7 F.4th 1012
11th Cir.2021Background
- Dr. Said I. Hakki, a VA urologist, was on LWOP while working in Iraq; his LWOP was repeatedly extended then denied (dec. 23, 2008), and he was directed to return by January 2, 2009.
- Hakki did not return on January 2, 2009 and was charged AWOL; VA issued a proposed discharge (July 8, 2009) and effected removal (Nov. 13, 2009).
- Hakki filed administrative grievances and union arbitration efforts; some VA officials were recused and VISN 10 officials reviewed the discharge.
- Hakki sued in 2010 (Hakki I); the district court remanded to VA because procedures had lacked cross-examination; VA held a hearing with cross-examination in 2017.
- The VA hearing officer recommended granting Hakki’s grievance, but the final VA official (Young) denied relief in 2018, relying on Title 38 standards that LWOP is discretionary and Hakki had been AWOL.
- Hakki sued again under the APA, for mandamus, and asserting due process violations; the district court found no subject-matter jurisdiction and granted VA summary judgment; the Eleventh Circuit affirmed (dismissal without prejudice), holding APA and mandamus jurisdiction lacking and no colorable due process claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the VBA precludes APA review of a §7463 discharge decision | Hakki: APA allows review; VA acted arbitrarily and contrary to policy | VA: VBA is a comprehensive remedial scheme; §7463 omits judicial review and thus precludes APA relief (Fausto framework) | Court: VBA §7463 precludes APA judicial review for Hakki’s §7463-based discharge; APA claim barred |
| Whether district court had jurisdiction to hear procedural due process claim for injunctive relief | Hakki: Young relied on bases he lacked notice of (e.g., December 2008 LWOP denial or wrong Handbook provision) | VA: Hakki had repeated notice of return date, LWOP denial, and AWOL basis; any Handbook dispute is substantive and not a due-process defect | Court: Hakki’s due-process claims are not colorable; he had ample notice and opportunity to be heard; no equitable constitutional jurisdiction |
| Whether mandamus relief was available under 28 U.S.C. §1361 | Hakki: Mandamus appropriate because VA violated its rules and refused proper review | VA: Mandamus is extraordinary; Hakki has no clear nondiscretionary right nor VA duty to compel | Court: No mandamus jurisdiction—Hakki failed to show a clear right to relief or a clear nondiscretionary duty by the VA |
Key Cases Cited
- United States v. Fausto, [citation="484 U.S. 439"] (U.S. 1988) (comprehensive federal personnel-review scheme can preclude alternative judicial review).
- Pathak v. Dep't of Veterans Affs., [citation="274 F.3d 28"] (1st Cir. 2001) (VBA's express review in §7462 and omission in §7463 indicates congressional intent to foreclose APA review).
- Fligiel v. Samson, [citation="440 F.3d 747"] (6th Cir. 2006) (physician’s APA challenge to VBA §7463 discipline is precluded by Title 38’s comprehensive scheme).
- Hardison v. Cohen, [citation="375 F.3d 1262"] (11th Cir. 2004) (VBA’s remedial scheme precludes Bivens/damages and supports limiting alternative remedies).
- Durr v. Shinseki, [citation="638 F.3d 1342"] (11th Cir. 2011) (interpreting §7462(f)’s constrained standards of judicial review).
- Heckler v. Ringer, [citation="466 U.S. 602"] (U.S. 1984) (mandamus is unavailable when plaintiff lacks a clear nondiscretionary right).
- Cash v. Barnhart, [citation="327 F.3d 1252"] (11th Cir. 2003) (mandamus is an extraordinary remedy; plaintiff must show clear and indisputable right).