Opinion
3:21-cv-00705-YY
07-21-2022
GREGG DARIUS AZIN, M.D., Plaintiff, v. DENIS MCDONOUGH, Secretary, U.S. Department of Veterans Affairs, Defendant.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiff Gregg Darius Azin, M.D., brings this action against defendant Denis McCullough, Secretary of the U.S. Department of Veterans Affairs, pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1). Compl., ECF 1. Plaintiff asks this court to compel defendant to “take action which has been unlawfully withheld and unreasonably delayed” regarding back pay and the reinstatement of his previously-held position and surgical privileges at the Veterans Affairs Portland Health Care System (“Portland VA”). Id. at 1-2.
Plaintiff has filed a Motion for Summary Judgment, alleging that he is entitled to the reinstatement of his former position and surgical privileges, as well as a full accounting of pay he is owed and correction of his records. Pl. Mot., ECF 17. Defendant opposes plaintiff's motion, and has filed a Cross-Motion for Summary Judgment, arguing that plaintiff is not entitled to any of the relief he seeks. Def. Mot./Opp., ECF 40. For the reasons stated below, both plaintiff's Motion for Summary Judgment (ECF 17) and defendant's Cross-Motion for Summary Judgment (ECF 40) should be DENIED. Instead, this matter should be remanded to the VA for clarification on the question of whether plaintiff is entitled to the reinstatement of his surgical privileges. Finally, pursuant to 28 U.S.C. § 1406(c), plaintiff's claims involving an accounting of back pay and correction of records should be transferred to the Court of Federal Claims for disposition.
In addition to submitting respective motions for summary judgment, both parties mutually agreed to consolidate their briefing. See ECF 38-39. For simplicity, the court refers to the consolidated briefs as follows:
Plaintiff's Motion for Summary Judgment (ECF 17): “Pl. Mot.”
Defendant's Cross Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment (ECF 40): “Def. Mot./Opp.”
Plaintiff's Opposition to Defendant's Cross Motion for Summary Judgment and Reply in Support of Plaintiff's Motion for Summary Judgment (ECF 43): “Pl. Resp./Reply.” Defendant's Reply In Support of Defendant's Motion for Summary Judgment (ECF 46): “Def. Reply.”
II. Factual Background
Plaintiff is a physician currently employed at the Portland VA. Compl. 3, ECF 1. He was hired to work at the Portland VA in 2009 as a vascular surgeon and general surgeon. VA Record 1, ECF 36. On September 21, 2018, plaintiff performed a surgical procedure involving the placement of a jejunostomy tube (“J-tube”) inside a patient. Id. at 188-96. At some point during the procedure, the patient became “confused” while under sedation and attempted to move his body. Compl. 3, ECF 1. Plaintiff “verbally rebuked the patient with regrettable language and sedation was decreased.” Id. at 3-4. On September 25, 2018, “the Chief of Vascular Surgery at the Portland VA issued [plaintiff] a written notice that [plaintiff] was being removed from direct patient care duties pending further inquiries.” Id. at 4. Thereafter, the Portland VA took the following steps:
• On December 4, 2018, the Director of the Portland VA “issued [plaintiff] a written summary suspension of his privileges pending an investigation of his performance of the J-tube procedure and placed [plaintiff] on administrative leave.” Id.; see also VA Record 4-5, ECF 36.
• On December 17, 2018, “the Chief of Staff of the Portland VA issued [plaintiff] a written notice of ‘Proposed Removal and Revocation of Clinical Privileges' based on the charge of Unacceptable Conduct affecting patient care, which included four specifications [of misconduct] tied to the J-tube procedure on September 21, 2018.” Id.; see also VA Record 176, ECF 36 (referring to an original “notice of proposed removal and revocation of privileges dated December 17, 2018”).
• On January 18, 2019, “the Director of the Portland VA issued a written decision in which he both removed [plaintiff] from federal employment and revoked his clinical privileges at the Portland VA on the basis of ‘Unacceptable Conduct,' effective February 1, 2019.” Id.; see also VA Record 181-83, ECF 36.
Upon receipt of the Director's decision, plaintiff timely appealed the action to a Disciplinary Appeals Board (“DAB”) that consisted of three physician panel members who were not from the Portland VA. VA Record 209, ECF 36. In April 2019, the DAB conducted a two-day evidentiary hearing, see id. at 4376-5104 (transcripts of the hearing), and on October 30, 2019, the DAB issued its written findings and recommendations. Id. at 5107-30. In its findings, the DAB unanimously sustained three of the four specifications of misconduct. Id. at 5115-17. However:
[t]he Board found that the [Director's] penalty was not in the tolerable limits of reasonableness given the specifications that were sustained, the weight the Deciding Official gave to Specification 4 that was not sustained, the fact that this event was a first time offense for [plaintiff] according to Agency records, and the information the Deciding Official considered factual that was not factual[.]Id. The DAB issued three recommendations: (1) “Charge of Unacceptable Conduct is sustained”; (2) “Recommended penalty of Removal is not sustained”; and (3) “The Board recommends the Agency penalty be mitigated to a 60-day Suspension.” Id. at 5129.
In November 2019, the DAB's findings and recommendations were sent to the VA's Principal Deputy Undersecretary for Health (“PDUSH”) “for review and final action.” Compl. 5, ECF 1. On December 19, 2019, the PDUSH issued a final decision in the form of a written letter to plaintiff that included the following statements:
Your appeal to a Disciplinary Appeals Board (DAB) regarding your removal from Federal service and revocation of privileges at the VA Portland Health Care System, Portland, OR, was received on January 31, 2019....
The Board recommended that the removal be reduced to a 60-calendar day suspension, and it is my decision to execute the decision of the Board....
[W]ithin 30 calendar days of this decision, the Director of the [Portland VA] will cancel the removal from your Official Personnel Folder and replace it with a 60-calendar-day suspension and return you to duty. Additionally, within 60 calendar days of this decision your local Human Resources Office will process the corrections necessary to ensure that you are paid the appropriate amount of back pay on a timely basis, typically within 120 calendar days.
VA Record 5131-33, ECF 36. The PDUSH also checked the box “approved” on page two of Form 10-2543 under “Action by Approving Authority,” and noted in his letter to plaintiff that “a copy of the approved Board action is enclosed.” Id.
Despite the issuance of the PDUSH's decision, Plaintiff contends the Portland VA has not restored his surgical privileges nor “paid any back pay, which includes any associated benefits under the Back Pay Act, and if it has, it is indiscernible.” Pl. Mot. 16, ECF 17. He thus seeks the restoration of his position as a vascular surgeon (which he believes includes the reinstatement of his surgical privileges), a full accounting and timely payment of the back pay he is owed, and expungement and correction of his personnel records.
II. Legal Standards
A. Summary Judgment
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing FED. R. CIV. P. 56(e)).
The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
B. Enforcement of Agency Action Under the Administrative Procedure Act
The APA provides an enforcement mechanism to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). A court may only compel agency action under section 706(1) if there exists a “specific, unequivocal command” placed upon the agency to take a “discrete agency action” and the agency fails to take that action. Norton v. S. Utah Wilderness All., 542 U.S. 55, 63-64 (2004) (emphasis in original) (hereinafter “SUWA”). “The agency action must be pursuant to a legal obligation ‘so clearly set forth that it could have been traditionally enforced through a writ of mandamus.'” Vietnam Veterans of Am. v. Cent. Intelligence Agency, 811 F.3d 1068, 1075-76 (9th Cir. 2016) (quoting Hells Canyon Pres.Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010)).
Plaintiff argues that viewing his claims through a lens of mandamus review is inappropriate because a “simpler action under APA § 706(1) is available.” Pl. Resp./Reply 17, ECF 43. It is indeed true that actions brought under § 706(1) of the APA are distinct from actions brought under the mandamus statute, 28 U.S.C. § 1361. See Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1182 (9th Cir. 1983) (“The availability of review through the Administrative Procedure Act . . . is an adequate remedy precluding mandamus jurisdiction.”). However, there is little practical difference between the two, as “[t]he Supreme Court has construed a claim seeking mandamus under the [Mandamus and Venue Act of 1962, 28 U.S.C. § 1361], ‘in essence,' as one for relief under § 706 of the APA.” Indep. Min. Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (citing Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230 n.4 (1986)).
III. Analysis
Plaintiff's requests for relief are best analyzed as three distinct demands: (1) restoration to his position as a surgeon at the Portland VA; (2) restoration of his surgical privileges that are required for him to practice as a surgeon; and (3) a full accounting and processing of what defendant owes him, including back pay, performance pay, and the correction of his records. To be clear, however, defendant does not contest the first question, and agrees that the PDUSH's decision directed that “the Portland VA return Plaintiff to duty.” Def. Mot./Opp. 16, ECF 40. The crux of the dispute involving plaintiff's employment status is the second question: whether the PDUSH's decision also required the reinstatement of plaintiff's surgical privileges; without such privileges, plaintiff cannot practice surgery at the Portland VA. Despite the parties' relative consensus on the restoration of plaintiff's prior position, it is necessary to analyze this issue to provide an analytical contrast to plaintiff's related request-the reinstatement of his privileges.
Defendant's agreement that the PDUSH's decision directed “the Portland VA [to] return Plaintiff to duty” also explains why the employment-related portion of this suit is not transferred to the U.S. Court of Federal Claims (“Court of Federal Claims”). Later, plaintiff's request for back pay and correction of records are analyzed in the context of the Tucker Act, which allows the Court of Federal Claims “to provide an entire remedy” against executive agencies by issuing “orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of appliable records.” 28 U.S.C. § 1491(b). However, the restoration of plaintiff's previously-held position is not in dispute in this case, and thus, there is no reason to transfer that issue to the Court of Federal Claims.
A. Restoration of Position
Plaintiff first asks this court to order that “he be returned to his duties as a surgeon” at the Portland VA. Pl. Mot. 13, ECF 17. In support, he points to: (1) the plain text of the DAB's recommendations and the PDUSH's decision, and (2) the principle of fundamental fairness, which he argues prevents defendant from gaining an additional opportunity to litigate the merits of his original penalty. Id. at 10-16.
Common principles of interpretation guide the court's analysis of an agency's decision. Like a statute or regulation, an agency's decision should be interpreted in a manner that gives meaning to its plain text. See Children's Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1096 (9th Cir. 1999) (applying this presumption to statutes); Safe Air for Everyone v. U.S. Envtl. Prot. Agency, 488 F.3d 1088, 1097 (9th Cir. 2007) (applying this presumption to regulations). Of course, the individual words of a decision cannot be analyzed in isolation: the court must “derive meaning from context, and this requires reading the relevant . . . provisions as a whole.” In re Rufener Const., Inc., 53 F.3d 1064, 1067 (9th Cir. 1995). Additionally, agency decisions “should not be construed to render their provisions mere surplusage.” Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091, 1098 (9th Cir. 2002) (quoting Dunn v. Commodity Futures Trading Comm'n, 519 U.S. 465, 472 (1997)).
Analyzing the plain text of the PDUSH's decision, and the DAB's recommendations that the PDUSH “approved,” reveals an intent to restore plaintiff to his previously-held assignment as a vascular surgeon at the Portland VA. As previously noted, the DAB's action consisted of three recommendations: (1) to “sustain[]” the Director's charge of unacceptable conduct, (2) “not sustain[]” the Director's penalty of removal, and (3) “mitigate[]” the penalty to a 60-day suspension. VA Record 5129, ECF 36. On December 19, 2019, the PDUSH issued his final decision in a letter to plaintiff, which states in relevant part:
The [DAB] recommended that the removal be reduced to a 60-calendar day suspension, and it is my decision to execute the decision of the [DAB]....
[W]ithin 30 calendar days of this decision, the Director of the [Portland VA] will cancel the removal from your Official Personnel Folder and replace it with a 60-calendar-day suspension and return you to duty.Id. at 5131.
Two elements of the PDUSH's decision reinforce an interpretation that he intended for plaintiff to be reinstated to his prior assignment. First, the plain meaning of the term “return” is “to restore to a former or to a normal state,” indicating that the PDUSH intended for plaintiff to be restored to his former role as a vascular surgeon-not some other position. See Return, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/return (last visited July 8, 2022). Second, while the phrase “duty” may have different meaning in different contexts, the PDUSH's order states that the Director must “cancel [plaintiff's] removal” in the same sentence as it orders the Director to “return [plaintiff] to duty,” indicating that the additional instruction to “return [plaintiff] to duty” must mean to restore him to position from which he was removed, i.e., as a vascular surgeon.
For example, in the context of veterans' affairs, if the phrase “duty” is viewed in isolation, it could be interpreted to mean “active military service”-in other words, return to service at the Portland VA in an unspecified position. This particular interpretation, however, ignores that the PDUSH's order also states to “cancel [plaintiff's] removal” from the Portland VA.
A careful examination of the DAB's recommendations, which were “approved” by the PDUSH, also suggests that the DAB intended for plaintiff to be reinstated to his prior position. While the DAB acknowledged that plaintiff had “a history of verbal abuse of staff and residents,” it emphasized that if plaintiff continued his “current progress” in treatment, the Portland VA “should have [a] reasonable expectation [that plaintiff's conduct] would not happen again.” Id. at 5121-22. Moreover, plaintiff's direct supervisor, Dr. Amir Arzabal, submitted that he “did not have reservations about [plaintiff] returning to work”; it is reasonable to infer that Dr. Arzabal, who serves as the Chief of Section of Vascular Surgery, meant that he did not oppose plaintiff retuning to work for the section he chairs. Id. at 5122. Lastly, in its “Recommended Decision,” the DAB concluded that “there were significant mitigating factors . . . which were outside of [plaintiff's immediate control”; that after a “discuss[ion] at length [about whether] it were possible for [plaintiff] to return to work,” it recommended an “appropriate penalty of 60 days suspension”; and that such a return “would [] benefit [from] monitoring by the Oregon State Medical License Board.” Id. at 5126-27. All these contextual pieces suggest that the DAB intended for plaintiff to return to his vascular surgeon position after a 60-day suspension-an appropriate penalty for a “first-time offense” with “significant mitigating factors including the complexity and urgency of the case.” Id. at 5126. In sum, the plain language of the PDUSH's decision, and the DAB's findings and recommendations that were “approved” by the PDUSH, indicates that plaintiff was to be returned to his previously-held position as a vascular surgeon.
B. Restoration of Privileges
Next, plaintiff asks this court to order that the “revocation of privileges be mitigated to a 60-day suspension.” Pl. Mot. 13, ECF 17. Defendant opposes the reinstatement of plaintiff's surgical privileges, arguing that (1) neither the PDUSH's decision nor the DAB recommendations contain any command to do so, and (2) the conferral and renewal of privileges are an independent clinical determination reserved for each facility, not by the national VA. Def. Mot./Opp. 16, ECF 40.
In his Reply in support of his own motion for summary judgment, plaintiff further requests that “defendant be ordered to make [plaintiff's] privileges prospectively effective for two years going forward (i.e., 2024) . . . [to] “guard against the likelihood that the facility would reinstate them only to re-deny or suspend them immediately after it technically complies by reinstating them.” Pl. Resp./Reply 19, ECF 43. This request, which was not made in plaintiff's Complaint or original Motion for Summary Judgment, is addressed at the end of this section.
This dispute presents a hornets' nest of competing concerns. As discussed above, the PDUSH's decision and the DAB's recommendations make clear that plaintiff was to be reinstated to his former position as a vascular surgeon. But plaintiff argues that to actually perform as a surgeon, he requires surgical privileges, and thus, the PDUSH's decision arguably must be interpreted to order the Portland VA to restore those privileges. See, e.g., Hutchinson v.Wilkie, 554 F.Supp.3d 1236, 1242 (N.D. Ala. 2021), appeal dismissed sub nom. Hutchinson v. U.S. Dep't of Veterans Affs., No. 21-11885-JJ, 2021 WL 5983819 (11th Cir. Sept. 15, 2021) (noting that “either interpretation” of the PDUSH's decision to return the plaintiff to duty “requires [plaintiff] to have clinical privileges”). Defendant, on the other hand, argues that it is possible for a person to hold the title of “vascular surgeon” but lack the privileges to perform surgery. This explanation is also plausible. Hypothetically, for example, an institution could experience a delay in renewing privileges for a vascular surgeon and temporarily assign that doctor to do other tasks, such as seeing patients, performing research and data-entry duties, and/or supervising residents. Or a vascular surgeon who recently moved to a new facility may lack immediate surgical privileges at that institution, but may still be designated as a “vascular surgeon” in acknowledgement of a prior job title and/or forthcoming certification.
Plaintiff also argues that the structure of defendant's internal appellate processes supports his position. He points to the VA Handbook, which requires that when an employee contests both the revocation of privileges and a proposed dismissal, the proceedings are “combined” and evaluated together. Pl. Mot. 11, ECF 17. Thus, according to plaintiff, the “DAB and PDUSH decisions in such a proceeding necessarily decide issues of privileges as well as those regarding proposed dismissals, and resolve those combined issues in an integrated final decision.” Id. at 13; see also Hutchinson, 554 F.Supp.3d at 1241 (noting that the removal and revocation of privileges “constitute a single, intertwined penalty” and that “[b]y mitigating this penalty to a thirty-day suspension, the DAB impliedly ordered a reinstatement of [plaintiff's] privileges.”).
Defendant, however, argues that the absence of explicit instruction from the DAB and PDUSH on plaintiff's privileges is consistent with VA policy. First, defendant contends that “a specific DAB recommendation to mitigate a removal penalty or the ultimate Secretary decision to mitigate a removal penalty” does not automatically compel the reinstatement of previously-held privileges. Def. Mot./Opp. 20, ECF 40. Second, defendant notes that the PDUSH's “silence regarding privileging . . . reflects that privileging at a local facility is a facility-specific matter.” Id. at 16. Defendant places particular emphasis on a facility's independent authority to bestow privileges, describing it as a “peer-review, multi-stakeholder local process to ensure quality patient care,” and argues that a decision by this court to order the reinstatement of privileges instead of deferring to this process would “run headlong into the medical staff bylaws of the Portland VA . . . and official VA policy regarding privileging.” Id. at 18. Simply put, defendant argues that a decision by this court to force the reinstatement of plaintiff's privileges where there is no explicit instruction to do so could undermine the Portland VA's independent authority to evaluate who is qualified to perform surgery at the facility.
Some of defendant's other justifications about what “may warrant assignment to non-clinical work” (and thus denying surgical privileges) are less persuasive. Def. Mot./Opp. 19, ECF 40. Defendant argues that (1) the Portland VA's internal regulations allow any surgeon to be reassigned “when doing so is beneficial to meeting other needs of the facility,” and (2) that the Oregon Health and Sciences University (“OHSU”), the Portland VA's academic affiliate, informed the facility that plaintiff “was permanently removed from the teaching service . . . and would no longer work with residents.” Id. However, the record is devoid of any explanation for why plaintiff was given a non-surgical assignment, let alone one demonstrating that reassigning plaintiff was in the facility's best interest. See VA Record 5228, ECF 36 (memorandum to plaintiff, which contains no explanation for plaintiff's assignment). And while OHSU's refusal to have its residents work with plaintiff is significant, the DAB contemplated a similar issue- the Portland VA's decision to bar plaintiff from supervising any residents-and noted that the facility failed to evaluate whether plaintiff “could return to supervising residents” “after rehabilitation” and “under [certain] conditions, if any.” Id. at 5118.
Beyond these competing principles, there exists another concern surrounding plaintiff's request: what, practically, would a “return” of his previously held surgical privileges look like? If this dispute only involved plaintiff's previously-held job, the answer is simple: plaintiff would be restored to the job he previously held (serving as a “vascular surgeon”). But restoring the privileges that plaintiff held prior to his suspension would have no practical effect because surgical privileges must be renewed through an independent credentialing process every two years. In other words, even if plaintiff had his surgical privileges renewed on January 31, 2019-the day before his termination from the Portland VA became effective-a restoration of those privileges would be effectively useless, as they expired on January 31, 2021. And, given this court's general unfamiliarity with the nuances of the medical field, it would be unwise to attempt to cobble together a remedy that may practically grant plaintiff futuristic benefits, but create unforeseen impacts on the Portland VA's independent privileging assessments.
Tacking on sixty days (the length of plaintiff's reduced suspension) would not assist this deadline, as plaintiff's hypothetical privileges (with a sixty-day extension to accommodate his reduced suspension) would have expired on March 31, 2021-a date that has long passed and elapsed before plaintiff filed this action.
Ultimately, the court may compel action pursuant to § 706(1) only if there exists a “specific, unequivocal command” to take a “discrete agency action.” SUWA, 542 U.S. at 63-64 (emphasis in original). While a plausible interpretation of the plain text of the DAB's recommendations and PDUSH's decision is that plaintiff's surgical privileges should be restored, there is no “specific, unequivocal command” for the agency to do so. Id. The absence of an explicit command, combined with defendant's logical argument that privileging is inherently an independent review reserved for medical staff at each individual facility, militates against granting summary judgment to plaintiff and automatically reinstating his surgical privileges. These same reasons-the absence of an explicit command and the facility-based nature of the privileging process-also caution against granting plaintiff's related request: that his privileges be made “prospectively effective for two years going forward (i.e., 2024).” Pl. Resp./Reply 19, ECF 43.
However, because it is similarly unclear whether the DBA recommended and PDUSH commanded that plaintiff's surgical privileges should not be restored, it is appropriate to remand the question of plaintiff's surgical privileges for clarification. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (“[I]f the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”). To be clear, the court is not asking for, as plaintiff suggested during oral argument, a post-hoc rationalization for the Portland VA's actions; it is merely requesting “an explanation for an inadequately articulated decision.” Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (acknowledging that all agency responses to judicial remand are literally post hoc, but allowing remand “for an explanation”). Doing so would allow the DBA and the PDUSH, if needed, to provide a “specific, unequivocal command” to the Portland VA to reinstate plaintiff's surgical privileges at the facility, and provide practical guidance on how it should do so, given that plaintiff's previously-held privileges likely expired before the filing of this action. Compare ante at 12-13, 12 n.6 (plaintiff's existing privileges likely expired by January 31, 2021) with ECF 1 (complaint filed on May 6, 2021).
C. Accounting, Back Pay, and Correction of Personnel Records
Plaintiff also asks this court to order defendant to “determin[e] the appropriate amount of back pay” he is owed and “correct [his] records.” Pl. Mot. 16-17, ECF 17. To facilitate an accurate calculation of the money he is owed, plaintiff “requests a full accounting to sort out what is owed and what, if anything, has been paid.” Id. at 17. He further seeks the inclusion of performance pay, i.e., “a lump sum [paid] at the end of the fiscal year when the physician satisfies performance goals and objectives,” in any accounting that defendant makes to compensate for defendant's “obstinate refusal to comply with the non-discretionary final agency decision.” Id.
Plaintiff specifically requests that “the items in the record that have been created in the interim (denial(s) of privileges, again; approval of only credentials; data entry assignment, non-compliant NPDB report, and more) [ ] be expunged.” Pl. Mot. 18, ECF 17.
Before evaluating the merits of plaintiff's claims, the court must assess whether it has jurisdiction. Plaintiff characterizes the entirety of his suit as a request for enforcement pursuant to § 706(1) of the APA. See Compl. 1, ECF 1. But in his Motion for Summary Judgment, plaintiff clarifies that his request for an accounting of what he is owed (including back pay and performance pay) is made pursuant to the Back Pay Act, 5 U.S.C. § 5596. See Pl. Mot. 16-17, ECF 17.
This distinction is crucial because the APA's grant of sovereign immunity, which allows plaintiffs to seek enforcement against a federal agency in any district court, only applies when a final agency action has “no other adequate remedy in a court.” 5 U.S.C. § 704. In Bowen v. Massachusetts, the seminal case for determining whether a district court has jurisdiction over a request to enforce agency action, the Supreme Court established a two-prong test to evaluate whether a dispute qualifies for the APA's waiver of sovereign immunity. 487 U.S. 879 (1988). Those two elements are: (1) whether the claim seeks specific relief, as opposed to monetary damages; and (2) whether any other court exists to offer relief for plaintiff's claim. Id. at 893901, 903-09.
Plaintiff clears the first Bowen prong. While the thrust of plaintiff's request is that defendant owes him an undetermined sum of money, he seeks reimbursement for withheld wages and a reinstatement to his prior position, not just monetary damages. As the Bowen court made clear, there exists a critical distinction between the two:
Our cases have long recognized the distinction between an action at law for damages-which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation-and an equitable action for specific relief-which may include an order providing for the reinstatement of an employee with backpay, or for “the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer's actions.” Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 (1949) (emphasis added). The fact that a judicial remedy may require one party to pay money to another is not a sufficient reason to characterize the relief as “money damages.” ...
Damages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies ‘are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled.'Bowen, 487 U.S. at 893, 895 (quoting, in the text after the ellipsis, Maryland Dep't of Hum. Res. v. Dep't of Health & Hum. Servs., 763 F.2d 1441, 1446 (D.C. Cir. 1985)). In other words, plaintiff's request is one for specific relief; it notably aligns with the Bowen court's example of “an order providing for the reinstatement of an employee with backpay.” Id. at 895 (quoting Larson, 337 U.S. at 688).
Plaintiff's claim, however, cannot clear the second Bowen prong, as there exists another court that could provide him relief. As defendant points out, the Tucker Act gives the U.S. Court of Federal Claims (“Court of Federal Claims”) jurisdiction “to render judgment upon any claim against the United States founded in . . . any regulation of an executive department.” Moreover, the Tucker Act also allows the Court of Federal Claims “to provide an entire remedy” by issuing “orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of appliable records.” Id. at § 1491(b). Here, while defendant concedes that plaintiff has been restored to his previously-held position, the remaining issues related to back pay and correction of applicable records remain in dispute, and belong in the Court of Federal Claims to allow for “an entire remedy.” Id.
Indeed, the Federal Circuit has already considered the interplay between the APA's grant of sovereign immunity and the ability of a plaintiff to enforce agency action in the Court of Federal Claims. In Mitchell v. United States, a plaintiff sought “back pay, reinstatement, and correction of records” from the U.S. Air Force. 930 F.2d 893, 896 (Fed. Cir. 1991). The Federal Circuit found that the plaintiff's suit, which originated in the Eastern District of Virginia, was barred by Section 704 of the APA because the dispute was “specifically the kind of claim for which the [Court of Federal Claims] can provide ‘special and adequate review procedures.'” Id. (quoting Bowen, 487 U.S. at 900 n.31, 903-05, 904 n.39). Plaintiff's requests for relief-back pay and the correction of records-are nearly identical to that of the plaintiff in Mitchell, and thus militates the same result: jurisdiction in the Court of Federal Claims, and thus, the presence of sovereign immunity that prevents the United States from being sued in this court over this suit.
Plaintiff's response to defendant's Motion for Summary Judgment is devoid of any reference to Bowen or Mitchell. See generally Pl. Resp./Reply, ECF 43. Instead, plaintiff argues that classifying his request as an action under the Back Pay Act is improper because the statute “‘is an auxiliary measure' intended to supplement other statutory and administrative processes in order to ensure that employees . . . are able to recover pay that they are due.” Id. at 14-15 (quoting Adam v. Norton, 636 F.3d 1190, 1196 (9th Cir. 2011)). Plaintiff then asserts:
Where an employee does not otherwise have a right to recovery from the United States, the Tucker Act, in conjunction with the Back Pay Act, provides a plaintiff with the mechanism to get that right to recover. But if, as in this case, employees do already have a judgment granting them right to back pay, resort to the Tucker Act is not necessary, and the Back Pay Act only provides a basis for ensuring that back pay calculations are done properly.Id. at 15 (emphasis in original). The problem with plaintiff's argument is that it omits the key words that immediately follow the “auxiliary measure” phrase in Adam. The full paragraph reads:
For similar reasons, it is not relevant that plaintiffs did not bring an action under the Back Pay Act itself. As the District of Columbia Circuit has explained, “the Back Pay Act is an auxiliary measure” in relation to substantive antidiscrimination statutes such as the ADEA. Just as civil rights plaintiffs need not bring suit under 42 U.S.C. § 1988 in order to collect attorney's fees from the government under that provision, a federal employee suing the government for violation of a substantive antidiscrimination statute need not bring suit under the Back Pay Act in order to receive back pay and interest from the United States. Where a federal employee brings an action under an “applicable law” that itself provides a federal cause of action and waives the government's immunity from suit, the operation of the Back Pay Act's waiver of interest turns not on whether the suit is brought under the Back Pay Act, but rather on whether the express terms of the Back Pay Act are satisfied, as they clearly are in this case.Id. at 1196 (citation omitted) (emphasis added).
In short, the Ninth Circuit concluded that the Adam plaintiffs did not need to plead a specific action under the Back Pay Act because “substantive antidiscrimination statutes” constituted an “applicable law that itself provide[d] a federal cause of action and waive[d] the governments' immunity from suit.” Id. (emphasis and quotation marks omitted). Plaintiff here characterizes his suit as a “simpler action [brought] under APA § 706(1).” Pl. Resp./Reply 17, ECF 43. But while the APA is an applicable federal law that provides a cause of action to sue defendant, its waiver of sovereign immunity is contingent on the inability of any other court to offer relief for plaintiff's claim. See 5 U.S.C. § 704(a); Bowen, 487 U.S. at 903-09. The jurisdiction of the Court of Federal Claims prevents plaintiff from qualifying for the APA's waiver, and thus the Back Pay Act does not serve as an “auxiliary” measure, but rather, the primary statute that plaintiff must plead-and did plead- his claim under. Pl. Mot. 16-17, ECF 17; see also Smith v. United States, 654 F.2d 50, 52 (Ct. Cl. 1981) (“These cases are of the type which require a waiver of sovereign immunity to a money judgment by a statute which can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained. The statute which meets the requirement is the Back Pay Act.”) (citations and quotations removed).
The other cases that plaintiff cites do not dislodge this jurisdictional problem. Plaintiff argues that Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641 (9th Cir. 1998), supports his position because the court there concluded “it could not grant relief because there was no preexisting order requiring agency action.” Pl. Resp./Reply 15-16, ECF 43 (emphasis removed). But two fundamental aspects of that decision distinguish it from the present dispute. First, the Tucson Airport plaintiff lacked an “adequate remedy” in the Court of Federal Claims because the equitable relief sought-prospective relief that would “require[] the United States to defend the suits brought against [plaintiff]”-fell beyond the authority of the Court of Federal Claims. 136 F.3d at 645-46. Plaintiff's requests for reimbursement and correction of records, in contrast, easily fall within the jurisdiction of the Court of Federal Claims. 28 U.S.C. § 1491(a)-(b).
Second, while plaintiff correctly asserts that the Tucson Airport plaintiff lacked a “preexisting order requiring agency action,” the Ninth Circuit panel evaluated the absence of “a declaration of contract rights against the government” in a completely inapposite context. Pl. Reply 15-16, ECF 46; 136 F.3d at 647. Specifically, after establishing that the plaintiff's claims were “contractually-based, [and] not statutorily-based,” the Tucson Airport panel held that contractually-based enforcement claims that sought declaratory and injunctive relief were barred by the Tucker Act because the statute “‘impliedly forbids' declaratory and injunctive relief and precludes a § 702 waiver of sovereign immunity.” 136 F.3d at 646 (quoting North Side LumberCo. v. Block, 753 F.2d 1482, 1485 (9th Cir. 1985). Plaintiff's claims do not arise from contract, and thus cannot invoke the Tucker Act's nuanced specifications involving “any express or implied contract with the United States.” Id. (quoting 28 U.S.C. § 1491(a)(1)).
Plaintiff additionally cites to two other cases for the argument that “an accounting is a form of equitable relief and an accounting is proper in this kind of case.” Pl. Reply 16 (citing Reebok Intern., Ltd. v. Marnatech Enterprises, Inc., 970 F.2d 552, 563 (9th Cir. 1992) (Fernandez, J. concurring); Coto Settle. v. Eisenberg, 593 F.3d 1031, 1036 (9th Cir. 2010). But neither Reebok nor Eisenberg evaluated the complex interplay between APA, the Back Pay Act, or the Tucker Act: the former addressed an action under the Lanham Act; the latter evaluated the application of a statute of limitations toward a shareholder's claims. Id. Moreover, even if an accounting of money owed is considered a form of equitable relief, that relief remains available at the Court of Federal Claims, which is statutorily authorized “to provide an entire remedy and to complete the relief afforded by [a] judgment.” 28 U.S.C. § 1491(b). And as stated earlier, because the Court of Federal Claims offers “an adequate remedy in a court” for the accounting that plaintiff seeks, the APA's waiver of sovereign immunity, which provides this court with jurisdiction to evaluate plaintiff's claim, does not apply, divesting this district court of the ability to hear plaintiff's concerns. 5 U.S.C. § 704.
Additionally, as part of his request for a full accounting, plaintiff desires the inclusion of performance pay that he claims he was unlawfully denied from earning. This desire further strengthens a finding that his request for back pay and accounting belongs in the Court of Federal Claims, which serves as a “single general, and comprehensive pay adjustment authority to be applied after an erroneous or unwarranted personnel action is corrected.” Adam, 636 F.3d at 1192 (quoting H.R. Rep. No. 89-32, at 1 (1965)).
Plaintiff's characterization of an “accounting” as a form of equitable relief is also immaterial for two additional, interconnected reasons. First, a plaintiff “who requests monetary damages cannot avoid the Tucker Act by saying that he cares more about non-monetary relief.” Palacios v. Spencer, 267 F.Supp.3d 1, 5-6 (D.D.C. 2017), affd in part, appeal dismissed in part, 906 F.3d 124 (D.C. Cir. 2018) (emphasis in original) (citing Wolfe v. Marsh, 846 F.2d 782, 785 (D.C. Cir. 1988)). While plaintiff's complaint frames the relief sought as accounting, he also seeks not only the determination, but also processing of “all pay and benefits pursuant to the VA's final agency decision”-a sum that includes “provision of his back pay and benefits, as well [as] adjustments to, inter alia, his current pay and benefits, restoration of lost sick and annual leave, restoration of lost performance pay due March 2019, and restoration of lost performance pay due March 2020.” Compl. ¶¶ 36-37, ECF 1. And a request for “back pay and benefits” is, “on its face, a claim for money damages. Back pay is quintessentially compensatory.” Palacios, 267 F.Supp.3d at 5 . Second, and relatedly, the Ninth Circuit bars the bifurcation of a complaint into separate claims for monetary damages and others that seek equitable relief, as “Congress has expressly granted jurisdiction to the Court of Claims over this type of case.” Denton v. Schlesinger, 605 F.2d 484, 486 (9th Cir. 1979).
There remains one concern surrounding the Tucker Act: whether plaintiff's complaint seeks at least $10,000 in damages, the jurisdictional minimum for the Court of Federal Claims to have exclusive jurisdiction over this case. During oral argument, plaintiff noted that the complaint did not request a precise sum of money, thus opening the possibility that the amount owed falls below $10,000 and thus qualifies for this court's jurisdiction via the “Little” Tucker Act. See generally Compl., ECF 1. But crucially, plaintiff does seek money damages in his complaint: the “process[ing]” of “all pay and benefits pursuant to the VA's final agency decision,” including “provision of his back pay and benefits, as well [as] adjustments to, inter alia, his current pay and benefits, restoration of lost sick and annual leave, restoration of lost performance pay due March 2019, and restoration of lost performance pay due March 2020.” Compl. ¶¶ 36-37, ECF 1. It would be nearly “implausible that” if defendant performed a full accounting when this suit was filed, plaintiff “would be entitled to $10,000 or less,” given that he (1) alleged in his Motion for Summary Judgment that “[h]e is owed likely close to $300,000 for back pay and lost benefits,” and (2) previously earned a six-figure salary. Palacios v. Spencer, 267 F.Supp.3d 1, 6 (D.D.C. 2017), aff'd in part, appeal dismissed in part, 906 F.3d 124 (D.C. Cir. 2018); Mot. 16, ECF 17; Azin Decl. ¶ 12(b), ECF 18 (submitting that his annual salary is $255,000, not including benefits, performance pay, or owed interest); Doe v. U.S. Dep't of Justice, 753 F.2d 1092, 1101 (D.C. Cir. 1985) (taking notice of attorney's pay grade in finding that her claim for back pay fell within the exclusive jurisdiction of Court of Federal Claims). And plaintiff has not waived his right to recover any amount exceeding $10,000. See Smith v.Orr, 855 F.2d 1544, 1553 (Fed. Cir. 1988) (allowing a plaintiff to “pursue a claim in a district court if the plaintiff waives his right to recover the amount exceeding $10,000.”)
The “Little” Tucker Act grants district courts, such as this one, concurrent jurisdiction over cases that belong in the Court of Federal Claims if the amount sought is less than $10,000. See 28 U.S.C. § 1346.
Simply put, the Court of Federal Claims has exclusive jurisdiction to hear plaintiff's claims for back pay and correction of records, and because there exists an “adequate remedy in a court,” the APA's waiver of sovereign immunity, which provides this court with jurisdiction to evaluate plaintiff's claim, is not applicable. 5 U.S.C. § 704. It is “well-settled” that a plaintiff cannot avoid the jurisdictional restrictions of the Tucker Act “by casting its pleadings in terms that would enable a district court to exercise jurisdiction under a separate statute.” Williams v. Sec'y of the Navy, 787 F.2d 552, 557-58 (Fed. Cir. 1986) (citation and internal quotation marks omitted). And the Ninth Circuit has emphasized that the Back Pay Act was created to “establish a single, general, and comprehensive pay adjustment authority to be applied after an erroneous or unwarranted personnel action is corrected.” Adam, 636 F.3d at 1192 (quoting H.R. Rep. No. 8932, at 1 (1965)). Transferring plaintiff's request for back pay and correction of his records to the Court of Federal Claims, which has exclusive jurisdiction over similar cases (with an amount in dispute exceeding $10,000), is thus consistent not only with the APA's provisions surrounding sovereign immunity, but also with Congress's intent to streamline and make consistent the resolution of personnel claims against the government. Id.
RECOMMENDATIONS
Plaintiff's Motion for Summary Judgment (ECF 17) and defendant's Cross-Motion for Summary Judgment (ECF 40) should be DENIED. Instead, this matter should be remanded to the VA for clarification on the question of whether plaintiff is entitled to the reinstatement of his surgical privileges. Finally, pursuant to 28 U.S.C. § 1406(c), plaintiff's claims involving an accounting of back pay and correction of records should be transferred to the Court of Federal Claims for disposition.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Thursday, August 04, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.