CATHEDRAL M. HENDERSON, Petitioner
DEPARTMENT OF VETERANS AFFAIRS, Respondent
for review of the Merit Systems Protection Board in No.
Michael Brown, John Michael Brown, P.C., Augusta, GA, argued
Koprowski, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent. Also represented by Chad A. Readler, Robert
E. Kirschman, Jr., Reginald T. Blades, Jr.
Moore, Mayer, and Stoll, Circuit Judges.
Henderson appeals the final decision of the Merit Systems
Protection Board ("board") sustaining the decision
by the Department of Veterans Affairs ("VA") to
suspend him indefinitely from his position with the agency.
See Henderson v. Dep't of Veterans Affairs, 123
M.S.P.R. 536 (2016) ("Board Decision").
Because we conclude that the board correctly determined that
Henderson's indictment on fifty counts of making false
statements related to health care matters provided the VA
with reasonable cause to believe that he was guilty of a
crime punishable by imprisonment, we affirm.
was employed as a GS-13 Program Analyst at the VA's
Health Eligibility Center in Atlanta, Georgia. See
id. at 538. Although the VA operates numerous healthcare
centers, a veteran is entitled, under certain circumstances,
to obtain medical care from private physicians and
facilities. Before obtaining treatment outside of the VA,
however, a veteran is generally required to schedule a
consultation with a designated VA supervisory physician in
order to obtain pre-authorization for treatment with an
outside provider. Once pre-authorization is secured, a
veteran's appointment with a private provider can be
scheduled. An "unresolved authorized consult"
refers to a situation in which a veteran's medical
appointment with an outside provider has "not been
scheduled or completed, or the completed appointment ha[s]
not been memorialized in the patient's medical
record." Suppl. App. 12.
8, 2015, a federal grand jury indicted Henderson on fifty
counts of making false statements related to health care
matters in violation of 18 U.S.C. § 1035, an offense
punishable by fines, imprisonment, or both. The indictment
alleged that between February 6, 2014, and February 11, 2014,
Henderson "ordered employees of the VA under his
direction to close over 2700 unresolved authorized consults
for medical care for veterans by falsely declaring the
consults to have been completed or refused by the patients,
when in truth and fact, as Henderson then well knew, the
consults were still pending and unresolved, and the veteran
patients were still waiting for the authorized medical
consults." Suppl. App. 13.
letter dated July 22, 2015, the VA informed Henderson that it
was proposing to suspend him for an indefinite period. The
agency noted that: (1) Henderson had been indicted and
arrested on fifty counts of making false statements related
to health care matters in violation of 18 U.S.C. § 1035;
and (2) if convicted, he would "face a maximum sentence
of [five] years in prison and a $250, 000 fine on each
count." Suppl. App. 7. The agency asserted that in light
of Henderson's indictment and arrest, it had
"reasonable cause to believe" that he had committed
a crime for which a sentence of imprisonment could be
imposed. According to the VA, "[i]n light of the
seriousness of [the] situation, " it was not in the
agency's best interest to allow Henderson to remain
"in a duty status during the law enforcement
investigation and any related judicial proceedings."
29, 2015, Henderson, through counsel, responded to the
VA's letter proposing that he be suspended indefinitely.
He denied the allegations contained in the criminal
indictment, requested documentary evidence from the VA
regarding his alleged wrongdoing, and asked that the proposed
suspension be stayed pending the outcome of the criminal
August 7, 2015, the VA issued a decision indefinitely
suspending Henderson from his position. The agency's
decision letter stated that his suspension would remain in
effect until completion of the judicial proceedings against
him. It also instructed Henderson to contact the VA no later
than ten days after the completion of those judicial
proceedings to inform the agency of the disposition of his
then appealed to the board. On April 15, 2016, an
administrative judge issued an initial decision sustaining
the VA's decision to suspend Henderson indefinitely.
According to the administrative judge, the grand jury
indictment issued against Henderson provided the VA with
reasonable cause to believe that he had committed a crime for
which a punishment of imprisonment could be imposed. The
administrative judge further determined that the VA had
established a nexus between the criminal charges levied
against Henderson and the efficiency of the service, stating
that "at the minimum, the agency . . . established by a
preponderance of the evidence that [Henderson's]
misconduct interfered with or adversely affected the
agency's mission." App. 7.
appeal, the board affirmed. It stated that "one of the
authorized circumstances for imposing an indefinite
suspension is when [an] agency has reasonable cause to
believe that an employee has committed a crime for which a
sentence of imprisonment could be imposed." Board
Decision, 123 M.S.P.R. at 539-40. According to the
board, "an indictment following an investigation and
grand jury proceeding provides more than enough evidence of
possible misconduct to meet the threshold requirement of
reasonable cause." Id. at 540 (citations and
internal quotation marks omitted). The board rejected
Henderson's due process claim, concluding that the agency