Case 1:17-cv-02575-KBJ Document 52 Filed 05/14/19 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIAN HAWKINS,

)
)
Plaintiff,
)
v.
)
)
ROBERT WILKIE, Secretary of
)
Veterans Affairs, and
)
)
DEPARTMENT OF VETERANS AFFAIRS, )
)
Defendants.
)
_____________________________________ )

No. 1:17-cv-2575-KBJ

CONSENT MOTION TO STAY SUMMARY JUDGMENT BRIEFING
Defendants hereby move for a stay of summary judgment briefing. Plaintiff consents to
this request. Defendants state the following in support of this motion.
1) Plaintiff – the former Director of the Washington DC VA Medical Center – filed an
amended complaint challenging a September 2017 decision by the Department of
Veterans Affairs (VA), which removed him from Senior Executive Service and the
Civil Service. ECF No. 22. Plaintiff has also filed a motion for partial summary
judgment, arguing that the removal decision is (i) arbitrary and capricious, and (ii)
unconstitutional. ECF No. 47. Defendants’ response to Plaintiff’s motion is
currently due on or before May 16, 2019. Minute Order, May 2, 2019.
2) By a letter dated May 14, 2019, VA rescinded the September 2017 decision, stated
that back pay will be provided, and assigned Plaintiff to another position in the Senior

 Case 1:17-cv-02575-KBJ Document 52 Filed 05/14/19 Page 2 of 3

Executive Service at the same pay. The position of Director of the Washington DC
VA Medical Center is currently occupied.1
3) Notwithstanding the rescission of the challenged decision and the reinstatement of
Plaintiff to a position in the Senior Executive Service (with appropriate back pay),
Plaintiff has declined to dismiss his suit or withdraw his motion for summary
judgment.
4) Defendants intend to file a motion to dismiss this case as moot, in light of the
rescission and reinstatement with back pay. Defendants plan to lodge their motion on
or before May 30, 2019.
5) Given the changed circumstances – and their implications for this Court’s jurisdiction
– Defendants request that the Court stay briefing on Plaintiff’s motion for summary
judgment pending resolution of Defendants’ planned motion to dismiss. A stay
would be consistent with the D.C. Circuit’s admonition that “[s]ummary judgment . . .
represents a decision on the merits, which courts may render only after jurisdiction
has been established.” Kirkham v. Societe Air France, 429 F.3d 288, 291 (D.C. Cir.
2005).
6) Defendants consulted with Plaintiff regarding his position on this motion. Plaintiff
consents to the request for a stay, based on Defendants’ representation that (barring
unforeseen circumstances) Defendants will file their motion to dismiss on or before
May 30, 2019.

Like a remand under the APA, this rescission does not prohibit the Agency from reaching, at a
later time, the same conclusion with respect to the issues underlying the previous decision, if it
deems such a conclusion appropriate.
1

 Case 1:17-cv-02575-KBJ Document 52 Filed 05/14/19 Page 3 of 3

Accordingly, for the reasons stated above, Defendants request a stay of summary
judgment briefing pending resolution of Defendants’ planned motion to dismiss.
Date: May 14, 2019

Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
CHRISTOPHER R. HALL
Assistant Branch Director
s/ Justin M. Sandberg
Justin M. Sandberg (Ill. Bar. No. 6278377)
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L. St. NW, Rm. 11004
Washington, D.C. 20005
Tel.: (202) 514-5838
Fax: (202) 616-8202
Email: justin.sandberg@usdoj.gov
Counsel for Defendants