Doe v. Lieberman

1

JANE DOE, M.D., Plaintiff, v. STEVEN L. LIEBERMAN, in his official capacity as Deputy Under Secretary for Health, Department of Veterans Affairs, Veterans Health Administration, DISCIPLINARY APPEALS BOARD, Department of Veterans Affairs, Veterans Health Administration, and EASTERN COLORADO HEALTHCARE SYSTEM, Department of Veterans Affairs, Veterans Health Administration, Defendants.

No. 20-cv-2148

United States District Court, District of Columbia

August 10, 2022

MEMORANDUM OPINION

CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE

This is the second time the Court has considered former Department of Veterans Affairs (“VA”) anesthesiologist Jane Doe's challenge to the decision of a VA Disciplinary Appeals Board (“DAB” or “the Board”) upholding her removal from federal service.^[1] In a previous opinion, the Court rejected the majority of Doe's procedural and evidentiary objections to a hearing conducted by the DAB and its subsequent removal decision. But the Court agreed with Doe that the DAB did not adequately explain its exclusion of certain exhibits she sought to introduce at the hearing. The Court therefore remanded the matter to the Board for it to either provide that explanation or reconsider its removal decision in light of the previously excluded evidence. The DAB has now clarified why it excluded Doe's proffered evidence. On remand, the Board explained that it rejected Doe's exhibits as both untimely and irrelevant to the charges of unprofessional conduct at the center of her case.

Doe challenges that explanation in a renewed motion for summary judgment. She contends that principles of administrative law preclude the Court from considering the DAB's explanation on remand. She further argues that the DAB's reasoning is “not credible.” The agency has cross-moved for summary judgment. It maintains that the DAB reasonably excluded Doe's untimely exhibits, and that her additional evidence was not material in any event. The agency asks for summary judgment on Doe's evidentiary challenge, as well as on any remaining issues on which the Court previously reserved judgment.

The Court will deny Doe's motion for summary judgment and grant the agency's crossmotion. In this context, the Court can properly consider the new rationale it invited the DAB to provide on remand. And under the deferential standard of review it must apply, the Court finds the DAB has provided a sufficient, reasonable explanation for excluding material Doe only sought to introduce on the eve of a lengthy hearing. Any other exclusions were harmless. Turning to the merits of the DAB's decision, the Court finds that it is supported by substantial evidence and complies with the relevant substantive standards. Accordingly, the Court affirms the decision of the DAB upholding Doe's removal from federal service.

I. Background

The Court assumes familiarity with the underlying factual background laid out in its prior memorandum opinion. See MSJ Op. at 2-7, ECF No. 38. Below, the Court recounts the facts relevant to this opinion, including recent developments following its remand order.

A. Initial Administrative Proceedings

On August 1, 2018, the Chief of Staff of the Eastern Colorado Health Care System (“ECHCS”)-a Denver-area VA hospital where Doe worked-notified Doe that the agency proposed to remove her from federal service based on an unprofessional conduct charge. A.R. 91-93. That charge, in turn, was supported by eight specifications. Most related to incidents with specific patients, and one centered on “unprofessional . . . interactions with” medical residents. Id. Later that month, the ECHCS Director issued a final decision removing Doe from service and revoking her clinical privileges. A.R. 101. The Director found overall support for the charge of unprofessional conduct, and upheld five of the eight underlying specifications. Id. In so doing, she considered, among other things, Doe's “oral and written replies,” evidence Doe submitted to support her position, and a July 2018 memorandum outlining “[a]ggravating and [mitigating [f]actors” related to Doe's conduct and performance. Id.

Doe administratively appealed the decision, and the agency appointed a Disciplinary Appeals Board to consider the appeal. A.R. 5. The Board set a hearing for December 2, 2019. A.R. 473. In advance, the Board Chair issued a memorandum outlining various deadlines and procedures. A.R. 473-75. He set a deadline of October 7 for “any pre-hearing motions or other requests,” and required the parties to submit witness lists by October 9. A.R. 474. He also set deadlines for responses or objections to those filings. Id. The memorandum emphasized that “it [was] essential” for the parties to “adhere[] to” this schedule, given a statutory requirement that the DAB reach a decision within 45 days of the hearing's conclusion. A.R. 475; see 38 U.S.C. § 7462(c)(4). Finally, the Chair explained that the “the facts and issues of the appeal,” as well as any pending motions or other administrative issues, would be addressed in a November 1, 2019, teleconference. A.R. 474.

Throughout October and November of 2019, the parties submitted a variety of filings regarding the scope of the upcoming hearing and the identity of the witnesses who would testify. When each side filed untimely responses to various submissions, the DAB Chair admonished them and expressed “hope[]” that such “disregard” for the Board's “instructions” did “not become a pattern.” A.R. 400. The Board nevertheless accepted the belated filings and considered those objections on the merits. Id.

On November 1, the Board held a pre-hearing conference call. See A.R. 634-39 (call summary). The Board emphasized that it was “not a court of law,” and that its function was “to review and consider evidence and arguments relevant to the charges.” A.R. 634. On the call, among other things, the DAB approved or denied the participation of various witnesses and set a deadline for submission of amended witness lists for the following week. A.R. 635-36. The Board later-based on Doe's objection-rejected the agency's request to use transcripts from prior depositions taken in related proceedings before the Merit Systems Protection Board (“MSPB”) in lieu of live testimony from certain former VA employees. A.R. 636. Lastly, based on the summary of the conference prepared after the fact, it appears that the Board took certain “actions” regarding various exhibits submitted alongside the parties' filings throughout October. See A.R. 636-37 (listing “exhibits,” including evaluations of Doe, as well as contemporaneous statements, emails, and other communications regarding the underlying specifications). It is unclear from context whether the DAB agreed to admit any of those exhibits for substantive consideration at the hearing.

The week before the hearing, the parties submitted several additional requests. First, on Sunday, November 24, Doe moved to amend her witness list to replace a former VA employee who could no longer be located with a current employee. A.R. 640-41. The agency objected on several grounds, including timeliness, A.R. 645, and the DAB rejected the swap, A.R. 649. To maintain an even number of character witnesses from each side, the Board instructed the agency to remove one from its witness list, too. Id.

Second, on Friday, November 29, both Doe and the agency sought the admission of additional documentary exhibits. See A.R. 666-67; A.R. 952. The agency submitted four. A.R. 666-67. Doe offered 23, totaling some 280 pages. See A.R. 669-948, 951. Her proposed exhibits included, among other things, a copy of her CV, past recommendation letters and positive performance reviews, and correspondence regarding her supervision of residents. A.R. 670. Doe contended that this material was “essential as a matter of fundamental fairness,” as existing evidence did not tell the complete story and largely did not support her position. A.R. 952. The agency objected and moved to exclude most of the exhibits as untimely, irrelevant, and/or duplicative of material already in the evidence file before the Board. A.R. 951. At the start of the hearing the following Monday, the Board denied both sides' November 29 requests to “include further exhibits in[] the record.” A.R. 982. The Board's explanation for that exclusion-or, more to the point, the lack thereof-is the subject of the Court's remand order and the parties' renewed summary judgment briefing.

Following a four-day hearing, the DAB upheld the charge of unprofessional conduct, the five specifications outlined in the ECHCS Director's initial decision, and the ultimate penalty of removal. See A.R. 965-71. In coming to that decision, the Board had before it the entire hearing record, as well as an evidence file from the initial removal decision, which included statements and submissions made by Doe at that time. See Index to A.R. 1-6. The final decision cited the testimony of a variety of Doe's colleagues-all of whom were subject to crossexamination by Doe's counsel-as well as Doe's testimony on her own behalf. A.R. 966-70.

B. Prior Appeal

Doe sought judicial review of the DAB's decision. In a prior opinion, the Court granted in part and denied in part both Doe's and the agency's motion for summary judgment. While the Court largely rejected Doe's procedural challenges to the DAB hearing, it agreed with Doe that the Board did not adequately explain two evidentiary decisions first, the exclusion of the supplemental evidence file Doe submitted on November 29, 2019; second, the rejection of her effort to introduce prior sworn and supposedly inconsistent testimony to impeach various agency witnesses. See MSJ Op. at 16-19. While the Court noted that a sufficient explanation “need not be extensive,” it...