Henderson v. Department of Veterans Affairs

         Petition for review of the Merit Systems Protection Board in No. AT-0752-15-0860-I-1.

          John Michael Brown, John Michael Brown, P.C., Augusta, GA, argued for petitioner.

          Agatha 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.

          Before Moore, Mayer, and Stoll, Circuit Judges.

          Mayer, Circuit Judge.

         Cathedral 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.

         Background

         Henderson 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.

         On July 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.

         In a 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." Id.

         On July 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 proceedings.

         On 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 case.^[1]

         Henderson 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.

         On 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 ...