Expedited Removal Authority for VA Senior
Executives (38 U.S.C. § 713): Selected Legal
Issues
Thomas J. Nicola
Legislative Attorney
November 10, 2015
Congressional Research Service
7-5700
www.crs.gov
R44161
Expedited Removal Authority for VA Senior Executives (38 U.S.C. § 713): Selected Legal
Summary
This report discusses selected legal issues relating to the authority for summary removal of
individuals in senior executive positions at the Department of Veterans Affairs. Section 707 of the
Veterans Access, Choice, and Accountability Act, P.L. 113-146, enacted on August 7, 2014,
created this authority by adding Section 713 to Title 38 of the United States Code. It authorizes
the Secretary of Veterans Affairs to remove an individual in a senior executive position from
federal service or transfer him or her to a position in the General Schedule if the Secretary
determines that the individual’s performance or misconduct warrants removal.
This report addresses whether this authority raises a constitutional question under the Due
Process Clause of the Fifth Amendment as a deprivation of a property right to continued federal
employment and whether a court would have jurisdiction to hear a case brought by a senior
executive who had been removed pursuant to it.
The Supreme Court has held that a nonprobationary government employee who is removable for
cause, as distinguished from at-will, has a property right in continued employment. The Fifth
Amendment of the Constitution states that property may not be deprived without due process of
law. According to the Court, an agency may not remove such an employee from government
employment without due process rights of notice and an opportunity to respond to charges. The
employee also is entitled to a hearing either before or after removal. A hearing must be provided
at a meaningful time and in a meaningful manner.
Section 713 of Title 38 does not expressly provide for notice and an opportunity to respond, but
the Department of Veterans Affairs has issued guidelines that grant advance notice of five days
and an opportunity to respond to charges in writing. Section 713 provides for a hearing after
removal by an administrative judge of the Merit Systems Protection Board if a decision can be
issued in 21 days and that this decision is not subject to further appeal. If an administrative judge
does not issue a decision in that period, the Secretary’s removal or transfer is final.
A senior executive whose removal from federal service pursuant to this authority was upheld by
an administrative judge has filed an appeal to the Court of Appeals for the Federal Circuit. This
appeal alleges that these limited time periods for notice and an opportunity to respond to charges,
as well as for an appeal to an administrative judge, do not provide meaningful due process. The
court is considering whether to accept jurisdiction of this case because the Department of
Veterans Affairs, citing the finality clause in Section 713, asserts that an administrative judge’s
decision is not subject to judicial review.
In challenging the constitutionality of Section 713, the removed senior executive also maintains
that granting an administrative judge of the Merit Systems Protection Board authority
conclusively to determine whether or not to uphold a removal contravenes the Appointments
Clause of the Constitution. She asserts that to comply with the Clause, an administrative judge’s
decision should be supervised or be subject to review by members of the Merit Systems
Protection Board or another officer or officers who are principal officers of the United States
whom the President appoints and the Senate confirms. An administrative judge is an employee
who is not appointed in the manner that the Appointments Clause prescribes, she contends. This
report will be updated to reflect later developments.
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Expedited Removal Authority for VA Senior Executives (38 U.S.C. § 713): Selected Legal
Contents
Expedited Removal Authority at Department of Veterans Affairs ............................................ 1
Due Process Considerations ...................................................................................................... 3
Generally ............................................................................................................................. 3
Application to Section 713 .................................................................................................. 7
In MSPB Removal Appeals ................................................................................................ 8
Judicial Review ......................................................................................................................... 9
Pending Appeal ................................................................................................................... 9
Generally ........................................................................................................................... 10
Legislation ............................................................................................................................... 17
Contacts
Author Contact Information .......................................................................................................... 18
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Expedited Removal Authority for VA Senior Executives (38 U.S.C. § 713): Selected Legal
Expedited Removal Authority at Department of
Veterans Affairs
Section 707 of the Veterans Access, Choice, and Accountability Act of 2014, P.L. 113-146,
enacted on August 7, 2014, creates new authority for removing an individual in a senior executive
position in the Department of Veterans Affairs.
Section 707(a) of P.L. 113-146 adds a new Section 713 to Title 38 of U.S. Code. Section
713(a)(1) authorizes the Secretary of Veterans Affairs to remove an individual employed in a
Senior Executive Service (SES) position if the Secretary determines that the individual’s
performance or misconduct merits removal. The Secretary may remove the individual from
federal service or transfer him or her to a General Schedule (GS) position for which the individual
is qualified and determined appropriate.
Section 713(g)(1) defines an “individual in a senior executive position” as not only a career
appointee in the Senior Executive Service, but also a departmental SES equivalent (i.e., a health
care professional such as a physician or dentist in an administrative or executive position in the
Department’s Veterans Health Administration who was appointed under 38 U.S.C. §§ 7306(a) or
7401(1)).
Sections 713(d)(2)(A) and (B) provide that any removal or transfer may be appealed to the Merit
Systems Protection Board (MSPB or Board) if an appeal is filed not later than seven days after
the removal or transfer date. The Board is required to refer any appeal to an administrative judge,
who must expedite it and issue a decision not later than 21 days after the appeal date. If an
administrative judge cannot issue a decision within that time, the Secretary’s removal or transfer
decision is final.
Under Section 713(e)(4), the MSPB or administrative judge may not stay (i.e., suspend) any
removal from federal service or transfer to a GS position. A senior executive who is transferred to
a GS position, beginning on the transfer date, receives the annual pay rate applicable to that
position only if he or she reports for duty. While an appeal is pending, the senior executive may
not be paid if placed on administrative leave or any other category of leave which otherwise
would be paid. During the period beginning on the date that the senior executive appeals a
removal from federal service and ending on the date that an MSPB administrative judge issues a
final decision, he or she may not receive any pay, awards, bonuses, incentives, allowances,
differentials, student loan repayments, special payments, or benefits.1
Authority provided by 38 U.S.C. §713 does not preclude the Secretary from using other
authorities to transfer career SES members to GS positions or remove them from federal service;
Section 713(f)(1) states that authority provided by Section 713 is in addition to authority provided
by 5 U.S.C. § 3592 or §§ 7541, 7542, and 7543, which relate to removing career members from
the SES2 or adverse actions to remove them from federal service, respectively.
Nevertheless, Section 713(d)(1) provides that if the Secretary exercises authority under 38 U.S.C.
§ 713 rather than regular adverse action authority for removing a career member of the SES from
1 38 U.S.C. § 713(e)(5).
2 Section 3594 of title 5 provides that a career senior executive who meets certain criteria and is removed from the
Senior Executive Service under 5 U.S.C. § 3592 shall be entitled to guaranteed placement in a non-SES position such
as one in the General Schedule.
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federal service, the procedures in 5 U.S.C. § 7543(b) shall not apply. This subsection entitles a
career SES member to (1) at least 30 days of advance written notice; (2) a reasonable time, but
not less than seven days to answer orally or in writing; (3) representation by an attorney or other
representative at the senior executive’s expense; and (4) a written decision from the agency with
specific reasons therefor at the earliest practicable date. Moreover, a career senior executive may
appeal an agency decision to the Merit Systems Protection Board (MSPB).3 A decision of the
MSPB may be subject to judicial review under 5 U.S.C. § 7703.
Section 713(b)(2) provides that Section 3592(b)(1) of U.S. Code Title 5 shall not apply to the
expedited removal procedure. This paragraph, designed to apply to situations including changes
in administrations, states that a career senior executive may not be removed involuntarily from
the SES within 120 days after an appointment of an agency head or the career appointee’s most
immediate supervisor if that supervisor is a noncareer SES appointee and has authority to remove
the career appointee.
Section 707(b) of P.L. 113-146 directs the Merit Systems Protection Board within 14 days after
enactment to issue regulations to implement Section 713’s authority. On August 19, 2014, the
Board published Part 1210 of Title 5 of the Code of Federal Regulations as an interim final rule
with request for comments.4 It published a technical correction on August 21, 2014.5 MSPB
responded to comments, rejected them, and adopted the interim final rule, as corrected, as a final
rule on October 22, 2014.6 MSPB’s regulations address practices and procedures such as
discovery, hearings, and standards of proof. They provide that an administrative judge may
uphold or reject a Secretary’s decision to remove or transfer a senior executive based on the
reasonableness of the Secretary’s decision, but may not mitigate it.
Section 707(c) of P.L. 113-146 authorizes the Secretary of Veterans Affairs to initiate an adverse
action under the regular procedure in 5 U.S.C. § 7543 to remove an individual from the Senior
Executive Service, notwithstanding 5 U.S.C. § 3592(b) or any other provision of law.
Subsection(c) of Section 707 of P.L. 113-146 waives the time limitation on removing career
senior executives. As noted above, Section 3592(b) prohibits removing a career senior executive
within 120 days after the appointment of an agency head or the career appointee’s most
immediate supervisor if that supervisor is a noncareer SES appointee and has the authority to
remove the career appointee.
Section 707(d) of P.L. 113-146 provides that nothing in Section 707 or 38 U.S.C. § 713, as added
by Section 707(a), shall be construed to apply to an appeal of a removal, transfer, or other
personnel action that was pending before that public law was enacted. It adds that the authority
provided in 38 U.S.C. § 713 is in addition to authority provided by 5 U.S.C. § 3592, which relates
to removing a career SES member from the Senior Executive Service, or subchapter V of U.S.
Code Title 5 Chapter 75 (i.e., Sections 7541-7543) which relate to adverse action removal from
federal service or suspension of more than 14 days of a career member of the Senior Executive
Service.
3 5 U.S.C. § 7513(d).
4 79 Fed. Reg. 48941 (Aug. 19, 2014). The Board also amended 5 C.F.R. § 1201 to add this authority to a regulation
listing subjects of its appellate jurisdiction.
5 79 Fed. Reg. 49423 (Aug. 21, 2014).
6 79 Fed. Reg. 763031 (Oct. 22, 2014). See http://www.mspb.gov/vases/index.htm#reldocs for these federal register
notices as well as other documents relevant to this expedited removal authority including decisions of administrative
judges on appeals.
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Due Process Considerations
Generally
Because Section 713 of Title 38 authorizes the Secretary of Veterans Affairs to remove an
individual in a senior executive position from that position or from federal service, it appears to
raise a constitutional question. The Fifth Amendment of the Constitution provides, in relevant
part, that, “No person shall be ... deprived of life, liberty, or property without due process of
law;.... ” Some Supreme Court cases have interpreted this language to determine (1) whether a
nonprobationary government employee who is removable for cause, as distinguished from at-will,
has a constitutionally protected property interest in continued government employment; (2)
whether due process applies to deprivation of such an interest; and (3) if due process applies,
what kind of process is constitutionally sufficient?7
In Board of Regents v. Roth,8 the Court noted that, “To have a property interest in a benefit, a
person must ... have a legitimate claim of entitlement to it.... Property interests, of course, are not
created by the Constitution. Rather, they are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such as ... law—rules or
understandings that secure certain benefits and that support claims of entitlement to those
benefits.”9 The Court acknowledged that a public employee under some circumstances has a
property interest in continued employment that is safeguarded by due process.10
In Arnett v. Kennedy,11 a nonprobationary federal Office of Economic Opportunity (OEO)
employee in the competitive service named Kennedy was removed from federal service in an
adverse action proceeding under the standard in the Lloyd-La Follette Act: “such cause as will
promote the efficiency of the service.” He allegedly slandered his supervisor by accusing him of
bribing or attempting to bribe a community organization’s representative with an OEO grant in
exchange for signing a statement against Kennedy.12
Kennedy argued that removing him from federal service before OEO held a hearing deprived him
of a property right to continued employment that was protected by the Due Process Clause and
7 See Merit System Protection Board Study, What is Due Process in Federal Civil Service Employment? (May 2015),
for a summary of these cases, available at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=1166935&
version=1171499&application=ACROBAT.
See also another MSPB Study, Removing Poor Performers in the Federal Service (1995) for a discussion of
procedural protections for unacceptable performance and adverse actions, available at http://www.mspb.gov/netsearch/
viewdocs.aspx?docnumber=253662&version=253949&application=ACROBAT.
8 408 U.S. 564 (1972).
9 Id. at 576-577.
10 Id. at 576, citing Slochower v. Board of Education, 350 U.S. 551 (1956); Wieman v. Updegraff, 344 U.S. 183
(1952); and Connell v. Higginbotham, 403 U.S. 207 (1971).
Although a tenured employee has been held to have a property interest in continued employment, he or she can be
separated from federal service in a reduction in force (RIF) caused by factors such as lack of work or shortage of funds.
5 U.S.C. Chapter 35 and 5 C.F.R. Part 351.
See Patrick M. Garry, The Constitutional Relevance of the Employer-Sovereign Relationship: Examining the Due
Process Rights of Government Employees in Light of the Public Employee Speech Doctrine, 81 St. Johns L. R. 797
(2007), for a comparison of the property right to continued government employment with a government employer’s
right to discipline an employee for speech in the work place, available at http://scholarship.law.stjohns.edu/cgi/
viewcontent.cgi?article=1192&context=lawreview.
11 416 U.S. 134 (1974).
12 Id. at 137.
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that the “such cause” standard was vague because it did not apprise him of the kind of speech that
could result in removal.
The Supreme Court upheld Kennedy’s removal, reversing a decision by a three-judge district
court that had accepted his constitutional challenge. The district court in Kennedy v. Sanchez13
held that Kennedy had a property right to continued employment that was protected from
deprivation by the Due Process Clause because he was a nonprobationary employee in the
competitive service who was removable for cause. It added that to comply with the Clause, OEO
should have granted Kennedy a hearing before removing him from federal service. The district
court based its conclusion on the Supreme Court’s decision in Goldberg v. Kelly, which held that
a recipient could not be deprived of welfare benefits before receiving a hearing on eligibility for
continued benefits.14 It also held that the “for such cause” standard was vague.
All Supreme Court justices agreed with the district court that Kennedy had a property right in
continued employment subject to the Due Process Clause. Because OEO’s regulations and
practice provided that a removed employee was entitled to a trial-type hearing after removal
either at OEO or the Civil Service Commission, the predecessor to the Merit Systems Protection
Board, the Court focused on whether a hearing before or after removal provided adequate due
process under the Clause.15 By a vote of 5 to 4, the Court concluded that a hearing after removal
sufficed and that the “such cause” standard was not vague.
Although this conclusion garnered a majority, the justices disagreed on the reason for it. A
plurality opinion representing views of three justices held that,
[W]here the grant of a substantive right is inextricably intertwined with the limitations
on the procedures which are to be employed in determining that right, a litigant in the
position of the appellee must take the bitter with the sweet.
. . .
To conclude otherwise would require us to hold that although Congress chose to enact
what was essentially a legislative compromise, and with unmistakable clarity granted
governmental employees security against being dismissed without ‘cause,’ but refused to
accord them a full evidentiary hearing for the determination of ‘cause,’ it was disabled
from making such a choice. We would be holding that federal employees had been
granted, as a result of the enactment of the Lloyd-LaFollette Act, not merely that which
Congress had given them in the first part of the sentence, but that which Congress had
expressly withheld from them in the latter part of the same sentence. Neither the language
of the Due Process Clause nor our cases construing it require any such hobbling
restrictions on legislative authority in this area.16
. . .
13 349 F.Supp. 863 ( N.D. Ill. 1972).
14 397 U.S. 254 (1970). In Goldberg, the Supreme Court reached its conclusion based on the view that a welfare
recipient had no means of support other than welfare cash assistance.
15 See Arnett, 416 U.S. at 142, n. 8, which indicates that the Veterans Preference Act authorized an employee who was
a veteran to appeal an agency removal to the Commission and that Executive Order No. 11490 extended this appeal
right to nonveterans in the competitive service.
16 Id. at 153-154. See Arnett at 150 for the text of the Lloyd-LaFollette Act, which provided that no person in the
classified, i.e., competitive, civil service may be removed except for such cause as will promote the efficiency of the
(civil) service and provided rights to notice of charges and an opportunity to respond to them and, at the discretion of
the employee’s agency, a pre-disciplinary hearing, This standard for disciplinary actions and these procedural
protections are now codified in Chapter 75 of Title 5 of the U.S. Code.
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Here, the property interest which the appellee had in his employment was conditioned by
the procedural limitations which had accompanied the grant of that interest. The
government might, then, under our holdings dealing with government employees in Roth
supra and Sinderman, supra, constitutionally deal with appellee’s claims as it proposed to
do here.17
This “bitter with the sweet” formulation18 appears to link the procedures that a legislative body
has established for removing a government position to the nature of the right to continue to hold
it. It, in effect, would appear to allow a summary or expedited removal authority to transform
public employees who are removable for cause into employees who can be terminated pursuant to
whatever removal authorities that a legislative body provides.
In an opinion that concurred in the plurality opinion’s conclusion but not its reasoning, Justice
Powell wrote that,
The plurality opinion evidently reasons that the nature of appellee’s interest in continued
federal employment is necessarily defined and limited by the statutory procedures for
discharge and that the constitutional guarantee of procedural due process accords to
appellee no procedural protections against arbitrary or erroneous discharge other than
those expressly provided in statute. The plurality would thus conclude that the statute
governing federal employment determines not only the nature of appellee’s property
interest, but also the extent of the procedural protections to which he may claim. It seems
that this approach ... would lead directly to the conclusion that whatever the nature of an
individual’s statutorily created property interest, deprivation of that interest could be
accomplished without notice or a hearing at any time. (Emphasis supplied.)19
Justice White addressed the authority of Congress to confer or not to confer a property right in
continued government employment in an opinion that concurred in part and dissented in part in
the plurality opinion. “While the state may define what is and what is not property, once having
defined those rights, the Constitution defines due process, and as I understand it six members of
the Court are in agreement on this fundamental proposition.”20 In this passage, Justice White
referred to the six members of the Court who did not subscribe to the bitter with the sweet
formulation in the plurality opinion.
The Court expressly rejected this formulation in Cleveland Board of Education v. Loudermill.21 It
held that,
. . . the “bitter with the sweet” approach misconceives the constitutional guarantee. If a
clearer holding is needed, we provide it today. The point is straightforward: The Due
Process Clause provides that certain substantive rights—life, liberty, and property—
cannot be deprived except pursuant to constitutionally adequate procedures. The
categories of substance and procedure are distinct. Were the rule otherwise, the Clause
would be reduced to a mere tautology. Property cannot be defined by the procedures
provided for its deprivation any more than can life or liberty. The right to due process “is
conferred not by legislative grace, but by constitutional guarantee. While the legislature
17 Id. at 155, this opinion referred to Board of Regents v. Roth, 408 U.S. 564 (1972) and Perry v. Sinderman, 408 U.S.
593 (1972).
18 See Congressional Research Service, The Constitution of the United States of America: Analysis and Interpretation,
S. Doc. No. 112-9, 112th Cong., 2d Sess. 1938-1949 (2012), (hereinafter Constitution Annotated) for a discussion of
this formulation at http://www.crs.gov/conan/details.aspx?mode=topic&doc=Amendment14.xml&t=5%7c2%7c2&s=1.
19 Arnett v. Kennedy, 416 U.S. 134, 166-167 (1974). The internal quotation at the end is taken from Justice Powell’s
opinion in the Arnett case.
20 Id. at 185.
21 470 U.S. 532 (1985).
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may elect not to confer a property interest in public employment, it may not
constitutionally authorize the deprivation of such an interest, once conferred, without
appropriate procedural safeguards.’22
While Justice Powell’s formulation adopted in Loudermill superficially may appear to differ from
the “bitter with the sweet” formulation, the two do not appear to be diametrically opposite; in
many situations they could overlap. As Justice Powell said in his Arnett concurrence, to accept
the latter formulation for a nonprobationary government employee who is removable for cause
would permit the government to deprive that employee of notice of charges, an opportunity to
respond, and a hearing at any time. Where these procedures are provided, applying the bitter with
the sweet formulation in many cases would not appear to yield a conclusion that would differ
from one reached by applying Justice Powell’s formulation.
The Court in the Loudermill case balanced interests it had asserted in Mathews v. Eldridge:23 (1)
the individual’s private interest in retaining employment or a benefit, (2) the government’s
interest in expeditiously removing an unsatisfactory employee or benefit and avoiding
administrative burdens; and (3) the risk of an erroneous termination of employment or a benefit.24
Eldridge concluded that a hearing after termination of disability benefits provided sufficient due
process.25
The Court in Eldridge added that, “’. . .[d]ue process, unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place and circumstances.’ Cafeteria Workers v.
McElroy, 367 U.S. 886, 895 (1961). ‘[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.’ Morrissey v. Brewer, 408 U.S. 471, 481
(1972).”26
In LoudermillI, the Court concluded that,
The tenured public employee [i.e. a nonprobationary employee who is removable for
cause rather than at-will] is entitled to oral or written notice of the charges against him,
an explanation of the employer’s evidence, and an opportunity to present his side of the
story. ... To require more than this prior to termination would intrude to an unwarranted
extent on the government’s interest in quickly removing an unsatisfactory employee. 27
The Court indicated that the Due Process Clause requires that these procedures, which do not
need to be elaborate, must be afforded before removal provided that a removed employee receives
an evidentiary hearing within a reasonable time after removal. It cited an earlier opinion,
Armstrong v. Manzo,28 to note that this post-removal hearing must be given “at a meaningful
time” and “in a meaningful manner.”29
22 Id. at 541.
23 Id. at 542-543, citing Eldridge, 424 U.S. 319, 343 (1976).
24 424 U.S. at 335. See Arnett, 416 U.S. at 166-170 in the concurring opinion of Justice Powell for an elaboration on
these competing interests.
25 This conclusion differed from the Court’s result in Goldberg v. Kelly, 397 U.S. 254 (1970), which required a hearing
before welfare benefits could be terminated. The Court in Eldridge believed that a recipient of disability benefits could
find a different source of income while awaiting a post-termination hearing, but a welfare recipient could not.
26 424 U.S. at 334.
27 470 U.S. at 546.
28Id. at 547, citing Manzo, 380 U.S. 545, 552 (1965).
29 Id.
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In a case decided after Loudermill, Gilbert v. Homar,30 the Court reiterated Loudermill’s
conclusion that a public employee who can be dismissed only for cause is entitled to a limited
hearing prior to termination to be followed by a more comprehensive termination hearing after
it.31
Application to Section 713
Section 713 of Title 38, as added by Section 707 of the Veterans Access, Choice, and
Accountability Act of 2014, does not expressly provide for notice and an opportunity to respond.
In fact, Section 713(d)(1) states that these procedures, which are provided to a career member of
the Senior Executive Service in Section 7543(b) of Title 5 for regular adverse actions, “ ... shall
not apply” in a proceeding under Section 713 of Title 38.32 If viewed in isolation, this section’s
lack of those procedures would appear to contravene the Due Process Clause of the Fifth
Amendment as interpreted in the Loudermill case and reaffirmed in Gilbert.
Nevertheless, the Department of Veterans Affairs has issued guidelines which mandate that an
individual in a senior executive position whom it seeks to remove from federal service or from
such a position pursuant to 38 U.S.C. § 713 will receive prior notice of five days and an
opportunity to respond to charges in writing in advance of removal.33 These guidelines
acknowledge that, “Unlike many private sector employees who may be terminated ‘at-will,’
career federal employees whether at the VA or other federal agency, have a constitutionally
protected right in continued employment.” The implication is that the Fifth Amendment requires
that this right cannot be deprived without due process.
Section 713(d)(2)(A) of Title 38 provides that an individual whom the Secretary seeks to remove
from federal service or transfer to a non-senior executive position may file an appeal with the
Merit Systems Protection Board within seven days after removal or transfer. The Board must
assign this appeal to an administrative judge for a hearing. An administrative judge must decide
the appeal within 21 days, that decision is final and not subject to further appeal. Section
713(e)(2)(3) states that if an administrative judge cannot issue an opinion in that period, the
Secretary’s decision becomes final.
This post-removal hearing along with the notice and opportunity to respond in writing procedures
mandated by the Department’s guidelines comply with the basic elements of due process
prescribed in the Loudermill case and reaffirmed in Gilbert: The focus, then, turns to whether a
court would consider these procedures “meaningful” if it should agree to adjudicate a due process
challenge to Section713 of Title 38. In the Manzo case cited in Loudermill, the Court said that a
30 520 U.S. 924 (1997).
31 Id. at 929, referring to Loudermill, 470 U.S. 532, 545-546.
32The House amendment that went to a conference as part of H.R. 3230, 113th Congress, originally was agreed to by
suspension of the rules as H.R. 4031. 161 Cong. Rec. H4751 (daily ed. May 21, 2014). It would have authorized the
Secretary of Veterans Affairs, notwithstanding any other law, to remove an individual in the Senior Executive Service
from federal service or transfer him or her to a suitable General Schedule position if the Secretary determined that the
individual’s performance warranted removal or transfer and to notify the House and Senate Committees on Veterans
Affairs within 30 days. It also provided that a removal or transfer “ ... should be done in the same manner as a removal
of a professional staff member employed by a Member of Congres[,]” implying removal at-will.
33Department of Veterans Affairs, “Disciplinary Procedures Applicable to VA Senior Executives” available at
http://www.crs.gov/analysis/legalsidebar/Documents/100714cc1.pdf.
These guidelines were discussed at a November 13, 2014 hearing of the House Committee on Veterans Affairs
available at http://www.cq.com/doc/hcongressionaltranscripts-4572793?4.
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post-termination hearing must be provided not only at a meaningful time, but also in a meaningful
manner.34
While the due process elements are present, the time limits in 38 U.S. C. § 713 differ from those
in the adverse action procedures that apply to career members of the Senior Executive Service in
5 U.S.C. § 7543(b). This subsection states that a career member of the Senior Executive Service
is entitled to (1) generally advance notice of 30 days; (2) a reasonable time, but not less than
seven days, to answer orally and in writing and to furnish affidavits and other documentary
evidence in support of an answer; (3) be represented by an attorney or other representative; and
(4) a written decision and specific reasons therefor at the earliest practicable date.
In MSPB Removal Appeals
Two senior executives who were removed from federal service pursuant to the expedited removal
authority in 38 U.S. C § 713 filed appeals with the MSPB and raised due process arguments to
administrative judges.35 In Helman v. Department of Veterans Affairs,36 the former Director of the
Phoenix Veterans Administration Health Care System asserted that the Department denied her a
pre-removal right to due process by failing to give her meaningful notice and an opportunity to
respond to the action against her and that the post-removal proceeding before the administrative
judge violated her right to due process because of its abbreviated nature. She elaborated that the
Department may have removed her because of pressure from Members of Congress and that the
Department’s five day notice period was too short a period to prepare an adequate defense. The
administrative judge rejected these pre-removal due process arguments. With respect to the
assertion of a post-removal due process violation, the judge ruled that the Board lacks authority to
declare 38 U.S.C. § 713 unconstitutional.37
In Talton v. Department of Veterans Affairs,38 the former Director of the Central Alabama
Veterans Administration Health Care System maintained that the Department contravened his
right to due process by failing meaningfully to consider his reply to the proposed removal notice
and that the Secretary’s expedited removal authority in 38 U.S.C. § 713 should have been
exercised by the Secretary himself and should not have been delegated to the Deputy Secretary.
The administrative judge rejected both of these arguments.
34Loudermill, 470 U.S. at 380, citing Manzo, 380 U.S.545, 552.
35 The compilation of cases appealed to the Board lists four cases. One was sealed and is not publicly available and
another was settled. See http://www.mspb.gov/vases/index.htm for this case list.
See also “Questions Remain Over Settlement Reached with Fired VA Director: Case Files Gives Some Details,”
Pittsburgh Post-Gazette (Feb. 15, 2015) for information about the sealed case involving Therese G. Wolf, the former
Director of the Pittsburgh Veterans Health Care System, available at http://www.post-gazette.com/local/region/2015/
02/21/Questions-remain-over-settlement-reached-with-fired-Pittsburgh-VA-director-Terry-Wolf/stories/
201502210024.
36 This case is available at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=1122129&version=1126602&
application=ACROBAT.
37 See Debra Roth, “The New VA Statute: What It Means for You,” Federal Times: Legal Matters (Jan. 20, 2015), for a
discussion of the constitutional issues involved in this case by the attorney who represented Sharon Helman, available
at http://askthelawyer.federaltimes.com/2015/01/20/the-new-va-statute-what-does-it-mean-for-you. Roth is an attorney
in private practice who also serves as the General Counsel of the Senior Executives Association.
38 This case is available at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=1108829&version=1113263&
application=ACROBAT.
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Judicial Review
Section 713(e)(2) of Title 38 states that,
Notwithstanding any other provision of law, including section 7703 of [U.S. Code] Title
5, the decision of an administrative judge [of the MSPB] shall be final and shall not be
subject to any further appeal.
Could an individual in a senior executive position at the Department of Veterans Affairs who is
removed from federal service or transferred to a non-senior executive position pursuant to the
Secretary’s expedited authority in 38 U.S.C. § 713 obtain review to challenge the constitutionality
of that authority?
Pending Appeal
This question currently is before the U.S. Court of Appeals for the Federal Circuit because the
former Director of the Phoenix VA Health Care System appealed her removal from federal
service.39 On April 27, 2015, the Department of Veterans Affairs filed a motion to dismiss this
appeal for lack of jurisdiction. It acknowledged that the court generally has jurisdiction to hear an
appeal from an MSPB final decision under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1) and
(d), but maintained that the finality provision in 38 U.S.C.§ 713(e)(2), quoted above, precludes an
appeal of an MSPB administrative judge’s decision on an expedited removal.
Responding to this motion, Helman cited three constitutional arguments. First, the expedited
removal procedure in 38 U.S.C. § 713, on its face and as applied to her, violates her Fifth
Amendment due process right by severely limiting the pre-removal and post-removal processes
that she received. Second, Section 713, facially and as applied, contravenes the Appointments
Clause, Article II, Section 2, Clause 2 of the Constitution. It allows an MSPB administrative
judge, an employee who is not appointed by the President and confirmed by the Senate, to render
a final decision of the United States without any review by the presidentially appointed, Senate-
confirmed members of the Board or any other executive officer.40 Third, Section 713, facially and
as applied, violates Helman’s Fifth Amendment right against self-incrimination and her due
process rights. This section, she alleged, forced an immediate appeal of her removal to MSPB and
provided that her removal would be final within 21 days even though a criminal investigation into
the same conduct was pending at that time and the administrative judge denied a motion to
postpone the appeal.
In a reply to Helman’s arguments, the Department asserted that preclusion of judicial review is
clear from the language, objectives, and legislative history of 38 U.S.C. § 713. It added that the
39 The U.S. Court of Appeals for the Federal Circuit docketed this case as Helman v. Department of Veterans Affairs,
No. 15-3086 (2015).
40 The Appointments Clause, in relevant part, provides that the President has power to nominate, and by and with
advice and consent of the Senate, to appoint principal officers of the United States, but Congress may by law vest the
appointment of inferior officers in the President alone, or in heads of departments. Some cases interpreting this clause
have held that significant authority of the United States must be exercised by principal or inferior officers appointed
pursuant to the Clause. See, for example, Buckley v. Valeo, 424 U.S. 1, 126 (1976) (“We think its fair import is that
any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United
States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.”); and Edmond v.
United States, 520 U.S. 651, 663, 665 (1997) ( “ ... in the context of a clause designed to preserve political
accountability relative to important government assignments, we think it evident that ‘inferior officers’ are officers
whose work is directed and supervised at some level by others who were appointed by presidential nomination with the
advice and consent of the Senate..”)
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court does not have jurisdiction because Helman failed to present colorable constitutional claims
and has no constitutionally protected interest in her continued employment.41 Moreover, even if
Helman has a property right to continued employment, she would have no colorable due process
claim to receive an opportunity for discovery and the right against self-incrimination and to assert
that Section 713 violates the Appointments Clause or Article III of the Constitution.
On July 15, 2015, the court issued an order directing Helman to file a brief on jurisdiction. In her
principal brief filed on October 9, 2015,42 Helman argued that the Court of Appeals for the
Federal Circuit has jurisdiction to review the decision of the MSPB administrative judge. She
added that Section 713 of Title 38 does not deny the court all jurisdiction and does not clearly
strip the court of jurisdiction to review constitutional claims. According to Helman, if Section 713
precludes all judicial review, it violates Article III of the Constitution, which vests federal judicial
power in the Supreme Court and in such inferior courts as Congress may establish, whose judges
must be appointed consistent with the Appointments Clause.
She maintained that the MSPB administrative judge who approved the Secretary’s removal
decision lacked constitutional authority to preside at her removal hearing because he was not
appointed in the manner prescribed in the Appointments Clause of the Constitution, relating to the
appointment of principal and inferior officers who exercise significant authority of the United
States. Moreover, the removal restrictions on administrative judges violated separation of powers
principles. Finally, Helman asserted that her removal contravened the Due Process Clause of the
Fifth Amendment because she had a constitutionally protected property interest in continued
federal employment that could not be deprived without due process of law and that the pre-
termination and post-termination processes did not adequately provide due process.
Generally
Does the finality language in 38 U.S.C. § 713(e)(2) quoted above preclude an appeal beyond a
decision by an administrative judge issued within 21 days only within MSPB (i.e., to the three-
member Board), or does it also preclude any judicial review?
The intent to preclude Board review appears straightforward. The conference report states that,
The substitute requires that the expedited review by the MSPB be conducted by an
administrative judge at the MSPB, and if the MSPB administrative judge does not
conclude their review within 21 days then the removal or demotion is final. The
substitute does not allow for any further appeal beyond the administrative judge, and does
not allow for a second level review by the three-person board at the MSPB. (Emphasis
supplied.) 43
On January 22, 2015, after the administrative judge upheld the department’s decision to remove
Helman from federal service, she submitted a request for an extension of time to file an appeal to
the Merit Systems Protection Board. The Board on January 26 informed her that the
41 This assertion appears directly to contradict the Department’s explanation for issuing guidelines to provide to a
senior executive an advance notice of five days and an opportunity to respond to charges in writing. “Unlike many
private sector employees who may be terminated ‘at-will,’ career federal employees whether at the VA or other federal
agency, have a constitutionally protected right in continued employment.” Department of Veterans Affairs,
“Disciplinary Procedures Applicable to VA Senior Executives” available at http://www.crs.gov/analysis/legalsidebar/
Documents/100714cc1.pdf.
42 Helman v. Department of Veterans Affairs, Corrected Principal Brief of Petitioner Sharon M. Helman at 35-63,
Court of Appeals for the Federal Circuit No. 15-3086 (Oct. 9, 2015).
43H.Rept. 113-561, 80 (2014).
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administrative judge’s decision was final and that it would not accept further submissions on this
case.44
Whether this finality passage in 38 U.S.C. § 713(e)(2) would preclude any judicial review is more
complicated. Before reaching that question, it might be asked whether Congress constitutionally
can preclude judicial review. The answer appears to be a qualified yes. Article III, Section 1 of
the Constitution states, in relevant part, that, “The judicial power of the United States shall be
vested in one Supreme Court and in such inferior courts as the Congress may from time to time
establish.” The power that this section grants Congress to establish inferior courts implies that it
may preclude jurisdiction over certain subjects. Article III, Section 2 identifies subjects of the
Supreme Court’s original jurisdiction and adds that, “ ... in all other cases before mentioned, the
Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions,
and under such regulations as the Congress shall make.” This provision suggests that Congress
may limit the Supreme Court’s appellate jurisdiction, but not its original jurisdiction which the
Constitution itself bestows.
In the Reconstruction era case Ex parte McCardle,45 the Court dismissed an appeal of a circuit
court’s denial of a habeas corpus petition because Congress had enacted over the President’s veto
a provision that repealed the act authorizing the appeal. In the modern era, the Court in Felker v.
Turpin46 upheld a statutory limitation on its jurisdiction to review second or successive habeas
corpus petitions appealed from courts of appeals. It also held that this limitation did not deny the
Court authority to consider petitions that were submitted to it as original matters because the
statutory limitation did not attempt to preclude them.47
Would a court interpret Section 713’s finality language quoted above effectively to preclude any
judicial review? Its operative language is preceded by “[n]otwithstanding any other provision of
law, including Section 7703 of Title 5.” Section 7703 is the judicial review provision of the Civil
Service Reform Act of 1978 that generally authorizes judicial review of MSPB final orders and
decisions by the U.S. Court of Appeals for the Federal Circuit. It also provides for trials de novo
in district courts for cases subject to antidiscrimination statutes. The intent of including the phrase
“[n]otwithstanding any other law” may have been to waive other jurisdictional statutes including
28 U.S.C. § 1295(a)(9), which grants the Federal Circuit jurisdiction over final MSPB action.
Some Supreme Court cases have analyzed whether statutory language that appears intended to
preclude judicial review legally achieves this effect. In Webster v. Doe,48 the Court addressed
whether Section 102(c) of the National Security Act of 1947, which authorized the Director of
44 See Helman v. Department of Veterans Affairs, Respondent’s Motion to Dismiss for Lack of Jurisdiction at 3-4,
Court of Appeals for the Federal Circuit No. 15-3083 (Apr. 27, 2015).
45 73 U.S. (6 Wall) U.S. 318 (1868).
46 518 U.S. 651 (1996).
47 See Constitution Annotated at 861-874 for a discussion of the power of Congress to control the federal courts,
available at http://www.crs.gov/conan/details.aspx?mode=topic&doc=Article03.xml&t=2|2|2&s=2&c=2.
It concludes that Congress has great discretion in conferring, withdrawing, and structuring the original and appellate
jurisdiction of inferior federal courts and the appellate jurisdiction of the Supreme Court. It adds, however, that it is not
clear whether the relevant constitutional text or court interpretations would extend to permitting Congress in these ways
to accomplish ends which it could not do directly.
See also, Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to an
Ongoing Debate, 36 Stan. L. Rev. 895 (1984) at n. 113 “[A]ll agree that Congress cannot bar all remedies for enforcing
federal constitutional rights.” The Supreme Court quoted this statement in Bowen v. Michigan Academy of Family
Physicians, 476 U.S. 667, 681, n. 12 (1986).
48 486 U.S. 592 (1988).
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Central Intelligence summarily to remove an employee from federal service, precluded judicial
review.49 This subsection stated that,
Notwithstanding the provisions of section 6 of the Act of August 24, 1912 (37 Stat. 555) ,
or the provisions of any other law, the Director of Central Intelligence may, in his
discretion, terminate the employment of any officer or employee of the Agency whenever
he shall deem such termination necessary or advisable in the interests of the United
States.... 50
The employee asserted that his removal pursuant to this provision, among other things, deprived
him of a property right to continued employment without due process of law mandated by the
Fifth Amendment.51 The Court held that this section did not preclude judicial review of his
colorable constitutional claims.
We do not think section 102(c) may be read to exclude review of constitutional claims.
We emphasized in Johnson v. Robison, 415 U.S. 361 (1974), that where Congress intends
to preclude judicial review of constitutional claims its intent to do so must be clear. Id., at
373-374. In Weinberger v. Salfi, 422 U.S. 749 (1975), we reaffirmed that view. We
require this heightened showing in part to avoid the “serious constitutional question” that
would arise if a federal statute were construed to deny any judicial forum for a colorable
constitutional claim. See Bowen v. Michigan Academy of Family Physicians, 476 U.S.
667, 681 (1986).52
In the Johnson case, an individual who had completed conscientious objector service and was
denied veterans’ educational benefits filed a constitutional challenge under the equal protection
component of the Fifth Amendment to a statute that limited those benefits to veterans who had
served on active military duty. The statute governing this denial provided, in relevant part, that,
. . . the decisions of the Administrator on any question of law or fact under any law
administered by the Veterans Administration providing veterans to benefits ... shall be
final and conclusive and no ... court of the United States shall have power or jurisdiction
to review any such decision.... 53
The Court concluded that this language did not bar judicial review under the federal question
jurisdictional statute in 28 U.S.C. § 1331 of a challenge to the constitutionality of the statute. It
reasoned that the district court would not review a decision of the Administrator in denying the
49 P.L. 80-495 (1947). When the Webster case was decided, this section appeared in section 403(c) of title 50 of the
U.S. Code. It now is codified at 50 U.S.C. § 3036(e).
50 Id. at 594. Section 6 of the Act of August 24, 1912 is the Lloyd-Lafollette Act.
51 The employee, an intelligence technician who was removed after voluntarily disclosing his sexual orientation, also
asserted violations of the First, Fourth, and Ninth Amendments, as well as the equal protection component of the Fifth
Amendment.
52 486 U.S. at 603. The Court previously had expressed the need for clarity of congressional intent to preclude any
judicial review in Abbot Laboratories v. Gardner, 387 U.S. 136, 140-141 (1967), “The Court [has] held that only upon
a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial
review.” The internal quotation is taken from Cort v. Rusk, 369 U.S. 367, 380 (1962).
After the Supreme Court remanded the Webster case, the Court of Appeals for the D.C. Circuit upheld the CIA
Director’s removal in Doe v. Gates, 981 F.2d 1316, 1320-1321 (D.C.Cir.1993), saying that, “The law is clear that if a
statute relegates termination decisions to the discretion of the Director, no property entitlement exists, see Chilingirian
v. Boris, 882 F.2d 200, 205 (6th Cir. 1989); Windsor v. The Tennessean, 719 F.2d 155, 159 (1983), cert. denied 469
U.S. 826 (1984), and any employee’s statements to the contrary have no binding force. See Bollow, 650 F.2d at 1100;
Baden, 638 F.2d at 493.” The Supreme Court declined to review this decision in Doe v. Woolsey, 510 U.S. 928 (1993).
53 38 U.S.C. § 211(a) cited in Johnson, 415 U.S. 361, 367 (1974).
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benefits, but rather whether Congress had enacted an unconstitutional condition on them.54 This
approach has been termed a collateral challenge.
In another case cited in the Webster case, Weinberger v. Salfi, which involved a challenge to the
constitutionality of a Medicare provision in the Social Security Act, the Court reaffirmed its
holding in Johnson. Nevertheless, it held that the claimants could not obtain jurisdiction pursuant
to the federal question jurisdiction statute in 28 U.S.C. § 1331 because another provision of the
act granted court jurisdiction only after administrative remedies were exhausted. Consequently,
the claimant in the Salfi case , unlike the Johnson claimant, would receive a judicial forum to hear
a constitutional challenge to the act and did not need to obtain jurisdiction under the federal
question statute.
The Court in Webster also cited the Michigan Academy case, which stated that a “serious
constitutional question” would arise if it should construe a statute to deny any judicial forum for
constitutional claims.55 The Court in Michigan Academy quoted this phrase from Salfi, which
took it from a passage in Johnson in which the Court declined to accept an interpretation that
would have denied any judicial review of a constitutional challenge to the applicable statute.
Doing so, it said in Johnson, “ ... would, of course, raise serious questions and in such a case it is
a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly
possible by which the [constitutional] question[s] may be avoided.”56 This passage illustrates the
doctrine of constitutional avoidance.
The Court has reached conclusions similar to those in the Webster case and the other cases it
cited. In McNary v. Haitian Refugee Center,57 for example, the Court considered whether the
Immigration Reform and Control Act of 198658 precluded judicial review of Immigration and
Naturalization Service denials of special status for individuals except those related to deportation
orders. The Court held that this limitation on reviewing denials did not preclude district courts
from hearing suits brought to determine whether the agency’s procedures for reviewing denials
contravened the act and the Due Process Clause.
In Lindahl v. Office of Personnel Management,59 the Court held that 5 U.S.C. § 8377(c), which
stated that decisions of the Office of Personnel Management on retirement matters “are final and
conclusive and are not subject to review” barred judicial review of OPM’s factual determinations.
It did not, however, deny jurisdiction to the Court of Appeals for the Federal Circuit to review
whether there had been a substantial departure from important procedural rights or whether the
governing legislation had been misconstrued.
The Court said that when Congress intends to preclude any kind of judicial review, it “typically
employs language far more unambiguous and comprehensive than the text of section 8347(c).”60
It quoted the following language from 5 U.S.C. § 8128(b), relating to compensation for work
injuries, as an example of unambiguous preclusive language:
54 See 486 U.S. at 619-620 in Justice Scalia’s dissent in Webster for this characterization of the Court’s reasoning in the
Johnson case.
55Webster, 486 U.S. at 603 citing Michigan Academy, 476 U.S. 667, 681 (1986).
56 Johnson, 415 U.S. 361, 366-367 (1974), quoting United States v. Thirty-seven Photographs, 402 U.S. 363, 369
(1971) (Brackets in original).
57 498 U.S. 479 (1991).
58 P.L. 99-106 (1986).
59 470 U.S. 768 (1985).
60 Id. at 780.
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The action of the Secretary [of Labor] or his designee in allowing or denying a payment
under this subchapter is—(1) final and conclusive for all purposes and with respect to all
questions of law and fact: and (2) not subject to review by another official of the United
States or by a court by mandamus or otherwise.61
In a recent case, Elgin v. Department of the Treasury,62 the Court addressed issues that would
appear relevant to whether a court may have jurisdiction to hear a case challenging the
constitutionality of the expedited removal authority in 38 U.S.C. § 713. Elgin and the other
petitioners were removed from federal service because they failed to register with the Selective
Service prior to reaching age 26. Section 3328 of U.S. Code Title 5 bars from executive agency
employment an individual who has knowingly and willfully failed to register for the Selective
Service as required by the Military Service Act.63
They challenged their removal pursuant to this statutory bar before an MSPB administrative
judge on the ground that it was unconstitutional. They argued that the registration requirement
contravened the equal protection component of the Fifth Amendment because it did not apply to
women and the Constitution’s prohibition against bills of attainder (i.e., a legislative punishment).
They sought reinstatement with back pay. Asserting that the Board did not have jurisdiction to
hear this challenge because removal was based on a statutory bar, the administrative judge
dismissed it. The judge also maintained that the Board did not have power to declare a federal
statute unconstitutional.
Rather than file a petition for review, i.e., an appeal, of this initial decision to the three member
Merit Systems Protection Board pursuant to 5 U.S.C. § 7701 or to the Court of Appeals for the
Federal Circuit, as they could have done under 5 U.S.C. § 7703, Elgin and some other Supreme
Court petitioners filed an equitable claim in district court. They asserted that the court had
jurisdiction to hear their case pursuant to the federal question jurisdictional statute, 28 U.S.C. §
1331. They added that the Court in Webster v. Doe64 held that a suit challenging the
constitutionality of a statute is subject to judicial review.
The Supreme Court in a 6-3 decision concluded that the district court did not have federal
question jurisdiction because the petitioners could have sought judicial review of a final MSPB
decision before the Court of Appeals for the Federal Circuit under 5 U.S.C. § 7703. It rejected the
petitioners’ argument that despite the Federal Circuit’s jurisdiction, they were not barred from
also challenging a statute’s constitutionality in a district court. The Court added that the scheme
provided in the Civil Service Reform Act, particularly 5 U.S.C. § 7703, is the exclusive avenue to
judicial review when a qualifying employee challenges the constitutionality of a federal
employment statute.
In reaching this conclusion, the Court declined to accept the petitioners’ contention that a statute
does not preclude district court federal question jurisdiction unless Congress explicitly directs
otherwise. To support their contention, the petitioners cited language from the Webster case which
said that a statute will not be found to preclude district court review without a “heightened
showing” that Congress intended to preclude it.
The Court stated that the petitioners’ argument overlooked a “necessary predicate” to applying
Webster’s heightened standard: To obtain judicial review under 28 U.S.C. § 1331, a statute must
61 Id. at n. 13.
62567 U.S.___, 132 S.Ct. 2126 (2012).
63 50 U.S.C. App. § 453.
64 486 U.S. 592 (1988).
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purport to deny any judicial forum for a colorable constitutional claim. “Webster’s standard does
not apply where Congress simply channels judicial review of a constitutional claim to a particular
court.”65
The Court appears to have adopted a distinction that had been proffered in the government’s brief
between the level of congressional intent that must be shown before a court will find preclusion.
A statute that channels or postpones judicial review will be held to preclude judicial review if
Congress’s intent is “fairly discernable.” A statute that purports to preclude any judicial review,
however, will not be held to preclude it without a “heightened showing” (i.e., “clear and
convincing evidence”) of that intent.66
The reasoning that the Court’s applied in the Elgin case appears to have been strongly influenced
by its significant decision in United States v. Fausto,67 a statutory construction case. A
nonpreference eligible68 employee in the excepted service filed suit in the Court of Claims69 for
back pay under the Back Pay Act70 alleging that his agency violated its regulations when it
suspended him. The Court held that the Court of Claims did not have jurisdiction to hear his
claim because at that time the Civil Service Reform Act (CSRA) provision that defined an
employee who was eligible for judicial review of agency action did not include a nonpreference
eligible in the excepted service such as Mr. Fausto; it limited review to competitive service
employees and to preference eligibles in the excepted service.71
The Court in Fausto said that the act’s purpose, entirety of text, and structure all indicated
congressional intent to “replace the haphazard arrangements for administrative and judicial
review that had built up over almost a century.”72 It rejected the contention that Congress’s
decision not to grant an MSPB administrative appeal right and judicial review of Board decisions
to nonpreference eligible excepted service employees was an oversight. The Court viewed this
noninclusion as manifesting a considered congressional judgment that they should not have
statutory entitlement to these forms of review and, therefore, that pre-CSRA judicial access to
courts for matters covered by the act were repealed impliedly.
65 132 S.Ct.. at 2122.
66 Brief for Respondent Department of the Treasury in Elgin v. Department of the Treasury at 19, available at
http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-
45_respondent.authcheckdam.pdf citing Shalala v. Illinois Council on Long Term Care Inc., 529 U.S. 1, 19 ( 2000),
which identified cases that made these distinctions.
In Lindahl v/ Office of Personnel Management, 470 U.S. 768, 779-780 (1985), the Court observed that, “ ... the ‘clear
and convincing” standard has never turned on a talismanic test. Block v. Community Nutrition Institute, 467 U.S. 340,
345-346 (1984). Rather, the question regarding whether a statute precludes judicial review “ ... is determined not only
from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and
the nature of the administrative action involved.”
67 484 U.S. 439 (1988). See Barbara A. Atkin, Elaine Kaplan, and Gregory O’Duden,, Wedging Open the Courthouse
Doors: Federal Employee Access to Judicial Review of Constitutional and Statutory Claims, 12 Emp. Rts. and Empl.
Pol’y. J. 233 (2008); and Elizabeth A. Wells, Note: Injunctive Relief for Constitutional Violations: Does the Civil
Service Reform Act Preclude Equitable Remedies?, 90 Mich. L. Rev. 2612 (1992), for discussions of the effect of the
Civil Service Reform Act on access to courts.
68 Section 2108(3) of title 5 defines a preference eligible to include a veteran and some family members of veterans.
69 The Court of Claims subsequently was renamed the Court of Federal Claims.
70 5 U.S.C. § 5396.
71 After the Court decided Fausto in 1988, Congress extended judicial review of adverse actions to nonpreference
eligible excepted service employees in the Civil Service Due Process Amendments, P.L. 101-376 (1990).
72 484 U.S. at 444.
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The Court added that the structure of the CSRA gave a preferred position to competitive service
employees and to excepted service preference eligibles. It also gave primacy to the Merit Systems
Protection Board for administrative resolution of adverse personnel action disputes and primacy
to the Court of Appeals for the Federal Circuit for judicial review. These structural elements
permitted the Board to develop a unitary and consistent executive branch position on personnel
matters. Moreover, the Federal Circuit’s primacy avoided an unnecessary layer of judicial review
in lower federal courts and encouraged more consistent judicial decisions than would have been
true if district courts could hear them with appeals to regional courts of appeals.
Although the finality clause in 38 U.S.C. § 713(e)(2) quoted above waives Section 7703 of Title 5
of the U.S. Code, which grants judicial review of MSPB final decisions, as well as “any other
provision of law,” it does not expressly preclude any judicial review. It provides that a decision of
an administrative judge “shall be final and shall not be subject to any further appeal.”
In this respect, it lacks the clarity of the finality language in the Johnson case which stated, in
relevant part, that “ ... no court ... of the United States shall have power or jurisdiction” to review
a decision of the Administrator of the Veterans Administration in denying benefits. This language,
the Court in Johnson held, did not preclude judicial review of a challenge to the constitutionality
of a statute that limited educational benefits to veterans of active military service. The Court
reasoned that it was not reviewing a decision by the Administrator regarding whether or not to
grant benefits, but rather whether Congress had enacted an unconstitutional statute (i.e., a
collateral issue).
In the Webster case, the Court reviewed the CIA Director’s summary removal authority. Citing
Johnson and some other cases, it held that judicial review of colorable constitutional claims
including deprivation of continued employment without due process of law in contravention of
the Fifth Amendment could not be precluded without a “heightened showing” of Congress’s
intent to preclude. It reached this conclusion to avoid a “serious constitutional question” that
would arise if a federal statute were to be construed to deny any judicial forum for a colorable
constitutional claim. The Elgin case narrowed the scope of the holding in Webster, saying that it
applied to cases that precluded any judicial review.
Without judicial review, a senior executive who is removed pursuant to Section 713 would have
no opportunity to challenge removal as a deprivation of a property right to continued employment
without meaningful due process of law. The only review would be in an administrative
proceeding before an MSPB administrative judge.73
A court would have to decide whether the language of the finality clause in Section 713(e)(2)
clearly and convincingly provides evidence of that intent. A court’s determination arguably could
be influenced in part by the legislative history of that clause. The conferees generally accepted the
73 When the former Director of the Phoenix VA Health Care System asserted in her MSPB appeal that she was denied
post-removal due process, the administrative judge responded that he lacked the power to rule on the constitutionality
of the enabling statute and cited Special Counsel v. Bianchi, 57 M.S.P.R. 627, 632 (1993). Helman v. Department of
Veterans Affairs at 35-36, MSPB Administrative Judge (2014, available at http://www.mspb.gov/netsearch/
viewdocs.aspx?docnumber=1122129&version=1126602&application=ACROBAT.
The Supreme Court in Califano v. Sanders, 430 U.S. 99, 139 (1971), addressed the limitation of an administrative
tribunal to adjudicate constitutional claims. “Constitutional questions obviously are unsuited to resolution in
administrative hearing procedures, and, therefore, access to the courts is essential to the decision of such questions; ...
[w]hen constitutional questions are in issue, the availability of judicial review is presumed, and we will not read a
statutory scheme to take the ‘extraordinary’ step of foreclosing jurisdiction unless Congress’s intent to do so is
manifested by ‘clear and convincing’ evidence.”
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Senate provision,74 which would have authorized the Merit Systems Protection Board to hear a
timely filed appeal from a removed senior executive. This provision would have directed the
Board to expedite adjudicating an appeal within 21 days, but if it could not complete action in
that time, it would have to notify Congress why it could not do it. Significantly, the Senate
language provided no express sanction for failing to complete an appeal in that time; the Board
arguably may have been able to continue to adjudicate an appeal until completing it.
The Senate provision, however, did have a finality provision which stated that, “A decision made
by the Merit Systems Protection Board with respect to a removal or transfer under subsection (a)
shall not be subject to any further appeal.’’
In the conference, the conferees amended the Senate appeal provision by substituting an MSPB
administrative judge in place of the Board itself and adding language about 5 U.S.C. § 7703 so
that Section 713(e)(2) provides that, “Notwithstanding any other provision of law, including
section 7703 of title 5, the decision of an administrative judge under paragraph 1 [directing the
MSPB to refer an appeal to an administrative judge] shall be final and shall not be subject to any
further appeal.” The conferees also added the following language in Section 713(e)(3): “In any
case in which the administrative judge cannot issue a decision in accordance with the 21-day
requirement under paragraph (1), the removal or transfer is final..... ”
By waiving the judicial review provision in 5 U.S.C. § 7703 and “any other law” as well as
making the Secretary’s decision final if an administrative judge did not issue an opinion within 21
days, the conferees strengthened the finality language in the Senate provision. A court would have
to decide whether these changes when compared to the earlier version provided clear and
convincing evidence of congressional intent to preclude any judicial review.
Legislation
H.R. 1994 and a companion, S. 1082, both named the Department of Veterans Affairs
Accountability Act of 2015, and S. 1117, Ensuring Veterans Safety Through Accountability Act,
have been introduced in the 114th Congress. They would extend to all officers and employees in
the Department of Veterans Affairs the expedited removal-demotion authority that 38 U.S.C. §
713 grants to the Secretary for individuals in senior executive positions. Hearings have been held
on these bills.75 On July 15, 2015, the House Committee on Veterans Affairs reported H.R. 1994
74H.Rept. 113-564 at 79-80 (2014). The Senate provision was in S. 2450, 113th Congress, 2d Sess., which was
incorporated into H.R. 3230 on June 11, 2014. 160 Cong. Rec. S3565 (daily ed. June 11, 2014). See section 409 of H.R.
3230 as engrossed in the Senate for the Senate provision, available at http://www.gpo.gov/fdsys/pkg/BILLS-
113hr3230eas/pdf/BILLS-113hr3230eas.pdf.
The House amendment in H.R. 3230 originally passed by suspension of the rules as H.R. 4031 on May 21, 2014. 160
Cong. Rec. H4751 (daily ed. May 21, 2014). It authorized the Secretary of Veterans Affairs to remove an individual in
the Senior Executive Service from federal service or transfer him or her to a suitable General Schedule position for
performance; such removal or transfer “ ... should be done in the same manner as a removal of a professional staff
member employed by a Member of Congress,” implying removal or transfer at-will. See Section 7 of H.R. 3230 as
engrossed by the House, available at http://www.gpo.gov/fdsys/pkg/BILLS-113hr3230eah/pdf/BILLS-
113hr3230eah.pdf.
75 See “Debate over Making It Easier to Fire Feds Dominates VA Hearing,” GovExec.(June 2, 2015), for a discussion
of the hearing on H.R. 1994, available at http://www.govexec.com/oversight/2015/06/debate-over-making-it-easier-
fire-feds-dominates-va-hearing/114301/?oref=relatedstories.
See also Susan Tsui Grundmann, Chairman, U.S. Merit Systems Protection Board, Statement for the Hearing Record
for the Senate Committee on Veterans Affairs (June 24, 2015), for comments on S. 1082 and S. 1117, available at
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=1191921&version=1196542&application=ACROBAT.
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to the House.76 The Senate Committee on Veterans Affairs reported S. 1082 to the Senate on July
22, 2015.77 On July 28, 2015, senior advisors recommended that the President should veto H.R.
1994.78 The House agreed to H.R. 1994 by a vote of 256 to 170 on July 29, 2015.79 No floor
action has been taken on S. 1082.
Author Contact Information
Thomas J. Nicola
Legislative Attorney
tnicola@crs.loc.gov, 7-5004
76 See Eric Katz, “House Panel Approves Bill to Ease Firing 300K Feds,” GovExec (July 15, 2015), available at
http://www.govexec.com/oversight/2015/07/house-panel-approves-bill-opponents-say-will-abolish-civil-service/
117856/?oref=top-story.
See also Thomas J. Nicola, Coordinator, Maeve P. Carey, Katelin P. Isaacs, Barbara L. Schwemle, and Jon O.
Shimabukuro, “VA Accountability Act of 2015 (H.R. 1994) as Passed by the House,” CRS Report R44123, VA
Accountability Act of 2015 (H.R. 1994) as Passed by the House, coordinated by Thomas J. Nicola, for a description of
this bill, available at http://www.congress.gov by title and number.
77 Kelly Lunney, “Bill Making It Easier to Fire VA Employees Heads to Senate Floor,” GovExec (July 22, 2015),
available at http://www.govexec.com/management/2015/07/bill-making-it-easier-fire-va-employees-heads-senate-floor/
118395/?oref=relatedstories.
78 Statement of Administration Policy: H.R. 1994, VA Accountability Act of 2015, available at
https://www.whitehouse.gov/sites/default/files/omb/legislative/sap/114/saphr1994r_20150728.pdf.
79 161 Cong. Rec. H5653 (daily ed. July 29, 2015).
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