This summer, the Trump White House reportedly rejected four nominees for the nonpartisan Board of Veterans’ Appeals after imposing a political litmus test. The nomination of judges to the board has historically been a nonpartisan process of elevating career civil servant attorneys. For the first time, however, the Trump White House reportedly demanded information about potential judges’ personal voting patterns and political associations, and rejected four candidates who were not perceived to be reliably loyal to the GOP. The unprecedented introduction of a partisan litmus test cuts the pool of qualified candidates for the Board in half, at a time when the Board seeks to reduce the extraordinary delays in VA disability claim processing that have long plagued veterans seeking to get the help the President promised them.

The Constitution and various federal laws restrict the ability of the government to punish employees for their personal politics. Retaliation against employees for personal political activity protected by the First Amendment is illegal. Furthermore, under the federal Privacy Act, agencies are prohibited from maintaining records about individuals’ political activity and using those records to punish employees.

On December 6, 2018, we requested an investigation by the Department of Veterans’ Affairs Inspector General into potential legal violations in the Board’s appointment process. We’re working with VoteVets, a veterans’ advocacy organization, to request that the Inspector General answer a number of questions raised by the reports of politicization at the Board. We hope that the Inspector General will thoroughly investigate the reports of malfeasance, and reinforce to the Board and the White House that political retaliation is both illegal and not in the best interests of the veterans seeking efficient resolution of their claims. We also sent the Department a Freedom of Information Act (FOIA) request about the Board nomination process on November 9, 2018.

We await the Inspector General’s response and will evaluate next steps to ensure that the Department takes this matter seriously. The Inspector General’s office may explicitly inform us as to their decision to take up this matter, or they may simply open an investigation and report their findings. We are also waiting for the Department’s response to our FOIA request.

Summer 2018

The White House rejected four of the eight applicants it had been sent for approval to join the Board of Veterans’ Appeals.

According to the Washington Post, the rejection came after the eight candidates were asked to provide their party affiliation, and other indicators of their political beliefs, such as links to their social media profiles, 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. The four candidates approved were registered Republicans or had voted in GOP primaries. The four candidates rejected were three registered Democrats and an independent.

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October 23, 2018

Washington Post publishes article alleging politicization of the Board nomination process.

The article was the first time the concerning developments at the Board became public.

November 9, 2018

We filed a FOIA request with VoteVets seeking further details about the Board nomination process.

We seek documents showing the internal deliberations at the Department of Veterans Affairs and the Board about the eight candidates sent to the White House in the summer, as well as the Department’s correspondence with the White House about their nominations.

December 6, 2018

We sent a letter to the Department of Veterans Affairs Inspector General with VoteVets.

We are requesting a thorough investigation into whether the Department’s conduct with regards to the Board nominations violates the U.S. Constitution, the Civil Service Reform Act, the Privacy Act, the Whistleblower Protection Enhancement Act, the Consolidated Appropriations Act, 2018, or internal Department policies.

April 18, 2019

We sued the Department of Veterans Affairs for unlawfully stonewalling the release of the documents we requested.

From Jon Soltz, Iraq War Veteran and Chair of VoteVets: “The Trump White House’s obsession with loyalty from all levels of government is incompatible with a free Republic, but more so, when it comes to giving veterans the benefits they deserve, would only hurt those who served our nation in uniform. We have every reason to believe that what we’re asking for would show that, and is the reason they’re trying to hide it from the public. We’re committed to making sure they don’t succeed.”

Josephine Morse

Senior Counsel

Litigating claims under the Administrative Procedure Act, the Freedom of Information Act, the Privacy Act, and the U.S. Constitution.

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Aman George

Legal Policy Director

Former law firm associate working with the policy team to identify high impact legal actions.

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