Petition for review of the Merit Systems Protection Board in
Lane Roy, Brown Sims, PC, Lafayette, LA, argued for
Borislav Kushnir, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent. Also represented by Robert Edward
Kirschman, Jr., Loren Misha Preheim, Joseph H. Hunt.
Lourie, O'Malley, and Reyna, Circuit Judges.
O'Malley, Circuit Judge
Cerwonka ("Cerwonka") seeks review of the Merit
Systems Protection Board ("the Board") decision
affirming the Department of Veterans Affairs decision to
remove him from his position as a clinical psychologist.
Cerwonka v. Dep't of Veterans Affairs, No.
DA-0752-17-0264-I-1, 2017 MSPB LEXIS 4334 (M.S.P.B. Oct. 10,
2017) ("Decision on Appeal"). Because
Cerwonka's removal complied with 38 U.S.C. §
7402(f), we affirm.
Cerwonka's License Revocation and Removal
to his removal, Cerwonka was employed as a clinical
psychologist for the Department of Veterans Affairs
("DVA" or "the agency") office in
Alexandria, Louisiana. Id. at *1. He was licensed to
practice psychology in both Louisiana and New York.
Id. at *7. During the relevant time period, Cerwonka
worked as a full-time psychologist for the Veterans Health
Administration ("VHA") at the Alexandria Veterans
Administration Health Care System, maintained a private
practice, and evaluated social security disability applicants
for the Social Security Administration.
administrative complaint was filed against Cer-wonka with the
Louisiana State Board of Examiners of Psychologists
("LSBEP"). After conducting an investigation, the
LSBEP held a two-day hearing in January 2017. On February 10,
2017, the LSBEP revoked Cerwonka's license to practice
psychology in the State of Louisiana for cause. Id.
at *6-7. The LSBEP found that Cerwonka engaged in "clear
ethical violations" and repeatedly failed to follow the
rules and regulations binding upon him as a psychologist.
Id. at *7.
letter dated February 24, 2017, Dr. Harlan "Mark"
Guidry, Chief of Staff at the Alexandria Veterans
Administration Health Care System, proposed to remove
Cerwonka for failure to maintain a current license.
Id. at *3-4. As grounds for the proposed removal,
Guidry cited 38 U.S.C. § 7402(f)-which provides that a
person may not be employed as a psychologist with the VHA if
his license has been terminated for cause-and the LSBEP's
license revocation. In the letter, Guidry informed Cerwonka
that he had the right to respond to the charge against him
and to submit evidence showing why the charge was unfounded.
Id. at *4. Cerwonka did not respond to the notice of
March 22, 2017, the deciding official-Medical Center Director
Peter C. Dancy, Jr.-sustained the charge of failure to
maintain a current license. Id. In his decision,
Dancy considered several factors regarding the appropriate
penalty and "concluded that the sustained charges
against [Cerwonka] are of such gravity that mitigation of the
proposed penalty is not warranted, and that the penalty of
removal is appropriate and within the range of
reasonableness." Resp't App. 46. Dancy informed
Cer-wonka that he would be removed from employment at the
Alexandria Veterans Administration Health Care System
effective April 1, 2017. Cerwonka timely appealed his removal
to the Board on March 30, 2017.
Cerwonka's License Revocation Appeal
sought review of the LSBEP's license revocation decision
by filing a petition with a district court in Louisiana.
In re Cerwonka, 249 So.3d 30, 31 (La.App. 1 Cir.
2018). Therein, Cerwonka asserted due process violations and
argued that there was insufficient evidence supporting his
license revocation. Id. at 31-32. In May 2017-
almost three months after Cerwonka's license was revoked
and one month after he was removed from DVA-the Louisiana
district court judge reinstated Cerwonka's license,
pending further proceedings. Resp't App.
In July 2017, the Louisiana district court judge vacated the
LSBEP's revocation decision "due to the fact that
the hearing below violated the Constitutional rights of Dr.
Cer-wonka." Id. at 40. The court explained
that, if the LSBEP prosecutes Cerwonka again for the same
issues, "it shall not use a [LSBEP] attorney and
Administrative Law Judge or prosecuting attorney from the
prior hearing of this matter." Id.
LSBEP appealed the district court's decision to the
Louisiana First Circuit Court of Appeal. In a decision dated
April 11, 2018, that court found that Cerwonka's alleged
conflicts of interest did not constitute due process
violations and that the LSBEP did not violate Cerwonka's
constitutional rights. In re Cerwonka, 249 So.3d at
35-38. The court reversed the district court's decision
and remanded the matter for further proceedings. In September
2018, the Supreme Court of Louisiana denied Cerwonka's
petition for writ of certiorari. In re Cerwonka, No.
2018-C-0760, 2018 La. LEXIS 2255, at *1 (La. Sept. 21, 2018).
Accordingly, proceedings regarding the merits of the
LSBEP's license revocation remain pending.
Cerwonka's Removal Appeal to the Board
same time Cerwonka was pursuing his license revocation appeal
in the Louisiana district court, he and the agency were
litigating his removal before the Board. Both parties
submitted their respective prehearing submissions to the
Board in August 2017. For his part, Cer-wonka argued that he
was removed in retaliation for filing a complaint with the
Equal Employment Opportunity Commission ("EEOC")
and that, in any event, his license was subsequently
reinstated by the Louisiana district court. DVA, on the other
hand, argued that 38 U.S.C. § 7402(f) required
Cerwonka's removal as soon as the LSBEP revoked his
Louisiana license. The agency explained that Cerwonka became
"ineligible for employment as a psychologist" on
February 10, 2017, the date his license was revoked.
Resp't App. 36.
October 10, 2017, the administrative judge ("AJ")
issued an initial decision affirming the agency's
decision to remove Cerwonka. At the outset, the AJ found it
undisputed that Cerwonka's Louisiana license was revoked
for cause on February 10, 2017, which put him in violation of
both 38 U.S.C. § 7402(f) and the DVA's handbook,
which requires employees to maintain all qualifications
required for appointment. Decision on Appeal, 2017
MSPB LEXIS 4334, at *6-7. The AJ then considered and rejected
Cerwonka's affirmative defense that he was subjected to
disparate treatment based on his prior EEO activity. Both of
Cerwonka's supervisors-Guidry and Dancy-testified that
they were unaware that Cerwonka had previously engaged in any
activity with the EEOC and thus did not consider any such
activity prior to his removal. Id. at *11-13. The AJ