Lance Robinson was the Associate Director of the Phoenix Veterans Administration Health Care System (Phoenix) when in 2014 the House oversight committee chairman aired accusations that some forty veterans died while waiting for treatment at Phoenix. Following investigations, Robinson was fired some two years later for negligently performing his duties, failure to give accurate information, and retaliation for whistleblowing relating to the scandal. The Merit Systems Protection Board (MSPB) upheld Robinson’s removal, and he took his case to court. In Robinson v. Department of Veterans Affairs (CAFC No. 2017-2143, 5/6/19) the appeals court now upholds the MSPB, leaving Robinson the only recourse to try to persuade the U.S. Supreme Court to grant a review, or to throw in the towel.
Some readers will remember the scandal uncovered by Congressman Jeff Miller, then Chairman of the House Committee on Veterans’ Affairs. Accusers had come forward to tell his committee that veterans were dying while waiting for treatment in Phoenix. Both the agency (VA) Inspector General and the Department of Justice launched investigations and Mr. Robinson was put on paid administrative leave.
The OIG reported a few weeks later that it had found irregularities in Phoenix with regard to wait lists, that the center was in violation of agency requirements for placing veterans on wait lists, and it was using a secret wait list process contrary to agency requirements. The agency almost immediately proposed Robinson’s removal; however, the action remained pending for two years while Robinson remained on administrative leave. (Opinion p. 3)
Apparently Robinson was only one of many senior VA senior executives who were placed on paid leave rather than being disciplined for failing to provide proper oversight to their organizations that were neglecting veterans and causing many to die. Congress demanded answers and the then-Secretary of the VA Shulkin blamed his inaction on the Department of Justice who had prohibited his agency from interviewing those executives who were being criminally investigated. (p. 4)
Hearing this, Robinson jumped in and informed the Congressional committee that Dr. Shulkin’s statement had to be corrected, as he, Robinson, had in fact already been interviewed by the agency OIG. Predictably, powerful congressional members expressed their “disappointment” in the VA, citing the “inaccurate testimony” given to them by VA officials. (p. 4)
At about the same time Robinson was put back into active duty status but not in his previous position. Instead he was moved to the “regional entity that oversees the Phoenix VA.” (p. 4) VA’s second proposed removal notice was issued to Robinson in March 2016. It rescinded the earlier notice and charged Robinson with three reasons, including negligent performance, failure to ensure accuracy of information, and retaliation against a VA employee whistleblower. The deciding official sustained all charges and specifications and removed Robinson as Associate Director of Phoenix VA. (p. 4. Detailed reasons and specifications are at p. 5)
On appeal to the MSPB, the whistleblowing charge was not sustained, but the other two charges were. Robinson took his appeal to court. The court has now ruled against him and his removal stands.
Among other things the court stated, “As an initial matter, Mr. Robinson misunderstands the charges against him…. [They] do not charge Robinson for ‘the failings of subordinates,’ as he contends…Rather, Mr. Robinson is charged with the failure to perform his duties as Associate Director.” (p. 9) The court goes on to find that Robinson “had actual knowledge of the Phoenix VA’s scheduling problems during his tenure…” since he had received audit reports pointing to the irregularities. (p. 10)
For those wanting more details, the court’s decision has a detailed analysis of each of the two charges and numerous specifications, the MSPB’s analysis of those, and the court’s analysis. It also discusses in detail Robinson’s various affirmative defenses. Suffice it to say the court found no error in the Board’s findings and ruling upholding Robinson’s removal. The appeals court has now upheld the MSPB and Mr. Robinson has failed in his bid to win his job back. (p. 30)