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Court Upholds Firing of Key Official at Epicenter of VA Waitlist Scandal

Precedent-setting ruling finds that federal supervisors cannot claim ignorance of subordinates' misdeeds.

In a precedential ruling, a federal court has upheld the firing of a top-ranking official at the Veterans Affairs Department facility at the epicenter of the nationwide waitlist manipulation scandal that rocked the agency during the Obama administration.

The U.S. Court of Appeals for the Federal Circuit said VA adequately proved that Lance Robinson, the former associate director at the department’s Phoenix Health Care System, negligently performed his job and failed to ensure he accurately presented information. The Phoenix VA facility became ground zero in a national scandal that involved department facilities manipulating patient data to disguise the lengthy wait times veterans faced before receiving health care, which ultimately led to multiple new laws to ease the firing of VA employees and to give veterans increased access to private sector treatment.

The court found that federal supervisors have an “affirmative duty” to know about the misdeeds of their employees, and claiming ignorance of those activities is not an adequate defense. Robinson, who was responsible for handling the scheduling of patient appointments as a supervisor of the facility’s Health Administration Services, argued that he was not actually aware his subordinates were circumventing the scheduling system and therefore should not be liable for those actions.

The court, however, noted Robinson received emails and audit reports that demonstrated VA’s scheduling policies were not followed. Robinson was responsible for investigating potential violations of policy even if he did not have direct knowledge of them, the court said, and was therefore negligent in his duties.

“A prudent supervisor with 27 years of experience at the VA,” the court said, would have sought an investigation into the contents of the emails he received and results of an audit and inspector general report. The court similarly found Robinson neglected his duty to ensure the accuracy of charts provided to his regional bosses that showed the scheduling process from appointment creation to outcome metrics, and other related documents.

The finalization of Robinson’s firing comes after the Federal Circuit reversed the dismissal of his former boss, Sharon Helman, who served as head of the Phoenix facility. The court found the law that VA used to fire her, which Congress passed following the scandal, was unconstitutional.

In announcing Robinson’s firing in 2016, then acting VA Secretary Sloan Gibson voiced frustration with the federal government’s firing process.

“We have an obligation to veterans and the American people to take appropriate accountability actions as supported by evidence,” Gibson said. “While this process took far too long, the evidence supports these removals and sets the stage for moving forward.”

Gibson allegedly made similar comments to the media one day prior to Robinson receiving his proposed removal notice. The court called those remarks “greatly troublesome,” going so far as to say the comments “appear on their face to violate Mr. Robinson’s due process rights.” The court noted, however, that the Merit Systems Protection Board administrative judge who initially heard Robinson’s case found credible Gibson’s testimony that he was misquoted and gave adequate consideration to the termination. The court opted not to overturn that finding. It also reaffirmed a precedent that it is not a violation of due process to have the same person serve as both proposing and deciding official for a firing.   

Robinson further argued his firing resulted from “political pressure” and “public assurances” that VA would remove those responsible for the waitlist manipulation, but the court found that argument unconvincing. He also claimed he was facing retaliation for blowing the whistle on wrongdoing, but the court ruled he failed to show any examples of other employees in upper management who faced similar allegations and were not fired.

VA employees are now facing a new, hastened disciplinary process, designed to lower the burden of proof for the department. The constitutionality of that law is also facing challenges in multiple federal courts.