Fedweek Legal

In Harding v. Department of Veterans Affairs, SE-1221-03-0216-W-1 (March 14, 2005), a two-member majority of the Merit Systems Protection Board (MSPB) concluded that Department of Veterans Affairs (VA) medical professionals, who are subject to major adverse actions involving a question of professional conduct or competence, cannot file an individual right of action (IRA) under the Whistleblower Protection Act (WPA). Board member Barbara J. Sapin dissented from the majority opinion.

In November 2002, the VA removed Dr. R. Michael Harding for alleged failure to document progress notes in electronic medical records. The VA labeled it an action that was related his “professional conduct or competence.” Within the VA, medical professionals subject to “major adverse actions” involving “professional conduct or competence” do not have appeal rights to the MSPB. Rather, the VA Disciplinary Appeals Board (DAB) retains exclusive jurisdiction over such appeals under 38 U.S.C. § 7462(a)(1). Accordingly, Dr. Harding appealed his removal to the DAB. The DAB mitigated his removal to a 14-day suspension, and ordered him reinstated with back pay.

However, in addition to Dr. Harding’s appeal to the DAB, he also alleged that the VA’s adverse action was an act of reprisal for whistleblower activity and filed a complaint with the Office of Special Counsel (OSC). Prior to his removal, in November 2001, Dr. Harding wrote a letter to the Joint Commission on Accreditation of Health Care Organizations alleging that (1) a physician was not properly certified, in violation of “Medical Staff Bylaws,” (2) the VA failed to address staffing problems and inadequate recordkeeping that lead to “bad outcomes” for patients, (3) the VA ordered physicians to sign examination reports for patients they had not seen, or with which they disagreed, and (4) the VA ignored a complaint alleging falsification of a physician’s signature on patient progress notes. After Dr. Harding exhausted his administrative remedies with the OSC, he filed an IRA appeal to the MSPB. The Board denied Dr. Harding’s IRA appeal because his removal was a DAB-covered action, thus the DAB retained exclusive jurisdiction over all appeals.

At issue for the Board was the effect of the 1994 amendments to the WPA on the VA DAB’s preclusion of IRA appeals to the MSPB. A majority of the Board decided that the 1994 amendments to the WPA failed to specifically override the DAB’s jurisdiction over Dr. Harding’s IRA appeal. However, in dissent, Board member Sapin argued that the 1994 amendments to the WPA expanded whistleblower protection rights and explicitly provided blanket coverage for employees, including VA medical professionals. Sapin also cited legislative history behind the 1994 amendments to show Congress’s intent to include VA employees under the WPA. During deliberations for the 1994 amendments, Sen. Kent Conrad, D-N.D., expressed his concern that the WPA failed to protect VA medical professionals who reported deficiencies in the quality of care for veterans.

Unless this decision is reversed on appeal, medical professionals employed by the VA will not have an IRA right under the WPA when alleging retaliation for engaging in whistleblower activity. Nonetheless, as mentioned in the March 30, 2005, edition of FEDweek, legislation (S-494) has been introduced in the Senate that would clarify and extend protection under the WPA. Considering that Congress had already expressed concern for the rights of VA employees in 1994, any amendments should more explicitly grant VA medical professionals whistleblower protection.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to https://www.fedweek.com/pub/index.php.