Hutchinson v. Wilkie

554 F.Supp.3d 1236

Dr. Matthew HUTCHINSON, Plaintiff,

v.Robert WILKIE Secretary of Veterans Affairs, Defendant.

Case No. 7:19-cv-01168-LSC

United States District Court, N.D. Alabama, Western Division.

Signed March 30, 2021

David I. Schoen, David I. Schoen, Attorney at Law, Montgomery, AL, Joshua I. Kahn, Pro Hac Vice, The Office of Eric L. Pines, PLLC, Houston, TX, for Plaintiff.

Amanda Meredith Donat, Sarah C. Blutter, U.S. Attorney's Office, Civil Division, Birmingham, AL, for Defendant United States Department of Veterans Affairs.

MEMORANDUM OF OPINION

L. Scott Coogler, United States District Judge

I. INTRODUCTION

Before the Court are two cross-motions for summary judgment—one filed by Plaintiff Dr. Matthew Hutchinson ("Hutchinson") and one filed by Defendant Robert Wilkie, as Secretary of Veterans Affairs. (Docs. 16, 22.) For the reasons stated below, Plaintiff's motion is due to be granted in part and denied in part. Defendant's motion is due to be denied in full.

II. BACKGROUND

The following facts are undisputed by the Parties and supported by the record. Since November 3, 2013, Hutchinson has served as the sole Radiologist for the Tuscaloosa Veterans Affairs Medical Center, and at times he has served as the Chief Radiologist. (AR 112.) On December 21, 2016, Hutchinson was found to be "under the influence of alcohol while on duty." (AR 001.) The next day, TVAMC summarily suspended Hutchinson's clinical privileges pending a further investigation. (AR 293.)

Following this investigation, TVAMC charged Hutchinson with two additional infractions: "documenting patient medical reports without clinical privileges" and "improper documentation." (AR 01–09.) On May 22, 2017, TVAMC's acting chief of staff proposed Hutchinson's removal and the revocation of his clinical privileges. (AR 055–065.) TVAMC's director sustained the proposed removal on June 20, 2017. (AR 01–09.) Pursuant to the three sustained charges, TVAMC revoked Hutchinson's clinical privileges and removed him from federal employment effective June 26, 2017. (Id. )

On July 19, 2017, Hutchinson requested a hearing before the disciplinary appeals board ("DAB") for review of TVAMC's decision to remove him and revoke his privileges. (AR 012–119.) Hutchinson did not contest that he was under the influence of alcohol while at work on December 21, 2016. (AR 1120.) However, the DAB unanimously rejected TVAMC's two remaining charges against Hutchinson. (AR 1121–36.) The DAB specifically found that these two charges "were crafted in an effort to support eventual removal which Charge 1, based upon the bylaws, would not." (AR 1136.) Accordingly, the DAB mitigated Hutchinson's penalty to a thirty-day suspension. (AR 1132.)

On February 13, 2018, the Principal Deputy Under Secretary for Health ("PDUSH") sustained the DAB's findings and approved the DAB's recommendations. (AR 1137.) Specifically, he ordered TVAMC "to cancel [Hutchinson's] removal, and replace it with a 30-day suspension, and return [him] to duty." (Id. )

PDUSH also ordered an appropriate amount of back pay and told Hutchinson to submit any request for attorney's fees so that PDUSH could make a final determination "regarding entitlement and an appropriate award." Id. Hutchinson timely submitted a request for attorney's fees to PDUSH on March 16, 2018. (AR 1140.) On January 3, 2019, PDUSH denied Hutchinson's request because a fee award would not be "in the interest of justice." (AR 1198.) PDUSH provided no further elaboration for his decision. (Id. )

Following PDUSH's review of the DAB decision, TVAMC re-hired Hutchinson on February 23, 2018. (AR 1199–20.) However, TVAMC did not return his clinical privileges because he had "not been in direct patient care in excess of 90 days." (Id. ) On February 7, 2018, TVAMC began advertising an open position for a new radiologist, and by December 6, 2018, TVAMC had selected two new individuals for the position of Physician—Chief of Radiology Service. (AR 1248–1261.) Since re-hiring Hutchinson, TVAMC has never allowed Dr. Hutchinson to perform radiological duties. (AR 1199-1217.)

III. JURISDICTION

A. Claim One—Attorney's Fees

Any claimant challenging a "final order or decision of a Disciplinary Appeals Board (as reviewed by [PDUSH]) may obtain judicial review of the order or decision." 38 U.S.C. § 7462. During his review of the Disciplinary Appeals Board's final decision, PDUSH denied Hutchinson's fee petition. Because this fee determination is part of PDUSH's final decision, this Court has jurisdiction to review his denial of Hutchinson's fee petition under § 7462.

B. Claim Two—Implementation of the DAB decision

The APA allows judicial review of "final agency action for which there is no other adequate remedy." 5 U.S.C. § 704. An action is final when it is the "consummation of agency decision making ... from which legal consequences flow." Bennett v. Spear , 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). TVAMC consummated the Veterans Affairs decision-making process when it interpreted the DAB decision to require reapplication for clinical privileges. Because TVAMC designated him as an initial applicant, Hutchinson was unable to appeal TVAMC's subsequent denial of clinical privileges. See AR 827 (The "denial of initial clinical privileges does not carry with it any right to due processes."). Without a right to appeal, TVAMC's decision was unreviewable. Accordingly, it was "final" within the meaning of the APA. Therefore, 5 U.S.C. § 704 grants this Court jurisdiction to review TVAMC's decision.

IV. STANDARD OF REVIEW

Appeals under 38 U.S.C. § 7462(f) and 5 U.S.C. § 704 are subject to similar standards of review. Under § 7462(f), a court will set aside an agency action found to be (1) arbitrary or capricious, (2) obtained without procedures required by law, or (3) unsupported by substantial evidence. 38 U.S.C. § 7462(f). Meanwhile, under the APA, a court will set aside agency action found to be "unlawfully withheld or unreasonably delayed" or "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706.

Under the arbitrary and capricious standard, "the scope of review is a narrow one." Bowman Transp. Inc. v. Arkansas-Best Freight Sys., Inc. , 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). The reviewing court's primary consideration is "whether the decision was based on a consideration of the relevant factors." Id. Indeed, the agency "must articulate a ‘rational connection between the facts found and the choice made.’ " Id. (quoting Burlington Truck Lines v. United States , 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) ).

V. DISCUSSION

A. Claim One—Attorney Fees

Under the Back Pay Act, a prevailing employee is entitled to reasonable attorney's fees if this fee shifting is "in the interest of justice." 5 U.S.C. § 7701(g)(1). To determine whether a payment would be "in the interest of justice," adjudicators consider (1) whether the agency engaged in a prohibited personnel practice, (2) whether the agency action was clearly without merit or wholly unfounded, (3) whether the agency initiated the action in bad faith, (4) whether the agency committed a gross procedural error that prolonged the proceeding or severely prejudiced the employee, and (5) whether the agency knew or should have known that it would not prevail on the merits when it brought the proceeding. Allen v. U.S. Postal Serv. , 2 M.S.P.R. 420, 436 (M.S.P.B. 1980) ; See also Yorkshire v. Merit Sys. Prot. Bd. , 746 F.2d 1454, 1456 (Fed. Cir. 1984). These factors, known as the Allen factors, are not exhaustive. Massa v. Dep't of Def. , 833 F.2d 991, 992 (Fed. Cir. 1987). However, they serve as "directional markers toward defining ‘the interest of justice’ " standard." Id.

Although these standards give the adjudicator broad discretion, "it is ordinarily necessary for the adjudicator to provide some sort of explanation for its action." AFGE Local 3599 v. E.E.O.C. , 920 F.3d 794, 798–800 (Fed. Cir. 2019). If the adjudicator grants a fee petition, he must make "a specific finding ... setting forth the reasons such payment is in the interest of justice." 5 C.F.R. § 550.807(c)(2). However, even a denial requires some explanation from the adjudicator—otherwise, a court could not responsibly review the decision for arbitrariness or capriciousness. See AFGE Local 3599 , 920 F.3d at 799.

The Court reprints the entirety of PDUSH's fee denial below:

The Office of General Counsel (OGC) review of the fee petition in the above-referenced matter is complete. We are denying a total recovery of $67,726 for the reason that Mr. Hutchinson was unable to show that fees and costs should be granted in the interest of justice.

(AR 1198.) Here, PDUSH denied Hutchinson's fee petition because the award would not be "in the interest of justice." PDUSH gave no further explanation. He did not analyze any of the Allen factors or support his determination with any facts. This cursory parroting of the statute does not qualify as an "explanation" and precludes this Court from meaningfully determining whether his denial was arbitrary or capricious. Indeed, without an explanation from PDUSH, the Court is unable to tell whether he denied Hutchinson's petition for a permissible reason or an impermissible reason.

Therefore, PDUSH's denial of attorney's fees is due to be vacated and remanded so that PDUSH can articulate a "rational connection between the facts found" and his decision on Hutchinson's attorney fees in light of the Allen factors. See Bowman , 419 U.S. at 285, 95 S.Ct. 438.

B. Claim Two—Revocation of Privileges

The DAB can rule on any issue "which arises out of (or which includes) a question of professional conduct or competence." 38 U.S.C. § 7462(a). TVAMC's removal of Hutchinson's clinical privileges arose from questions about his professional conduct—namely his prior alcohol abuse and allegedly improper documentation (AR 1122–24.) Therefore, the DAB had the ability to rule on any...