Latest Update August 1, 2018

We voluntarily dismissed our lawsuit in response to the Senate confirmation of Wilkie as the Secretary of Veterans Affairs

The Court had not yet ruled on the validity of the government’s arguments. The dismissal was without prejudice, meaning that we would be able to bring the case again if we were to discover that O’Rourke or Wilkie unlawfully took action while serving as the Acting Secretary. We will continue to aggressively monitor President Trump’s actions to ensure that he fulfills his responsibilities to our veterans.

In March 2018, President Trump fired the Secretary of Veterans Affairs, David Shulkin, and unlawfully installed Robert Wilkie as the Acting Secretary. Under federal law, the Deputy Secretary, Thomas Bowman, should have been next in the chain of succession. The President may only deviate from that requirement if the former office holder “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” Because President Trump fired former Secretary Shulkin, his appointment of Wilkie broke the law.

President Trump’s actions were part of his Administration’s goal to privatize VA services, including health care, at the expense of veterans. Reporting on Shulkin’s firing revealed that the Koch-funded group Concerned Veterans of America, the foremost advocate of VA health care privatization, schemed to replace Shulkin with a VA Secretary more amenable to its agenda. President Trump bypassed Deputy Secretary Bowman because White House officials viewed him as a barrier to the Trump Administration’s plans to privatize veterans’ health care. The President’s unlawful appointment of Wilkie showed how little regard his Administration has for those who have served our country.

We filed suit to block the President’s appointment of Wilkie on behalf of two veterans who receive VA health care. Our lawsuit argued that the President’s actions violate the Federal Vacancies Reform Act, the Appointments Clause of the Constitution, and other federal laws. Our lawsuit sought a declaration from the court that Wilkie was not the lawful Acting Secretary and an injunction barring Wilkie and the Department of Veterans Affairs from continuing to represent Wilkie as the Acting Secretary and from taking any action in reliance on Wilkie’s purported authority.

Before the Court could rule on our claims, the Senate confirmed Robert Wilkie as the Secretary of Veterans Affairs and we voluntarily dismissed our lawsuit. We will continue to monitor the Trump Administration’s actions to ensure President Trump fulfills his responsibilities to America’s veterans.

March 28, 2018

President Trump fired former Secretary Shulkin by tweet, and unlawfully replaced him with Robert Wilkie.

April 30, 2018

We filed suit on behalf of two veterans.

Our complaint explained that Trump’s appointment of Wilkie was part and parcel of his efforts to privatize veterans’ health care. We asserted claims under the Federal Vacancies Reform Act, the Administrative Procedure Act, and the Appointments Clause of the U.S. Constitution.

May 30, 2018

Robert Wilkie resigned as Acting Secretary, and was replaced by Peter O’Rourke

President Trump had previously announced his intention to nominate Wilkie to serve as Secretary of Veterans Affairs on a non-acting basis. Under the Federal Vacancies Reform Act, Wilkie could no longer serve as Acting Secretary while his nomination for the position was pending before Congress.

June 20, 2018

We filed an Amended Complaint, naming O’Rourke as a defendant

In our Amended Complaint, we explained that the President lacked the authority to again deviate from the VA’s line of succession and handpick his preferred acting official.

July 13, 2018

The government moved to dismiss our lawsuit

The government’s brief urged the Court to adopt a dangerously broad view of the President’s authority to appoint acting officials. The government subsequently echoed these flawed legal arguments in other contexts, including the President’s appointment of Matthew Whitaker as Acting Attorney General.

August 1, 2018

We voluntarily dismissed our lawsuit in response to the Senate confirmation of Wilkie as the Secretary of Veterans Affairs.

The Court had not yet ruled on the validity of the government’s arguments. The dismissal was without prejudice, meaning that we would be able to bring the case again if we were to discover that O’Rourke or Wilkie unlawfully took action while serving as the Acting Secretary. We will continue to aggressively monitor President Trump’s actions to ensure that he fulfills his responsibilities to our veterans.

John Lewis

Counsel

Litigating challenges to unlawful executive branch activity regarding immigration, civil rights, health care, education, veterans’ affairs, and more.

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Robin Thurston

Senior Counsel

Challenging Executive Branch illegality.

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Jeffrey Dubner

Senior Counsel

Challenging unlawful executive branch actions through a wide range of legal strategies

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Ben Seel

Counsel & Legal Analyst

Focusing on justice, national security, immigration, and health care issues.

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