{ "id": "R44161", "type": "CRS Report", "typeId": "REPORTS", "number": "R44161", "active": true, "source": "EveryCRSReport.com, University of North Texas Libraries Government Documents Department", "versions": [ { "source": "EveryCRSReport.com", "id": 450821, "date": "2016-03-04", "retrieved": "2016-03-24T17:00:54.988692", "title": "Expedited Removal Authority for VA Senior Executives (38 U.S.C. \u00a7 713): Selected Legal Issues ", "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\u2019s performance or misconduct warrants removal.\nThis 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. \nThe 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.\nSection 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\u2019s removal or transfer is final.\nA 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\u2019s decision is not subject to judicial review. \nIn 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\u2019s 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. 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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.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20150821_R44161_9ed53da85ba5976fcd9ac14503ee87d54db6685a.pdf" }, { "format": "HTML", "filename": "files/20150821_R44161_9ed53da85ba5976fcd9ac14503ee87d54db6685a.html" } ], "topics": [ { "source": "LIV", "id": "Veterans", "name": "Veterans" }, { "source": "LIV", "id": "Veterans' benefits", "name": "Veterans' benefits" }, { "source": "LIV", "id": "Veterans' hospitals", "name": "Veterans' hospitals" }, { "source": "LIV", "id": "Government officials", "name": "Government officials" } ] } ], "topics": [ "Constitutional Questions" ] }