Azin v. Mcdonough

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, asserting an enforcement claim under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706(1). Compl., ECF 1. Plaintiff seeks to compel defendant to “take action which has been unlawfully withheld and unreasonably delayed” regarding back pay and the reinstatement of plaintiff to his former position at the Veterans Affairs Portland Health Care System (“Portland VA”). Id. at 1-2, ECF 1.

Defendant has filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Mot. 2, ECF 12. Defendant also argues that plaintiff's claims should be dismissed under Rule 12(b)(6) on the ground that plaintiff has failed to

demonstrate “he is entitled to relief” under section 706(1) of the APA. Id. For the reasons discussed below, defendant's motion should be DENIED.

I. Standards

A. Rule 12(b)(1)

A motion to dismiss under Rule 12(b)(1) challenges the jurisdiction of the court over the subject matter of the complaint. Fed.R.Civ.P. 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack “accepts the truth of the plaintiff's allegations but asserts that they are ‘insufficient on their face to invoke federal jurisdiction.'” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Safe Air, 373 F.3d at 1039)). A factual attack “contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings.” Leite, 749 F.3d at 1121; Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013). When a defendant factually challenges jurisdiction, “‘no presumptive truthfulness attaches to plaintiff's allegations.'” Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012) (quoting Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009)). Once a party has moved to dismiss for lack of subject matter jurisdiction, the plaintiff “bears the burden to establish subject matter jurisdiction by a preponderance of the evidence.” United States ex rel. Mateski v. Raytheon Co., 816 F.3d 565, 569 (9th Cir. 2016).

B. Rule 12(b)(6)

A Rule of 12(b)(6) motion tests whether there is a cognizable legal theory or sufficient facts to support a cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a Rule 12(b)(6) motion, “the complaint must allege ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). A Rule 12(b)(6) motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015); Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010).

When evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the plaintiff. Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 971 (9th Cir. 2018) (citing Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010)); Dowers v. Nationstar Mortg., LLC, 852 F.3d 964, 969 (9th Cir. 2017) (citing Iqbal, 556 U.S. at 678).

II. Case Background

Plaintiff is a physician and current employee of 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. Id. On September 21, 2018, plaintiff performed a surgical procedure involving the placement of a jejunostomy tube (“J-tube”). Id. At some point during the procedure, the patient became “confused” under the sedation and attempted to move his body. Id. 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

• 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.

• On January 24, 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.

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. Id. at 5. In April 2019, the DAB conducted a two-day evidentiary hearing where “[b]oth parties had counsel, ” id., and on October 30, 2019, the DAB issued its written findings and recommendations through Department of Veterans Affairs Board Action Form 10-2543. Feldman Decl., Ex. 1 at 1, ECF 13-1. In its findings, the DAB unanimously sustained three of the four specifications of misconduct. Id. at 11. 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 23.

In November 2019, the DAB's findings and recommendations were sent via Form 10-2543 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 to plaintiff in the form of a written letter 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.

Feldman Decl., Ex. 2 at 1, ECF 13-2. The PDUSH also checked “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.

When plaintiff received the PDUSH's “final agency decision, ” he read the decision as “limiting the scope of the proposed removal and loss of privileges to a 60-day suspension.” Pl.'s Opp. 1, ECF 16. Plaintiff believed that “he won his appeal, successfully challenging the proposed removal and termination of privileges.” Id. at 2.

However, since the issuance of the PDUSH decision, the Portland VA has not returned plaintiff to his former position as a vascular surgeon and has not restored his clinical privileges. Compl. 6, ECF 1. Plaintiff also contends the Portland VA has never “determine[ed] the appropriate amount of back pay” he is due and has never paid plaintiff “the appropriate amount of back pay.” Pl.'s Opp. 15-16, ECF 16. Plaintiff maintains that, while the Portland VA “has randomly provided extra pay in occasional paychecks that appear to constitute back pay, ” Compl. 7, ECF 1, it has “failed to determine and to process the corrections to his pay and

benefits within 60 days . . . necessary to ensure that [he] would be paid the appropriate amount of back pay within approximately 120 days, ” as specified in the PDUSH's final decision of December 19, 2019. Id.

III. Discussion

Again, plaintiff brings this action under 5 U.S.C. § 706(1) seeking enforcement of defendant's final agency action on December 19, 2019. Compl., ECF 1. Plaintiff's first claim alleges “a failure to reinstate as vascular and general surgeon with clinical privileges, ” and...