Advocacy groups on Monday filed a lawsuit against the Trump administration seeking to immediately remove acting Veterans Affairs (VA) Secretary Robert Wilkie from his post, claiming that his appointment violated federal law.
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President Trump in March announced that he was replacing then-VA Secretary David Shulkin, and that Wilkie, who also serves as the undersecretary of defense for personnel and readiness, would become acting VA secretary until a permanent replacement for Shulkin is confirmed.
But differing accounts over whether Shulkin was fired or had resigned from his post as VA secretary raised legal questions over whether Trump had the authority to appoint an acting VA secretary to replace Shulkin.
The Federal Vacancies Reform Act (FVRA) gives a president broad authority to fill an agency vacancy when the person who held the now-vacant position "dies, resigns, or is otherwise unable to perform the functions and duties of the office." FVRA allows the president to appoint any individual confirmed by the Senate for any position "to perform the functions and duties of the vacant office temporarily in an acting capacity."
Legal experts have said FVRA would not apply if Trump fired Shulkin from the post. Under this reading of the law, Deputy VA Secretary Thomas Bowman should have assumed the role as acting VA secretary.
However, it still is not clear whether Shulkin was fired or resigned. Lindsey Walters, a White House spokesperson, said, "Shulkin resigned from his position as" VA secretary. The White House declined to provide additional details on the circumstances surrounding Shulkin's departure.
But Shulkin repeatedly has refuted claims that he resigned. Shulkin in an opinion piece published in the New York Times in March claimed that Trump had dismissed him from the post because of his opposition to privatizing large segments of VA's health system. "They saw me as an obstacle to privatization who had to be removed," he wrote.
In the lawsuit filed Monday by VoteVets and Democracy Forward, the groups claim that Trump did not have the authority to appoint Wilkie to serve as acting VA secretary. Instead, the groups claim that, under the FVRA and other federal laws, Bowman should have assumed the role.
According to the Army Times, a ruling in favor of the plaintiffs in the suit would mean Wilkie would be removed from the acting VA secretary post immediately and replaced by Bowman. In addition, decisions or contracts authorized under Wilkie could be invalidated.
John Lewis, counsel for Democracy Forward, said, Trump "has to adhere to federal law before he can make an appointment," but alleged that Trump "did not do that here."
Will Fischer, director of government relations for VoteVets, said, "This flies in the face of the entire system of checks and balances that federal statutes and our Constitution call for. By bypassing … Bowman, and illegally moving someone from another department over to the VA to act as interim secretary, we believe that the Trump administration is trying to get a head start on its privatization efforts for the department, before hearings on a new secretary even happen."
Anne Harkavy, director of the Democracy Forward Foundation, said, "The laws governing how political vacancies are filled and the limits on when a president can bypass Congress to unilaterally handpick an appointee are fundamental to how our government works. In this case, the laws ensure the interests of America's veterans are represented."
According to ArmyTimes, VA officials and the White House referred requests for comment on the litigation to the Department of Justice (DOJ). DOJ officials said they were reviewing the lawsuit (Shane, Army Times, 5/1; Davis, Healthcare IT News, 5/2; Gunter, FCW, 5/1; Wentling, Stars and Stripes, 4/30).
Just updated: Your cheat sheets for understanding health care's legal landscape
To help you keep up with the ever-changing regulatory environment, we recently updated our cheat sheets on some of the most important—and complicated—legal landmarks to include a brand new one-pager on the new tax law.
Check out the cheat sheets now for everything you need to know about MACRA, the Affordable Care Act, antitrust laws, fraud and abuse prevention measures, HIPAA, and the two-midnight rule.