Helman v. DVA , 856 F.3d 920 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
SHARON M. HELMAN,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
v.
VETERANS OF FOREIGN WARS, AMVETS, IRAQ
AND AFGHANISTAN VETERANS OF AMERICA,
NATIONAL ASSOCIATION FOR UNIFORMED
SERVICES, RESERVE OFFICERS ASSOCIATION,
NON-COMMISSIONED OFFICERS ASSOCIATION,
MARINE CORPS LEAGUE, ARMY RESERVE
ASSOCIATION, MARINE CORPS RESERVE
ASSOCIATION, U.S. ARMY WARRANT OFFICERS
ASSOCIATION, SPECIAL FORCES ASSOCIATION,
JEWISH WAR VETERANS OF THE UNITED
STATES,
Intervenors
______________________
2015-3086
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0707-15-0091-J-1.
______________________
Decided: May 9, 2017
2 HELMAN v. DVA
______________________
ERIC RICHARD NITZ, MoloLamken LLP, Washington,
DC, argued for petitioner. Also represented by ROBERT
KELSEY KRY, JEFFREY A. LAMKEN; DEBRA LYNN ROTH,
JAMES PHILIP GARAY HEELAN, JULIA HELEN PERKINS,
Shaw, Bransford & Roth P.C., Washington, DC.
MARK R. FREEMAN, Appellate Staff, Civil Division,
United States Department of Justice, Washington, DC,
argued for respondent. Also represented by MARK B.
STERN; HILLARY STERN, BENJAMIN C. MIZER, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, Washington DC; HANSEL JAIDEV
CORDEIRO, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
MICHAEL T. MORLEY, Coolidge-Reagan Foundation,
Washington, DC, argued for intervenors.
______________________
Before PROST, Chief Judge, CLEVENGER and CHEN, Circuit
Judges.
PROST, Chief Judge.
Sharon M. Helman, the former Director of the Phoe-
nix Veterans Affairs Health Care System, appeals a
decision of the Merit Systems Protection Board (“MSPB”
or “Board”). The Deputy Secretary of the Department of
Veterans Affairs (“DVA”) removed Ms. Helman from her
position under 38 U.S.C. § 713, and a MSPB administra-
tive judge subsequently affirmed her removal. Ms. Hel-
man sought review from the full Board. Citing
§ 713(e)(2), the Board refused to take any further action
on Ms. Helman’s appeal. Ms. Helman timely petitioned
for our review of the constitutionality of the statute
governing her removal and the process afforded to her
under that statute.
HELMAN v. DVA 3
We conclude that by prohibiting Board review under
§ 713(e)(2), Congress vests significant authority in an
administrative judge in violation of the Appointments
Clause. We also conclude that § 713(e)(2) and two related
portions of § 713(e) are severable and, thus, the proper
remedy for the constitutional flaw in § 713 is to sever
those portions of the statute and leave the remainder of
the statute intact. We remand for the MSPB to take
appropriate action on Ms. Helman’s petition for review of
the administrative judge’s initial decision.
BACKGROUND
I
In 2014, Congress began investigating reports that
senior executives in the DVA had manipulated hospital
performance metrics by maintaining secret wait lists of
veterans who needed care. Dissatisfied with the pace of
the DVA’s disciplinary efforts, legislators proposed a
variety of reforms, including measures designed to make
it easier for the Secretary of Veterans Affairs to remove or
demote senior executives in the agency for poor perfor-
mance. These proposals culminated in the enactment of
§ 707 of the Veterans Access, Choice, and Accountability
Act, which sets forth new rules for the removal or transfer
of DVA Senior Executive Service employees. Veterans
Access, Choice, and Accountability Act of 2014, Pub. L.
No. 113-146, § 707, 128 Stat. 1754, 1798 (2014) (codified
in relevant part at 38 U.S.C. § 713) (“Veterans Access
Act”).
Prior to the enactment of the Veterans Access Act, sen-
ior executives at the DVA could only be removed accord-
ing to the removal scheme established by the Civil Service
Reform Act of 1978, 5 U.S.C. § 1101 et seq. See
id. §§ 7541–43. Under Title 5, the DVA is limited to
taking an adverse action against a senior executive only
“for misconduct, neglect of duty, malfeasance, or failure to
accept a directed reassignment or to accompany a position
4 HELMAN v. DVA
in a transfer of function.” Id. § 7543(a). The executive
against whom such an action is taken is entitled to appeal
to the MSPB, id. § 7543(d), to a hearing, id. § 7701(a)(1),
and to be represented by an attorney, id. § 7701(a)(2),
among other rights. Upon receiving the case, “[t]he Board
may hear any case appealed to it or may refer the case to
an administrative law judge . . . or other employee of the
Board designated by the Board to hear such cases.”
Id. § 7701(b)(1). These employees of the Board are called
administrative judges. See 5 C.F.R. § 1201.4 (defining the
term “judge” to include such employees). In practice, the
Board refers most, if not all, of its cases to administrative
judges. See MSPB, Judge’s Handbook 10 (2007). Accord-
ing to MSPB policy, the administrative judge will adjudi-
cate the appeal and render an initial decision within 120
days. Id. at 1. The executive then has thirty days to
petition the Board to review the initial decision. 5
U.S.C. § 7701(e)(1). Once the Board issues a final deci-
sion, the executive may then file a petition for review of
the final decision in this court. Id. § 7703.
As part of the Veterans Access Act, Congress created
a new executive removal scheme, codified at 38 U.S.C.
§ 713, to make it easier for the DVA to remove or demote
its senior executives. At a high level, § 713 differs from
the removal provisions of Title 5 in two respects: (1) it
creates a process for the removal or transfer of senior
executives by the Secretary for poor performance with
limited executive protections, 38 U.S.C. § 713(a)–(d)(1),
(f)–(g); and (2) it creates a process for an expedited MSPB
review of a removal or transfer carried out under the
statute, id. § 713(d)(2)–(e).
First, with respect to the removal and transfer pro-
cess, § 713 provides the Secretary with broader authority
to remove or transfer a senior executive if “the perfor-
mance or misconduct of the individual warrants such
HELMAN v. DVA 5
removal.” Id. § 713(a)(1) (emphasis added). 1 A senior
executive removed or transferred under § 713 is not
entitled to the thirty-day written notice requirement or
the seven-day response period that are provided under
Title 5. Id. § 713(d)(1). Section 713 eliminates the mora-
torium on removals and transfers within 120 days of the
appointment of a new agency head or, in some circum-
stances, the employee’s most immediate supervisor.
Id. § 713(f)(2). Executives transferred under § 713 may
only receive the annual rate of pay applicable to their new
position, id. § 713(b)(1), whereas Title 5 allows the indi-
vidual to receive the highest of various basic rates of pay,
5 U.S.C. § 3594(c)(1)(B)(i)–(iii). Finally, § 713 prohibits
placing executives on administrative leave. 38 U.S.C.
§ 713(b)(2).
Second, with respect to the MSPB appeal process,
§ 713 creates an accelerated timeline for appeals to the
MSPB and shortens the MSPB appeals themselves. For
example, where Title 5 provides thirty days to appeal an
adverse action to the MSPB, 5 C.F.R. § 1201.22(b)(1),
§ 713 only provides seven, 38 U.S.C. § 713(d)(2)(B).
Section 713 also requires the MSPB, pursuant to 5 U.S.C.
§ 7701(b)(1), to refer all appeals to an administrative
judge who “shall issue a decision not later than 21 days
after the date of the appeal.” 38 U.S.C. § 713(e)(1).
Additionally, the removal or transfer may not be stayed
during the appeal to the administrative judge,
id. § 713(e)(4), and the Secretary and the Board must
ensure that the appeal is expedited, id. § 713(e)(6);
see also Veterans Access Act § 707(b)(1), (3), 128 Stat. at
1 “[M]isconduct includes neglect of duty, malfea-
sance, or failure to accept a directed reassignment or to
accompany a position in a transfer of function.” 38 U.S.C.
§ 713(g)(2). The term “performance,” which does not
appear in § 7543(a) of Title 5, is undefined in § 713.
6 HELMAN v. DVA
1754, 1800 (requiring the Board to promulgate rules for
the processing of expedited appeals under § 713 and
authorizing the Board to waive any regulation as neces-
sary for that purpose). Section 713 denies senior execu-
tives any type of pay, bonus, or benefit during their
appeals. 38 U.S.C. § 713(e)(5). In contrast to Title 5,
administrative judges’ decisions under § 713 are final and
Board or judicial review is prohibited. Id. § 713(e)(2)
(“Notwithstanding any other provision of law, including
section 7703 of title 5, the decision of an administrative
judge . . . shall be final and shall not be subject to any
further appeal.”).
II
Ms. Helman was the Director of the Phoenix Veterans
Affairs Health Care System, which is operated by the
DVA. On November 10, 2014, Deputy Secretary Gibson
notified Ms. Helman in writing of a pending action to
remove her from federal service pursuant to § 707 (codi-
fied at 38 U.S.C. § 713). The Deputy Secretary identified
a number of charges of “misconduct that warrant[ed]
removal from federal service.” J.A. 90–93. The charges
included: lack of oversight, conduct unbecoming a senior
executive, and failure to report gifts. Ms. Helman had
“five business days after receipt of th[e] notice to submit a
written response showing why the charges [we]re un-
founded and any other reasons why [her] removal should
not be effected.” J.A. 94. She timely responded through
counsel. On November 24, 2014, Deputy Secretary Gib-
son notified Ms. Helman that, after “carefully consid-
er[ing] [he]r written reply and the evidence,” he had
“decided to remove [her] from federal service effective
immediately.” J.A. 112–14.
Ms. Helman appealed her removal to the MSPB.
Within the 21-day period required by § 713(e)(1), the
designated administrative judge reviewed the parties’
arguments and evidence and issued a written decision
HELMAN v. DVA 7
analyzing each charge and specification. The administra-
tive judge declined to sustain the charge of lack of over-
sight, but found that the agency had proved the
remaining charges. The administrative judge also dis-
cussed and rejected each of Ms. Helman’s affirmative
defenses, including her contention that her removal
violated her constitutional right to due process. Ms.
Helman sought an extension of time to appeal the admin-
istrative judge’s decision to the full Board. The Clerk of
the Board, citing the finality of the administrative judge’s
decision under § 713(e)(2), indicated that the MSPB would
take no further action on her appeal. Ms. Helman subse-
quently filed this petition for review.
Veterans of Foreign Wars et al. moved this court for
permission to intervene, or at a minimum, to participate
as amici curiae in this appeal. 2 Ms. Helman and the
government both opposed the motion to intervene but did
not oppose allowing participation as amici. This court,
concluding that intervention was warranted in the unique
circumstances of this case, granted the motion to inter-
vene and allowed for supplemental briefing.
DISCUSSION
We generally have jurisdiction over appeals of a final
decision of the MSPB under 28 U.S.C. § 1295(a)(9), pur-
suant to 5 U.S.C. § 7703(b)(1). Ms. Helman and the
2 The intervenors are Veterans of Foreign Wars,
AMVETS, Iraq and Afghanistan Veterans of America,
National Association for Uniformed Services, Reserve
Officers Association, Non-Commissioned Officers Associa-
tion of the United States, Marine Corps League, Army
Reserve Association, Marine Corps Reserve Association,
U.S. Army Warrant Officers Association, Special Forces
Association , and Jewish War Veterans of the United
States (collectively, “Intervenors”).
8 HELMAN v. DVA
government agree that Ms. Helman properly seeks review
in this court of a “final order or decision of the Board”
within the meaning of § 7703(b)(1)(A) and that § 713(e)(2)
cannot preclude judicial review of Ms. Helman’s constitu-
tional claims. Intervenors maintain, however, that this
court does not have jurisdiction—not even to review Ms.
Helman’s constitutional claims—because of the language
of § 713(e)(2). See 38 U.S.C. § 713(e)(2) (“the decision of
an administrative judge . . . shall be final and shall not be
subject to any further appeal”). We have considered the
Intervenors’ arguments and find them to be unpersuasive.
The Supreme Court has consistently declined to inter-
pret provisions like § 713(e)(2) to preclude judicial review
of colorable constitutional claims. See Webster v. Doe, 486
U.S. 592, 603 (1988); Johnson v. Robison, 415 U.S. 361
(1974). The Court has explained that “where Congress
intends to preclude judicial review of constitutional claims
its intent to do so must be clear.” Webster, 486 U.S. at
603. Here, while Congress intended to prohibit judicial
review of the merits of MSPB administrative judges’
decisions, nothing in the statute or its legislative history
indicates that Congress intended to take the additional
step of precluding judicial review of constitutional ques-
tions. Accordingly, we have jurisdiction over Ms. Hel-
man’s constitutional claims under 28 U.S.C. § 1295(a)(9),
pursuant to 5 U.S.C. § 7703(b)(1).
I
Ms. Helman asks this court to review the constitution-
ality of 38 U.S.C. § 713. In particular, she contends that
§ 713 violates the Appointments Clause because it im-
permissibly “vest[s] in an administrative judge—a mere
employee and career civil servant—unreviewed discretion
to implement or overturn the decision of a cabinet-level
official.” Pet’r’s Br. 1. Ms. Helman argues in the alterna-
tive that the administrative judges’ exercise of this au-
thority violates the separation of powers required by the
HELMAN v. DVA 9
Constitution. The alternative argument is based on Ms.
Helman’s contention that the administrative judge is
insulated by multiple layers of for-cause removal re-
strictions, in violation of Free Enterprise Fund v. Public
Co. Accounting Oversight Board, 561 U.S. 477 (2010).
The government, for its part, agrees with Ms. Helman
that such “final and unreviewable discretion” is “signifi-
cant authority [that] can only be exercised by a properly
appointed Officer of the United States.” Resp’t’s Br. 19.
The government agrees with Ms. Helman that an MSPB
administrative judge is not appointed as an officer of the
United States. Thus, the government concedes, § 713 is
“inconsistent with the Appointments Clause” to the extent
that it vests a federal employee with the authority to
render final, unreviewable decisions. Id. The government
points out, correctly, that Ms. Helman’s alternative sepa-
ration of powers argument is moot in this appeal if we
find a violation of the Appointments Clause.
Intervenors, in contrast, argue that § 713 is constitu-
tional. First, Intervenors contend that MSPB administra-
tive judges are not officers of the United States because
they do not “exercise[] a ‘portion of the sovereign authori-
ty of the federal Government.’” Intervenors’ Br. 12.
Rather, Intervenors maintain, MSPB administrative
judges only “review certain employees’ terminations” and
that “does not implicate the Government’s sovereign
authority to punish, regulate, license, or otherwise exe-
cute or enforce federal law against the public.” Id. at 13.
Second, Intervenors argue that § 713 does not confer
“significant authority” upon administrative judges be-
cause “[t]he authority to make decisions relating to an
extremely small group of people, under exceedingly rare
circumstances, concerning a narrow range of employment-
related issues can hardly be deemed ‘significant authori-
ty.’” Id. Finally, Intervenors maintain that, even if
MSPB administrative judges are inferior officers, their
appointment is constitutionally valid because (1) “de-
10 HELMAN v. DVA
partment heads [are] able to delegate their authority to
appoint inferior officers,” or (2) “MSPB cured any consti-
tutional defects in [the administrative judge’s] appoint-
ment by implicitly ratifying it over the course of his
employment throughout the past nine years.” Id. at 14.
The parties also suggest varying remedies to the al-
leged constitutional flaw in § 713. The government ar-
gues that because “[t]he core of the constitutional defect
in [§] 713 is the provision that renders the decision of the
administrative judge final and unreviewable by the
Board,” Resp’t’s Br. 40, this court need only sever that
provision and “two related portions of [§] 713(e) whose
operation is expressly keyed to the finality of the adminis-
trative judge’s decision,” id. at 42. Ms. Helman contends
that § 713 must be invalidated in its entirety because
severance “would produce a statute that Congress would
not have enacted, rewrites a congressional compromise,
and directly contravenes Congress’s goals.” Pet’r’s Reply
Br. 2. Intervenors argue, if we are to find a portion of
§ 713 unconstitutional, that the best course of action is to
“invalidate the MSPB’s delegation of its authority to hire
AJs and give the MSPB an opportunity to directly ap-
point, or ratify the appointment of, [the administrative
judge who presided over Ms. Helman’s hearing].” Id. at
13–14 (internal citation omitted).
In order to address the constitutionality of § 713, we
first identify the constitutional flaw, if any, in the statute.
With respect to this question, we agree with Ms. Helman
and the government and conclude that by prohibiting
Board review, Congress vests significant authority in an
administrative judge in violation of the Appointments
Clause. We carefully considered the Intervenors’ argu-
ments on this point but find them to be unpersuasive.
Second, upon identifying the portions of the statute that
are indeed unconstitutional, we determine whether those
invalid portions are severable from the remainder of the
statute. In addressing this question, we agree with the
HELMAN v. DVA 11
government that the problematic portions of the statute
are severable and, thus, the proper remedy to the consti-
tutional flaw in § 713 is to sever those portions of the
statute and leave the remainder intact. We carefully
considered the Intervenors’ remedial arguments but find
them to be unpersuasive. Finally, once we conclude that
the invalid portions of the statute are severable, we
determine whether actions taken under the original
statute, as enacted, must be vacated. We conclude that
the Secretary’s decision to remove Ms. Helman and the
administrative judge’s affirmance of that decision, both
under § 713 as enacted, may stand.
We address the constitutionality of 38 U.S.C. § 713 by
discussing each step in turn.
A
The Appointments Clause provides that:
[The President] . . . shall nominate, and by and
with the Advice and Consent of the Senate, shall
appoint . . . Officers of the United States . . . but
the Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the
Heads of Departments.
U.S. Const. art. II, § 2, cl. 2. “Officers of the United
States, does not include all employees of the United
States.” Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976)
(per curiam). “Employees are lesser functionaries subor-
dinate to officers of the United States,” id., and are not
“selected in compliance with the strict requirements of
Article II.” Freytag v.Comm’r of Internal Revenue, 501
U.S. 868, 880 (1991). Neither Ms. Helman nor the gov-
ernment contends that MSPB administrative judges are
12 HELMAN v. DVA
constitutionally appointed officers of the United States;
they are hired as employees. 3
“The Appointments Clause prevents Congress from
dispensing power too freely.” Id. Congress may not vest
authority in employees such that “the degree of authority
exercised by the [employee is] so ‘significant’ that it [i]s
inconsistent with the classifications of ‘lesser functionar-
ies’ or employees.” See id. at 881. Thus, there are “duties
that may be performed by an employee not subject to the
Appointments Clause,” and then there are “significant”
duties that can only be performed by officers of the United
States. Id. at 882. The Supreme Court in Freytag exam-
ined the degree of authority considered “significant.” See
id. at 880–82.
One of the questions in Freytag was whether a special
trial judge for the Tax Court is an employee or an inferior
officer of the United States. Id. at 880. In addressing this
question, the Court examined, as a whole, “the signifi-
3 MSPB administrative judges are employed under
the Board’s general authority to hire “employees.”
5 U.S.C. §§ 1204(j), 3101. The MSPB’s Director of Finan-
cial and Administrative Management is charged with
hiring MSPB administrative judges. See MSPB, Organi-
zation, Functions & Delegations of Authority ¶ 2.5.2.2
(Apr. 2011) (reflecting a general delegation of hiring
authority to “[e]ffect appointments, make employment
commitments, [and] arrange reporting dates” to the Office
of Financial and Administrative Management). The
Office of Financial and Administrative Management is an
office of the Board’s headquarters staff that handles a
variety of administrative, budgetary, and personnel
functions for the agency as a whole. 5 C.F.R.
§ 1200.10(b)(8). To be clear, we reserve judgment as to
whether administrative judges are employees for purpos-
es of the Appointments Clause.
HELMAN v. DVA 13
cance of the duties and discretion that special trial judges
possess” to determine whether the special trial judges
were employees or inferior officers. Id. at 881–82. The
Court determined that the special trial judges were
inferior officers, in part, because special trial judges
“perform more than ministerial tasks”; they carry out
“important functions.” Id. at 881–82. Those important
functions performed by the special trial judges included
“tak[ing] testimony, conduct[ing] trials, rul[ing] on the
admissibility of evidence, and hav[ing] the power to
enforce compliance with discovery orders.” Id. Addition-
ally, “[i]n the course of carrying out these important
functions, the special trial judges exercise[d] significant
discretion.” Id. at 882.
In the alternative, the Court also found that the spe-
cial trial judges were inferior officers because in some
cases, “the Chief Judge may assign special trial judges to
render the decisions of the Tax Court in declaratory
judgment proceedings and limited-amount tax cases.” Id.
(emphasis added). Having the authority to render the
decisions of the Tax Court, and thereby “exercise inde-
pendent authority,” also made the special trial judges
inferior officers. Id. at 882.
Against this backdrop, we must determine whether,
through § 713, the authority Congress purports to vest in
MSPB administrative judges is significant authority in
violation of the Appointments Clause.
Under the conventional Title 5 MSPB appeal process,
the Board typically refers its cases to an administrative
judge, 5 U.S.C. § 7701(b)(1), but once the administrative
judge makes an initial decision, the Board may review the
decision and render its own final decision, id. § 7701(e)(1).
Through this framework, Title 5 permissibly vests in the
members of the Board—appointed by the President and
confirmed by the Senate, 5 U.S.C. § 1201—the authority
to render a final decision overturning another officer’s
14 HELMAN v. DVA
decision. 5 U.S.C. § 7701. By contrast, § 713 prohibits
any review of the administrative judge’s decision, thereby
vesting this authority entirely in an administrative judge.
Both Ms. Helman and the government maintain that
the authority Congress vests in an administrative judge
via § 713—final and unreviewable discretion to affirm or
overturn the decision of a cabinet-level official—is signifi-
cant. We agree. As in Freytag where, in some instances,
the special trial judges could render the decisions of the
Tax Court, the authority here to render the decisions of
the MSPB, and thereby exercise significant discretion and
independent authority, is also a “significant” duty that
can only be performed by officers of the United States.
Indeed, granting such final decision-making authority
and giving the administrative judge the last word on
affirming or overturning a cabinet-level official directly
conflicts with the definition of employee: a lesser func-
tionary who is subordinate to officers of the United States.
Freytag, 501 U.S. at 881. An administrative judge with
this authority is no longer subordinate to any officer.
Further, when we compare the § 713 authority to render a
decision to implement or overturn the Secretary’s decision
to the functions found to be important in Freytag, it is
clear that this § 713 decision making authority is also an
“important function,” and surely “more than a ministerial
task.” See id.
Thus, we conclude that the authority to render a final
decision, affirming or overturning the Secretary of the
DVA’s removal decision, is a significant duty that can only
be performed by officers of the United States. Through
§ 713, Congress purports to vest this significant authority
in administrative judges who are hired as employees.
This is unconstitutional under the Appointments Clause.
Accordingly, we declare invalid those portions of § 713
that are expressly keyed to the finality of the administra-
tive judge’s decision. This includes § 713(e)(2) in its
HELMAN v. DVA 15
entirety and portions of § 713(e)(3) and § 713(e)(5). 4 Cf.
Alaska Airlines, Inc. v. Donovan, 766 F.2d 1550, 1560
(D.C. Cir. 1985), aff’d sub nom. Alaska Airlines, Inc. v.
Brock, 480 U.S. 678 (1987) (severing one portion of sub-
section 49 U.S.C. § 1552(f)(3) and leaving the remainder
of the section—including the first sentence of the subsec-
tion—unaffected). In particular, a portion of § 713(e)(3) is
invalid because the word “final” creates a backdoor grant
of final decision-making authority to MSPB administra-
tive judges. For example, the MSPB administrative judge
may simply decline to render a decision within 21 days,
thereby causing the employee’s removal or transfer to
become final.
B
Having concluded that § 713(e)(2) in its entirety and
portions of § 713(e)(3) and § 713(e)(5) are unconstitution-
al, we must consider whether they are severable from the
remainder of the statute. Ms. Helman maintains that
they are not and urges this court to invalidate § 713 in its
4 Removing the invalid provisions, § 713(e)(3) now
reads as follows: “(3) In any case in which the adminis-
trative judge cannot issue a decision in accordance with
the 21-day requirement under paragraph (1), the removal
or transfer is final. In such a case, the Merit Systems
Protection Board shall, within 14 days after the date that
such removal or transfer is final, submit to Congress . . . .”
38 U.S.C. § 713(e)(3) (strikethrough added to indicate
invalidated portion). Similarly, § 713(e)(5) now reads as
follows: “(5) During the period beginning on the date on
which an individual appeals a removal from the civil
service under subsection (d) and ending on the date that
the administrative judge issues a final decision on such
appeal, such individual may not receive any pay . . . .” Id.
§ 713(e)(5) (strikethrough added to indicate invalidated
portion).
16 HELMAN v. DVA
entirety. The government on the other hand, applying
Supreme Court severability principles, maintains that the
invalid portions are severable because the remainder of
the statute is “fully operative as law and advances the
ends that Congress sought to achieve by its enactment.”
Resp’t’s Br. 43. We agree with the government.
In exercising our power to review the constitutionality
of a statute, we are compelled to act cautiously and re-
frain from invalidating more of the statute than is neces-
sary. Regan v. Time, Inc., 468 U.S. 641, 652 (1984). It is
well established that “[t]he unconstitutionality of a part of
an act does not necessarily defeat or affect the validity of
its remaining provisions.” Champlin Ref. Co. v. Corp.
Comm’n of State of Okl., 286 U.S. 210, 234 (1932). There-
fore, we must “try to limit the solution to the problem,
[by] severing any problematic portions while leaving the
remainder intact.” Free Enter. Fund, 561 U.S. at 508.
“Whether an unconstitutional provision is severable
from the remainder of the statute in which it appears is
largely a question of legislative intent, but the presump-
tion is in favor of severability.” Regan, 468 U.S. at 653.
The traditional test for severability is well established:
“[u]nless it is evident that the Legislature would not have
enacted those provisions which are within its power,
independently of that which is not, the invalid part may
be dropped if what is left is fully operative as a law.”
Buckley, 424 U.S. at 108–09 (quoting Champlin, 286 U.S.
at 234–35). To put it simply, we must “ask: Would the
legislature have preferred what is left of its statute to no
statute at all?” Ayotte v. Planned Parenthood of N. New
Eng., 546 U.S. 320, 330 (2006).
The Supreme Court has distilled the traditional test
as follows: we must retain what is left of the statute if it
is “(1) constitutionally valid, (2) capable of functioning
independently, and (3) consistent with Congress’ basic
objectives in enacting the statute.” United States v.
HELMAN v. DVA 17
Booker, 543 U.S. 220, 258–59 (2005) (internal citations
and quotation marks omitted). To answer these ques-
tions, we look to the language and structure of the Act
and to its legislative history. E.g., Alaska Airlines, 480
U.S. at 687.
Turning to our analysis, we first note that § 713 per-
forms two overarching functions: (1) it creates a process
for the removal or transfer of senior executives by the
Secretary for poor performance with limited employee
protections (the “Removal Provisions”), 38 U.S.C.
§ 713(a)–(d)(1), (f)–(g); and (2) it allows for an expedited
MSPB review of such a removal or transfer carried out
under the statute (the “Appeal Provisions”),
id. § 713(d)(2)–(e). Ms. Helman asks us to invalidate the
entire statute, yet the scope of her arguments is narrow
and addresses only what remains of the statute’s Appeal
Provisions after severance. Accordingly, to address Ms.
Helman’s arguments and for purposes of our analysis, we
will divide this issue into two parts. First, we consider
whether the Appeal Provisions, as a whole, are severable
from § 713 allowing us to retain, at a minimum, the
Removal Provisions. Second, addressing Ms. Helman’s
arguments, we determine whether the specific unconstitu-
tional portions of the Appeal Provisions—namely,
§ 713(e)(2) and related portions of § 713(e)(3) and
§ 713(e)(5)—are severable from the remaining Appeal
Provisions.
1
It is clear that the Appeal Provisions, as a whole, are
severable from § 713 and, thus, at a minimum we must
retain the Removal Provisions. As discussed below,
looking to the language, structure, and legislative history
of the statute, we conclude that the Removal Provisions
are both capable of functioning independently and con-
sistent with Congress’s basic objectives in enacting the
statute.
18 HELMAN v. DVA
First, the Removal Provisions make up a distinct part
of the statute and relate to the process the Secretary must
follow in order to remove or transfer his senior executives
and the protections, if any, afforded to those executives
while the adverse action is pending. Id. § 713(a)–
(d)(1), (f)–(g). The Appeal Provisions, in contrast, relate to
the MSPB appeal process afforded to senior executives
after the adverse actions taken against them under the
Removal Provisions are complete. Id. § 713(d)(2)–(e). The
Removal and Appeal Provisions also operate differently.
For instance, the Secretary initiates an adverse employ-
ment action pursuant to the Removal Provisions,
id. § 713(a)(1), but the executive optionally appeals that
action under the Appeal Provisions, id. § 713(d)(2); 5
U.S.C. § 7701(a). In sum, the ability of the Secretary to
remove executives under the Removal Provisions for poor
performance is not dependent on their subsequent enti-
tlement to a MSPB appeal once their removal is complete.
Indeed, the original House version of the Act consisted of
a process for the removal or transfer of senior executives
by the Secretary for poor performance without providing
for any appeal process. H.R. 4031, 113th Cong. (2d Sess.
2014). Thus, while in a general sense, the Removal
Provisions and the Appeal Provisions are parts of a larger
system, the language and the general scope of § 713
indicate that the Removal Provisions are capable of
functioning independently from Appeal Provisions.
The Removal Provisions are also consistent with Con-
gress’s basic objectives in enacting the statute. First, it is
evident that Congress regarded providing the Secretary
with broad discretion to remove or transfer senior execu-
tives for poor performance as a key aspect of the statute. 5
5 Under Title 5, the DVA is limited to taking an ad-
verse action against a senior executive only “for miscon-
duct, neglect of duty, malfeasance, or failure to accept a
HELMAN v. DVA 19
That core part of the Removal Provisions remained con-
stant across all versions of the legislation. Compare H.R.
4031, 113th Cong. (2d Sess. 2014) (“[T]he Secretary may
remove any individual from the Senior Executive Service
if the Secretary determines the performance of the indi-
vidual warrants such removal.”), with S. 2450, 113th
Cong. (2d Sess. 2014) (same). The Removal Provisions
remain fully intact as part of the constitutional remainder
of § 713, exactly as Congress enacted them, providing a
process for the removal or transfer of senior executives by
the Secretary for poor performance with limited employee
protections. At a minimum, therefore, we must retain the
Removal Provisions. We cannot agree with Ms. Helman
that § 713 should be invalidated in its entirety.
2
The more difficult question is whether we may retain
the majority of the Appeal Provisions, and sever only
those portions that are unconstitutional, or whether all of
the Appeal Provisions must fall together. To resolve this
question we must determine whether the unconstitutional
provisions are severable from the remainder of Appeal
Provisions. To overcome the strong presumption of sever-
ability, Ms. Helman must show us that it is evident that
Congress would not have passed the Appeal Provisions of
§ 713 without prohibiting review of the administrative
judges’ decisions. See Regan, 468 U.S. at 653.
The remaining Appeal Provisions are capable of func-
tioning without the unconstitutional prohibition of review
of the administrative judges’ initial decisions. Upon
severing the invalid portion of § 713, the remaining MSPB
appeal process largely follows the traditional appeal
process under Title 5. 38 U.S.C. § 713(e)(1), (3)–(6);
directed reassignment or to accompany a position in a
transfer of function.” 5 U.S.C. § 7543(a).
20 HELMAN v. DVA
5 U.S.C. §§ 7701, 7703. Indeed, the only practical differ-
ences between them function to expedite the § 713 MSPB
appeals process in service of Congress’s objectives in
enacting the statute. See, e.g., 38 U.S.C. § 713(d)(2)(B),
(e)(1), (e)(4)–(6).
Ms. Helman argues that the revised § 713 appeal pro-
cess “mandates an extra review layer beyond what pre-
existing [Title 5] processes required” because it requires
the Board to refer the appeal to the administrative judge.
Pet’r’s Reply Br. 13. As Ms. Helman herself concedes,
however, in practice, the Board refers most, if not all, of
the appeals to administrative judges. See Pet’r’s Br. 5–6
(“Typically, appeals are received in the appropriate MSPB
regional office, and the chief administrative judge for the
region (or a designee) assigns the appeal to an adminis-
trative judge.” (citing 5 C.F.R. § 1201.4(d); MSPB, Judge’s
Handbook 10)). In practice, therefore, this is a distinction
without a difference.
Second, Ms. Helman contends that the revised § 713
appeal process is problematic because it “compresses the
most labor- and time-intensive part of the external review
process into 21-days [sic], but imposes no deadline on
ensuing steps.” Pet’r’s Reply Br. 12. We find this feature,
however, supports severability. The ensuing steps of
review Ms. Helman refers to are performed pursuant to
Title 5. See 38 U.S.C. § 713(d)(2)(A); 5 U.S.C.
§ 7701(e)(1)(A). Therefore, those steps being equal, if an
administrative judge has 120 days to make a decision
under Title 5 and only 21 days under § 713, the latter is
more in line with Congress’s objective of expediting the
MSPB appeal process. Thus, the Appeal Provisions are
clearly capable of functioning without the unconstitution-
al prohibition of review of the administrative judges’
initial decisions.
The remaining Appeal Provisions are also consistent
with Congress’s basic objectives in enacting the statute.
HELMAN v. DVA 21
Ms. Helman argues that “[t]he text and history of § 713
reveal Congress’s principal goal in enacting the statute
[was] to expedite the final removal of senior executives
terminated from the VA.” Pet’r’s Reply Br. 7. In service
of that goal, she maintains, “Congress sought to create a
single-layer, expedited administrative review process of
finite duration—completed within 21 days, upon pain of
the dismissal becoming final—with no further review.”
Id. at 12. Ms. Helman compares the appeal process
Congress originally enacted to the one that results from
the remaining Appeal Provisions after severance. She
insists that the revised appeal process, “authorizing
review by the administrative judge, the Board, and this
Court—with no deadline for that process to conclude,”
“cannot be reconciled with Congress’s intent.” Id. Ms.
Helman also argues that we must conclude that § 713 is
not severable “given the vast number of alternatives
Congress might have adopted to achieve the statutory
goal of expedited decision making, while still avoiding
§ 713’s constitutional infirmities.” Id. at 15. We disagree.
It is certainly the case that when Congress wrote the
Appeal Provisions, it intended to create a single-layer,
expedited administrative review process of finite dura-
tion, with no further review. “[G]iven today’s constitu-
tional holding, [however,] that is not a choice that
remains open.” Booker, 543 U.S. at 265. The appeal
process Congress originally enacted has a constitutional
flaw and is not a viable option. We must, therefore,
“determine Congress’ likely intent in light of today’s
holding.” Id. We do not ask whether Congress would
have preferred the appeal process originally enacted to
that which results from the remaining provisions of § 713
after severance. It goes without saying that they would
have. See, e.g., Alaska Airlines, 480 U.S. at 685 n.7. Nor
is the question whether Congress would have preferred
what remains of § 713 after severance to a hypothetical
statute. The number of alternative versions of the statute
22 HELMAN v. DVA
that Congress might have adopted, or even may have
actually proposed, also is not dispositive. 6 The question
we must ask is whether Congress would have preferred
the revised appeal process under what remains of the
Appeal Provisions to nothing at all, i.e., to maintaining
the status quo Title 5 appeal process. See Ayotte, 546 U.S.
320 at 330; Alaska Airlines, 480 U.S. at 685 n.7.
Looking to the remainder of the Appeal Provisions, it
is clear that the revised appeal process advances the ends
that Congress sought to achieve by the statute’s enact-
ment. The Appeal Provisions retain many other provi-
sions that help to accomplish the same objectives
Congress wished to achieve by prohibiting review of the
administrative judges’ decisions. In New York v. United
6 Ms. Helman relies on Randall v. Sorrell, 548 U.S.
230 (2006), for the proposition that it is inappropriate to
sever a portion of statute when there are a “vast number
of alternatives Congress might have adopted” when faced
with the statute’s constitutional issues. Pet’r’s Reply Br.
15–16. In that case, however, the Supreme Court con-
cluded that it could not sever the invalid provisions
because that “would require [the Court] to write words
into the statute (inflation indexing), or to leave gaping
loopholes (no limits on party contributions).” Randall,
548 U.S. at 262. It was, in part, because of these issues
that the Court believed that it could not “foresee which of
many different possible ways the legislature might re-
spond to the constitutional objections [the Court] ha[d]
found.” Id. No such severability issues exist here. In-
deed, with any statute there will always be a vast number
of alternatives Congress might adopt in order to address a
constitutional flaw in their original statute. Thus, the
possibility of alternative legislation cannot guide our
inquiry.
HELMAN v. DVA 23
States, the Supreme Court concluded that “[c]ommon
sense suggests that where Congress has enacted a statu-
tory scheme for an obvious purpose, and where Congress
has included a series of provisions operating as incentives
to achieve that purpose, the invalidation of one of the
incentives should not ordinarily cause Congress’ overall
intent to be frustrated.” 505 U.S. 144, 186 (1992); see also
Booker, 543 U.S. at 264 (“The system remaining after
excision, while lacking the mandatory features that
Congress enacted, retains other features that help to
further these objectives.”). The Supreme Court in New
York held that, after severance, the Act was consistent
with Congress’s objective because it still included two
incentives that operated in service of that objective. Id. at
187.
Here, if Congress enacted § 713 principally to expedite
final removal, as Ms. Helman suggests, then it has in-
cluded myriad provisions that operate to achieve that
purpose. See, e.g., 38 U.S.C. § 713(d)(2)(B), (e)(1), (e)(4)–
(6). Therefore, the invalidation of one of these provisions,
namely the provision prohibiting review of the adminis-
trative judge decision, does not cause Congress’s overall
intent to be entirely frustrated. What remains of § 713
includes five provisions that operate to achieve the pur-
pose of expediting the final removal of senior executives
terminated from the DVA. Specifically, the appeal pro-
cess under § 713 is initiated sooner, 38 U.S.C.
§ 713(d)(2)(B), the administrative judges’ decisions are
completed in only 21 days, id. § 713(e)(1); the removal or
transfer cannot be stayed during the appeal,
id. § 713(e)(4); the senior executive is not entitled to any
type of pay, bonus, or benefit while appealing the decision
of removal, id. § 713(e)(5); and the Secretary and the
Board must ensure that the appeal is expedited,
id. § 713(e)(6); see also Veterans Access Act § 707(b)(1),
(3), 128 Stat. at 1800 (requiring the Board to promulgate
rules for the processing of expedited appeals under § 713
24 HELMAN v. DVA
and authorizing the Board to waive any regulation as
necessary for that purpose). Thus, because the Appeal
Provisions retain many provisions that help to accomplish
the same objectives Congress wished to achieve by prohib-
iting review of the administrative judges’ decisions, the
remaining Appeal Provisions are consistent with Con-
gress’s basic objectives in enacting the statute.
Ms. Helman also argues that because the Appeal Pro-
visions of § 713 are the result of a legislative compromise,
Congress would not have enacted them without prohibit-
ing review of the administrative judges’ decisions. Ac-
cording to Ms. Helman, “[t]he House explicitly rejected a
version of § 713, initially proposed by the Senate, that
contained all of the ‘streamlined’ procedures the govern-
ment now invokes, but that lacked the limitation on post-
termination review found in §713(e)(2)–(3).” Pet’r’s Reply
Br. 14. For her proposition that compromise legislation is
immune to severability, Ms. Helman relies on American
Federation of Government Employees, AFL-CIO v. Pierce,
697 F.2d 303 (D.C. Cir. 1982) (per curiam). Her reliance
is misplaced.
First, Pierce did not turn on the fact that the statute
in question resulted, as most legislation does, from com-
promise. The question was whether examination of the
circumstances of the compromise revealed an answer to
the “crucial inquiry whether Congress would have enacted
other portions of the statute in the absence of the invali-
dated provision.” Pierce, 697 F.2d at 307 (quoting Con-
sumer Energy Council v. FERC, 673 F.2d 425, 442 (D.C.
Cir. 1982)).
In Pierce, the legislation in question precluded an
agency from using any funds prior to January 1, 1983, to
effect reductions in force without the prior approval of the
congressional Committees on Appropriations. 697 F.2d at
306. The legislative provision was a single sentence that
simply barred expenditures to effect reorganizations
HELMAN v. DVA 25
before a specific date without the stated prior approvals.
Id. The provision was held to violate the strictures in
Article I of the Constitution on how legislation may be
enacted because the legislation gave committees the
power to legislate. Id. The district court, assuming the
unconstitutionality of the committee prior approval
power, nonetheless severed the one sentence statute by
treating the committee prior approval provision as uncon-
stitutional but still reading the statute to bar all use of
funds for reorganizations prior to the January 1, 1983
date. Id. at 304. Accordingly, the district court enjoined a
1982 reorganization plan at the Department of Housing
and Urban Development (“HUD”). Id.
In an expedited appeal, the D.C. Circuit reversed the
district court’s injunction order on the ground that there
was not a single hint in the legislative history that Con-
gress intended to restrict funding for all attempts by HUD
to reorganize prior to the stated date. Id. at 307. The
only known key to any defunding was the absence of prior
committee approval, and prohibition on funding was tied
only to lack of prior committee approval. Id. Thus it was
undeniable that Congress would not have enacted the ban
on funding for reorganizations absent the prior committee
approval stipulation, and severability was not an option.
Id. at 307–08.
Pierce is no help to Ms. Helman and, when under-
stood, actually works against her. Unlike in Pierce, in
this case there is abundant statutory evidence that Con-
gress had in mind a piece of legislation that even when
severed could work to achieve Congressional purpose.
Further, rather than invalidating a single sentence of the
legislation as the court did in Pierce, Ms. Helman asks us
to invalidate § 713 in its entirety—including all of the
remaining Appeal Provisions and the constitutional
Removal Provisions, which were contained in both the
early House and Senate versions of § 713. This we cannot
do, especially because the statute’s single constitutional
26 HELMAN v. DVA
flaw provides only a single feature of the expedited MSPB
review under the § 713 Appeal Provisions. Second, unlike
in Pierce, many other valid provisions also resulting from
the legislative compromise remain intact after severance. 7
We are not persuaded therefore, that the legislative
history casts doubt on any supposition that the House
would have agreed to what remains of § 713. We conclude
that it is not evident Congress would not have enacted
what remains of § 713 without the unconstitutional
provision prohibiting review of administrative judge
decisions.
In sum, we conclude that we are not required to inval-
idate § 713 in its entirety. First, the Appeal Provisions,
as a whole, are clearly severable from § 713, allowing us
to retain the Removal Provisions. Second, the specific
7 For example, the Conference Committee noted in
its report:
[T]he MSPB Administrative Judge [will] conclude
their review within 21 days . . . the substitute also
requires that if the senior executive is removed,
and then appeals VA’s decision, the senior execu-
tive is not entitled to any type of pay, bonus, or
benefit while appealing the decision of removal.
Furthermore, the substitute requires that if a sen-
ior executive is demoted, and then appeals VA’s
decision, the employee may only receive any type
of pay, bonus, or benefit at the rate appropriate
for the position they were demoted to, and only if
the individual shows up for duty, while appealing
the decision of demotion. The substitute requires
that the MSPB submit to Congress a plan within
14 days of enactment of how the expedited review
would be implemented.
H.R. Rep. No. 113-564, at 80 (2014) (Conf. Rep.).
HELMAN v. DVA 27
unconstitutional portions of the Appeal Provisions—
namely, § 713(e)(2) and related portions of § 713(e)(3) and
§ 713(e)(5)—are also severable from the remaining Appeal
Provisions. Thus, upon severing § 713(e)(2) and the two
related portions, § 713 remains fully operative as a law.
Nothing in the statute’s language, structure, and legisla-
tive history makes it evident that Congress, faced with
the limitations imposed by the Constitution, would have
preferred no statute at all to § 713 with a modified MSPB
appeal process. We therefore must sustain the remaining
provisions of § 713. 8
C
Anticipating the possibility that we might conclude
that the invalid provisions of § 713 are severable, Ms.
Helman argues that the appropriate relief in that in-
stance would be to vacate her removal by the Deputy
Secretary altogether and return this matter to the DVA.
At the very least, she argues, we should vacate the admin-
istrative judge’s initial decision. We disagree on both
accounts.
First, Ms. Helman urges this court to vacate her re-
moval entirely because the Deputy Secretary should be
8 In a final effort against severability, Ms. Helman
argues that § 713 must be invalidated in its entirety
because what remains after severance is also unconstitu-
tional. Ms. Helman argues that “[e]ven when subject to
MSPB review, the authority exercised by administrative
judges is sufficiently extensive to render them inferior
Officers,” in violation of the Appointments Clause and
alternatively of the separation of powers doctrine. Pet’r’s
Reply Br. 20. The government submits, and we agree,
that these questions are more appropriately dealt with by
the MSPB in the first instance if Ms. Helman chooses to
pursue them on remand.
28 HELMAN v. DVA
allowed to elect, once again, whether to remove Ms.
Helman under the “heavily modified” § 713 or the conven-
tional Title 5 process. Pet’r’s Reply Br. 26. We are not
persuaded. For the reasons we have stated, the changes
to § 713 engendered by this opinion do not create, as Ms.
Helman claims, a “dramatically different removal
scheme.” Id. Indeed, the process the Deputy Secretary
followed to remove Ms. Helman remains intact, exactly as
Congress enacted it. 38 U.S.C. § 713(a)–(d)(1), (f)–(g).
Accordingly, the Deputy Secretary’s removal of Ms. Hel-
man under § 713 will stand.
Second, Ms. Helman maintains that if we allow her
removal by the Deputy Secretary to stand, then, at a
minimum, we should vacate the administrative judge’s
decision under § 713 affirming her removal. Because
§ 713(e)(2) unconstitutionally prohibited the Board from
reviewing the administrative judge’s decision in this case,
however, Ms. Helman has not yet had a chance to appeal
the administrative judge’s decision to the Board as pro-
vided by § 7701(e)(1)(A). Upon severing the offending
portions of § 713, Board review of administrative judges’
decisions is now permitted. Thus, we conclude that
remanding to the Board for its review of the administra-
tive judge’s decision, rather than vacating that decision, is
both appropriate and sufficient at this juncture.
II
Ms. Helman also asks this court to review the consti-
tutionality of the process she has been afforded thus far
under 38 U.S.C. § 713.
In particular, Ms. Helman first contends that her pre-
termination removal proceedings did not comply with due
process because there was no meaningful consideration of
her pre-termination response to the Secretary. For exam-
ple, Ms. Helman maintains that “Deputy Secretary Sloan
Gibson, who proposed and ultimately effected Ms. Hel-
man’s removal, did not consider with an ‘open mind’ Ms.
HELMAN v. DVA 29
Helman’s pre-termination response, as he was required to
do.” Pet’r’s Reply Br. 28. Second, Ms. Helman contends
that “the post-termination hearing provided by § 713 falls
short of what the constitution requires.” Pet’r’s Br. 58.
Specifically, because § 713(e)(1) requires administrative
judges to issue decisions within 21 days, Ms. Helman
argues that this “unreasonable deadline dramatically
impeded Ms. Helman’s ability to present a defense.”
Pet’r’s Reply Br. 28. Further, Ms. Helman argues that
she was caused “real harm” because § 713(e)(4) prevented
her from requesting a stay of the administrative proceed-
ing pending the conclusion of the criminal investigation
into her conduct. Pet’r’s Br. 60.
Ms. Helman had initially made both pre-termination
and post-termination due process violation arguments to
the MSPB. In his decision, the administrative judge
assigned to Ms. Helman’s case thoroughly discussed and
rejected each of Ms. Helman’s affirmative defenses, in-
cluding that her removal violated her constitutional right
to due process. See J.A. 53–58. The administrative judge
specifically rejected Ms. Helman’s argument that the
Deputy Secretary was unwilling to give her arguments
fair consideration. See J.A. 55. The administrative judge
declined to opine on Ms. Helman’s post-removal due
process, however, stating that “it seems [Ms. Helman]’s
due process challenges to these post-removal proceedings
are all tantamount [to] a due process challenge to the
statute itself. I lack the power to rule on the constitu-
tionality of the enabling statute which provides the au-
thority to hear this case in the first place.” J.A. 57–58.
Having concluded that the invalid provisions of § 713
are severable and that administrative judges’ decisions
are now reviewable by the Board, we must also determine
whether it is appropriate for this court to address Ms.
Helman’s due process defenses or whether the proper
course is to remand to the Board for its review of these
claims. Ms. Helman argues that if § 713 is severable, this
30 HELMAN v. DVA
court “should not and cannot reach questions regarding
[her] due process defense until such time as a properly
appointed administrative judge and the Board itself has
resolved them.” Pet’r’s Reply Br. 26. Ms. Helman argues
that, especially where “a decision turns on factual and
credibility determinations, the agency should address the
issues in the first instance.” Id. at 27.
We agree with Ms. Helman that an agency should ad-
dress issues in the first instance. The doctrine of exhaus-
tion of administrative remedies, which provides “that no
one is entitled to judicial relief for a supposed or threat-
ened injury until the prescribed administrative remedy
has been exhausted,” is well established in the jurispru-
dence of administrative law. Woodford v. Ngo, 548 U.S.
81, 88–89 (2006) (citing McKart v. United States, 395 U.S.
185, 193 (1969); Myers v. Bethlehem Shipbuilding Corp.,
303 U.S. 41, 50–51 (1938)). Accordingly, we do not reach
questions regarding Ms. Helman’s due process defense
and she is entitled to a review of the administrative
judge’s decision by the members of the Board. This re-
view will naturally include a review of the administrative
judge’s decision as it pertains to questions regarding Ms.
Helman’s due process defense.
CONCLUSION
For the foregoing reasons, we conclude that by prohib-
iting Board review of administrative judges’ decisions,
Congress impermissibly vests through § 713 significant
authority in administrative judges. Accordingly, we
declare § 713(e)(2) and related portions of § 713(e)(3) and
§ 713(e)(5) invalid, but conclude that they are severable
from the remainder of § 713. Thus, the proper remedy to
the constitutional flaw in § 713 is to sever those portions
of the statute and leave the remainder intact. Upon
severing the offending portions of § 713, Board review of
administrative judges’ decisions is now permitted. Ac-
cordingly, the appropriate relief here is to remand to the
HELMAN v. DVA 31
Board for its review of the administrative judge’s decision
affirming Ms. Helman’s removal. Ms. Helman is free to
pursue before the Board her due process claims and the
broader constitutional question of whether administrative
judges hearing appeals subject to Board review under
§ 7701 of Title 5 are inferior officers.
We remand for the MSPB to take appropriate action
on Ms. Helman’s petition for review of the administrative
judge’s initial decision.
REMANDED
COSTS
The parties shall bear their own costs.