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 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 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? Because OEO's regulations and practice provided that a removed employee was entitled to a trial-type hearing a fter 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. 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. 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. 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. In the Manzo case cited in Loudermill , the Court said that a post-termination hearing must be provided not only at a meaningful time, but also in a meaningful manner. 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. In her principal brief filed on October 9, 2015, Helman argued that the Court of Appeals for the Federal Circuit has jurisdiction to review the decision of the MSPB administrative judge. 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. 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. It provides that a decision of an administrative judge "shall be final and shall not be subject to any further appeal." 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.
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.