Henderson v. DVA , 878 F.3d 1044 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
CATHEDRAL M. HENDERSON,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2017-1071
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-15-0860-I-1.
______________________
Decided: December 26, 2017
______________________
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 represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
REGINALD T. BLADES, JR.
______________________
Before MOORE, MAYER, and STOLL, Circuit Judges.
MAYER, Circuit Judge.
2 HENDERSON v. DVA
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 agen-
cy. 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 Hen-
derson’s indictment on fifty counts of making false state-
ments 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 Ana-
lyst at the VA’s Health Eligibility Center in Atlanta,
Georgia. See id. at 538. Although the VA operates nu-
merous 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 re-
quired 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 au-
thorized 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 appoint-
ment ha[s] not been memorialized in the patient’s medical
record.” Suppl. App. 12.
On July 8, 2015, a federal grand jury indicted Hen-
derson 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
HENDERSON v. DVA 3
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 Hen-
derson then well knew, the consults were still pending
and unresolved, and the veteran patients were still wait-
ing for the authorized medical consults.” Suppl. App. 13.
In a letter dated July 22, 2015, the VA informed Hen-
derson that it was proposing to suspend him for an indef-
inite 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, re-
sponded 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 indefi-
nitely suspending Henderson from his position. The
agency’s decision letter stated that his suspension would
remain in effect until completion of the judicial proceed-
ings against him. It also instructed Henderson to contact
the VA no later than ten days after the completion of
4 HENDERSON v. DVA
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 indef-
initely. According to the administrative judge, the grand
jury indictment issued against Henderson provided the
VA with reasonable cause to believe that he had commit-
ted 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 adverse-
ly 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
1 Following a trial, Henderson was found guilty on
all counts in the indictment; he was subsequently sen-
tenced to twenty-seven months in prison. See United
States v. Henderson, No. 1:15-cr-72 (S.D. Ga. Oct. 21,
2016). Henderson then appealed his conviction to the
United States Court of Appeals for the Eleventh Circuit.
His appeal remains pending. “An inquiry into the propri-
ety of an agency’s imposition of an indefinite suspension
looks only to facts relating to events prior to suspension
that are proffered to support such an imposition.” Rhodes
v. Merit Sys. Prot. Bd., 487 F.3d 1377, 1380 (Fed. Cir.
2007). At the time of his indefinite suspension, Hender-
son had been indicted but had not yet been tried or sen-
tenced.
HENDERSON v. DVA 5
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 possi-
ble misconduct to meet the threshold requirement of
reasonable cause.” Id. at 540 (citations and internal
quotation marks omitted). The board rejected Hender-
son’s due process claim, concluding that the agency had
provided him with adequate notice of the charges against
him and a reasonable opportunity to respond to those
charges before suspending him. Id. at 541–42.
Henderson then appealed to this court. We have ju-
risdiction under 5 U.S.C. § 7703(b) and 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
I. Standard of Review
The scope of our review of a board decision is circum-
scribed by statute. See Bennett v. Merit Sys. Prot. Bd.,
635 F.3d 1215, 1218 (Fed. Cir. 2011). We can set aside a
board decision only if it is: “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupport-
ed by substantial evidence.” 5 U.S.C. § 7703(c); see Hicks
v. Merit Sys. Prot. Bd., 819 F.3d 1318, 1319–20 (Fed. Cir.
2016).
II. Indefinite Suspension
When an agency proposes to take an adverse person-
nel action against one of its employees, it generally must
comply with certain procedural requirements. 2 See 5
2 “An indefinite suspension longer than fourteen
days is an adverse agency action subject to the require-
ments of 5 U.S.C. § 7513.” Rhodes, 487 F.3d at 1380; see
5 U.S.C. § 7512(2).
6 HENDERSON v. DVA
U.S.C. § 7513; Rhodes, 487 F.3d at 1380. Specifically, the
agency must ordinarily provide an employee with:
(1) thirty-days’ advance written notice of the proposed
adverse action; (2) a reasonable opportunity to contest the
proposed action; (3) an opportunity to be represented by
counsel; and (4) a written decision which includes the
specific reasons for that decision “at the earliest practica-
ble date.” 5 U.S.C. § 7513(b); see Perez v. Dep’t of Justice,
480 F.3d 1309, 1311 (Fed. Cir. 2007).
Pursuant to what is commonly referred to as the
“crime exception,” see Morrison v. Nat’l Sci. Found., 423
F.3d 1366, 1368 (Fed. Cir. 2005), however, an agency can
suspend an employee with advance notice of less than
thirty days in situations in which it has “reasonable cause
to believe the employee has committed a crime for which a
sentence of imprisonment may be imposed.” 5 U.S.C.
§ 7513(b)(1); see S. Rep. No. 95–969, at 50 (1978), reprint-
ed in 1978 U.S.C.C.A.N. 2723, 2772. Henderson contends
that the VA improperly invoked the crime exception when
it suspended him on shortened notice, asserting that his
indictment on fifty counts of making false statements
related to health care matters in violation of 18 U.S.C.
§ 1035 did not give the agency “reasonable cause” to
believe that he had committed a crime punishable by
imprisonment. Although Henderson does not dispute that
an indictment issued by a grand jury generally consti-
tutes sufficient cause for an agency to suspend an em-
ployee indefinitely, he contends that his indictment did
not provide reasonable cause for his suspension because
the VA itself “procured” that indictment using “vague
allegations.” According to Henderson, because employees
of the VA allegedly supplied the grand jury with the
testimony and evidence it considered when it returned the
indictment against him, the grand jury did not act as an
“independent arbiter of facts,” but instead functioned
“merely as the catspaw of the [VA].”
HENDERSON v. DVA 7
We do not find this argument persuasive. “The grand
jury’s historic functions survive to this day. Its responsi-
bilities continue to include both the determination wheth-
er there is probable cause to believe a crime has been
committed and the protection of citizens against unfound-
ed criminal prosecutions.” United States v. Calandra, 414
U.S. 338, 343 (1974); see also Wood v. Georgia, 370 U.S.
375, 390 (1962) (“Historically, [the grand jury] has been
regarded as a primary security to the innocent against
hasty, malicious and oppressive persecution; it serves the
invaluable function in our society of standing between the
accuser and the accused, whether the latter be an indi-
vidual, minority group, or other, to determine whether a
charge is founded upon reason or was dictated by an
intimidating power or by malice and personal ill will.”
(footnote omitted)); Costello v. United States, 350 U.S.
359, 362 (1956) (emphasizing that the grand jury has long
held a “high place . . . as an instrument of justice”). The
record here is devoid of any evidence suggesting that the
federal grand jury which returned the indictment against
Henderson failed to independently and impartially weigh
the evidence presented. That the VA allegedly provided
the evidence supporting Henderson’s indictment does not
negate the fact that an independent deliberative body
determined that there was probable cause to believe that
he had committed a serious crime. See Gilbert v. Homar,
520 U.S. 924, 934 (1997) (explaining that an indictment
“serve[s] to assure that [a] state employer’s decision to
suspend [an] employee is not baseless or unwarranted in
that an independent third party has determined that
there is probable cause to believe the employee committed
a serious crime” (citations and internal quotation marks
omitted)); FDIC v. Mallen, 486 U.S. 230, 244 (1988) (“The
returning of the indictment establishes that an independ-
ent body has determined that there is probable cause to
believe that [an officer of a federally-insured bank] has
committed a crime punishable by imprisonment for a
term in excess of one year.”); see also James A. Merritt &
8 HENDERSON v. DVA
Sons v. Marsh, 791 F.2d 328, 330 (4th Cir. 1986) (“A
decision to issue an indictment is made by a deliberative
public body . . . operating under constitutional and other
legal constraints.”).
III. Reasonable Cause
Although section 7513(b)(1) authorizes an agency to
suspend an employee on shortened notice when it has
“reasonable cause” to believe that he has committed a
serious crime, it does not demarcate the precise point on
the criminal justice continuum at which this reasonable
cause standard will be satisfied. See Richardson v. U.S.
Customs Serv., 47 F.3d 415, 419 (Fed. Cir. 1995). We
have previously made clear, however, that when evaluat-
ing whether to invoke section 7513(b)(1)’s crime exception,
an agency must remain cognizant of an employee’s right
to “be protected from premature or unfounded” suspen-
sion. Dunnington v. Dep’t of Justice, 956 F.2d 1151, 1156
(Fed. Cir. 1992). On the other hand, when there is good
reason to believe that an employee has engaged in crimi-
nal activity, particularly where that activity is job-related,
it is incumbent upon an agency to act promptly “to protect
the public and agency personnel.” Id.; see Morrison, 423
F.3d at 1369; Pararas-Carayannis v. Dep’t of Commerce, 9
F.3d 955, 958 (Fed. Cir. 1993). Where, as here, an em-
ployee is indicted on serious employment-related charges,
allowing him to remain on duty could both tarnish an
agency’s reputation and impede its ability to carry out its
mission. See Brown v. Dep’t of Justice, 715 F.2d 662, 667
(D.C. Cir. 1983) (“An indictment is a public record, and
public knowledge that an individual formally accused of
job-related crimes is still on duty would undoubtedly
erode public confidence in the agency.”).
Although the fact that an employee has been ques-
tioned by the police regarding his suspected involvement
in criminal activity might not, depending on the situation,
suffice to establish reasonable cause, see id., an agency
HENDERSON v. DVA 9
can, in appropriate circumstances, rely on an arrest
warrant coupled with “additional factual material culled
from [a criminal complaint] and supporting allegations,”
when invoking section 7513(b)(1)’s crime exception. 3
Dunnington, 956 F.2d at 1157–58. As we have repeatedly
made clear, moreover, “an indictment for a crime for
which a sentence of imprisonment may be imposed will,
as a general rule, provide reasonable cause for an agency
to believe that the employee has committed such a crime.”
Richardson, 47 F.3d at 419; see Rhodes, 487 F.3d at 1380
(“Where . . . the employee has been indicted for a crime for
which a sentence of imprisonment may be imposed and
the nature of the crime relates to the employee’s ability to
perform his or her duties, the requirements of section
7513 will have been met.”); Dunnington, 956 F.2d at 1157
3 As we explained in Dunnington, “it is not the ar-
rest that matters but the issuance of the warrant—the
additional act of sending enforcement officials to locate
the subject of the warrant to carry out what the warrant
authorizes does not add anything to the reasonable cause
determination.” 956 F.2d at 1157 (footnote omitted); see
Gerstein v. Pugh, 420 U.S. 103, 111–13 (1975) (noting that
magistrates may issue arrest warrants in criminal cases
only when they have been presented with sufficient
evidence to provide probable cause to believe that the
person charged has committed a crime). In some unusual
situations, an agency will have reasonable cause to sus-
pend an employee on shortened notice even in the absence
of either an arrest or a warrant. See Schapansky v. FAA,
735 F.2d 477, 486 (Fed. Cir. 1984) (concluding that an air
traffic controller’s “unexplained absence during a well
known strike established [a] reasonable basis for the
agency to believe that he was [participating in the strike]
and thereby automatically established [a] reasonable
basis for its belief that he had committed the crime of
striking against the government”).
10 HENDERSON v. DVA
(“[A]n indictment following an investigation and grand
jury proceedings, would provide, absent special circum-
stances, more than enough evidence of possible miscon-
duct to meet the threshold requirement of reasonable
cause to suspend.”); Jankowitz v. United States, 533 F.2d
538, 543 (Ct. Cl. 1976) (“[I]t was entirely proper to predi-
cate [an employee’s] indefinite suspension solely upon the
fact of indictment.”). Here, as the board correctly con-
cluded, Henderson’s indictment on fifty counts of making
false statements related to veterans’ health care matters
provided the VA with more than ample justification for
invoking section 7513(b)(1)’s crime exception. See Board
Decision, 123 M.S.P.R. at 540–41.
Contrary to Henderson’s assertions, the VA had no ob-
ligation, in the wake of his indictment, to evaluate addi-
tional evidence and conduct further witness interviews
before suspending him. See Engdahl v. Dep’t of the Navy,
900 F.2d 1572, 1577 (Fed. Cir. 1990) (“It is not the re-
sponsibility of all government agencies to investigate
criminal activity of their employees and generally they
are neither authorized nor funded to do so.”). If the VA
had continued to investigate Henderson’s alleged criminal
conduct following his indictment, it might have improper-
ly interfered with the ongoing criminal proceedings. See
id.; Peden v. United States, 512 F.2d 1099, 1103 (Ct. Cl.
1975). Indeed, a post-indictment investigation by the VA
could have prejudiced Henderson’s criminal defense. See
Dunnington, 956 F.2d at 1156 (noting that an agency’s
continued investigation of an employee’s alleged criminal
activity could “force a premature airing of the individual’s
defense in a pending criminal case”).
IV. Due Process
Henderson further contends that the VA violated his
right to due process by failing to provide him with ade-
quate notice of the specific charges against him. In sup-
port, he asserts that the VA “refus[ed] to provide any
HENDERSON v. DVA 11
explanation or evidence supporting its claim to reasonable
cause that he committed a serious crime.”
This argument falls flat. “The essential requirements
of due process . . . are notice and an opportunity to re-
spond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 546 (1985); see Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 313 (1950) (“Many controver-
sieshttps://advance.lexis.com/search/?pdmfid=1000516&cr
id=c89cbe1d-6acb-4009-8169-
25556ea82bef&pdsearchterms=339+U.S.+306&pdstartin=
hlct%3A1%3A1&pdtypeofsearch=searchboxclick&pdsearc
htype=SearchBox&pdqttype=and&pdpsf=&ecomp=L555k
&earg=pdpsf&prid=1d555e61-562f-42cc-91ef-
0e97ff5b39e3 have raged about the cryptic and abstract
words of the Due Process Clause but there can be no
doubt that at a minimum they require that deprivation of
life, liberty or property by adjudication be preceded by
notice and opportunity for hearing appropriate to the
nature of the case.”). When it proposed his suspension,
the VA provided Henderson with written notice of the
charges against him, explaining that it had reasonable
cause to believe that he had committed a crime punisha-
ble by imprisonment based on the fact that he had been
indicted on fifty counts of making false statements related
to health care matters. The agency stated, moreover,
that the investigation leading to his “[i]ndictment re-
vealed that during the period of February 6, 2014[,]
through February 11, 2014, consults for medical care were
closed without evidence of care being delivered or Veteran
refusal of medical services.” Suppl. App. 7. The VA
further explained that the investigation that led to Hen-
derson’s indictment indicated that he had “ordered em-
ployees under [his] supervision to close over 2700
unresolved consults for medical care for Veterans by
falsely declaring the consults to have been completed or
refused by the patients.” Id.
12 HENDERSON v. DVA
“One cannot validly be indicted on abstract charges;
an indictment must set forth specifically the alleged
criminal conduct.” Brown, 715 F.2d at 666. The indict-
ment relied upon by the VA when it suspended Henderson
contained detailed information, specifying fifty occasions
on which he had allegedly “caused to be written in the
medical records of VA patients the statement ‘services
have been completed or patient refused services,’ well
knowing and believing that the services had not yet been
provided, and that the patients never refused the ser-
vices.” Suppl. App. 14. We reject, therefore, Henderson’s
unsupported assertion that he lacked adequate infor-
mation to respond competently to the charges underpin-
ning the VA’s proposed suspension action. See Board
Decision, 123 M.S.P.R. at 542 (noting that the VA’s letter
proposing Henderson’s suspension “described the contents
of the indictment and the results of the investigation that
led to the indictment”); see also Brennan v. HHS, 787 F.2d
1559, 1561 (Fed. Cir. 1986) (“The purpose of an agency’s
notice of charges is to put an employee on notice of the
allegations against him in sufficient detail to apprise him
of the allegations he must refute or acts he must justi-
fy.”). 4
CONCLUSION
4 In general, an agency takes an adverse personnel
action against an employee if it “will promote the efficien-
cy of the service.” 5 U.S.C. § 7513(a); see Dunnington, 956
F.2d at 1154. In order to demonstrate that a suspension
promotes the efficiency of the service, an “agency must
establish a nexus between [an employee’s] alleged acts of
misconduct and the employee’s job responsibilities.”
Pararas-Carayannis, 9 F.3d at 957. On appeal, Hender-
son does not challenge the determination that his suspen-
sion promoted the efficiency of the service. See Board
Decision, 123 M.S.P.R. at 540.
HENDERSON v. DVA 13
Accordingly, the decision of the Merit Systems Protec-
tion Board is affirmed.
AFFIRMED