogs For Borders

Reject the United Nations

Adopt Our Troops in Prayer

Thousands of Deadly Islamic Terror Attacks Since 9/11

FairTax Nation on FaceBook
Friends of Israel - Stand with Israel
Blog Feeds
Syndicated - Get the ARRA News Service feed Syndicated!
ARRA Blog Feed

Add to Google Reader or Homepage

Add to The Free Dictionary

Powered by Blogger

  • How To Exchange Links!
  • Comments by contributing authors or other sources do not necessarily reflect the position the editor, other contributing authors, sources, readers, or commenters. No contributors, or editors are paid for articles, images, cartoons, etc. While having reported on and promoting the beliefs associated with the ARRA, this blog/site is not controlled by nor funded by the ARRA. This site/blog does not advertise for money or services nor does it solicit funding for its support.
  • Fair Use: This site/blog may contain copyrighted material the use of which has not been specifically authorized by the copyright owner. Such material is made available to advance understanding of political, human rights, economic, democracy, and social justice issues, etc. This constitutes a 'fair use' of such copyrighted material as provided for in section Title 17 U.S.C. Section 107 of the US Copyright Law. Per said section, the material on this site/blog is distributed without profit to readers to view for the expressed purpose of viewing the included information for research, educational, or satirical purposes. Any person/entity seeking to use copyrighted material shared on this site/blog for purposes that go beyond "fair use," must obtain permission from the copyright owner.
  • © 2006 - 2017 ARRA News Service
Creative Commons License
Creative Commons Attribution Noncommercial Share Alike 3.0 Unported License.