Dennis Wagner

The Republic | azcentral.com

The VFW and other vets group support a statute passed by Congress enhancing VA firing authority

The statute is being challenged by former Phoenix VA chief Sharon Helman

The U.S. Justice Department, like Helman, believes the statute is unconstitutional

The legal battle over former Phoenix VA Health Care System Director Sharon Helman's firing has taken a new twist with a coalition of veterans' groups asking the federal courts to let them fight for a key reform law that the U.S. Justice Department refuses to defend.

The Veterans of Foreign Wars and other service organizations are seeking to uphold a reform statute passed by Congress in 2014 to increase the Department of Veterans Affairs' authority to remove senior VA executives for misconduct and incompetence.

Helman, a convicted felon who was at the epicenter of the nation's scandal over delayed care for veterans, was fired last year after investigators found she failed to disclose thousands of dollars in gifts from a medical-industry lobbyist who previously was her VA boss. That termination was upheld by an administrative law judge, whose decision was deemed final under the Veterans Access, Choice and Accountability Act of 2014.

Helman sued in federal court, arguing that the Choice Act violates the so-called "appointments clause" of the U.S. Constitution. Her attorneys contend that, under that clause, an administrative judge is not a presidential appointee and therefore cannot be the final arbiter of termination.

Attorney General Loretta Lynch announced last month that she agrees with Helman's lawyers and will not defend the Choice Act's firing provisions. VA Secretary Bob McDonald followed up by declaring he will not longer use executive-removal authority provided under the law.

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Complaints from Congress

Those decisions set off a chorus of criticism from Congress. Sen. John McCain, R-Ariz., said the Obama administration's position suggests "the sanctity of a federal bureaucrat's job is far more important than than the health and well-being of our veterans." In a subsequent letter to McDonald, McCain added, "You are unilaterally refusing to enforce key elements of this very law. This decision is unconscionable and outrageous.”

Lynch's decision fueled speculation that Helman could be reinstated to her VA job even though she pleaded guilty to filing a false financial-disclosure statement and was sentenced in May to two years of probation.

Helman's lawyers have asked the U.S. Court of Appeals to throw out the entire section of the Choice Act pertaining to executive terminations. They claim she became a scapegoat during the nationwide VA scandal and was fired in a "politically motivated, congressionally driven witch hunt."

The Justice Department wants the court to rule portions of the law unconstitutional while remanding Helman's case for reconsideration.

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Groups want to step in

Now, a dozen veterans organizations are asking to intervene on behalf of millions of active-duty and retired military personnel who rely on the VA for medical care. Their brief, filed last week, says Helman's attorneys and the Justice Department have teamed up "to have this provision struck down without any adversarial presentation of the issues, analysis of the substantial arguments and authorities supporting the statute's constitutionality, or even considering less extreme remedies."

The VFW, AMVETS, Iraq and Afghanistan Veterans of America and other groups contend that the U.S. Court of Appeals lacks jurisdiction to hear the case. They also say the appointments clause "does not apply." In their brief, the groups claim to have "a compelling interest in ensuring that our nation's 25 million veterans … receive the highest quality health care through the VA system."

Neither Helman's legal team nor the Justice Department has responded to the request from veterans' organizations.

Helman is one of four Phoenix VA officials fired in the aftermath of the nationwide VA crisis that began in April 2014. The other three still have appeals pending before the Merit Systems Protection Board.

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