Case 1:18-cv-01005 Document 1 Filed 04/30/18 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SAMIR HAMEL,
c/o DEMOCRACY FORWARD
FOUNDATION
P.O. Box 34553
Washington, D.C. 20043
and

Case No.

WILLIAM FISCHER,
c/o DEMOCRACY FORWARD
FOUNDATION
P.O. Box 34553
Washington, D.C. 20043
Plaintiffs,
v.
ROBERT WILKIE,
in his capacity as the person claiming to be
the acting Secretary of Veterans Affairs,
810 Vermont Avenue
Washington, DC 20420
and
U.S. DEPARTMENT OF VETERANS
AFFAIRS,
810 Vermont Avenue
Washington, DC 20420
Defendants.

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COMPLAINT
1.

Plaintiffs Samir Hamel and William Fischer bring this action against Defendants

Robert Wilkie, in his capacity as the person claiming to be the acting Secretary of Veterans Affairs,
and the U.S. Department of Veterans Affairs (the “Department” or the “VA”), seeking a
declaration that Wilkie is not the lawful acting Secretary, and an injunction barring Wilkie and the
Department from continuing to represent that Wilkie is the acting Secretary and from taking any
action in reliance on Wilkie’s purported authority.
2.

According to press reports, the Trump administration and its allies in Congress seek

to privatize essential VA services, turning veterans’ health care over to a network of private
providers rather than the facilities and physicians that veterans have come to count on. But this
case is not about whether privatization is a good idea or a bad idea. This case is about who will
make that decision and, more broadly, who possesses the authority to make the many day-to-day
decisions regarding veterans’ benefits and care that the Secretary of Veterans Affairs has to make.
Specifically, this case is about whether President Trump may circumvent federal statutes and the
Constitution to install Wilkie as the acting Secretary of Veterans Affairs, or whether the Deputy
Secretary, Thomas G. Bowman, lawfully holds that office instead.
3.

The position falls to Deputy Secretary Bowman, not Wilkie, as a matter of law. The

VA’s statutory scheme provides that in the event of a vacancy in the Secretary position, the Deputy
Secretary shall become acting Secretary. Under the Federal Vacancies Reform Act of 1998 (the
“FVRA”), the President may bypass the default order of succession, but only if the previous
officeholder dies, resigns, or is otherwise unable to serve in the office—not if the previous
officeholder is fired. On March 28, 2018, President Trump unceremoniously fired the Secretary of
Veterans Affairs, Dr. David J. Shulkin, by tweet. The President did not, therefore, have legal

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authority under the FVRA to fill the vacant Secretary position with an acting officer of his choice.
Wilkie’s appointment as acting Secretary was unlawful.
4.

By disregarding statutory provisions addressing when an individual may be

designated to act as an officer in a Senate-confirmed position, the President has also avoided all
Congressional checks on his power to fill such positions, and in so doing has violated the
Appointments Clause of the Constitution. Nor are Wilkie’s new duties as acting Secretary of
Veterans Affairs germane to his original duties within the Department of Defense, meaning that
he cannot act as Secretary without being specifically appointed to that role.
5.

Plaintiffs are veterans who are injured by the President’s unlawful appointment of

Wilkie, Wilkie’s unlawful assumption of authority, and the Department’s recognition of it. They
receive health care from the VA and are therefore subject to the effects of any decisions Wilkie
makes with regard to health care services or other benefits; they are subject to continued, profound
uncertainty about how and under what conditions they will receive their benefits; they are deprived
of the right to a lawful acting Secretary who will vigorously represent their interests before
Congress and the rest of the executive branch; and they face the imminent threat that their health
care will be turned over to the private sector.
6.

Thus, Plaintiffs respectfully request that the Court declare that Deputy Secretary

Bowman is the lawful acting Secretary of Veterans Affairs, and enjoin Wilkie and the Department
from continuing to represent that Wilkie is the acting Secretary and from taking any action in
reliance on Wilkie’s purported authority.
Jurisdiction and Venue
7.

The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because

Plaintiffs’ claims arise under the Constitution and laws of the United States.

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8.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(e)(1) because

Defendants are an agency of the United States and a purported official of the agency sued in his
official capacity.
Parties
9.

Plaintiff Samir Hamel lives with his wife and three children in El Mirage, Arizona.

He enlisted in the United States Army Reserve shortly after the September 11th attacks. He served
as an Army chaplain until January 2014, when he was honorably discharged. From December 2004
to November 2005, Mr. Hamel deployed to Kuwait, Iraq, and Qatar.
10.

Mr. Hamel applied and was enrolled in the VA health care system in 2007. He uses

his health benefits on a monthly basis, visiting the Southwest Veterans Affairs Health Care Clinic
in Phoenix, Arizona. Mr. Hamel is happy with the health care he has received at the VA; although
he has had the option, provided by the VA, to use private service providers, he prefers to use the
VA for all of his health care needs, so he can continue to see his own doctor.
11.

Mr. Hamel is concerned that the administration will take action to privatize VA

health care services. He fears that VA leadership will support and encourage moving veterans like
him to private service providers, disrupting his care. If Mr. Hamel could not access VA health
care, he would either have to purchase health insurance on the individual market or go without
coverage.
12.

Mr. Hamel received a home loan through the VA in May 2013 to purchase his

current residence. He also used the VA’s vocational rehabilitation and employment services to
obtain his Masters in Business Administration.
13.

Plaintiff William Fischer lives in Washington, DC. He served in the United States

Marine Corps from March 2001 until he was honorably discharged in March 2009, including a
deployment to Fallujah, Iraq in 2004 where he received, among other awards, a Purple Heart.

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14.

Mr. Fischer is enrolled in the VA health care system. He uses his health benefits

for annual check-ups and on a periodic basis as necessary at the Washington, DC VA Medical
Center. Mr. Fischer has had a positive experience with the VA. If Mr. Fischer did not have VA
health care, he would be forced to rely exclusively on private health coverage.
15.

Like Mr. Hamel, Mr. Fischer is concerned about the potential privatization of VA

health care services. He fears that privatization would result in worse care for veterans as the VA
is set up specifically to meet the needs of veterans and has an institutional expertise unmatched in
the private sector.
16.

Mr. Fischer also received education assistance through the GI Bill and previously

purchased a home using the VA home loan program.
17.

As veterans who receive health care and other benefits from the VA, Plaintiffs are

injured by the President’s unlawful appointment of Wilkie, Wilkie’s unlawful assumption of
authority, and the VA’s acknowledgment of it. They continually receive benefits from the
Department pursuant to its regulations, they must comply with the Department’s requirements and
policies, and any disputes regarding their benefits are resolved by the Secretary and his designees
within the Department. They are therefore affected by any decisions Wilkie makes with regard to
health care services or other benefits. Beyond these present injuries, Plaintiffs face the imminent
threat that their health care will be turned over to the private sector, decreasing their access to
health care services and the quality of those services.
18.

Because of the dubious legality of Wilkie’s appointment as acting Secretary,

Plaintiffs are subject to continued, profound uncertainty about how and under what conditions they
will receive their benefits. Certainty is essential with respect to medical benefits; Plaintiffs need to
know how and whether they can access VA health care services, especially given the possibility

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that they could suffer a medical emergency. Plaintiffs are also deprived of the right to a lawful
acting Secretary who will vigorously represent their interests before Congress and the rest of the
executive branch—and one whose authority is undisputed.
19.

Defendant Robert Wilkie is the Under Secretary of Defense for Personnel and

Readiness and purports to be the acting Secretary of Veterans Affairs. He is sued in his capacity
as the person claiming to be the acting Secretary, an official who “is responsible for the proper
execution and administration of all laws administered by the Department and for the control,
direction, and management of the Department.” 38 U.S.C. § 303.
20.

Defendant Department of Veterans Affairs is a federal agency headquartered in

Washington, DC, charged with “administer[ing] the laws providing benefits and other services to
veterans and the dependents and the beneficiaries of veterans.” 38 U.S.C. § 301. The Department
is treating Defendant Wilkie as acting Secretary.
The Department Provides Essential Health Care Services
and Other Benefits to Veterans Nationwide
21.

The Department is the federal agency responsible for ensuring that our collective

obligations to those who defended our Nation are fulfilled. As the Supreme Court has recognized,
“[t]he solicitude of Congress for veterans is of long standing.” Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 440 (2011) (quoting United States v. Oregon, 366 U.S. 643, 647 (1961)).
To that end, the Department administers a complex and extensive benefits system and is charged
with fulfilling certain statutory duties and requirements.
22.

Of utmost importance, the Department operates a health care system: the Veterans

Health Administration (“VHA”). The VHA “provide[s] a complete medical and hospital service
for the medical care and treatment of veterans.” 38 U.S.C. § 7301. The VHA “is America’s largest
integrated health care system, providing care at 1,240 health care facilities, including 170 medical

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centers and 1,061 outpatient sites of care of varying complexity … , serving 9 million enrolled
Veterans each year.” 1 In total, the VA health care system has “an annual budget of approximately
$68 billion.” 2
23.

Plaintiffs and other veterans receive health benefits by applying to enroll in the VA

system in person, by telephone, by mail, or online. Each veteran is assigned to a “priority group,”
which determines when he or she will be able to enroll in VA health care and the precise level of
benefits they receive. “The enrollment system is based on priority groups to ensure care is available
to all enrolled Veterans,” consistent with Congressional budget limitations. 3
24.

Once veterans have enrolled, they receive a personalized Veterans Health Benefits

Handbook that describes their benefits. Those benefits generally include “all the necessary
inpatient hospital care and outpatient services to promote, preserve, or restore your health,”
including “preventive care, inpatient care, ancillary services, specialty care, and mental health
services.” 4 The handbook informs veterans that “[a]long with your enrollment in the VA health
care system comes the assurance that health and treatment services will be available when and
where you need them.” 5 It continues: “You can expect VA’s highly qualified and dedicated health

1

Veterans Health Administration, Dep’t of Veterans Affairs, https://www.va.gov/health/ (last
visited Apr. 27, 2018).
2
About VHA, Dep’t of Veterans Affairs, https://www.va.gov/health/aboutVHA.asp (last visited
Apr. 27, 2018).
3
Priority Groups, Dep’t of Veterans Affairs, https://www.va.gov/HEALTHBENEFITS
/resources/priority_groups.asp (last visited Apr. 27, 2018).
4
Veterans Health Benefits Handbook, Dep’t of Veterans Affairs 4, https://www.va.gov
/HEALTHBENEFITS/vhbh/publications/vhbh_sample_handbook_2014.pdf (last visited Apr. 27,
2018).
5
Id. at 1.

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care professionals to meet your needs, regardless of the treatment program, regardless of the
location.” 6 In other words, the VA emphasizes the reliability and stability of VA care.
25.

What distinguishes the care provided by the VA from other forms of health

coverage is that the VA generally provides health care directly to enrolled veterans, rather than by
contracting with private parties, like a typical private health insurer. Veterans receive a Veteran
Health Identification Card which they can use to obtain health care at any VA health facility. 7
When they see a health care provider, Plaintiffs and other veterans pay a minimal or no co-pay. 8
26.

The VA also provides a number of other benefits to the Nation’s veterans. The

Veterans Benefits Administration, under the leadership of the Under Secretary for Benefits and
the Secretary, is charged with “the administration of nonmedical benefits programs of the
Department which provide assistance to veterans and their dependents and survivors.” 38 U.S.C.
§ 7701. Among other things, the VA provides disability compensation and a pension for disabled
veterans (id. §§ 1110, 1131, 1521); life insurance payments (id. § 1312); housing assistance for
homeless veterans (id. § 2011); compensation for burial expenses and designated national
cemeteries (id. §§ 2302, 2402); educational assistance, commonly referred to as the GI Bill (id.
§ 3461); housing and small business loans (id. §§ 3702, 3742); and vocational rehabilitation and
training (id. § 4102).
27.

Currently, the Department lacks either an acting or a permanent Under Secretary

for Benefits. The position is staffed by an “Executive in Charge.” 9

6

Id.
Id. at 26.
8
Determine Cost of Care, Dep’t of Veterans Affairs, https://www.va.gov
/HEALTHBENEFITS/cost/index.asp (last visited Apr. 27, 2018).
9
See Executive Biographies, Dep’t of Veterans Affairs, https://www.va.gov/opa/bios/ (last
visited Apr. 27, 2018).
7

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The Secretary Is Responsible for Ensuring Veterans
Get the Health Benefits to Which They Are Entitled
28.

While the Secretary may delegate certain duties to his or her subordinates, it is the

Secretary who is ultimately responsible for administering the VA system, for making critical
decisions about veterans’ benefits, and for advocating on behalf of veterans to other executive
branch agencies and officials, to Congress, and to the public at large. Ultimately, the Secretary is
charged with achieving “the maximum feasible effectiveness, coordination, and interrelationship
of services among all programs and activities affecting veterans,” and “shall actively promote the
effective implementation, enforcement, and application of all provisions.” Id. § 523(a).
29.

With respect to health coverage, the Secretary is obligated to “furnish hospital and

medical services which the Secretary determines to be needed … to any veteran for a serviceconnected disability; and … to any veteran who has a service-connected disability rated at 50
percent or more,” and may also furnish nursing home care to certain veterans. Id. § 1710(a). To
that end, the Secretary must “establish and operate a system of annual patient enrollment,” which
“manage[s] the enrollment of veterans,” as described above. Id. § 1705(a).
30.

The Secretary is charged with ensuring that the VHA adequately serves the veterans

under its care. He or she must “to the extent feasible, design, establish and manage health care
programs in such a manner as to promote cost-effective delivery of health care services in the most
clinically appropriate setting.” Id. § 1706(a). And he or she must “establish and conduct a
comprehensive program to monitor and evaluate the quality of health care furnished by the
Veterans Health Administration.” Id. § 7311. VA regulations provide that “[p]atients have a right
to be treated with dignity in a humane environment,” and “have a right to receive, to the extent of
eligibility therefor under the law, prompt and appropriate treatment for any physical or emotional
disability.” 38 C.F.R. § 17.33(a).

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31.

The Secretary also possesses substantial discretion to extend health care services to

those who are not otherwise statutorily entitled to them. For categories of veterans not enumerated
in the statute, “the Secretary may, to the extent resources and facilities are available, … furnish
hospital care, medical services, and nursing home care which the Secretary determines to be
needed.” 38 U.S.C. § 1710(a)(3). The Secretary can also provide medical care to the survivors and
dependents of certain veterans. Id. § 1781(a). And the Secretary may provide benefits where an
“administrative error” results in non-payment (id. § 503(a)), or where a beneficiary suffers loss in
reliance on an erroneous decision (id. § 503(b)).
32.

To fulfill his or her statutory duties, the Secretary has a number of statutory powers.

The Secretary can promulgate rules (id. § 501); reorganize the Department’s functions (id. § 510);
decide all questions of law and fact related to benefits determinations (id. § 511); delegate
functions to his or her subordinates (id. § 512); and settle tort claims against the Department (id.
§ 515). The Secretary may also “enter into contracts or agreements with private or public agencies
or persons” for “necessary services … as the Secretary may consider practicable.” Id. § 513; see
also id. §§ 1703 (authorizing the Secretary to enter into contracts for “hospital care and medical
services”); 8102 (authorizing the Secretary to acquire medical facilities).
33.

As part of his or her duties with regard to ensuring the provision of health care

services to veterans, the Secretary has specific statutory obligations to staff the Office of the Under
Secretary for Health.
34.

The Under Secretary for Health is “the head of, and is directly responsible to the

Secretary for the operation of, the Veterans Health Administration.” Id. § 305(b). He or she is
charged with numerous responsibilities for administering the VHA, including decisionmaking on
what types of medical services to outsource from the VHA. See, e.g., 38 C.F.R. §§ 17.52, 17.142.

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As such, the Under Secretary for Health directs the administration of the entire VHA and, together
with the Secretary, is ultimately responsible for the treatment and care of all veterans like Plaintiffs
who receive medical care from the VA.
35.

The Under Secretary for Health’s qualifications are set forth by statute: he or she

“shall be appointed without regard to political affiliation or activity and solely-(A) on the basis of demonstrated ability in the medical profession, in health-care
administration and policy formulation, or in health-care fiscal management; and
(B) on the basis of substantial experience in connection with the programs of the
Veterans Health Administration or programs of similar content and scope.
38 U.S.C. § 305(a)(2).
36.

The Secretary is responsible for establishing a commission to recommend

individuals to the President for appointment to the Under Secretary for Health position. 38 U.S.C.
§ 305(c)(1). The membership of this commission must include veteran and medical provider
representatives, among others. Id. § 305(c)(2). The commission must recommend at least three
individuals for appointment, who the Secretary shall forward to the President with any comments
he or she considers appropriate. Id. § 305(c)(3).
37.

The Under Secretary for Health position has been vacant since October 7, 2017,

and there is no current nomination for the position. 10 The VHA currently is run by an “Executive
in Charge” with the authority to perform the functions and duties of the Under Secretary for
Health. 11 The Executive in Charge cannot perform non-delegable duties of this position without
being appointed as acting Under Secretary, or otherwise complying with succession requirements.

10

See, e.g., Nikki Wentling, Chief of VA Health System Steps Down, Stars & Stripes (Oct. 6,
2017),
https://www.stripes.com/news/chief-of-va-health-system-steps-down-1.491395;
Nominations, S. Comm. on Veterans’ Affairs, https://www.veterans.senate.gov/nominations (last
visited Apr. 27, 2018).
11
Carolyn Clancy, MD, Dep’t of Veterans Affairs, https://www.va.gov/directory/guide
/manager.asp?pnum=30310 (last visited Apr. 27, 2018).

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38.

The Secretary is responsible for taking action to fill the Under Secretary for Health

position.
39.

The Secretary is also responsible for the appointment of numerous positions within

the Department, including leadership positions in the Office for the Under Secretary for Health.
See 38 U.S.C. § 7306(a), (c). These positions are required by statute to meet certain medical
qualifications, such as being a qualified doctor of medicine for the Deputy Under Secretary for
Health position and a qualified doctor of medicine or of dental surgery or dental medicine for
various Medical Director positions. Id. § 7306(a). Several of the appointments must be made upon
recommendation of the Under Secretary for Health. Id. § 7306(c).
40.

Several of the leadership positions in the Office of the Under Secretary for Health

are empty or staffed by individuals serving in an acting capacity. For example, the Assistant
Deputy Under Secretary for Health for Organizational Integration position is vacant. Other key
positions, such as the Deputy Under Secretary for Health for Community Care and the Deputy
Under Secretary for Health for Policy and Services have acting officials, not permanent
appointments. 12
41.

The Secretary is responsible for taking action to fill these important positions with

permanent appointees. 38 U.S.C. § 7306.
The Secretary Is Responsible for Representing Veterans’ Interests to Congress
42.

The Secretary is also responsible for representing the interests of veterans to

Congress, both through regular testimony and through written submissions.

12

Key Staff, Veterans Health Administration, Dep’t of Veterans
https://www.va.gov/directory/guide/keystaff.cfm?id=2001 (last visited Apr. 27, 2018).

12

Affairs,

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43.

For example, since the start of this calendar year, the Secretary has testified in

support of the Department’s budget request 13 and on the progress of implementing 2017 VA
Reform Legislation, including with respect to implementing electronic medical records. 14
44.

The Secretary also has regular obligations to submit written reports to Congress.

45.

Among these responsibilities, the Secretary is responsible for reporting to Congress

on the recommendations of numerous advisory committees related to veterans’ concerns. These
include six statutorily required advisory committees, as well as non-statutory advisory committees.
Their topics include: Former Prisoners of War (38 U.S.C. § 541), Women Veterans (id. § 542),
Prosthetics and Special-Disabilities Programs (id § 543), Minority Veterans (id. § 544), the
Readjustment of Veterans (id. § 545), and Disability Compensation (id. § 546).
46.

In general, the authorizing statutes for these advisory committees require the

Secretary to appoint the members of the committees; to, on a regular basis, consult with and seek
advice of the committee with respect to the subject matter of the committee; and to submit periodic
reports by the committees to Congress with any comments concerning the report that the Secretary
considers appropriate.
47.

At least one such reporting period is imminent. The Advisory Committee on the

Readjustment of Veterans’ annual report was due to the Secretary by March 31. See id. § 545(c)(1).
The Secretary has 90 days to transmit to the Committees on Veterans’ Affairs of the Senate and

13

Statement of the Hon. David J. Shulkin, MD, S. Comm. on Veterans’ Affairs (Mar. 21, 2018),
https://www.veterans.senate.gov/imo/media/doc/VA%20Shulkin%20Testimony%2003.21.2018.
pdf.
14
Statement of the Hon. David J. Shulkin, MD, S. Comm. on Veterans’ Affairs (Jan. 17, 2018),
https://www.veterans.senate.gov/imo/media/doc/Shulkin%20VA%20Testimony%2001.17.2018.
pdf.

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House of Representatives a copy of the report, together with any comments and recommendations
concerning the report that the Secretary considers appropriate. See id. § 545(c)(2).
48.

In the past this Advisory Committee has made specific recommendations on the

administration of healthcare by VHA. Among these is a recommendation it has made over the
course of multiple reports for VHA to implement strategies and policies to enhance coordination
of care for individual veteran clients between Vet Center and VA medical center providers. The
Committee called for “clear and precise directives from VHA” leadership. 15 The Advisory
Committee has also made recommendations related to veteran access to mental health care
providers familiar with military culture and combat-theater experience and specific veteran suicide
prevention efforts. 16 Similar recommendations should now be before the Acting Secretary to
review, and report along with recommendations to Congress.
The Administration’s Plans to Dismantle the Veterans Health Administration,
Privatize Veterans’ Health Care, and Strip Veterans’ Benefits
49.

As explained above, the Department is charged with ensuring that veterans receive

stable, predictable, high-quality health care. However, President Trump and his administration
have long supported the privatization of the VA—a decision that would threaten Plaintiffs and
other veterans’ health care and increase the cost of providing health care services.
50.

During his campaign, then-candidate Trump and other campaign officials

advocated for policies that would direct veterans toward private health care providers rather than
the VA. Trump’s plan would have generally allowed “veterans to choose a doctor outside the VA

15

Advisory Committee of the Readjustment of Veterans, Eighteenth Annual Report, Dep’t of
Veterans Affairs (Feb. 2017), https://www.va.gov/ADVISORY/Reports/ReportReadjust
Feb2017.pdf.
16
Id.

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system,” who would be reimbursed by the VA. 17 In May 2016, one of his senior advisors gave
comments that indicated that Trump “would likely push VA health care toward privatization and
might move for it to become more of an insurance provider like Medicare rather than an integrated
hospital system.” 18 And in a July 2016 speech in Virginia Beach, Trump himself argued that
“[v]eterans should be guaranteed the right to choose their doctor and clinics, whether at a VA
facility or at a private medical center,” describing the VA as “corrupt and inefficient.” 19
51.

Since his election, President Trump has continued to support privatization. During

the transition, Trump openly “consider[ed] changing the department to allow some veterans to
bypass the VA health-care system completely and get care exclusively from private-sector
hospitals and clinics”—a step “which many veterans groups argue is the first step toward
privatization.” 20 Toward the end of 2017, Trump proposed to eliminate eligibility requirements for
the use of private health coverage, which would transfer a greater share of funding from the VA
to private providers. 21 The administration has also suggested that it would consider merging parts

17

Quil Lawrence, Is Donald Trump Proposing Privatizing the VA?, NPR (July 13, 2016),
https://www.npr.org/2016/07/13/485782407/is-trump-proposing-privatizing-the-va.
18
Ben Kesling, Donald Trump Adviser Signals Plan to Change Veterans’ Health Care, Wall St.
J. (May 12, 2016), https://www.wsj.com/articles/donald-trump-adviser-signals-plan-to-changeveterans-health-care-1463064129.
19
See, e.g., Nathaniel Weixel, VA Privatization Fight Could Erupt in Confirmation Hearing, The
Hill (Apr. 11, 2018), http://thehill.com/policy/healthcare/382555-va-privatization-fight-coulderupt-in-confirmation-hearing.
20
Ben Kesling, Donald Trump Considers Moving VA Toward Privatization, Wall St. J. (Dec. 28,
2016),
https://www.wsj.com/articles/trump-considering-moving-va-toward-privatization1482974260.
21
Eric Katz, Trump Administration’s Plan to Expand Private Care for Vets Sparks Fight Over
VA’s Future, Gov’t Exec. (Oct. 17, 2017), https://www.govexec.com/management/2017/10
/trump-administrations-plan-expand-private-care-vets-begins-fight-over-vas-future/141842/.

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of the VA with Tricare, the military’s privately administered health care program for troops,
families, and retirees. 22
52.

“Groups like the Koch brothers-backed Concerned Veterans for America”

(“CVA”) have driven the privatization agenda by “pushing to loosen current restrictions on
veterans receiving private-sector care.” 23 CVA, which “stands virtually alone among veterans’
groups in its commitment to vastly expanded private options for veterans,” “seems to have the
Trump administration’s ear.” 24 Indeed, President Trump’s most recent plan for the VA closely
“resembled the CVA’s priorities,” with six proposals that “drew directly on CVA ideas.” 25
53.

CVA and other proponents of privatization have also pushed the administration to

hire friendly voices for critical positions in the federal government. “Darin Selnick, a former senior
advisor to the Koch-funded group,” served “as the veterans affairs adviser for the White House’s
Domestic Policy Council.” 26 Selnick was “pushed out of the [Department] last year after butting
heads with Shulkin over privatization of veterans health services.” 27 Just days before President

22

Leo Shane III, White House Officials Looking Into Merging VA and Tricare Health Services,
Army Times (Nov. 17, 2017), https://www.armytimes.com/veterans/2017/11/17/white-houseofficials-looking-into-merging-va-and-tricare-health-services/.
23
Weixel, supra.
24
Josh Keefe, Is the VA Being Privatized? This Koch-Backed Group Says It Just Wants “Choice”
but Veterans Aren’t So Sure, Newsweek (Apr. 5, 2018), http://www.newsweek.com/kochbrothers-backed-group-could-determine-future-va-870693.
25
Isaac Arnsdorf, Inside the Trump Administration’s Internal War Over the VA, Politico Mag.
(Feb. 16, 2018), https://www.politico.com/magazine/story/2018/02/16/trump-veterans-affairs-vadavid-shulkin-217013.
26
Nicholas Fandos & Dave Philipps, In Battle Over Future of Veterans’ Care, Moderation Wins,
for Now, N.Y. Times (Mar. 6, 2018), https://www.nytimes.com/2018/03/06/us/politics/veteransaffairs-shulkin-koch-brothers.html.
27
Lorraine Woellert, Shulkin Critic Leaves White House to Return to VA, Politico (Mar. 26,
2018), https://www.politico.com/story/2018/03/26/shulkin-va-white-house-486776.

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Trump fired former Secretary Shulkin, however, Selnick returned to a post at the VA. 28 President
Trump also considered Fox News host Pete Hegseth, the former executive director of CVA, as a
potential replacement for Shulkin, as well as Rick Perry, the current Secretary of Energy, who has
said that he “supports moving more veterans’ care to the private sector.” 29 And President Trump
has also leaned on Jeff Miller, a former member of Congress allied with CVA—and now a
lobbyist—as his “point man on veterans policy.” 30
54.

Privatization would imperil Plaintiffs’ and other veterans’ essential health care. A

2016 study by RAND found that the “[q]uality of care delivered by VA is generally equal to or
better than care delivered in the private sector.” 31 Another 2016 RAND study, based on a metaanalysis of 69 articles, confirmed that “[s]tudies of safety and effectiveness indicated generally
favorable performance by VA facilities compared to non-VA facilities.” 32 That study confirmed a
2010 report from the Department itself, which reviewed 55 studies and concluded that “the
available literature suggests that the care provided in the VA compares favorably to non-VA care
systems, albeit with some caveats.” 33

28

Id.
Lisa Rein, Trump Eyes ‘Fox & Friends’ Personality Pete Hegseth to Take Over Veterans
Affairs, Wash. Post (Mar. 15, 2018), https://www.washingtonpost.com/politics/trump-eyes-foxand-friends-personality-pete-hegseth-to-take-over-veterans-affairs/2018/03/15/f8d03ef6-284e11e8-b79d-f3d931db7f68_story.html; Kaitlan Collins et al., Trump Eyes Rick Perry to Replace VA
Secretary, CNN (Mar. 18, 2018), https://www.cnn.com/2018/03/13/politics/rick-perry-davidshulkin-veterans-affairs/index.html.
30
Arnsdorf, supra.
31
Carrie M. Farmer et al., Balancing Demand and Supply for Veterans’ Health Care, Rand
Health Q. (June 20, 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5158276/.
32
Claire O’Hanlon et al., Comparing VA and Non-VA Quality of Care: A Systematic Review, 32
J. Gen. Internal Med. 105, 118 (2016).
33
Health Servs. Research & Dev. Serv., Comparison of Qualify of Care in VA and Non-VA
Settings: A Systematic Review, Dep’t of Veterans Affairs, at vi (Sept. 2010),
https://www.hsrd.research.va.gov/publications/esp/quality.pdf.
29

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55.

Moreover, the Department “has developed singular expertise on the medical needs

of veterans,” 34 in subjects like severe trauma, rare diseases, amputations, burns, exposure to toxic
substances like Agent Orange, physical therapy, anxiety, post-traumatic stress disorder, and other
service-related ailments. “VHA’s behavioral health programs, particularly with their integration
of behavioral health and primary care, are largely unrivalled.” 35 Because of its unique
competencies, the VA “provides highly integrated treatment specific to the needs of veterans—
care that is typically not available at any price to patients outside the VA system.” 36
56.

Privatization would be more expensive to boot. “Policymakers in both parties argue

that offering veterans unrestricted choice between the public veterans health care system and
private medical providers would be too expensive and lead to the dismantling of the Veterans
Affairs system.” 37 The nonpartisan Congressional Budget Office has found that “the structure of
VHA and published studies suggest that VHA care has been cheaper than care provided by the
private sector.” 38 Services provided by the VA in the past “would have cost about 21 percent more
if those services had been delivered through the private sector.” 39 For these reasons, the Committee
for a Responsible Federal Budget estimated that Trump’s 2016 campaign “plan to reform the

34

Daniel Marans, Veterans Groups Worry VA Chief’s Ouster Sets the Stage for Privatization,
HuffPost (Mar. 29, 2018), https://www.huffingtonpost.com/entry/veterans-group-worry-davidshulkin-ouster-va-privatization_us_5abd6b70e4b0a47437a9b663.
35
Final Report, Comm’n on Care 22 (June 30, 2016), https://s3.amazonaws.com/sitesusa/wpcontent/uploads/sites/912/2016/07/Commission-on-Care_Final-Report_063016_FOR-WEB.pdf.
36
Phillip Longman & Suzanne Gordon, VA Health Care: A System Worth Saving, Am. Legion,
https://www.legion.org/publications/238801/longman-gordon-report-va-healthcare-systemworth-saving (last visited Apr. 27, 2018).
37
Fandos & Philipps, supra.
38
Comparing the Costs of the Veterans’ Health Care System with Private-Sector Costs, Cong.
Budget Office 1 (Dec. 2014), https://www.cbo.gov/sites/default/files/113th-congress-20132014/reports/49763-VA_Healthcare_Costs.pdf.
39
Id. at 5.

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veterans affairs system and increase veterans’ access to private doctors would cost about $500
billion” over the next ten years. 40
57.

Most veterans oppose privatization. One survey found that “the vast majority of

veterans (87%) believe the federal government should provide a health care system dedicated to
the needs of ill, injured and wounded veterans,” despite the VA’s flaws. 41 Another found that
veterans overwhelmingly reject the idea that “the VA health care system should be dismantled by
creating a subsidy-based private health insurance for veterans, shutdown completely and
outsourced to the private sector, or limited to only serving service-connected conditions.” 42
The President Fires Secretary Shulkin
58.

On February 14, 2017, the Senate confirmed Dr. David J. Shulkin to serve as

Secretary of Veterans Affairs by a 100 to 0 vote—the only cabinet secretary in this administration
to be confirmed unanimously. 43
59.

During his tenure, former Secretary Shulkin promised to prevent privatization of

VA health services, noting in one statement that: “Many of VA’s services cannot be replicated in
the private sector. In addition to providing some of the best quality overall health care in the
country, VA delivers world class services in polytrauma, spinal cord injury and rehabilitation,

40

Promises and Price Tags: A Fiscal Guide to the 2016 Election, Comm. for a Responsible Fed.
Budget 5 (2016), http://www.crfb.org/sites/default/files/CRFB_Promises_and_Price_Tags.pdf.
41
The DAV Veterans Pulse Survey, Disabled Am. Veterans (Nov. 11, 2015),
https://www.dav.org/wp-content/uploads/DAV-Pulse-Report-Final.pdf.
42
Our Care 2017: A Report Evaluating Veterans Health Care, Veterans of Foreign Wars (Mar.
2017),
https://www.vfw.org/-/media/vfwsite/files/advocacy/vfw-our-care-2017--executivesummary.pdf?la=en.
43
Wilson Andrews, How Each Senator Voted on Trump’s Cabinet and Administration Nominees,
N.Y.
Times,
https://www.nytimes.com/interactive/2017/01/31/us/politics/trump-cabinetconfirmation-votes.html?_r=0&mtrref=en.wikipedia.org (last updated May 11, 2017).

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prosthetics and orthotics, traumatic brain injury, post-traumatic stress treatments and other
behavioral health programs.” 44
60.

Just over a year after his confirmation, on March 28, 2018, President Trump fired

former Secretary Shulkin. 45
61.

That morning, former Secretary Shulkin spoke to the President, who “made no

mention of the fact that he was about terminate [him].” 46 Several hours later, however, the
President’s Chief of Staff, John Kelly, called Shulkin to inform him that the President intended to
fire him. 47
62.

President Trump then “announced Shulkin’s ouster in a tweet.” 48 Specifically,

President Trump tweeted that he intended to nominate Dr. Ronny L. Jackson as the new Secretary
of Veterans Affairs, but was “thankful for Dr. David Shulkin’s service to our country and to our

44

David Shulkin, Veterans Affairs Secretary - VA Health Care Will Not Be Privatized on Our
Watch, USA Today (July 24, 2017) https://www.usatoday.com/story/opinion/2017/07/24
/veterans-health-care-will-not-be-privatized-david-shulkin-column/499417001/.
45
See, e.g., Nicholas Fandos & Maggie Haberman, Veterans Affairs Secretary Is Latest to Go as
Trump Shakes Up Cabinet, N.Y. Times (Mar. 28, 2018), https://www.nytimes.com
/2018/03/28/us/politics/david-shulkin-veterans-affairs-trump.html; Amanda Macias, David
Shulkin, Fired By Trump, Warns that Privatizing the Veterans Affairs Department Will Hurt
Veterans, CNBC (Mar. 29, 2018), https://www.cnbc.com/2018/03/29/david-shulkin-fired-bytrump-warns-against-privatizing-the-va.html; Hope Yen & Zeke Miller, Trump Fires Veterans
Affairs Secretary Shulkin, Time (Mar. 28, 2018), http://time.com/5219737/trump-fires-veteransaffairs-secretary-david-shulkin-admiral-ronny-jackson/.
46
Rebecca Morin, Shulkin: Trump Didn’t Mention Firing in Call Hours Before He Was Fired,
Politico (Mar. 29, 2018), https://www.politico.com/story/2018/03/29/trump-shulkin-firing-tweetcall-492412.
47
Id.
48
Todd Shields, Trump’s Outgoing Veterans Affairs Secretary Blasts ‘Toxic’ Washington,
Bloomberg (Mar. 29, 2018), https://www.bloomberg.com/news/articles/2018-03-28/trump-oustsshulkin-as-veterans-affairs-chief-in-latest-shakeup.

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GREAT VETERANS!” 49 When asked “if he was essentially fired via the tweet from the president,
Shulkin responded: ‘Yes.’” 50
63.

Notwithstanding these public reports, the administration soon began to insist that

former Secretary Shulkin had resigned. On March 31, Spokeswoman Lindsey Walters explained
that “Secretary Shulkin resigned from his position as Secretary of the Department of Veterans
Affairs.” 51 This assertion has been “strongly disputed” by “a person familiar with Shulkin’s
dismissal … [who] not[ed] that he did not submit a resignation letter.” 52
64.

By April 2, the administration changed its explanation again. White House

communications aide Mercedes Schlapp stated that Kelly “called Shulkin and gave him the
opportunity to resign.” 53 When pressed on whether that meant Shulkin had been fired, Schlapp
clarified that “General Kelly offered him the opportunity to resign. At this point, the president said
it was time to move on in terms of Veterans Affairs. He thanks Secretary Shulkin for his service.” 54
65.

Former Secretary Shulkin’s dismissal was preceded by months of plotting by

administration officials, motivated by disagreements about “how far and how fast to privatize

49

Donald J. Trump (@realDonaldTrump), Twitter (Mar. 28, 2017, 2:31 PM), https://twitter.com
/realDonaldTrump/status/979108653377703936 [hereinafter “Trump Tweet”].
50
Meagan Vazquez, Shulkin Says He Was Fired Via Trump Tweet, CNN (Apr. 2, 2018),
https://edition.cnn.com/2018/04/02/politics/shulkin-tweet-fired-cnntv/index.html.
51
Andrew Restuccia, Did Shulkin Get Fired or Resign? This Is Why It Matters, Politico (Mar.
31, 2018), https://www.politico.com/story/2018/03/31/did-shulkin-get-fired-or-resign-veterans492877.
52
Id.
53
Juana Summers, Shulkin Says He Was Fired. The White House Said He Resigned. Here’s Why
It Matters, CNN (Apr. 2, 2018), https://www.cnn.com/2018/04/02/politics/shulkin-trumpresigned-fired/index.html.
54
Andrew Restuccia, White House Appears to Shift Explanation on Whether Shulkin Resigned
or Was Fired, Politico (Apr. 2, 2018), https://www.politico.com/story/2018/04/02/shulkin-resignor-fire-495074.

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health care for veterans, a long-sought goal for conservatives like the Koch brothers.” 55 “[T]he
president’s appointees have felt betrayed by what they see as backtracking at the department on
access to privately provided health care,” and in December “quietly bypassed the secretary to
advance legislation that would open the way for more privately provided health care for
veterans.” 56 In other words, “[t]he fight over the leadership of the department is part of a longrunning battle over how to deliver health care to the nation’s veterans.” 57
66.

In an editorial published the day he was fired, former Secretary Shulkin attributed

his dismissal to “advocates within the administration for privatizing V.A. health services,” who
“saw [him] as an obstacle to privatization who had to be removed.” 58 Specifically, Shulkin
believed that “privatization is a political issue aimed at rewarding select people and companies
with profits, even if it undermines care for veterans.” 59 In Shulkin’s view, “[t]he private sector,
already struggling to provide adequate access to care in many communities, is ill-prepared to
handle the number and complexity of patients that would come from closing or downsizing V.A.
hospitals and clinic.” 60

55

Fandos & Haberman, supra.
Dave Philipps & Nicholas Fandos, Intrigue at V.A. as Secretary Says He Is Being Forced Out,
N.Y. Times, Feb. 15, 2018, https://www.nytimes.com/2018/02/15/us/veterans-affairs-davidshulkin.html.
57
Id.
58
David J. Shulkin, Privatizing the V.A. Will Hurt Veterans, N.Y. Times, Mar. 28, 2018,
https://www.nytimes.com/2018/03/28/opinion/shulkin-veterans-affairs-privatization.html.
59
Id.
60
Id. Former Secretary Shulkin repeated his account in an interview with NPR, asserting that
“political forces in the Trump administration want to privatize the VA – and that he was standing
in the way.” Laurel Wamsley & Scott Neuman, Fired VA Secretary Says White House Muzzled
Him, NPR (Mar. 29, 2018), https://www.npr.org/sections/thetwo-way/2018/03/29/597866101
/fired-va-secretary-says-white-house-muzzled-him. According to Shulkin, “[t]here are many
political appointees in the VA that believe that we are moving in the wrong direction or weren’t
moving fast enough toward privatizing the VA.” Id. And he told MSNBC that “[t]here was clear
56

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67.

President Trump himself even admitted that he fired Shulkin to accelerate the

privatization of the VA, claiming in a speech on March 30 that “[w]e made changes because we
want them taken care of, we want them to have choice so that they can run to a private doctor and
take care of it, and it’s going to get done.” 61
68.

More recently, “[i]n a private meeting … with major veterans groups,” Chief of

Staff Kelly, who delivered the news to former Secretary Shulkin that he had been fired, “repeatedly
said that the decision to remove Shulkin was President Donald Trump’s,” thereby “contradict[ing]
the White House’s claims about David Shulkin’s departure.” 62
69.

In nominating Shulkin’s proposed replacement, Dr. Ronny Jackson, the White

House did not say that Shulkin resigned—as the White House typically does when nominating a
new official to replace an official who resigned. 63 Dr. Jackson has since withdrawn his nomination
to serve as Secretary of Veterans Affairs, and no new nomination has been announced or submitted
to the Senate by the President. 64

evidence … that the political appointees inside the VA were working against me and my leadership
team because they felt that we were trying to strengthen the VA rather than moving towards
privatization.” Phil Helsel, Fired VA Head Shulkin Says Political Appointees Were Focused on
Privatization, NBC News (Mar. 29, 2018), https://www.nbcnews.com/politics/politicsnews/fired-va-head-shulkin-says-political-appointees-were-focused-privatization-n861351.
61
Donovan Slack, Donald Trump Says David Shulkin Out of Sync with Agenda on Private Sector
Veterans Care, USA Today (Mar. 29, 2018), https://www.usatoday.com/story/news
/politics/onpolitics/2018/03/29/donald-trump-firing-va-secretary-says-he-fired-david-shulkingive-veterans-choice-private-sector-car/470598002/.
62
Isaac Arnsdorf, White House Chief of Staff Contradicts White House Claim on VA Shakeup,
ProPublica (Apr. 16, 2018), https://www.propublica.org/article/david-shulkin-white-house-chiefof-staff-contradicts-white-house-claim-on-va-shakeup.
63
One Nomination Sent to the Senate Today, White House (Apr. 16, 2018),
https://www.whitehouse.gov/presidential-actions/one-nomination-sent-senate-today-5/.
64
Cristiano Lima, Ronny Jackson Withdraws as Veterans Affairs Secretary Nominee, Politico
(Apr. 26, 2018), https://www.politico.com/story/2018/04/26/ronny-jackson-withdraws-asveterans-affairs-secretary-nominee-555110.

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The President Unlawfully Chooses Wilkie Over Deputy Secretary Bowman
70.

Federal law presumptively mandates that “the Deputy Secretary shall be Acting

Secretary of Veterans Affairs … in the event of a vacancy in the office of Secretary” (38 U.S.C.
§ 304), which results in the current Deputy Secretary of Veterans Affairs, Thomas Bowman,
serving as the lawful acting Secretary. Before his appointment as Deputy Secretary, Bowman had
a lengthy career in VA leadership positions and other policy roles related to veterans’ affairs. 65
71.

Bypassing the legal succession requirements, President Trump appointed Wilkie—

the Under Secretary of Defense for Personnel and Readiness—to serve as acting Secretary of
Veterans Affairs (again by tweet). 66 Wilkie purports to serve as acting Secretary, and the
Department recognizes him as the Secretary. 67 He also continues to serve in his original position
within the Department of Defense. Aside from his current position as acting Secretary, Wilkie has
never served in the Department of Veterans Affairs and has instead spent most of his career in
various offices at the Department of Defense. 68
72.

The President appears to have bypassed Deputy Secretary Bowman due to

Bowman’s opposition to privatization of VA health services. In an email sent in December 2017,
the President’s senior advisor on veterans affairs, Jake Leinenkugel, proposed that the
administration replace Bowman with himself, and former Secretary Shulkin with a “strong

65

See Thomas G. Bowman, Deputy Secretary of Veterans Affairs, Dep’t of Veterans Affairs,
https://www.va.gov/opa/bios/bio_bowman.asp (last visited Apr. 27, 2018).
66
See Trump Tweet, supra.
67
See Secretary of Veterans Affairs, Dep’t of Defense, https://www.va.gov/opa/bios/secva.asp
(last visited Apr. 27, 2018).
68
See id.

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political candidate,” as retaliation for their positions on privatization.69 Leinenkugel described
Bowman as an “obstructionist[]” opposed to the administration’s privatization agenda. 70
73.

Then, in February 2018, the Washington Post reported that the administration again

sought to fire Deputy Secretary Bowman, who “was said to be at odds with the administration’s
plan to expand health care access for veterans through private producers,” as a “warning shot” to
former Secretary Shulkin. 71 “Bowman had pushed back on broad privatization efforts, leading
Trump to berate him in an Oval Office meeting for his lack of loyalty.” 72
Wilkie Takes Control of the Department
74.

To date, Wilkie has taken action in reliance on his purported authority as acting

Secretary.
75.

As of April 27, 2018, the Department had issued five final rules, nine proposed

rules, and twenty-nine notices in the few weeks since Wilkie took office, and apparently in reliance
on Wilkie’s authority as acting Secretary. The four final rules include rules amending the rating
schedule that addresses gynecological conditions and disorders of the breast, amending the rating
schedule that addresses eye disabilities, and amending acquisition regulations—rules that affect

69

See Fandos & Philipps, supra.
Lisa Rein et al., VA Chief Fights for His Political Future Amid Internal Strife and Allegations
of Subterfuge, Wash. Post (Feb. 15, 2018), https://www.washingtonpost.com/politics/va-chieffights-for-his-political-future-amid-internal-strife-and-allegations-of-subterfuge/2018/02/15
/e0c5ca2e-1278-11e8-9570-29c9830535e5_story.html.
71
Emily Wax-Thibodeaux et al., White House Targets VA’s Deputy Secretary As ‘A Warning
Shot’ to Agency’s Leader, Wash. Post (Feb. 8, 2018), https://www.washingtonpost.com
/amphtml/world/national-security/white-house-targets-vas-deputy-secretary-as-a-warning-shotto-agencys-leader/2018/02/08/cc052006-0d11-11e8-95a5-c396801049ef_story.html.
72
Woellert et al., Trump’s VA Pick Blindsides Staff, Deepens Agency Disarray, Politico (Mar.
29, 2018), https://www.politico.com/story/2018/03/29/trumps-veterans-pick-agency-451219; see
also Fandos & Haberman, supra (“The officials … came to consider Dr. Shulkin and his top deputy
as obstacles.”).
70

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how and whether veterans will receive necessary health care—as well as a rule that affects which
veterans are eligible for Supplemental Service-Disabled Veterans’ Insurance. 73 Five additional
rules are currently pending review at the Office of Information and Regulatory Affairs, including
a rule pertaining to “Expanded Access to Non-VA Care Through the Veterans Choice Program.”74
The Department has also issued guidance regarding staffing, pay administration, histopathology
technicians, licensed professional mental health counselors, and Congressional relations. 75
76.

Similarly, as of April 27, 2018, the Department had approved 390 contracts since

Wilkie took office. 76 At the same time, the dubious legality of Wilkie’s appointment has called the
Department’s authority to enter contracts into question, including a recent contract regarding the
Department’s medical records system which was negotiated but not finalized by former Secretary
Shulkin.77
77.

Because Wilkie is not authorized to enter into these contracts, the availability of the

services and materials provided pursuant to them could be jeopardized at any time. Moreover, the
Department could be subjected to conflicting and overlapping obligations, draining the
Department’s resources and reducing its ability to provide care to Plaintiffs and other veterans.

73

Veterans Affairs Department, Fed. Register, https://www.federalregister.gov/agencies
/veterans-affairs-department (last visited Apr. 27, 2018)
74
List of Regulatory Actions Currently Under Review, Office of Info. & Regulatory Affairs,
https://www.reginfo.gov/public/jsp/EO/eoDashboard.jsp (last visited Apr. 27, 2018).
75
VA Publications, Dep’t of Veterans Affairs, https://www.va.gov/vapubs/Search_action.cfm
?formno=&tkey=&dType=0&SortBy=issue&sort=desc&oid=0 (last visited Apr. 27, 2018).
76
Opportunities, Fed. Bus. Opportunities, https://www.fbo.gov/index? (advanced search with
“Department of Veterans Affairs” as the agency and a contract award date between March 28 and
April 27, 2018) (last visited Apr. 27, 2018).
77
Leo Shane III, Ambitious VA Medical Records Overhaul in Jeopardy After Department
Shakeup, Army Times (Apr. 19, 2018), https://www.armytimes.com/veterans/2018/04
/19/ambitious-va-medical-records-overhaul-in-jeopardy-after-department-shakeup/.

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This problem will only increase with time, as Wilkie takes or approves more and more actions that
are subject to invalidation. As a result, Plaintiffs’ and other veterans’ health care is and will
continue to be in imminent danger.
78.

Wilkie has used his platform as acting Secretary to advocate on behalf of reforms

that would push the VA toward privatization. On April 9, purporting to speak for “America’s
veterans,” he issued a statement urging Congress to pass a bill expanding the VA Choice program,
which “allow[s] Veterans to seek care in the private sector.” 78
79.

Senior staffers have also left the Department, or have been reassigned within the

Department, since Wilkie took office. For example, Scott Blackburn, the acting Executive in
Charge for the Office of Information and Technology, left the Department on April 17. 79
80.

In a statement, VA Press Secretary Curt Cashour described the departed officials

as “employees who were wedded to the status quo and not on board with this administration’s
policies or pace of change.” 80 According to Cashour, the VA’s leadership “is now firmly aligned
with President Trump and his priorities,” “speaking with one voice to Veterans, employees and
outside stakeholders, such as Congress and veterans service organizations,” and “working closely
with the White House to implement the president’s priorities for VA.” 81 Those priorities include
“work[ing] with Congress to get community care reform legislation passed” that would increase

78

Statement by Acting VA Secretary Robert Wilkie – Congress Must Pass Choice Bill Now to
Give Best Care Options to Our Veterans, Dep’t of Veterans Affairs (Apr. 9, 2018),
https://www.va.gov/opa/pressrel/pressrelease.cfm?id=4036.
79
Jessie Bur, Veterans Affairs CIO Scott Blackburn Resigns, Fed. Times (Apr. 18, 2018),
https://www.federaltimes.com/management/leadership/2018/04/17/veterans-affairs-cio-scottblackburn-resigns/.
80
Statement by VA Press Secretary Curt Cashour on VA’s Near-Term Priorities Under Acting
Secretary Robert Wilkie, Dep’t of Veterans Affairs (Apr. 25, 2018).
81
Id.

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access to private health care providers, as well as “finaliz[ing] a decision on the department’s
electronic health record (EHR) modernization.” 82
81.

Until another nominee is selected by the President and confirmed by the Senate,

which could take months, Wilkie will likely continue to serve as acting Secretary.
First Claim
Wilkie’s Appointment Violates the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq.,
and the Administrative Procedure Act, 5 U.S.C. § 706
82.

Plaintiffs incorporate the foregoing paragraphs as if set forth fully herein.

83.

Under the Federal Vacancies Reform Act of 1998, the President “may direct a

person who serves in an office for which appointment is required to be made by the President, by
and with the advice and consent of the Senate, to perform the functions and duties of the vacant
office temporarily in an acting capacity.” 5 U.S.C. § 3345(a).
84.

However, the President’s power under the Act is limited; he may do so only if the

previous officeholder “dies, resigns, or is otherwise unable to perform the functions and duties of
the office.” Id. The statute does not permit the President to fill the vacancy if the previous
officeholder is removed from office or merely because the office is vacant, regardless of the reason
for the vacancy.
85.

Former Secretary Shulkin did not “die” or “resign.” Nor was he “unable to perform

the functions and duties of the office.” He was ready and willing to continue serving as Secretary
of Veterans Affairs. Instead, he was fired by the President.
86.

Congress passed the FVRA to eliminate the “threat to the Senate’s advice and

consent power” posed by permitting the President to appoint acting officials at will. N.L.R.B. v.

82

Id.

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SW Gen., Inc., 137 S. Ct. 929, 936 (2017). The President’s appointment of Wilkie in violation of
the terms of the FVRA circumvents Congress’s power over the appointment process entirely.
87.

“Unless the President designates another officer of the Government” using his

power under the FVRA, which President Trump did not lawfully exercise, “the Deputy Secretary
shall be Acting Secretary of Veterans Affairs … in the event of a vacancy in the office of
Secretary.” 38 U.S.C. § 304. Thus, Deputy Secretary Bowman, not Wilkie, is the current acting
Secretary of Veterans Affairs, with all of the duties and powers inherent in the office.
88.

Because Wilkie is not the lawful acting Secretary, any action that he takes “shall

have no force or effect,” and “may not be ratified” by a subsequent Secretary. 5 U.S.C. § 3348(d).
89.

The President’s appointment of Wilkie to serve as acting Secretary, Wilkie’s

continued representation that he is the acting Secretary of Veterans Affairs, the Department’s
recognition that he currently serves in that office, and any actions taken by Wilkie pursuant to his
purported authority as acting Secretary are therefore unlawful, violating the FVRA, 5 U.S.C.
§ 3345 et seq., the Department’s order of succession statute, 38 U.S.C. § 304, and the
Administrative Procedure Act, 5 U.S.C. § 706.
Second Claim
Wilkie’s Appointment Violates the Appointments Clause
of the Constitution, art. II, § 2, cl. 2
90.

Plaintiffs incorporate the foregoing paragraphs as if set forth fully herein.

91.

The Appointments Clause mandates that the President “shall nominate, and by and

with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and
Consules, Judges of the Supreme Court, and all other Officers of the United States.” U.S. Const.
art. II, § 2, cl. 2.

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92.

Specifically, the Secretary of Veterans Affairs “is the head of the Department” of

Veterans Affairs “and is appointed by the President, by and with the advice and consent of the
Senate.” 38 U.S.C. § 303.
93.

By directing Wilkie to serve as the acting Secretary of Veterans Affairs, the

President appointed him to that office within the meaning of the Appointments Clause and Section
303 of Title 38 of the U.S. Code.
94.

However, Wilkie was neither nominated by the President nor confirmed by the

Senate to serve in that position. Nor did the President lawfully appoint him to that office in an
acting capacity under the terms of the FVRA, in derogation of the process established by Congress
to protect its authority under the Appointments Clause. Wilkie’s appointment as acting Secretary
therefore violates the Appointments Clause.
95.

Wilkie’s new duties as acting Secretary of Veterans Affairs—which involve

overseeing a massive, complex bureaucracy that provides services to individual veterans—are not
germane to his duties as an Under Secretary of Defense, in which he serves in an entirely different
federal agency with a different statutory and regulatory mandate. Cf. Weiss v. United States, 510
U.S. 163, 172-76 (1994)
96.

The President’s appointment of Wilkie to serve as acting Secretary, Wilkie’s

continued representation that he is the acting Secretary, the Department’s recognition that he
currently serves in that office, and any actions taken by Wilkie pursuant to his purported authority
as acting Secretary violate the Appointments Clause and are therefore void.
Third Claim
Plaintiffs Are Entitled to a Declaratory Judgment Under 28 U.S.C. § 2201
97.

Plaintiffs incorporate the foregoing paragraphs as if set forth fully herein.

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98.

Under Section 2201 of Title 28 of the United States Code, “[i]n a case of actual

controversy within its jurisdiction, … any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal relations of any interested party
seeking such declaration.”
99.

There is an actual controversy between Plaintiffs and Defendants regarding

Wilkie’s purported authority as acting Secretary of Veterans Affairs. His unlawful appointment
calls into question the lawfulness of any actions he has taken or will take while purporting to serve
as acting Secretary, and thereby creates profound uncertainty over the standards and procedures
by which veterans, including Plaintiffs, will receive the benefits to which they are entitled under
federal law.
100.

Any cutbacks in or additional requirements for obtaining veterans’ benefits are

presumed unlawful and subject to challenge if enacted under Wilkie’s leadership. In particular,
any actions the Department might take under Wilkie’s authority to privatize veterans’ health care,
including new rules and agency guidance, contracts with third party service providers, and changes
to the procedures and manuals that govern veterans’ receipt of health care, would be unlawful.
101.

However, many of these changes may well take place without formal rulemaking

or other public process which allow Plaintiffs and other veterans to voice their concerns and
challenge unlawful action—or even to learn that such action has taken place. Wilkie’s assertion of
authority to act in these innumerable ways subjects Plaintiffs to an ongoing risk of imminent harm,
as their health care and other benefits could be altered at any time and without other remedy.
102.

Conversely, any benefits that Plaintiffs and other veterans might receive while

Wilkie purports to serve as acting Secretary, especially any benefits received or anticipated as a
consequence of Wilkie’s actions and policies, could be subject to challenge and recoupment by the

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Department or third parties if Wilkie’s tenure is later found to be unlawful. See 38 U.S.C. § 5316.83
Instead of receiving, free and clear, the benefits statutorily owed to them by the Department,
Plaintiffs’ benefits are subject to a cloud of uncertainty that decreases their value and harms
Plaintiffs.
103.

A declaration as to the lawful leadership of the VA is essential to resolve the

uncertainty and confusion that currently surrounds the relationship between veterans and the
Department.
Prayer for Relief
WHEREFORE, Plaintiffs respectfully request that the Court:
1.

declare that pursuant to 38 U.S.C. § 304, Deputy Secretary Bowman is the lawful

acting Secretary of Veterans Affairs, and further declare that Wilkie’s appointment to that position
was unlawful and that any actions taken in reliance on Wilkie’s purported authority are unlawful
and void;
2.

enjoin Wilkie from continuing to represent that he is the acting Secretary of

Veterans Affairs, the Department from recognizing that he currently serves in that office, and both
Wilkie and the Department from taking any action in reliance on Wilkie’s purported authority as
acting Secretary of Veterans Affairs;
3.

award Plaintiffs their attorneys’ fees, costs, and other disbursements in this action;

and

83

Cf. James Clark, The VA Takes Back Millions in Benefits from Disabled Vets and Can’t Explain
Why, Task & Purpose (May 11, 2017), https://taskandpurpose.com/va-congress-separationdisability-pay-recoupment/ (discussing recoupment of separation pay before payment of disability
benefits).

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4.

grant Plaintiffs such other relief as the Court deems just and proper.

Dated: April 30, 2018

Respectfully submitted,
/s/ John T. Lewis
Javier M. Guzman (D.C. Bar No. 462679)
Robin F. Thurston (D.C. Bar No. 1531399)
Jeffrey B. Dubner (D.C. Bar. No. 1013399)
John T. Lewis (D.C. Bar No. 1033826)
Democracy Forward Foundation
P.O. Box 34553
Washington, DC 20043
(202) 448-9090
jguzman@democracyforward.org
rthurston@democracyforward.org
jdubner@democracyforward.org
jlewis@democracyforward.org
Counsel for Plaintiffs

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