Mary E. Verbeck v. United States
111 Fed. Cl. 744
Fed. Cl.2013Background
- Ms. Verbeck, a former Lieutenant Commander in the PHS Commissioned Corps, sued for wrongful termination after multiple Board remands.
- Her 2002 separation followed treatment for breast cancer, depression, and alleged work-conduct concerns, including potential OSHA observations.
- The termination letter cited unsuitability and conduct concerns, not solely unsatisfactory performance, and cited no formal COER basis in the final justification.
- CCPM 23.7-I1 governs probationary separations; it controls whether draft/final justifications and COER considerations are required.
- The Board repeatedly relied on post hoc documents and failed to provide timely notice or rely on contemporaneous COERs, contrary to CCPM procedures.
- The court previously remanded for the Board to evaluate COERs, awards, and potential disability considerations; subsequent MRB findings showed Verbeck fit for full duty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination was for conduct triggering CCPM 23.7-I1 § E(2)(a) rather than unsuitability under § D(1). | Verbeck was terminated for conduct and deserved CCPM process. | Verbeck was terminated for unsuitability during probation with minimal process. | Terminated for conduct; CCPM procedures applicable |
| Whether PHS followed CCPM 23.7-I1 § E(5) drafting/finalization steps and COER integration. | Draft and final justifications, including COERs, were not properly prepared or shared. | Process was adequate under § E and probationary status allowed limited procedures. | Procedural flaws: no draft justification, COERs ignored |
| Whether reliance on negative, post hoc statements in the final justification undermines the Board’s decision. | Final justification relied on skewed facts and ignored favorable COERs. | Board reasonably assessed the officer's conduct. | Final justification lacked supporting contemporaneous documentation |
| Whether failure to weigh Verbeck’s COERs and prior awards invalidates the termination determinations. | COERs and awards evidence favorable to Verbeck were not weighed. | Board deemed conduct/suitability sufficient for termination. | COERs required meaningful consideration; their absence voids the decision |
| Should the court grant reinstatement and back pay given CCPM procedural violations? | Procedural error supports back pay and reinstatement. | Remand or damages limited; rehabilitation not straightforward. | Judgment for reinstatement and back pay ordered |
Key Cases Cited
- Chambers v. United States, 417 F.3d 1218 (Fed. Cir. 2005) (standard for agency decision review under RCFC 52.1)
- Heisig v. United States, 719 F.2d 1153 (Fed. Cir. 1983) (substantial evidence review; deference to agency)
- Bowen v. American Hosp. Ass’n, 476 U.S. 610 (U.S. 1986) (reasonableness and rational connection in agency actions)
- Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (U.S. 1983) (notable for requiring reasoned decisionmaking; departure must be explained)
- Antonellis v. United States, _ F.3d (Fed. Cir. 2013) (procedural violations can support back-pay awards)
- Lindsay v. United States, 295 F.3d 1252 (Fed. Cir. 2002) (military must follow its own procedural regulations)