SUZANNE FLIGIEL, M.D., Plaintiff-Appellant, v. MICHAEL K. SAMSON, M.D., et al., Defendants, ANTHONY J. PRINCIPI, in his capacity as Secretary, Department of Veterans Affairs, Defendant-Appellee.
No. 04-1531
United States Court of Appeals for the Sixth Circuit
Argued: September 21, 2005; Decided and Filed: March 7, 2006
06a0087a.06
Before: DAUGHTREY, MOORE, and McKEAGUE, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 00-72512—Julian A. Cook, Jr., District Judge.
COUNSEL
ARGUED: Riyaz A. Kanji, KANJI & KATZEN, Ann Arbor, Michigan, for Appellant. Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: Riyaz A. Kanji, Jennifer B. Salvatore, KANJI & KATZEN, Ann Arbor, Michigan, Arthur Oleinick, Ann Arbor, Michigan, for Appellant. Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
AMENDED OPINION
McKEAGUE, Circuit Judge. This is an appeal of the district court‘s refusal to set aside its grant of summary judgment to the Veterans Administration (VA) in a suit brought by a physician who was transferred to a VA facility without notice and an opportunity to respond, as required by statute and Veterans Administration agency regulations. The district court found that Dr. Suzanne Fligiel‘s transfer was a “major adverse action,” entitling her to procedural protections, including advance notice and an opportunity to respond. However, the court held that the denial of procedural due process was harmless error and granted the VA summary judgment.
I. BACKGROUND
A. Factual Background
Suzanne Fligiel M.D., began working for the John D. Dingall Veterans Administration Medical Center (“VAMC“) in Detroit in 1985, and by 1992, she had advanced to the position of Chief of Pathology and Laboratory Medicine Services (“PALMS“). While serving as the Chief of PALMS, Fligiel was involved in various disputes with both her staff and her supervisors. Physicians working in her department complained that Fligiel had an overbearing managerial style, and several members of the staff complained to Fligiel‘s superiors. Fligiel was also resistant to the VAMC‘s new partnership with Wayne State University and the Detroit Medical Center, which caused concern with her supervisors and colleagues. Her official proficiency reports, however, were highly complimentary of her work with the department at least through 1995.
On October 20, 1999, Fligiel was called to a meeting with Dr. Samson, her supervisor at the VAMC. He informed her that she was being “detailed” to the PALMS department at the VAMC in Ann Arbor, Michigan, and that she was being reassigned from her position as Chief of PALMS to a staff physician position. The reassignment led to a net loss in Fligiel‘s annual salary of $13,400.00.
At the time of the detail, Samson told Fligiel that he was frustrated by her lack of cooperation with the partnership efforts and by the negative and hostile work climate that was the product of her management style. He advised her to report to personnel, and told her she would be escorted out of the building by the VA police. Fligiel did not report to personnel, and left the VAMC down a back stair case. She contacted her counsel immediately. On November 4, her attorneys sent a letter to the Detroit VAMC requesting all records relating to Fligiel‘s employment, as well as a copy of the VA grievance procedures. Shortly thereafter, Fligiel‘s counsel sent a letter to Dr. Thomas L. Garthwaite, Acting Under Secretary for Health and the Chief Medical Director of the Department of Veterans Affairs, requesting an appeal to the Disciplinary Appeals Board (“DAB“). Dr. Garthwaite responded via letter dated December 10, 1999, stating that Fligiel‘s proper recourse was through VA grievance procedures.
Fligiel received a memorandum dated January 4, 2000, that rescinded her reassignment from her position as Chief, though this did not change the amount of her salary. Several days later, Fligiel‘s counsel received a letter from the Department of Veterans Affairs counsel stating that Fligiel‘s only option for redress was through the Equal Employment Opportunity Commission.
In October 2001, Fligiel received notice that she was being permanently reassigned to a staff physician position in Saginaw, Michigan. Fligiel accepted this transfer, but she filed a formal complaint with the VA‘s Office of Resolution Management. Fligiel received a response regarding her administrative grievance in
B. Procedural Background
In June 2000, Fligiel sued Michael K. Samson, M.D., (Chief of Staff at the Detroit VAMC), Thomas L. Garthwaite, M.D., (Deputy Under Secretary for Health, Department of Veterans Affairs), Togo D. West, Jr., (Secretary of Veterans Affairs), and the Department of Veterans Affairs in federal district court. The complaint sought damages for violations of
Fligiel filed for partial summary judgment on September 29, 2000, and on October 10, 2000, she filed an amended complaint that added an additional claim for sex discrimination under Title VII. On January 31, 2001, the district court entered an order granting the defendant‘s request for summary judgment, finding that the detail did not constitute a major adverse action so that Fligiel was not entitled to a hearing before the DAB, that the Bivens claim was barred, and the constitutional claim was invalid on the basis of the sovereign immunity of Samson, Garthwaite, and West, and the qualified immunity of Samson.
Fligiel filed two additional amended complaints: the first of these added a claim that the Saginaw transfer was retaliation for the prior complaint of sex discrimination, and the second added a claim that the transfer to Saginaw was a major adverse action, and Fligiel was denied her statutory rights to notice and a hearing under
In May 2003, Fligiel submitted a brief requesting that the court reverse the January 31, 2001, grant of summary judgment on the basis of the later trial testimony and exhibits. In this brief, Fligiel argued that Dr. Samson‘s trial testimony made it clear that the personnel actions taken in her case amounted to a permanent transfer rather than a detail, and were based in part on professional conduct or competence. The court entered an order on August 26, 2003, denying the request for a reversal of the earlier decision. However, the court did set aside its earlier determination that the action taken against Fligiel was not a major adverse action, in light of the events occurring and evidence gathered since that earlier date. The court found that Fligiel‘s relocation to the Ann Arbor VAMC was a major adverse action, but that this transfer was not based on professional conduct or competence. Thus, Fligiel was still not entitled to a review by the DAB pursuant to
II. JURISDICTION AND STANDARD OF REVIEW
The district court claimed jurisdiction pursuant to
When this court is reviewing a district court‘s opinion as to an agency action, it will use a de novo standard of review. Steeltech, Ltd. v. EPA, 273 F.3d 652, 655 (6th Cir. 2001). The court will then apply the “appropriate standard of review” in looking at the agency‘s decision. Steeltech, 273 F.3d 652, 655.
III. STATUTORY PROCEDURAL RIGHTS
A. Fligiel‘s Remedies under the Veterans’ Benefits Act
Veterans Administration physicians1 are afforded procedural protections when they experience a “major adverse action,” as defined by
Under Title 38, the VA‘s procedure for addressing a major adverse action depends upon the findings of a two step analysis. First, the action must be identified as a major adverse action within
Fligiel‘s transfer to the Ann Arbor VAMC in October of 1999 was a major adverse action. The district court found that she was transferred for reasons other than professional conduct or competence, invoking the protections of
On appeal, Dr. Fligiel does not contest the district court‘s conclusion that she was transferred for reasons other than professional conduct or competence, nor does she deny that her statutory remedies under Title 38 do not include judicial review. Dr.
B. Fligiel‘s Remedies under the Administrative Procedure Act
The district court claimed jurisdiction relying on the Administrative Procedure Act (“APA“),
The Secretary argued that judicial review under the APA was improper because of the holdings in United States v. Fausto, 484 U.S. 439 (1988); and Pathak v. Department of Veterans Affairs, 274 F.3d 28 (1st Cir. 2001). However, the district court found these cases inapposite to the facts here. Instead, the court claimed jurisdiction, and found that the VA‘s procedural lapse was harmless error. We disagree with the district court in these determinations, and find that both Fausto and Pathak are on point. Further, we have denied judicial review in reliance on Fausto in similar circumstances. See Leistiko v. Stone, 134 F.3d 817 (6th Cir.1998), and Harper v. Frank, 985 F.2d 285 (6th Cir. 1993). We agree with the Secretary that Fligiel may not gain judicial review in reliance on the APA, because there is clear and convincing evidence that Congress precluded review for the type of harm she suffered.
In United States v. Fausto, 484 U.S. 439 (1988), the Supreme Court held that an employee governed by the Civil Service Reform Act (“CSRA“) was foreclosed from invoking other statutory means of judicial review, because the CSRA is the comprehensive remedial scheme for such individuals. Fausto, 484 U.S. at 448-49. Fausto was an employee of the Fish and Wildlife Service, subject to the CSRA. Fausto, 484 U.S. at 442-43. After exhausting his administrative remedies, Fausto attempted to obtain judicial review of his adverse personnel action through the Back Pay Act, because the CSRA did not provide judicial review for the type of adverse action he suffered. Fausto, 484 U.S. at 447. The Court held that providing judicial review pursuant to an alternate statute would undermine the purpose of the CSRA; namely providing the comprehensive catalog of remedial measures for the employees regulated by the Act. Fausto, 484 U.S. at 448-50.
The Court ruled that Congress intended the CSRA to “replace the haphazard arrangements for administrative and judicial review of personnel action, part of the ‘outdated patchwork of statutes and rules built up over almost a century’ that was the civil service system.” Fausto, 484 U.S. at 444 (citation omitted). Further, the court noted that Congress enacted the CSRA, “which replaced the patchwork system with an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient
Further, the court reasoned that the absence of a provision allowing judicial review of Fausto‘s adverse personnel action in the CSRA was an indication that Congress did not intend employees to have such a right. Fausto, 484 U.S. at 448-9. “It seems to us evident that the absence of provision for these employees to obtain judicial review is not an uninformative consequence of the limited scope of the statute, but rather manifestation of a considered congressional judgment that they should not have statutory entitlement to review for adverse action of the type governed by Chapter 75.” Id.
Applying the holding in Fausto to the facts here, we find that Fligiel is precluded from invoking the protections of the APA to obtain the judicial review of her adverse employment action that she was denied by the Veterans’ Benefits Act. Like the CSRA, Title 38 provides a comprehensive regulatory scheme for employees of the VA. In particular,
addition, internal grievance procedures were available.
Fligiel‘s attempt to acquire judicial review relying on provisions of the APA is ill fated. Under Fausto, where a comprehensive remedial scheme exists to address agency adverse actions, and Congress has clearly indicated that no judicial review is available, an individual may not choose other federal statutory avenues to obtain review. Fausto, 484 U.S. at 439, 455. “The CSRA established a comprehensive system for reviewing personnel action taken against federal employees. Its deliberate exclusion of employees in respondent‘s service category from the provisions establishing administrative and judicial review for personnel action of the sort at issue here prevents respondent from seeking review in the Claims Court under the Back Pay Act.” Id. Like Fausto, Fligiel was entitled to specific procedural remedies under Title 38, which did not include judicial review. She cannot now rely on the procedural protections of the APA.
The First Circuit addressed this very issue in Pathak v. Department of Veterans Affairs, 274 F.3d 28 (1st Cir. 2001). Pathak was a VA physician governed by the provisions of the Veterans’ Benefits Act. Id. Like Fligiel, Pathak was subject to a major adverse action not involving professional conduct or competence. Pathak, 274 F.3d at 28, 32. He, too, was entitled to the statutory protections of
In deciding whether Pathak was entitled to judicial review under the APA, the First Circuit stated:
[I]t was Dr. Pathak‘s actions as an employee and as a supervisor that were at issue, not his clinical competence or direct patient care. In contrast with
§ 7462 , which provides judicial review of discipline based on professional conduct or competence, Congress provided no right of review in§ 7463 , which governs discipline unrelated to professional conduct or competence. Congress‘s express provision of judicial review in§ 7462 , coupled with a complete omission of judicial review in§ 7463 - - the provision governing Pathak-- is “persuasive evidence that Congress deliberately intended to foreclose further review of such claims.”
We agree with the First Circuit‘s analysis. Like Pathak, Fligiel may not invoke the review provisions of the APA in order to obtain the judicial review Congress intended to deny her under
This circuit has relied on Fausto to deny judicial review in other situations. In Leistiko v. Stone, 134 F.3d 817 (6th Cir. 1998), Leistiko was a lieutenant colonel in the National Guard and an “excepted service” federal employee governed by the CSRA. Leistiko, 134 F.3d 817, 818. He was terminated from his position as a Supervisory Aircraft Pilot by the Ohio Adjutant General‘s Department after he was medically disqualified from aviation service. Id. After unsuccessfully pursuing his administrative remedies, Leistiko filed suit in federal district court alleging violations of his rights under the APA.3 Id. The district court dismissed the claim. Id. We affirmed, noting that under Fausto, the CSRA precluded judicial review of Leistiko‘s termination. Leistiko 134 F.3d 817, 820.
While Chapter 75 of the CSRA provided substantive and procedural rights for “removals“, it expressly excluded individuals in Leistiko‘s employment category. Id. We found that this exclusion evinced clear congressional intent to deny these employees the protections, including judicial review. Id. “Because Col. Leistiko has thus been excluded from the protections of Chapter 75, the logic of Fausto is that his removal from the technicians position is not subject to judicial review.” Id. Further, we acknowledged that the APA generally
Likewise, we find that the Veterans’ Benefits Act effectively precludes judicial review for Fligiel. The Act‘s express exclusion of DAB review in
IV. CONCLUSION
For the aforementioned reasons, the judgment of the district court granting summary judgment to the Veterans Administration is VACATED, with REMAND to the court for an entry of DISMISSAL.