Loss of State License to Practice Leads to Removal

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By on June 25, 2019 in Court Cases with 0 Comments
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In Cerwonka v Department of Veterans Affairs (CAFC No. 2018-1398, 2/13/19), the appeals court had to consider the interplay between Title 5 removal and a removal mandated by specific laws applicable to the Department of Veterans Affairs (DVA).

Mr. Cerwonka worked as a full-time clinical psychologist for DVA in Alexandria, Louisiana. He had a professional license to practice psychology in Louisiana as well as in the state of New York. Although a full time DVA psychologist, he also had a private practice and evaluated social security disability applicants for the Social Security Administration. Busy doctor.

When an administrative complaint was filed against Cerwonka with the Louisiana State Board of Examiners of Psychologists (LSBEP), an investigation and two-day hearing ensued, followed by a decision revoking his license to practice in the State of Louisiana for cause due to “clear ethical violations” and repeated failure to follow applicable rules and regulations. (p. 2)

Some two weeks after losing his state license, the DVA proposed to remove Cerwonka for failure to maintain a current license to practice, citing his license revocation and Title 38 U.S.C. section 7402(f) which requires that no one may be employed as a psychologist with DVA if his license has been terminated for cause. Cerwonka did not respond to the proposal and the decision to terminate him from DVA took effect April 1, 2017. (p. 2)

About a month after Cerwonka’s removal he persuaded a Louisiana district court to reinstate his LA license pending further proceedings before the LSBEP. The court took issue with certain rights violations in the administrative procedure against Cerwonka. The state board took its case to the Louisiana First Circuit Court of Appeals. In April 2018, that appeals court held that the LSBEP did not violate Cerwonka’s rights, reversed the district court, and remanded. (p. 4)

Meanwhile, Cerwonka appealed his removal to the Merit Systems Protection Board. Predictably, Cerwonka argued that his license revocation had been overturned by Louisiana court and therefore his removal from the DVA should likewise be overturned.

The MSPB administrative judge found that revocation of Cerwonka’s license to practice meant he was in violation of section 7402(f) and that law required his removal. (p. 5-6)

Before the appeals court, Cerwonka argued “there ‘was no rational basis’ for the DVA to remove him…’based on a brief temporary revocation of his Louisiana license.’” (p. 6) He maintained that under these circumstances there is no evidence that his removal promoted the efficiency of the service, and the penalty was not discussed as required under Title 5 removal provisions. The agency countered that the law applicable to DVA gave it no choice. Section 7402(f) requires removal under the circumstances and at the time the removal took effect, Cerwonka’s license revocation was still in effect. (p. 7)

The appeals court agrees with the government’s position. Title 38 requirements for maintaining a license take precedence over any Title 5 adverse action considerations. DVA had no legal choice but to remove Cerwonka. The court’s decision examines in depth the juxtaposition of the two statutes and concludes “Consistent with the plain language of the statute, the DVA has interpreted…[section] 7402(f) to require the immediate removal of an employee who has a license terminated for cause.” (p. 9)

The court goes on to rule that “Congress has resolved any inconsistency between these removal standards and has made clear that in the event of a conflict, Title 38 overrides Title 5, unless otherwise stated.” (p. 10)

The appeals court upholds the agency’s removal of Cerwonka as complying with the Title 38 mandate. Further, the AJ “properly focused on the circumstances existing at the time the agency made its removal decision.” (p. 12)

In short, Cerwonka lost and will stay off of the DVA rolls.

Cerwonka v VA 2018-1398

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.