Opinion
Civil No. 04-4060 (PAM/RLE).
October 14, 2004
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Jordan Holtzman's Motion for a Preliminary Injunction. For the reasons that follow, the Motion is denied.
BACKGROUND
This case arises from the allegedly wrongful reduction and termination of clinical privileges held by Dr. Holtzman, a physician conducting research at the Minneapolis Veteran Administration Medical Center ("VAMC"). Dr. Holtzman seeks a preliminary injunction reinstating him to his former position as a without compensation ("WOC") staff physician with clinical privileges at VAMC.
Dr. Holtzman was employed by the VAMC as a full-time, compensated physician from 1971 until he retired in 2000. At the time of his retirement, the VAMC had commitments to participate in a multi-center study called the ALLHAT study, funded by Takeda Pharmaceuticals. Because Dr. Holtzman's retirement would have prevented the VAMC from completing the study, the VAMC asked Dr. Holtzman to remain as a WOC physician to complete the study. Dr. Holtzman agreed and was granted a WOC appointment with clinical privileges consistent with his research responsibilities.
On May 21, 2002, Defendant Jack Drucker, the Chief of Staff of the VAMC, sent Dr. Holtzman a memorandum, informing Dr. Holtzman that his WOC appointment would end on June 30, 2002, with the completion of the ALLHAT study. Dr. Holtzman responded on May 28, 2002, explaining that it was his understanding that he could continue his research program at the VAMC after the completion of the ALLHAT study. Dr. Holtzman also explained that he had commitments to complete other studies on behalf of the VAMC.
In response, Dr. Drucker allowed Dr. Holtzman to continue in his WOC status to complete specific studies at the VAMC. However, Dr. Drucker imposed conditions on Dr. Holtzman remaining at the VAMC. One condition was that Dr. Holtzman could not provide clinical care to study subjects unless the clinical service was either part of the study or needed due to a medical emergency. Dr. Holtzman agreed to the terms, but now alleges that he did so under duress. He further alleges that these limitations on his treatment of patients exceed VAMC bylaws and violate public policy.
Dr. Drucker later discovered that Dr. Holtzman was setting up his studies in such a way as to permit the continuation of the studies indefinitely. On February 12, 2004, Dr. Drucker sent Dr. Holtzman a memorandum, informing him that his WOC appointment would not be renewed beyond May 2005. Dr. Drucker claims that this deadline was selected because it provided Dr. Holtzman sufficient time to complete his existing studies or make arrangements to transfer the research to another facility. The February 2004 memorandum expressly states that the limitations previously imposed on Dr. Holtzman's clinical privileges remained in effect.
In August 2004, Dr. Drucker learned that Dr. Holtzman was providing clinical care to study subjects beyond the imposed limitations. Dr. Drucker ordered an investigation, which confirmed that Dr. Holtzman was providing clinical care that was not part of a research study and that Dr. Holtzman was interfering with treatment provided by primary care providers. Dr. Drucker terminated Dr. Holtzman effective August 27, 2004.
Dr. Holtzman now seeks declaratory and injunctive relief. He alleges that Defendants exceeded their authority under VAMC bylaws by imposing limitations on how he could treat patients. He also alleges that Defendants wrongfully terminated him because they did not afford him process due under the VAMC bylaws.
DISCUSSION
In a motion for a preliminary injunction, the Court balances four factors: (1) the likelihood of the movant's success on the merits; (2) the threat of irreparable harm to the moving party; (3) the balance between that harm and the harm to be suffered by the party to be enjoined; and (4) the public interest at stake.Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). A preliminary injunction is an extraordinary remedy, and the movant bears the burden of establishing the propriety of an injunction. Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995). A preliminary injunction will be denied if a plaintiff's legal theory has no likelihood of success on the merits. Newton County Wildlife Ass'n v. United States Forest Serv., 113 F.3d 110, 113 (8th Cir. 1997). Defendants challenge only the "likelihood of success on the merits" prong of theDataphase test.
Dr. Holtzman has failed to meet his burden of showing likelihood of success on the merits. Substantive federal law provides him no recourse. Whether federal law affords a Veterans Administration physician a hearing prior to disciplinary action is dependent upon the statutory authority under which the physician was hired. As a WOC physician, Dr. Holtzman was employed under 38 U.S.C. § 7405, which provides for appointments "without regard to civil service or classification laws, rules, or regulations." Federal law does not afford § 7405 employees due process rights before adverse actions are taken. See Elkin v. Roudebush, 564 F.2d 810, 812 (8th Cir. 1977) (citing Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361, 364-65 (9th Cir. 1976)). Rather, federal law provides due process only to individuals employed under 38 U.S.C. § 7401 before adverse action is taken against them. See 38 U.S.C. § 7461.
Dr. Holtzman argues that the VAMC violated its bylaws in failing to afford him an appropriate hearing process before reducing his clinical privileges and terminating his employment. However, VAMC bylaws cannot provide a basis for a due process claim. The Administrative Procedure Act ("APA"), 5 U.S.C. § 702et seq., provides judicial review to a person suffering a legal wrong because of agency action. Under the APA, a plaintiff must identify a substantive statute or regulation that the agency action transgressed. See Preferred Risk Mut. Ins. Co. v. United States, 86 F.3d 789, 792 (8th Cir. 1996); see also A-G-E Corp. v. United States, 968 F.2d 650, 655 (8th Cir. 1992). A violation of agency bylaws is insufficient to support an APA claim. See Gatter v. Cleland, 512 F. Supp. 207, 211-13 (E.D. Pa. 1981) (Veteran Administration manuals and circulars do not set forth statutory criteria that can be applied to permit judicial review). Thus, absent a showing that Defendants violated some federal law, Dr. Holtzman cannot succeed on a claim under the APA.
Dr. Holtzman also argues that Defendants violated the Fifth Amendment by denying him due process before his termination because he had both a property and liberty interest in his WOC employment. "Public employees are entitled to procedural due process when they are fired from positions in which they have a legitimate expectation of continued employment, that is, when the employee's entitlement to the job is sufficiently certain so as to amount to a constitutionally protected property interest."Holloway v. Reeves, 277 F.3d 1035, 1038 (8th Cir. 2002) (quotation omitted). However, because Dr. Holtzman did not receive compensation for his work, Dr. Holtzman cannot show that he suffered any "calculable economic deprivation" giving rise to a property interest. See Holtzman v. Mullon, 1996 WL 663558 at *1 (8th Cir. 1996) (plaintiff did not have a constitutionally protected property interest in employment with the Veteran Administration Medical Center as a "without compensation" employee). Accordingly, Dr. Holtzman does not assert a sufficient property interest to trigger a predetermination hearing.
Finally, Dr. Holtzman argues that Defendants' actions and statements besmirched his liberty interest in pursuing his career as a research scientist. A government employee has a right to procedural due process when termination will deprive him of a constitutionally protected liberty interest. Buchholz v. Aldaya, 210 F.3d 862, 865 (8th Cir. 2000) (citation omitted). A liberty interest arises "when the employer levels accusations at the employee that are so damaging as to make it difficult or impossible for the employee to escape the stigma of those charges." Holloway, 277 F.3d at 1039 (quotation omitted). To establish a constitutionally-protected liberty interest, Dr. Holtzman must demonstrate that Defendants, in connection with discharging him, publicly made untrue charges against him that would stigmatize him so as to seriously damage his standing in the community, or foreclose his freedom to take advantage of other employment opportunities. See Waddell v. Forney, 108 F.3d 889, 895-96 (8th Cir. 1997). Allegations of unsatisfactory performance, difficulties with interpersonal relationships, and violations of terms of an agreement are not the type of stigmatizing charges that will preclude Dr. Holtzman from serving as a researcher. See Elkin, 564 F.2d at 813. Indeed, he does not allege that he cannot find other work because of Defendants' actions or statements. Rather, he alleges that other facilities will not take his work because their spaces are inadequate. Moreover, Dr. Holtzman's employment with the University of Minnesota as a researcher and professor has not been affected by his termination at the VAMC. Thus, it is unlikely that Dr. Holtzman can show that Defendants violated his liberty interest.
CONCLUSION
For the foregoing reasons, the Court finds that Dr. Holtzman is not entitled to a preliminary injunction. Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion for Preliminary Injunctive Relief (Clerk Doc. No. 3) is DENIED.