Jeffrey Dubnow v. Denis R. McDonough
30f4th603
7th Cir.2022Background
- Dr. Jeffrey Dubnow, longtime board-certified ED physician and Chief at the FHCC, directed an ambulance carrying a seven-month-old infant in full cardiorespiratory arrest to divert to nearby Lake Forest Hospital because he believed the arrest was likely trauma and that Lake Forest was better equipped for pediatric trauma.
- The ambulance departed FHCC and the infant was pronounced dead at Lake Forest; FHCC initiated an investigation and the FHCC Director removed Dubnow based on five charges (three related to the April 29, 2017 incident).
- Dubnow appealed to a Disciplinary Appeals Board (DAB); after a three-day hearing the DAB found none of the five charges supported and recommended overturning the removal, including finding the diversion met the community standard of care.
- The VA Principal Deputy Under Secretary for Health (PDUSH) remanded for clarification, then reversed the DAB only on Charge One ("Inappropriate Refusal of Care and/or Diversion") as "clearly contrary to the evidence," reinstating removal based on a brief opinion that FHCC was staffed/equipped and staff were PALS-certified.
- The district court affirmed the VA decision; the Seventh Circuit reviewed de novo whether the PDUSH lawfully and rationally found the DAB’s decision "clearly contrary to the evidence."
- The Seventh Circuit held the PDUSH’s reversal was arbitrary and capricious because he failed to apply the required deferential "clearly contrary to the evidence" standard and failed to engage the DAB’s factual findings (including its community-standard-of-care conclusion); the decision was vacated and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PDUSH properly applied the statutory "clearly contrary to the evidence" standard when reversing the DAB | PDUSH ignored required deference and substituted his judgment for the DAB without showing the DAB's finding was obviously against the weight of the evidence | PDUSH cited the standard and gave reasons (FHCC equipped, PALS-certified staff), so reversal was permissible | PDUSH failed to apply the standard: opinion lacked analysis addressing the DAB's reasons; reversal arbitrary and capricious; vacated and remanded |
| Whether PDUSH had to evaluate Dubnow's conduct against the community standard of care | Failure to analyze community standard makes the reversal deficient because DAB relied on that standard | No per se rule requires such analysis in every case; PDUSH not strictly required to use that label | Court declined a per se rule but held PDUSH's omission of any engagement with the DAB's community-standard finding undermined his deferential-review obligation and supported vacatur |
| Whether Dubnow forfeited these arguments by not raising them below | Dubnow preserved the main "clearly contrary" argument and sufficiently raised community-standard points | VA argued forfeiture | Court held arguments were preserved and not forfeited |
Key Cases Cited
- Minnick v. Colvin, 775 F.3d 929 (7th Cir. 2015) (appellate review of VA final decision; standards of review)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (agency action must have a rational basis and a "logical bridge")
- Sierra Club v. U.S. Env't Prot. Agency, 774 F.3d 383 (7th Cir. 2014) (arbitrary-and-capricious review: consider important aspects of the problem)
- Kastner v. Astrue, 697 F.3d 642 (7th Cir. 2012) (agency must build a logical bridge between evidence and conclusion)
- Adventist GlenOaks Hosp. v. Sebelius, 663 F.3d 939 (7th Cir. 2011) (failure to consider an important aspect of the problem invalidates agency action)
- Terry v. Astrue, 580 F.3d 471 (7th Cir. 2009) (administrative decision need not discuss every piece of evidence)
- Burmester v. Berryhill, 920 F.3d 507 (7th Cir. 2019) (court will not reweigh evidence or substitute its judgment for the agency's)