The Federal Circuit Finds Unconstitutional a Portion of the Statute Requiring Attenuated Review of Actions Against Department of Veterans Affairs SES Members

It will be recalled that as a consequence of public disclosure in 2014 of untimely care of veterans at some VA facilities, Congress enacted the Veterans' Access to Care through Choice, Accountability, and Transparency Act of 2014, Public Law 113-146, signed by the President on August 7, 2014, and effective that date. The statute contained many provisions concerning health care, facilities, and funding. Among those provisions was Section 707, drastically modifying the procedures for removal or "transfer" (placement into General Schedule positions) of VA SES members and severely limiting MSPB review of VA's actions. The law established an expedited process for Board review-more accurately, for review by AJs, since the MSPB and its members were removed from the review process, that is, there was no petition for review from an AJ's decision. On May 9, the Federal Circuit, ruled unconstitutional, as a violation of the Appointments Clause, the portion of the statute divesting MSPB presidentially-appointed members of the ability to review an AJ's decision. The court left intact the accelerated review process. The case was sent back to the Board with the AJ's decision undisturbed, leaving the parties the option of filing a petition for review of that decision with the Board.
Helman v. VA, _F.3d_ (Fed. Cir. 2017).

What's a New Board to Do?
Publisher's Wish List

Sooner or later, the MSPB will regain a quorum through one or two appointments by the President, following Senate confirmation. And what that happens, the Board will need to determine what institutional changes shall occur. Your publisher considered that matter and, exercising his First Amendment right to petition the Government, sent the letter that follows to Vice Chairman Mark Robbins, who serves as the acting chair of the Board:

Dear Mark:

During this time of transition, I know that you and others at the Board are considering how Board operations may and should change in the months and years to come.

This seemed an opportune time for me to offer a few comments, which I will style my "wish list," with a few suggestions for changes that might be considered in an effort to make the Board more public, more transparent, and more efficient in its operations. Here we go:

MSPB WISH LIST

HEADQUARTERS

Abolish the distinction between precedential and nonprecedential decisions.

Hire an ALJ to have someone develop the specialized expertise necessary to adjudicate cases that can only be heard by an ALJ, and save money in contracting costs; the ALJ would hear ordinary appeals as time permits and consistent with the authority in 5 CFR 930.207, including OPM waivers.

Jettison the current FOIA system and set up an internal MSPB process overseen by FOIA specialists that produces timely responses to FOIA requests and appeals.

Undertake an annual survey of representatives of both agencies and appellants to get their views on improvements and other suggestions for Board operations; summarize and report the survey results on the Board's website.

Establish a working group to include Board officials, AJs, and representatives of counsel for appellants, agencies, and unions, to annually review and report on suggested developments for Board operations, procedures, training and educational efforts. Publish the recommendations and actions taken on the Board website.

Create a comment box on the e-filing system to solicit suggestions of Board stakeholders for improvements in the Board e-filing system. Require a substantive response to those suggestions.

Create and place on the MSPB website summaries of MSPB law and procedures, and provide video training on the appellate process, including hearings.

Establish an interagency working group including MSPB, FLRA, and EEOC, to develop, with postings on the Board's website of meetings, open to the pubic, methods of streamlining and reducing delay and duplication of existing procedures for hearings and appeals.

Organize, catalogue, and post on the Board website internal operating procedures, manuals, and instructions for headquarters and regional case processing.

Clearly delineate and post on the Board's website the functions of the Clerk's office relative to case processing and adjudication.

Post on the Board's website rulemaking petitions and Board responses to those petitions.

Establish an Ombudsman to field, screen, and address legitimate concerns from stakeholders concerning Board operations, including their interaction with AJs, Board staff, and the Board's efiling system.

REGIONS

Require each Board region and field office to organize semiannual conferences with members of the bar, to include AJs, to get to know each other and to exchange news and views on Board operations and to provide training.

Establish in each region and post on the Board website a list of counsel willing to consider pro bono representation as well as representation for appellants suffering mental disabilities and needing counsel when none is designated.

Establish automatic refiling of all cases going on DWOP, unless there is good cause to require optional refiling.

Review and document the required existing and continuing training for AJs.

Require that each AJ's initial decision be accompanied with a quality review assessment sent to each counsel in the case and require that those quality reviews be evaluated by the Board and annually summarized, without identifying particular AJs, in a report posted on the Board's website.

Post regional and field office hearing schedules on the Board website, without names of appellants, to permit the public to know of and attend hearings that are supposed to be "public."

Perhaps these will be of benefit to you and your colleagues. I've enjoyed compiling the list.

With kindest regards, I am,

Yours very truly,

Peter B. Broida