856 F.3d 920
Fed. Cir.2017Background
- Congress enacted § 707 of the Veterans Access, Choice, and Accountability Act (codified at 38 U.S.C. § 713) to streamline removal of Department of Veterans Affairs (DVA) Senior Executive Service personnel, creating broader removal authority for the Secretary and an expedited MSPB appeal process.
- Under § 713, appeals are to be referred to an MSPB administrative judge who must issue a decision within 21 days; that decision was made final by § 713(e)(2) and made not subject to Board or judicial review.
- Sharon Helman, former Director of the Phoenix VA Health Care System, was removed under § 713; an MSPB administrative judge affirmed her removal within the 21-day period and the Board declined to review citing § 713(e)(2).
- Helman challenged § 713 as unconstitutional, arguing it violated the Appointments Clause (and alternatively separation of powers) by vesting final, unreviewable authority in administrative judges who are employees, not officers; the government agreed that final, unreviewable authority would be significant and problematic.
- The court held that § 713(e)(2) (and related parts of § 713(e)(3) and § 713(e)(5)) unconstitutionally vested significant authority in administrative judges in violation of the Appointments Clause, but that those provisions are severable from the remainder of § 713.
- Remedy: the court severed the invalid provisions, retained the Removal and remaining Appeal Provisions, declined to vacate Helman’s removal, and remanded to the MSPB for Board review of the administrative judge’s decision (and for the Board to decide Helman’s due-process and related claims in the first instance).
Issues
| Issue | Helman’s Argument | Government/Other Parties’ Argument | Held |
|---|---|---|---|
| Whether § 713’s prohibition on Board/judicial review (finality of AJ decisions) violates the Appointments Clause | § 713 vests significant, final decision-making authority in administrative judges (employees), so those powers must be exercised by properly appointed officers | Government conceded that final, unreviewable authority is "significant" and cannot be conferred on employees; intervenors argued AJs do not exercise sovereign authority or that appointment/ratification cures defects | The statute’s finality provision (§ 713(e)(2)) and related language in § 713(e)(3) and (e)(5) are unconstitutional under the Appointments Clause because they vest significant authority in AJs who are not officers |
| Severability: whether the unconstitutional provisions must invalidate entire § 713 | Helman: severance would rewrite Congress’s compromise; statute should be invalidated in full | Government: sever the finality language and related parts; remainder (Removal and other Appeal provisions) can function and serve Congress’s objectives | The invalid provisions are severable; the Removal Provisions and most Appeal Provisions remain in force after severance |
| Appropriate remedy for Helman’s removal and AJ decision | Helman: at minimum vacate the AJ decision; ideally vacate removal so Secretary can reelect process under new scheme | Government: sever offending language and permit Board review of AJ decision; do not require vacatur of removal | Court declined to vacate the Secretary’s removal or the AJ’s factual findings now; remanded to the MSPB for Board review of the AJ decision and Helman’s due-process claims |
| Whether the court should resolve Helman’s due-process challenges now | Helman: agency should decide factual/credibility issues in first instance; exhaustion is required | Government: argues constitutional defect requires judicial resolution of Appointments Clause issue but did not press immediate resolution of due-process merits | Court declined to resolve due-process claims; remanded for Board review (exhaustion of administrative remedies) |
Key Cases Cited
- Webster v. Doe, 486 U.S. 592 (Supreme Court) (constitutional claims not precluded from judicial review absent clear congressional intent to do so)
- Johnson v. Robison, 415 U.S. 361 (Supreme Court) (same principle on review of constitutional claims)
- Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (Supreme Court) (analysis of when adjudicators exercising significant duties are "officers" under the Appointments Clause)
- Buckley v. Valeo, 424 U.S. 1 (Supreme Court) (distinction between officers and employees; Appointments Clause limits)
- Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477 (Supreme Court) (severability and remedies for structural separation/appointment defects)
- New York v. United States, 505 U.S. 144 (Supreme Court) (severability and Congressional purpose analysis)
- United States v. Booker, 543 U.S. 220 (Supreme Court) (severance principles; retain what Congress would prefer to no statute)
- Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (Supreme Court) (severability standard: would legislature prefer what remains to nothing)
- Regan v. Time, Inc., 468 U.S. 641 (Supreme Court) (presumption in favor of severability and cautious statutory invalidation)
- Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (Supreme Court) (treating partial severance and upholding remainder where operative)