Special Counsel ex rel. Brian Hawkins v. Department of Veterans Affairs
Background
- Brian Hawkins, Medical Center Director at the Washington, D.C. VAMC, raised concerns in early 2017 about deficiencies in the VAMC Logistics Department and initiated an administrative investigation; he also briefed the OIG, which issued an April 12, 2017 Interim Summary Report identifying patient-safety deficiencies.
- On April 13, 2017 Hawkins was temporarily reassigned to a deputy undersecretary’s office and performed no substantive duties thereafter.
- On June 7, 2017 a deputy undersecretary suggested Hawkins resign; he did not. On June 9, 2017 the agency proposed removing Hawkins for alleged failures in oversight, following instructions/policy, and lack of candor.
- The Office of Special Counsel (OSC) filed a stay request under 5 U.S.C. § 1214(b)(1)(A), alleging reasonable grounds to believe the proposed removal constituted prohibited personnel practice under 5 U.S.C. § 2302(b)(12), including that the action violated employees’ constitutional/due-process rights and procedures in 5 U.S.C. § 7513.
- Two other whistleblower complaints alleged the proposed removal violated agency rules and due process.
- The Board granted OSC a 45-day stay (Aug 2–Sept 15, 2017), ordering Hawkins reinstated to his prior position and barring changes to his duties or removal during the stay; OSC was given deadlines to seek an extension and the agency to comment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there are reasonable grounds to believe the proposed removal was a prohibited personnel practice under 5 U.S.C. § 2302(b)(12) | OSC: Hawkins’s proposed removal was taken in retaliation for whistleblowing and violated merit-system principles and statutes implementing them (e.g., § 7513) | Agency: Proposed removal based on performance/lack of candor and proper oversight (implicit defense) | Board: Grant stay — OSC showed reasonable grounds under § 2302(b)(12) to warrant 45-day stay |
| Whether § 7513 and due-process concerns implicate § 2302(b)(12) | OSC: § 7513 procedures implement merit-system principles and alleged defects support a prohibited practice claim | Agency: Not fully developed in order; agency maintains procedural and substantive basis for removal | Board: § 7513 can implement § 2301(b)(2); OSC’s allegations suffice at stay stage |
| Standard of review for OSC’s stay request | OSC: Deferential standard; facts viewed favorably to OSC — need only fall within range of rationality | Agency: Would argue stay inappropriate given agency’s factual basis (implicit) | Board: Applied deferential standard and found OSC met it for initial stay |
| Whether Board should resolve other OSC claims (e.g., § 7701) at stay stage | OSC: Raised additional statutory concerns | Agency: Not addressed in detail | Board: Did not reach § 7701 claims given finding on § 2302(b)(12) |
Key Cases Cited
- Special Counsel ex rel. Aran v. Department of Homeland Security, 115 M.S.P.R. 6 (2010) (stay request reviewed under deferential standard; facts viewed favorably to OSC)
- Wells v. Harris, 1 M.S.P.R. 208 (1979) (two-part test for § 2302(b)(12): action violates a law/rule and that law/rule implements or directly concerns merit principles)
- Special Counsel ex rel. Meyers v. Department of Housing and Urban Development, 111 M.S.P.R. 48 (2009) (stay can be extended where OSC alleges nonmerit factor in agency action under § 2302(b)(12))
- Special Counsel ex rel. Fletcher v. Department of Veterans Affairs, 75 M.S.P.R. 219 (1997) (§ 7513 procedures interpreted to give effect to merit-system principle requiring respect for constitutional rights)