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White House rejection of Board of Veterans' Appeals judges raises concerns of partisanship

By LISA REIN | The Washington Post | Published: October 23, 2018

WASHINGTON — The Board of Veterans' Appeals has long filled a nonpartisan role in the federal government, run by dozens of judges charged with sorting through a thicket of regulations to determine whether an injured veteran is entitled to lifetime benefits.

But this summer, the White House rejected half of the candidates selected by the board chairwoman to serve as administrative judges, who make rulings on the disability claims. The rejections came after the White House required them to disclose their party affiliation and other details of their political leanings, according to documents viewed by The Washington Post.

Such questions had not been asked of judge candidates in the past, according to former judges and board staff.

As part of the process, the candidates were asked to provide links to their social media profiles and disclose whether they had ever given a speech to Congress, spoken at a political convention, appeared on talk radio, or published an opinion piece in a conservative forum such as Breitbart News or a liberal one such as Mother Jones, according to one candidate, who requested anonymity because the person is not authorized to speak to the media.

The rejected applicants are three Democrats and an independent. Of the four accepted by the White House and sworn in last week, three are Republicans, and one has no party affiliation but has voted in GOP primaries, according to documents and interviews.

The rebuffed candidates were not given a reason. But their rejection has raised alarms among former and current officials at the Department of Veterans Affairs, where the appeals board - with about 90 judges and 800 attorneys - has always been viewed as nonpolitical.

"During my tenure, the White House approval was considered pro forma," said Anthony Principi, who led the agency during George W. Bush's first term.

"I certainly remember the chairman [of the appeals board] being political," Principi said, "but the judges were career civil servants. They're adjudicators."

Ninio Fetalvo, a White House spokesman, referred questions to VA.

In an email, VA spokesman Curt Cashour said the rejections were part of an effort to improve the vetting of board candidates, after two judges and three board attorneys were discovered in 2016 to have sent racist and sexist emails.

"Vetting failures of past administrations allowed judges who held racist and sexist views to be appointed to the Board," Cashour said in an email. "This administration refuses to be a rubber stamp and is committed to doing a much better job of vetting."

He did not address whether party affiliation was a factor in the selection of the recent group of judges or whether the White House discovered any past misconduct.

The Trump administration has shown a zeal for installing loyalists in the nonpartisan civil service - for example, reassigning senior executives at the Interior Department, transferring dozens of career diplomats at the State Department to clerical work, installing loyalists in positions previously held by experts at a federal aid agency called the Millennium Challenge Corporation.

Employees in other offices at VA have faced transfers or reassignment because they were deemed to be out of step with the president's priorities.

All eight candidates for the veterans appeals board were attorneys with years of experience in leadership roles at the appeals board. They were already serving as acting judges and were heavily vetted and recommended by the board chairwoman, Cheryl L. Mason, who was appointed by President Donald Trump.

The rejections come as the board is steadily adding judges and attorneys to ease delays and fend off criticism and scrutiny from Congress for lengthy backlogs. Agency data show that veterans waited an average of three years for appeals to resolve in fiscal 2017 and that more-complex cases required an average of seven years.

"I've never seen these positions politicized," said Douglas Massey, president of Local 17 of the American Federation of Government Employees, which represents attorneys and other appeals board employees. Before leading the local full time, he was one of the many attorneys who supported the appeals board judges.

During that time, "I had no idea who was a Democrat and who was a Republican," Massey said. "To adjudicate these claims, you need the best and the brightest."

In an announcement last week, VA Secretary Robert Wilkie said the four judges who were accepted would contribute to "better and faster service to veterans."

"Bringing on additional judges means the Board will be better staffed to conduct hearings and decide appeals properly in a timely manner," he said.

The new approach at VA comes as the White House for the first time turned another class of administrative judges from civil servants into political appointees, reflecting an emerging conservative legal movement to involve the president in naming government adjudicators.

Citing a Supreme Court decision, the Trump administration announced in July that administrative law judges, most of whom rule on disability claims for the Social Security Administration, would now be appointed by the president.

Veterans law judges, as the administrative judges are formally known, are coveted jobs, drawing a senior executive salary of between $150,000 and $174,000. The vast majority are hired from within the appeals board because the work is so specialized. Some attorneys make multiple attempts at promotion.

The Board of Veterans' Appeals started in 1933 to handle appeals from veterans who were denied cash benefits connected to their military service. The judges are appointed by the VA secretary and approved by the president, but they are not considered political appointees and are supposed to be independent.

For decades, the White House has given the go-ahead to thousands of judge candidates sent over by the secretary. But that process apparently changed this year as the Trump administration prepared to hire its first group of judges.

As is customary, the eight attorneys were given background checks, submitted an extensive written application and were vetted by multiple interviewers, including the board chairwoman, Mason - a longtime board attorney and veterans law judge confirmed by the Senate in November 2017.

But before Wilkie could sign off on the candidates, the White House personnel office interceded, sending them the questionnaire. It asked, among other things, about the applicants' party affiliation and their address on Election Day in 2016.

Veterans groups said that they were alarmed that the talent pool of potential judges could be shrinking and that they were concerned about further delays in adjudications.

"The idea that these judges may have been selected based on a political litmus test when we're talking about taking care of veterans is very worrisome," said John Hoellwarth, a spokesman for AMVETS. "The concern is that veterans are being denied qualified judges for purely political reasons while the VA suffers from a massive case backlog in appeals."

Louis Celli, executive director of the American Legion, the country's largest veterans group, said appeals board judges must be "career employees based on strong ethical standards who are highly qualified regardless of political affiliation." The Legion has two dozen employees who work as advocates to help veterans navigate the appeals system.

Current and former board staff members and former VA secretaries said they could not recall a time when such inquiries into partisan affiliation during the application process were made.

Robert McDonald, a Republican before he was chosen by then-President Barack Obama as his second VA secretary, oversaw the hiring of 26 judges at the end of the administration. "I never thought of this as a politically appointed position, just because they're sent through the White House," he said.

"Our priority was serving veterans," McDonald said. "The only way to get appeals down was to hire more judges, and the best available regardless of political affiliation."

The judges who survived the White House gauntlet - William Donnelly, Evan Weichert, Cynthia Skow and Lauren Cryan - and those who did not - Karen Kennerly, David Gratz, John Hutcheson and Jebby Rasputnis - were senior board attorneys with six to 12 years of experience in veterans law.

They all were serving as acting judges because of the shortage. Kennerly, one of the rejected applicants, had for years been in charge of training attorneys at the board.

"I have no idea why the others didn't make it through," said Donnelly, who was accepted, "but I have the highest respect for their legal acumen."

He said, though, that ultimately the decision was the president's.

"It's a very specialized area and we have a more limited pool of resources now, but the fact is we work for the president and he has the responsibility and duty to select the people most qualified to pursue the vision for the department he sets forth."

Most of the others declined to comment or did not return phone calls.

Donnelly said the board is now considering new candidates.

In recent years, the board has seen a crush of new appeals as claims generated as a result of rules changes and as department turmoil piled up.

VA paid about $72 billion a year to about 4.5 million veterans in fiscal year 2017. But more than 400,000 veterans whose claims were denied in whole or in part have flooded the antiquated appeals system, where claims involving simple and complex cases are mixed together.

The growing wait times prompted Congress to pass broad overhauls in 2017 that will divide up the cases by their level of complexity to streamline the approval process and stem the delays. The changes take effect in February.

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