By Deborah Hopkins, January 21, 2020
My colleague Bill Wiley has long preached the value of taking the easy route vs. the hard route. An example he has often used in our Washington, DC classes goes something like this:
If you’re in Washington, DC, and you want to get to Baltimore, the fastest and most direct way to get there is to take I-95 north. Of course, there are other ways to get to Baltimore from DC. You could hop on I-66 and head out toward West Virginia, come up north across western Maryland and on into central Pennsylvania, then drive east on the Pennsylvania turnpike before heading to Baltimore south on I-95 via Philadelphia. But why would you take the long route and waste all that time and fuel, when you could be there in less than an hour by taking the quickest route?
I want to look at a 2019 Federal Circuit decision with this easy-vs-hard approach in mind. The case involves a VA psychologist named Eric Cerwonka who was removed from his position as a Clinical Psychologist at a VA medical center in Alexandria, La. Cerwonka appealed his removal to the MSPB and ultimately petitioned for review by the Federal Circuit.
Here’s what happened: The state of Louisiana took away Cerwonka’s license to practice for “clear ethical violations and a repeated failure to follow the rules and regulations binding upon [him] as a psychologist.” Once the VA learned Cerwonka’s license had been revoked, it proposed his removal based on one charge: failure to maintain a current license, in violation of 38 U.S.C. § 7402(f). The statute provides that a psychologist “may not be employed” by the VA if even one of his licenses is terminated for cause.
Cerwonka appealed to Louisiana over the license revocation. The state temporarily reinstated his license, as is typical procedure in appeals of license revocations. Cerwonka appealed his removal to the MSPB and argued that the subsequent reinstatement of his license meant the VA did not have cause to remove him because he once again had his license to practice.
The Board’s role in these cases – and thus the Federal Circuit’s jurisdiction in appeals and PFRs – is limited to reviewing Federal agency personnel actions and determining whether those actions were proper at the time they were made. See 5 C.F.R. § 1201.4(f) (defining the term “appeal” to the Board as “[a] request for review of an agency action”).
In the initial decision, the AJ concluded that the agency action under review — Cerwonka’s removal — was proper at the time it was made. Because Cerwonka’s Louisiana license had been revoked, for cause, at the time the agency removed him from employment, he did not have a license on the day the agency issued his removal, and Cerwonka did not present any evidence to refute this fact. The express terms of the statute compels removal and does not permit the VA to consider subsequent events, such as the reinstatement of a license at a later date. The Federal Circuit put it this way:
To the extent Cerwonka is arguing that the Board must consider subsequent events or that there should be a waiting period prior to removal to give an opportunity for an appeal, those arguments find no support in the statute, and we decline Cerwonka’s invitation to read exceptions into the express terms of 38 U.S.C. § 7402(f).
Which brings me to the point of this article. The agency could have drafted up a fancy proposed removal with perhaps multiple charges revealing Cerwonka’s misconduct and how the ethical violations he engaged in caused harm to the agency. It could have proven the facts, and the elements of each charge, by a preponderance of the evidence. And it could have justified the removal penalty by showing that because Cerwonka’s ethics were called into question, he was no longer trustworthy in his role and, accordingly, the agency lost confidence is his ability to do his job. Then if Cerwonka had appealed to the MSPB, the agency could have defended its charges. As we teach in FELTG training classes, doing that is not nearly as difficult as you might think.
However, in this case, the agency made a smart call. Rather than try to build a case over misconduct, it took an even easier and more efficient route by proposing removal for failure to maintain a current license:
- A license is required to have this job today;
- Your license is revoked as of today;
- No license = you’re fired.
Get where you want to be the easiest way. Take I-95 to Baltimore – or better yet take the MARC or Amtrak – rather than go the circuitous route. Make your life easier, when you can. Hopkins@FELTG.com