News from the Federal Circuit: Although the Merit Systems Protection Board (MSPB) continues without quorum, its chief reviewing court, the U.S. Court of Appeals for the Federal Circuit, has continued deciding federal sector adverse action cases. Recently, the Federal Circuit issued two new decisions of interest:
In a precedential decision, Cerwonka v. Dept. of Veterans Affairs, No. 2018-1938, the court addressed the intersection of adverse action procedures and licensure requirements for Title 38 medical personnel working for the Department of Veterans Affairs (DVA). Under statute, employees in certain Title 38 positions must be licensed–which DVA interpreted to require termination if the employee lost their license. At issue in Cerwonka was what due process Title 38 employees who lose their licenses must receive. The Court found that DVA was required to remove Dr. Cerwonka without considering Douglas factor mitigation of penalties. The issue of whether DVA was required to give Dr. Cerwonka advance notice of the removal was not reached, because Dr. Cerwonka actually received 30 days advance notice. The court rejected Dr. Cerwonka’s argument that the removal should be reversed because his license was reinstated post-removal, noting that the removal appeal focuses on licensure status at time of removal.
In a nonprecedential decision, Ryan v. Dept. of Defense, No. 2018-1524, the court was faced with a law enforcement officer removed in part for disclosing content from the Report of Investigation (ROI) in his EEO complaint. Mr. Ryan’s ROI contained a coworker’s personnel records. The ROI was accompanied by instructions from the EEO office director, telling Mr. Ryan to not disclose the ROI, except to his representative. Mr. Ryan then made an accusation against the coworker, citing the coworker’s personnel records. Mr. Ryan was removed on several charges, including lack of candor and conduct unbecoming (for disclosing the ROI contents). The court upheld Mr. Ryan’s removal. On the lack of candor charge, the court found that Mr. Ryan had made purported factual allegations without supporting evidence. The court found that mere “intuition as a police officer” was insufficient basis to assert alleged fact, and that Mr. Ryan had failed to explicitly couch his allegations as opinions. The court upheld the conduct unbecoming charge, noting that disclosure of the ROI contents was prohibited by the Privacy Act and the EEO office’s instructions. The court rejected Mr. Ryan’s whistleblower reprisal claims, finding the “reasonable belief” standard for protected whistleblowing unmet due to lack of factual substantiation. The court’s opinion did not indicate any EEO reprisal claims for removal based on disclosure of EEO complaint ROI contents.
If you are a federal employee needing legal representation in an adverse action proceeding, consider requesting an initial consultation with a Passman & Kaplan attorney.