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Cerwonka v. Department of Veterans Affairs

United States Court of Appeals, Federal Circuit

February 13, 2019


          Petition for review of the Merit Systems Protection Board in No. DA-0752-17-0264-I-1.

          L. Lane Roy, Brown Sims, PC, Lafayette, LA, argued for petitioner.

          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.

          Before Lourie, O'Malley, and Reyna, Circuit Judges.

          O'Malley, Circuit Judge

         Eric R. 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.

         I. Background

         A. Cerwonka's License Revocation and Removal

         Prior 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.

         An 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.

         By 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 proposed removal.

         On 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.

         B. Cerwonka's License Revocation Appeal

         Cerwonka 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. 43.[1] 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.

         The 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.

         C. Cerwonka's Removal Appeal to the Board

         At the 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.

         On 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 found, ...

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