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April 3, 2018

Resigned or fired? Why the controversy over Shulkin's departure could raise big legal questions.

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    Former Veteran Affairs (VA) Secretary David Shulkin says he was fired from his position, while the White House says he quit—a dispute that some legal experts say could have implications for the legitimacy of decisions made by VA's acting secretary.

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    President Trump on Wednesday in a series of tweets announced that he would nominate Navy Rear Adm. Ronny Jackson, who currently serves as the White House's top physician, to replace Shulkin as VA secretary, and that he was appointing Robert Wilkie, undersecretary of defense for personnel and readiness, to serve as acting VA secretary until a permanent replacement is confirmed.

    The announcement came after reports that Trump was strongly considering firing Shulkin amid government investigations into his alleged misuse of taxpayer money and infighting within VA over Shulkin's opposition to proposals to privatize the department's health care system.

    Shulkin says he was fired, White House says he resigned

    Shulkin in an opinion piece published Thursday in the New York Times claimed that Trump had dismissed him from his post as VA secretary 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.

    However, Lindsey Walters, a White House spokesperson, said that "Shulkin resigned from his position as" VA secretary. The White House declined to provide additional details on the circumstances surrounding Shulkin's departure, Politico reports.

    But during appearances on various television programs Sunday, Shulkin refuted claims that he had resigned.

    In an interview on CNN's "State of the Union," he said, "I would not resign, because I'm committed to making sure this job was seen through to the very end." He said, "I did not resign," adding that he "never had any issues" with Trump.

    Similarly, Shulkin in an interview on NBC's "Meet the Press" denied claims that he had resigned from VA. Shulkin said he had spoken to Trump a few hours before Trump tweeted about replacing Shulkin. "We actually spoke the day that he sent the tweet out just a few hours before and we talked a lot about issues at VA that were important and how we could continue to make progress on policy issues," Shulkin said.

    Why it matters

    According to Politico, the differing accounts raise legal questions over whether Trump had the authority to appoint an acting VA secretary to replace Shulkin. If the legitimacy of the acting secretary's appointment is thrown into doubt, his decisions in office could face legal challenges.

    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."

    According to Politico, 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.

    Anne Joseph O'Connell, a law professor specializing in FVRA at the University of California-Berkeley, said, "It's conceivable that somebody could bring a challenge to a decision made by the acting secretary. But it's really hard for me to see a court saying the act doesn't apply." O'Connell said she believes FVRA does apply in instances in which a cabinet secretary is fired, and there would be a number of hurdles to filing a lawsuit over FVRA, including differentiating between a forced resignation and firing.

    Max Stier, president of the Partnership for Public Service, said the uncertainty "creates risk, which is a real problem." Stier said, "I don't believe any court has opined on this as of yet. It is uncertainty piled on top of uncertainty with real harm being caused to the VA and veterans" (Restuccia, Politico, 3/31; O'Brien, Politico, 4/1; Shelbourne, The Hill, 4/1; Weigel, "PowerPost," Washington Post, 4/1; Stewart, Vox, 4/2).

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