Petition for review of the Merit Systems Protection Board in
H. Perkins, Shaw, Bransford & Roth P.C., Washington, DC,
argued for petitioner. Also represented by James Philip Garay
Heelan, Debra Lynn Roth.
Hillary Stern, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent. Also represented by Reginald Thomas Blades,
Jr., Robert Edward Kirschman, Jr., Joseph H. Hunt.
Reyna, Taranto, and Chen, Circuit Judges.
Robinson appeals the Merit Systems Protection Board's
decision to uphold the Department of Veterans Affairs'
removal of Mr. Robinson as Associate Director of the Phoenix
Veterans Administration Health Care System. Because the Merit
Systems Protection Board did not abuse its discretion and its
finding of negligence is supported by substantial evidence,
Robinson became the Associate Director of the Phoenix
Veterans Administration Health Care System ("Phoenix
VA") in May 2012. He had been the acting Associate
Director from October 2011 through February 2012 and started
his career with the U.S. Department of Veterans Affairs
("VA") in 1987. Mr. Robinson's job
responsibilities included supervising most of the Phoenix VA
administrative personnel, Health Administration Services
("HAS"), human resources, and a number of other
departments. HAS is responsible for managing the scheduling
of appointments at the Phoenix VA. Employees in these
departments reported to Robinson through a number of
supervisors and department chiefs. During his tenure as
Associate Director, Mr. Robinson was aware that scheduling
issues were a problem, including the fact that it often took
more than thirty days for patients to receive new-patient
early 2014, U.S. Congressman Jeff Miller, Chairman of the
House Committee on Veterans' Affairs, made public
allegations that forty veterans died while on
"secret" waitlists at the Phoenix VA. J.A. 5. These
accusations led to an investigation by the Office of the
Inspector General ("OIG") and the Department of
Justice ("DOJ"). As a result, the VA put Robinson
on administrative leave on May 2, 2014.
28, 2014, OIG issued an interim report that addressed the
waitlist allegations at the Phoenix VA. The report suggested
that HAS supervisors should have known about the 1, 700
veterans that had been waiting on the New Enrollee
Appointment Request ("NEAR") list for longer than
thirty days and had not yet seen a physician or had not been
moved to the Electronic Wait List ("EWL"). The NEAR
list is used to alert schedulers "that a newly enrolled
Veteran has requested an appointment during the enrollment
process." J.A. 2. EWL "is the official [Veterans
Health Administration] wait list . . . used to list patients
waiting to be scheduled, or waiting for a panel
assignment." J.A. 2. The Veterans Health Administration
("VHA") Outpatient Scheduling Directive 2010-027
("Scheduling Directive"), dated June 9, 2010,
outlined procedures for scheduling VA patients for medical
appointments and required HAS to use NEAR and EWL to do so.
It also mandated that no other waitlists besides the EWL were
to be used to track VA outpatient appointments.
30, 2014, based on the OIG interim report, the VA's
Deputy Chief of Staff proposed that Robinson be removed as
the Associate Director of the Phoenix VA due to his
"failure to provide oversight." J.A. 6030. The
VA's Assistant Secretary of the Office of Security and
Preparedness, Kevin Hanretta, was named Deciding Official in
Robinson's case. Mr. Hanretta did not take action on
Robinson's proposed removal. Robinson remained on
administrative leave for two years, returning to duty in
OIG, DOJ, and Congress continued to investigate the
allegations of secret waitlists at the VA. The Senate
Committee on Veterans' Affairs ("Senate
Committee") asked Dr. David Shulkin, the Under Secretary
for Health at the time, why many senior executives were
placed on paid administrative leave instead of removed from
office for the deaths of veterans who languished on secret
waitlists. J.A. 7106-07. Dr. Shulkin replied that although
the VA would like to conclude its disciplinary actions,
"[t]he U.S. attorney . . . has prohibited us from
interviewing those individuals." J.A. 7107; see
also J.A. 7099. On December 28, 2015, Mr. Robinson,
having heard Dr. Shulkin's statements, submitted a letter
to the Chairman of the Senate Committee and another ranking
member of the same Committee "to correct [Dr.
Shulkin's] inaccurate testimony." J.A. 6866. Mr.
Robinson claimed that the VA called him to testify regarding
patient wait times and that OIG also interviewed him on June
9, 2015. J.A. 6869-70. On January 13, 2016, Senator John
McCain, a member of the Senate Committee, expressed his
disappointment in the VA, stating: "During the recent
Senate Veterans Affairs Committee hearing on health care and
accountability at the Phoenix VA Health Care System, senior
VA officials repeatedly gave inaccurate testimony to my
questions on why no actions have been taken against these
officials." J.A. 7163.
January 2016, Mr. Robinson returned to active duty status and
began working at Veterans Integrated Service Network
("VISN") 18, the regional entity that oversees the
Phoenix VA. About three months later, on March 14, 2016,
Deputy Secretary Sloan Gibson issued a second proposal for
Robinson's removal, rescinding the May 30, 2014 notice.
J.A. 486. Mr. Gibson charged Mr. Robinson with three grounds
for removal: (1) negligent performance of duties (six
specifications); (2) failure to ensure accuracy of
information provided (three specifications); and (3)
retaliation against another VA employee for making protected
disclosures, which is prohibited by the Whistleblower
Protection Enhancement Act (six specifications). J.A. 7,
486-89. On June 7, 2016, Mr. Gibson, who served as both the
Proposing Official and Deciding Official, sustained all
charges against Mr. Robinson and removed him as Associate
Director of Phoenix VA.
1 of the second proposal for removal alleged that Mr.
Robinson negligently performed his duties as Associate
Director. Specifications 1 and 4 outlined how Mr. Robinson
negligently failed to ensure that HAS personnel used NEAR to
schedule appointments or put veterans on EWL. J.A. 486-87.
Specification 2 accused Mr. Robinson of failing to make
certain that subordinates scheduled veterans for appointments
or placed them on EWL after capturing patient information on
screenshots. J.A. 486. The remaining specifications accused
Mr. Robinson of failing to ensure that HAS personnel (1)
scheduled veterans for primary care appointments after
visiting the emergency room (specification 3); (2) used EWL
in all outpatient settings in compliance with VA instructions
(specification 5); and (3) used the
Recall/Reminder software to request follow-up appointments
when an appointment could not be immediately scheduled, as
dictated by VA policy (specification 6). J.A. 2, 486-87.
2 alleged that Mr. Robinson did not ensure that he, or his
subordinates, provided accurate information to VISN 18. J.A.
487. In particular, Robinson failed to conduct daily
assessments of "scheduling accuracy processes"
(specification 1) or accurately provide information regarding
the use of EWL (specification 2) and NEAR (specification 3).
March 15, 2016, one day before Mr. Robinson was served with
his second notice of proposed removal, Deputy Secretary Sloan
Gibson made statements in a news interview regarding the
status of senior VA personnel allegedly responsible for the
secret waitlist scandal. Mr. Gibson reportedly stated
"he was disappointed that it took so long for the
executives to be removed," and "he was confident
that the latest firings would be upheld on appeal." J.A.
7186-87. These statements were published in the New York
Times. On June 7, 2016, Mr. Gibson issued the Decision
Regarding Proposed Removal, removing Mr. Robinson from his
position as Associate Director of Phoenix VA.
Robinson appealed to the Merit Systems Protection Board
("Board"). The administrative judge
("AJ") affirmed the VA's decision to remove
Robinson on the grounds that he was negligent in the
performance of his duties and that he failed to provide
accurate information to his supervisors. J.A. 2. The Board
did not sustain the whistleblowing retaliation charge against
Mr. Robinson. J.A. 43. Mr. Robinson appeals the Board
decision. We have jurisdiction under 28 U.S.C. §
1295(a)(9) and 5 U.S.C. § 7703(b)(1).
court shall set aside any Board decision found to be
arbitrary, capricious, an abuse of discretion, or unsupported
by substantial evidence. 5 U.S.C. § 7703(c). Substantial
evidence is "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
Frederick v. Dep't of Justice, 73 F.3d 349, 352
(Fed. Cir. 1996)(quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). An example of an abuse of
discretion is an erroneous interpretation of law or
unreasonable judgment in weighing relevant factors. Gose
v. U.S. Postal Serv., 451 F.3d 831, 836 (Fed. Cir. 2006)
(quoting Lacavera v. Dudas, 441 F.3d 1380, 1383
(Fed. Cir. 2006)).
agency takes adverse action against an employee, the agency
must establish by a preponderance of the evidence that (1)
the charged conduct occurred; (2) there is a nexus between
the conduct and efficiency of service; and (3) the imposed
penalty was reasonable. Bryant v. Nat'l Sci.
Found., 105 F.3d 1414, 1416 (Fed. Cir. 1997)(citing 5
U.S.C. §§ 7701(c)(1)(B), 7513(a)).
appeal, Mr. Robinson contends that substantial evidence does
not support the Board's decision to sustain removal; that
removal was not a reasonable disciplinary action; that the VA
failed to meet its burden to show by clear and convincing
evidence that he would have been removed absent his protected
disclosures against Dr. Shulkin; and that his due process
rights were violated. We address each argument below.
Charge 1: Negligent Performance of Duties
is no dispute that VA personnel failed to use NEAR or EWL,
ultimately leading to thousands of veterans going unseen for
medical care. The question here is whether Mr. Robinson was
negligent in that he knew or should have known that his
subordinates consistently failed to use scheduling practices
required by VA policy. In short, the answer is yes. Mr.
Robinson was a member of upper-level management responsible
for ensuring that HAS personnel complied with the policies
set forth in the Scheduling Directive. Instead, he took a
hands-off approach to managing the scheduling problems at
Phoenix VA despite knowing the severity of scheduling
problems permeating the system. Accordingly, the Board did
not err in sustaining the negligence charges against Mr.
Robinson argues that substantial evidence does not support a
finding that he acted negligently in the performance of his
duties. He attacks the evidence supporting each of the
Board's findings with respect to each of the six
specifications listed in the second notice of removal. We
address each specification, and the evidence assessed by the
Board, in turn.
1, 2, and 4
1, 2, and 4 all similarly allege that Mr. Robinson failed to
properly supervise HAS personnel to ensure that NEAR and EWL
were used to schedule veterans for medical appointments. Mr.
Robinson contends that because he did not actually know that
his subordinates were not using NEAR or EWL, he cannot be
held liable for the actions of his subordinates. To the
contrary, substantial evidence supports a finding that Mr.
Robinson knew, or should have known, of his subordinates'
failure to use NEAR and EWL.
individual is negligent in the performance of his duties if
he fails to exercise the degree of care that "a person
of ordinary prudence" with the same experience would
exercise in the same situation. Velez v. Dep't of
Homeland Sec., 2006 M.S.P.B. 116, ¶ 11 (2006)
(citing Mendez v. Dep't of the Treasury, 88
M.S.P.R. 596, ¶ 26 (2001)), aff'd, 219
Fed.Appx. 990 (Fed. Cir. 2007). A supervisor cannot be held
responsible for the conduct of his subordinate unless he
directed, knew, or should have known of the subordinate's
misconduct and acquiesced to the improper behavior.
Miller v. Dep't of Health & Human Servs., 7
M.S.P.B. 713, 714- 15 (1981). Factors to consider under the
"knowledge and acquiescence standard" are (1) the
knowledge the supervisor had, or should have had, of the
subordinate's misconduct; (2) the existence of policies
or practices relevant to the misconduct; and (3) the extent
to which the supervisor directed or acquiesced to the
subordinate's misconduct. Id. The Board may also
consider the experience of the supervisor, including his
length of service, as well as the number of employees under
the supervisor's purview. Id. Not all of the
factors iterated above are relevant in every case.
Id. But, in each instance, the relevant factors are
weighed to discern whether the supervisor may be held
responsible for the actions of his subordinates. Id.
initial matter, Mr. Robinson misunderstands the charges
against him. Specifications 1, 2, and 4 do not charge
Robinson for "the failings of subordinates," as he
contends. Appellant Br. 38. Rather, Mr. Robinson is charged
with the failure to perform his duties as Associate
Director. The charge against Mr. Robinson-negligent
performance of duties-implicates the behavior of his
subordinates because his failure to supervise HAS personnel,
among others, is at the root of each of specifications 1, 2,
and 4. Therefore, we apply the Miller standard to
assess whether Mr. Robinson negligently performed his duties
by "allowing a situation to exist in which his
subordinates acted improperly." Miller, 7
M.S.P.B. at 713.
clearly had a policy dictating the scheduling of outpatient
appointments-in this case, the Scheduling Directive. The
Scheduling Directive also aimed to "ensur[e] the
competency of staff directly or indirectly involved in any,
or all, components of the scheduling process," and
explicitly cautioned "[f]acility leadership [to] be
vigilant in the identification and avoidance of inappropriate
scheduling activities." J.A. 676, 686. As part of the
"facility leadership," Mr. Robinson had a duty to
ensure that his subordinates complied with the Scheduling
Directive and used NEAR and EWL to schedule outpatient
Mr. Robinson was aware of the Scheduling Directive when it
issued in 2010. He testified that the VA issued the
Scheduling Directive when he was Associate Director at the
Amarillo VA Medical Center. J.A. 11713.
evidence shows Mr. Robinson had actual knowledge of the
Phoenix VA's scheduling problems during his tenure as
Associate Director of Phoenix VA. On January 7, 2012, VISN 18
issued an Appointment Scheduling Audit Report that assessed
whether "VISN facilities were compliant with VHA policy
and regulatory guidance related to appointment scheduling and
use of the Electronic Wait List." J.A. 751. Among other
things, the audit noted "Phoenix was not appropriately
placing patients on the EWL." J.A. 794; see
also J.A. 753 ¶ 4. Mr. ...