Sharon Helman Wins At Federal Circuit, Accountability Law Unconstitutional

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Sharon Helman

Sharon Helman, the former Phoenix VA chief whose tenure was linked to the nationwide VA wait time scandal, won a major decision today in court.

Helman challenged provisions of the Veterans Access, Choice and Accountability Act that were used to uphold her termination in 2014. The Merit Systems Protection Board (MSPB) previously declined a motion for a full panel review asserting the Act precluded as much. That decision was overturned today by the US Court of Appeals of the Federal Circuit.

RELATED: Sharon Helman Court Decision

The Act, and the subsequent law, 38 USC § 713(e), was created in part to help quickly terminate senior VA executives without standard due process protections those same employees relied on in the past. The Court held the law as written by Congress violated the Appointments Clause of the Constitution as it was applied to termination of Senior Executive Staff (SES) employees of the Department of Veterans Affairs (VA).

Helman’s win today means the section of the Act that precludes the review sought by Helman is unconstitutional, but the Court stopped short of invalidating the entire Act. Now, Helman’s case will be remanded to the MSPB for the review she sought before.

Background On Recent MSPB Decisions

The MSPB is the same review authority that reinstated Diana Rubens and Kim Graves at their previous positions as heads of Philadelphia RO and St. Paul RO, respectively.

The two previously worked in upper management within VA and orchestrated the removal of two subordinates to then assume the role of directorship. Such roles were deemed less demanding than their previous roles.

RELATED: Demoted SES Employees Plead Fifth Before Congress

The salt in the wound occurred when the Congress realized they did this without having their pay docked and while receiving a moving incentive reserved only for VA employees who are involuntarily moved for VA purposes.

When VA attempted to uphold punishment for the two that included a demotion and forced relocation, the MSPB concluded the punishments were in violation of the law. An MSPB review found that a higher-level authority above Rubens and Graves was linked to the scandal, and therefore the two could not be punished. That individual who was promoted was none other than Danny Pummill.

Pummill was promoted to acting Under Secretary for Benefits after Allison Hickey swiftly resigned. Hickey resigned in what appeared to be an attempt to evade answering to Congress as to why she approved the removal in the first place.

RELATED: Will Next Under Secretary Do Pay To Play For Political Favors?

Pummill reportedly resigned shortly after the MSPB penalized VA for an apparent good-ole-boys move to promote the male involved while penalizing lesser ranked female colleagues, all of whom were involved in the same musical chair scheme. That position is now held by acting Under Secretary for Benefits Thomas Murphy.

Murphy is a holdover from President Barack Obama and considered an Agent Orange denier following internal memos leaked to the press two years ago.

RELATED: Veterans Circulate Petition To Oust Agent Orange Denier Thomas Murphy

The rub in cases like this is that VA, and more important the American Taxpayer, may be liable for the attorney fees after having the punishments reversed.

As for Helman, she was ultimately fired for failing to disclose numerous gifts from a government contractor that included trips for her family to Disney Land and a Beyoncé concert. Some of her actions also resulted in her being found guilty for criminal activities.

Fortunately for taxpayers, the Federal Circuit did not award fees this time around.

VA Press Release On Sharon Helman Ruling

Now that VA’s ability to quickly terminate as it supposedly desires has been officially rebuked by the courts, the agency will no doubt have to push for the new accountability measures presently circulating Capitol Hill.

VA even released the below press release following the ruling:

Today, the U.S. Court of Appeals for the Federal Circuit in Helman v. Department of Veterans Affairs (VA) ruled that the expedited Senior Executive Service (SES) removal and appeals authority provided by the Veterans Access, Choice, and Accountability Act of 2014 is unconstitutional.

As a result of this ruling, the Merit Systems Protection Board (MSPB) has been directed to review the administrative judge’s decision upholding VA’s November 2014 removal of the director of the Phoenix VA Healthcare System. The former director’s removal remains in effect at this time.

Commenting on the ruling, Veterans Affairs Secretary Dr. David J. Shulkin said, “Today’s ruling underscores yet again the need for swift congressional action to afford the Secretary effective and defensible authority to take timely and meaningful action against VA employees whose conduct or performance undermines Veterans’ trust in VA care or services.

“We appreciate the House passing H.R. 1259, VA Accountability First Act of 2017 as a vital step toward providing the tools necessary to address misconduct while ensuring due process. Just as importantly, we look forward to the Senate taking up the legislation and helping to ensure passage as soon as possible.”

https://www.va.gov/opa/pressrel/pressrelease.cfm?id=2900

Is it just me, or are attempts at holding VA senior staff accountable under President Obama now looking eerily like President Donald Trump’s attempts at border security when it comes to court rejections?

Either way, this is probably not the last time we will be hearing about Sharon Helman.

Maybe she will get her old job back after numerous apparent attempts by VA OIG to whitewash the investigation in Phoenix VA and similarly situated facilities that defrauded veterans of needed healthcare to improve their performance numbers?

Source: https://federalnewsradio.com/veterans-affairs/2017/05/court-rules-key-va-ses-firing-and-appeals-authority-unconstitutional/

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ThisVet2017
ThisVet2017
Not surprised. The EO that Trump signed is also going to result in a flood of backlash if they go through with the ridiculous shortening of due process (i.e. the seven days to respond to a notice of proposed action; seven days to appeal to MSPB; VA decision being final if in 60 days MSPB doesn’t issue an initial decision). My thing is, why does everyone think that an EO from Trump is/was needed to get rid of bad apples. The VA and every other agency does what it takes to get rid of a whistleblower – from the drumming… Read more »
Tony
Tony

Exactly. The EO was for optics. VA will use any increased authority to get rid of the whistleblowers and other good people, not the bad people.

James Gallegos
If they can’t defend themselves within 7 day’s Tuff. They are lucky they are not just called into the office and told your fired ! VA employees have and are harming veterans and those veterans are not given even one day to fight back. Where are the veterans rights ! Who has been held accountable for every thing that has happened so far by VA employees. Promoting and muical chairs is holding one accountable ! Count your blessings that you even have a chance to defend yourselves, veterans have NONE ! To settle this once and for all. Shut down… Read more »
vaislyinf inc
this nasty va cow wont go away she gets full bennies @ A LIFE TIME VA PENSOIN YET SHE WANTS A BIG BIG CASH $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ FOR HE FIRINg NASTY VA COW WILL BE IN FEDERAL PRISON FOR KILLING VETS VA DC HQ ONE BIG FEDERAL RICO CRIME RACKET NOTING WILL VETS SCREWED AGIN !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Robert Carlyle Berrett
Robert Carlyle Berrett

Just throw her in the bay with a lot of bloody meat

Robert Carlyle Berrett
Robert Carlyle Berrett

Find out where she lives and send a couple dozen people to walk up and down with signs saying “murderer of Veterans” , etc.
It’s time to play rough just like the unions had to do, block any future employment for her, get tough, Marines!

Dina Padilla
Dina Padilla

BAD employees have constitutional rights, especially upper management and the good ones don’t. Everything is ass backwards as usual and done on purpose. It’s all just a huge diversion to keep you from getting your benefits. She must have a lot of dirt to fling out, loads of money to hide and many heads would roll including those in those in black robes.

Crazy elf
Crazy elf

It seems, at least in my opinion, the upper management of the Veterans Administration receive “special treatment” over everyone else!
As Robert has so eloquently stated; quote: “It’s time to play rough…”!
It’s time to exposed the VA for what it is – a criminal enterprise!
As one of our past Generals/President once said:
“The things that separates American Christians from others, is they will die on their feet, instead of living on their knees!”
“George Washington” (c. 1776)

I do believe it’s time to stand up and do something about the corruption filling most of our government agencies!

Jo3n

If that bitch goes anywhere, whomever hires her is bad. As usual, the VA can’t do what should be done. It’s a circle jerk. I wouldn’t be surprised at anything VA SES’s get away with. All this pain, deaths, homeless, all goes back to the top. They’ve had years to take over and for years nobody did anything. Like an unknown cancer it spread. How do you fix that? In the VA, the buck just goes round and round and round. I think there are many ways to deal with her. SUE her. Pass a law for that.

namnibor
namnibor

Bitch/Witch, same difference. She just will not go away. That means that Kim Graves is not very far behind…

namnibor
namnibor

I say burn the witch!

Seriously, this is one persistent floater in the VA cesspool. It’s beyond salt in the wound, more like industrial draino crystals with sulfuric acid poured on top.

Yep, it’s time to go angry villagers on these assholes with torches, pitchforks, chickens, catapults, poop canons…(we are NOT catapulting the chickens, just their abundant poop)

CorpsmanUp!
CorpsmanUp!

The VA is a shithole and the MSPB is nothing but a fraudulent political device to conceal government corruption when brought out by whistleblowers.
VA….. embarassment to serving veterans!

namnibor
namnibor

Ben’s “Bad VA Art” today should be made into small posters to help Veterans with constipation. You unroll the photo of Sharon Helman and you will instantly feel the urge to make a massive floater in her exact likeness, tenacity, and exact same consistency, somewhat nutty and cornball.

Angela
Angela
The determination of 38 USC 713 to be unconstitutional is what all the federal courts which are occupied by Liberal judges will decide. To get anything through a liberal federal court which is to suppose to address any type of accountability or adherence directly to the Constitution will be blocked. This is for now. President Trump has fired 46 U.S District Court Attorneys, he as fired FBI Director James Comey, he has fired acting Attorney General Sally Yates, and many more. Trust me President Trump is making his way through the ranks with taking care of business to implement law… Read more »
Angela
Angela
Adding to my previous comment, if this case had been decided in a more conservative federal district court, the outcome or decision would have probably been different. It is for sure not over. The fight is probably on. Wait and see. The judges who are constitutional and textual are the judges who follow the constitution exactly as it is written. These are usually conservative judges. So I say this case needs to go through one of the Federal Circuit Courts that has more conservative judges and we will all probably see a different take on the ruling. Liberal judges seem… Read more »
Angela
Angela
Yep, many Veterans are denied due process with benefits and care. So why should Helman be given due process rights? She forgets about how many veterans she has harmed regarding human rights or due process rights. So what makes Helman and other VA employees so privileged or special?What have they done that makes them so credible? Many VA employees have not risked their lives to fight for our Freedoms like veterans have. So why is there a double standard? The VA employee? The Veterans? I just do not get it. Some VA employees are certainly no better and do not… Read more »
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@Angela: In the back of my mind, I have the 22 veterans who take their own lives, waiting for help. This government is quick on the draw, with EO’s for everything from illegals to gay rights. There is no excuse, or exceptions to why this mess continues​. Same corrupt, and incompetent fucks, are still in charge. I am not so forgiving in the wait and see department. Enough of this crap, I am sick of this pandering to the unions BS. Face it, we have been used, and lied to again. This is why I stopped commenting. I damn well… Read more »
Angela
Angela
The VA Secretary is now standing by and pushing for the legislation to occur in the Congress and the Senate regarding the VA Accountability Act. I am little surprised; though, but again not really surprised after further thinking about it. Honestly, I do believe Secretary David Shulkin is trying to do what he can do that is in his realm of control and power to implement accountability to save lives of the veterans as well as improve the care. He appears to be the only one in the VA leadership making the effort. We will see. Our country is so… Read more »
Angela
Angela
To all, our country is now puttering along by the heels towards regaining prosperity with now revealing the evidence of a 182 billion dollar budget surplus. A budget surplus has not been evident since 2001 in this country. The Democrat conspiracy nuts have poison coming out their eyes because President Trump is still moving this country forward despite the Democrats’ obstructing and sabatoging efforts. They hate President Trump. The Democrats do not stand for success and prosperity for the country or the American people. The Democrats want to collapse the country into a one party nation with 100% Socialism just… Read more »
Lem
Lem
Wow! That is great. Dumb ass. All ready after 108 days in office. None of it from former Administration. You still trust this lying bastard? I voted for him and now I’m ready for his impeachment. I’m sure he is tied to the Putin Administration after the firing of Comey hours before meeting with Russian Diplomats with only Russian Media. When the hell has this ever happened before? A meeting with any foreigners by the President admitting only the foreign nations reporters? I bet he doesn’t last 60 days into 2019 and will probably be gone by the end of… Read more »
Disgruntled Veteran
Disgruntled Veteran

@Lem – – – Precisely, Doc. Only victory yesterday was that of Russian propaganda. Time for him to come clean, or pack his bags. Integrity is a foreign language to Donald J. Trump . . .

Semper Fi.

Calvin Winchell Army Veteran
Calvin Winchell Army Veteran
The Courts are sending the incorrect message to these immoral VA employees who steal money, take gifts, and do whatever they decide for themselves? This with no regard of how these actions effect the Veterans they were entrusted to care for? All these type of jackasses need to be terminated and punished so others thinking about doing similar behavior are placed on notice! How about the Veterans who have applied for disabilities benefits they need and are ignored for years while they lay sick and without the benefits they earned while we waste time on prosecuting these bastards who really… Read more »
91Veteran
91Veteran
Frustrating, but not nearly as much as it would be if the entire law was thrown out, and the VA being ordered to give Helman her job back with back pay. At least her firing is still upheld until the MSPB reviews her firing…hopefully the VA didn’t screw that up as well. If her firing is NOT upheld by them, then the feral goobermint should just stop wasting time and money prosecuting any feral employee for violating the law. Isn’t it interesting how Helman gets every opportunity to address her issues in court while veterans are denied the same rights?… Read more »
namnibor
namnibor

Better be a strong leash because this particular genus of pet monkey can fly,

Valerie
Valerie

The circuit court of appeals can be overturned.

Ryan
Ryan
My name is Ryan and I was date raped by a Phoenix VHA psychiatrist during the height of the Phoenix VA scandal. For eight months the VA denied me a psychiatric medication that is used for sleep and also known as a date rape drug. I ended up dating a doctor named Dr. Elaine Ramos who told me she was allowed to date me but unfortunately she lied to me because under Arizona law, it’s illegal for psychiatrist to have sexual contact with patients who are treated within the clinic the psychiatrist works. I had no idea the relationship was… Read more »
Jughead
Jughead
This whole situation sounds like a big bag of fuck. You got date raped by your girlfriend who was also your doctor? Then they conspired to alter your medications and hide the scandal. This is just preposterous!! How can this “Ramos”, who i bet is an Illegal with no papers, rape and drug our service members and get away with it. May god bless you and give you the strength to overcome this horrible injustice that the American Government and the Illegals have caused you. Hopefully North Korea will blow us up and we can all stop worrying about the… Read more »
OLDMARINE
OLDMARINE

my thoughts exactly …Hopefully North Korea will blow us up and we can all stop worrying about the VA because it won’t exist. but i think it will be our own goobers doing it to us…anybody got some extra tinfoil

Ryan
Ryan
Thanks for the words of encouragement OLDMARINE. The whole thing does sound nuts but I couldn’t make any of this up if I wanted to. Ramos and I started dating in April of 2014 a year after I was shot multiple time by my father who was a retired Colonial and had been diagnosed with severe PTSD and dementia. When I started dating Ramos, I was under the impression that our relationship was within the legal boundaries of her career and after years of abuse by her and federal government employees, I had found the will power to escape the… Read more »
Ex va
Ex va

Her SES appointment makes her wrongdoing under the attorney general investigating authority? Because she is considered an SES it suppose to makes her more accountable. if they let her get away with these crimes then there is no accountability. MSRB is an administrative board with little if any prosecuting authority. They make recommendations and that is about it. She will most likely be transfered because they would have to go after so many other individuals. This is just sickening and disgusting. No justice.

Dennis
Dennis
How many decades more of this sort of bullshit will it take before folks stop being surprised? This is biz as usual is it not? The folks at VA are like herpes – they just never ever go away. This is not new for Gods sake! This shit has been going down on American soil since before my birth. This is the most corrupt government agency America has ever witnessed and this scumbag ho is just part of a LONG line of misfit and corrupt employees who openly give us all a big old bare ass while sucking up Americas… Read more »
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@Dennis: Amen!!!!

Disgruntled Veteran
Disgruntled Veteran
Bring out the Helman’s – – – You Bring out the best! Really? It would seem NOT in this case. Sharon Helman is walking, breathing proof that an “unjust law is NO law”. She embodies EVERYTHING that is wrong with our society. This country is long overdue for a new Constitution that befits our modern times, and puts some real teeth into our laws for every citizen from the POTUS on down to the homeless EQUALLY. This cunt that presided over one of the worst, most hurtful clusterfucks for our nations veterans at the VA in recent memory, now has… Read more »
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@Disgruntled Veteran: Unbelievable right? I can’t even post a coherent comment. I try, then have to delete it, because it looks like I jumped off a cliff.
This country is being run by the asylum.
Did you find an os you like?

Dennis
Dennis

Is she invited to ice cream too?

namnibor
namnibor

Yes. She gets the Monsanto Orange Swirl conference room dip.

Disgruntled Veteran
Disgruntled Veteran

-.-. .— – – – Sure is unconscionable. But I do believe it. Maybe next election, I will put Putin on my ballot as a write-in candidate. Seems to me he is no more corrupt, and a whole lot more honest about it – – – than the vast majority of folks running our government.

You still on with Mike? Building new drive either this weekend, or first day next week. Yes. Will be good to get away from Microsoft.

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@Disgruntled Veteran: Still on, sorry, didn’t see your post till this morning. Always fun building and installing a new system, good luck.

Disgruntled Veteran
Disgruntled Veteran

@-.-. .— – – – Appreciate it very much. Sent e-mails but forgot you were currently limited to the tablet. Never worry about reasonable delays in replying, my friend. I get enough e-mail (meaningful conversations) from folks that sometimes it may take a week or slightly more for me to get my replies out – – – due my medical ailments.

I will be glad to hear his take on the material I sent you.

lily
lily

I don’t really understand how we got to the point where firing someone for doing a bad job is “unconstitutional”. Ben you may not be a dirt bag but I think lawyers have ruined this nation.

Dennis
Dennis
Not so sure I agree. The lawyers do what they are paid to do which is to argue a point. There is no malice in earning a wage per se. We all need to put pie in the hole to make it all work, and we work to do that at myriad jobs in America. Except there is one grouping of people that take a slice of the pie without contribution to the work – labor unions. Labor unions historically employ lawyers but they also employ armed thugs historically and they employ mydriad ways not to argue the correctness of… Read more »
namnibor
namnibor
Very well stated, Dennis. What you wrote should be engraved on each and every poop canon’s steel exterior casing so when it’s finally all over, one of those surviving poop canons with that inscription of your words, can be placed in still-operable condition and placed at a high central point above Washington, D.C. for in the event we ever forget or feel the need to flick the switch one more time and let it rain. A bit like that last bullet that at least used to be within the USA Flag Pole’s top globe post, that symbolized in event of… Read more »
91Veteran
91Veteran
In some respects, I don’t see this as a bad thing. Helmans firing was upheld, it’s just the legal authority they used was declared unconstitutional, which does not mean they cannot use existing authority to keep her fired. That existing authority likely costs a bit more and takes longer, so the VA will be wasting more money on trying to keep her fired. I would rather VA have airtight authority to fire these worthless hacks rather than letting them continue riding the merry go round, or possibly getting their job back with back pay. Congress needs to get serious about… Read more »
James Gallegos
I was wondering since this happened before the new act was iniated to hold VA employees accountable. If they had to use the old system in place before the new act was iniated. What part was unconstitutional. ? Or loop hole. Why are any employees given any constitutional rights. The VA has denied and taken away all veterans civil Human And constitutional rights away . Who is defending veterans rights. How is it a veteran can be accused of wrong doing and can be punished and threatened with federal charges Arrest and banishment from all VA care and not be… Read more »
Dina Padilla
Dina Padilla
This shit started wehn the congress & aflcio bought into kaiser’s B.S back in the early 30’s and then “medical care” in the 50’s and like an deadly infection was spread to all things medical including the VA. When a CEO that spends his many years in SO.America & central American, God only knows doing what, going along with commie ideas, like single payer, which the goals ARE to be in charge of ALL single payer or universal healthcare, bringing in billions every year to do things unrelated to “medical care” like for one bringing in illegals from south of… Read more »
Charles
Charles

How can it be unconstitutional to fire someone for not doing their job? Now that’s Marxism Folks! More proof we are infested with totalitarian Marxist pigs!

namnibor
namnibor
Very similarly, as in the past I have worked jobs where you had no choice but to pay dues to the union, and this one job freshly out of the military, I actually got reprimanded verbally then followed-up by a formal written reprimand…from the Union Steward….guess what for? I was being too efficient. What could be done in 3 hours was stretched across an 8 hour shift…sot as extreme at UPS unloading semi trucks, just the opposite, extreme amount of work with only 10 minute break allowed and if you had to crap, well be prepared to be reprimanded for… Read more »
touchavet@gmail.com

and I was under the impression that we are a country of one law for all people

Crazy elf
Crazy elf

From: “military.com/Daily News”
Titled;
“VA Whistle-Blower’s Retaliation Claims Spur Action from Congress”

9 May 2017
Fox News | by Malia Zimmerman

The article is about Dr. Klein of the Popular Bluff, Mo. “John J. Pershing VA!”
He’s that VERY qualified physician who brought attention to many illegal activities by upper management of the Veterans affairs out there!
Although a few representatives have gotten involved, it seems he’s still being retaliated against!
That VHA needs to be drained of all of those reprobates asap!

touchavet@gmail.com

that will never happen. That cess pool is impervious to investigations or sanctions

LP
LP

Wow.
Due process in that area is just fucked.

wpDiscuz