Daly-Murphy v. Winston, DALY-MURPH

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WALLACE, HUG and HALL; HUG
Citation820 F.2d 1470
PartiesMargaretlaintiff-Appellant, v. Michael WINSTON, E. Carmack Holmes, Arthur S. Kling, Ronald L. Nelson and the Veterans Administration, Defendants-Appellees.
Decision Date01 July 1987
Docket NumberP,DALY-MURPH,No. 85-5581

Page 1470

820 F.2d 1470
Margaret DALY-MURPHY, Plaintiff-Appellant,
v.
Michael WINSTON, E. Carmack Holmes, Arthur S. Kling, Ronald
L. Nelson and the Veterans Administration,
Defendants-Appellees.
No. 85-5581.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Nov. 5, 1985.
Decided July 1, 1987.

Page 1472

Mary Ann Murphy, Los Angeles, Cal., for defendants-appellees.

Bruce M. Stark, Long Beach, Cal., for plaintiff-appellant.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, HUG and HALL, Circuit Judges.

HUG, Circuit Judge:

Daly-Murphy appeals from a summary judgment denying (1) her claims that the suspension of her clinical privileges at a Veterans Administration hospital was in violation of the Administrative Procedures Act and the Privacy Act; (2) her claims against her supervisors for violations of her constitutional rights under Bivens and 42 U.S.C. Sec. 1983 (1982); and (3) her claims for libel under state law. We affirm.

FACTS

Appellant Dr. Daly-Murphy has been employed by the Veterans Administration ("VA") since 1976, primarily as an anesthesiologist; at the time this case arose, she worked at the Veterans Administration Medical Center in Sepulveda, California ("Medical Center"). The official capacity of each of the named individual defendants is as follows: Dr. Ronald L. Nelson, Director of the Medical Center; Dr. Arthur S. Kling, Chief of Staff; and Dr. E. Carmack Holmes, Chief of Surgical Services. On December 16, 1983, Dr. Michael S. Winston was appointed Acting Section Chief of Anesthesiology. 1 Conflicts between Winston and Daly-Murphy concerning appropriate procedures and Daly-Murphy's administration of anesthesia developed almost at once, and continued throughout the next two months. Matters came to a head during an operation performed on February 22, 1984, when an altercation occurred between Winston and Daly-Murphy regarding Winston's remarks to a nurse under Daly-Murphy's supervision. Although the cause of the altercation is disputed, all parties agree that she left the operating room in the middle of the operation and went immediately to the Chief of Staff to protest Winston's actions.

Early the next morning, Winston provided Holmes with a report on Daly-Murphy's actions during the prior two months and also described her departure from the operating room the day before. Holmes then temporarily suspended Daly-Murphy's clinical privileges at the Medical Center, effective immediately.

Under Articles VIII and IX of the Medical Center's Rules, Regulations, and Bylaws (the "bylaws"), Daly-Murphy was entitled to appeal her suspension. She did so, and an Ad Hoc Committee of the Clinical Executive Board ("AHCCEB") met, reviewed the letter of suspension, and concluded that Holmes had sufficient information to justify Daly-Murphy's suspension. Daly-Murphy then requested the next step under the bylaws--the convening of an Ad Hoc Appeals Committee ("AHAC"). Before the date on which the AHAC was scheduled to hold its hearing, Daly-Murphy filed with the district court a complaint, a motion for a temporary restraining order, and a motion for a preliminary injunction to enjoin the hearing. The district court denied the temporary restraining order and the preliminary injunction.

Several days of AHAC hearings were then held. Daly-Murphy contends that her counsel was not allowed to cross-examine all witnesses, and that when she requested a copy of the transcript, the request was denied on the ground that peer review proceedings such as these were confidential. The AHAC upheld the temporary suspension

Page 1473

and recommended that it be made permanent unless Daly-Murphy transferred to another facility and entered a program to improve her interpersonal skills. Daly-Murphy appealed to the Director ("Nelson"), who upheld the recommendation of the AHAC.

Meetings between the parties continued over the summer, but attempts to resolve the situation were unsuccessful. On October 4, Nelson gave Daly-Murphy until November 1 to decide whether to comply with the AHAC recommendations. When she decided not to do so, her privileges were permanently suspended.

Daly-Murphy then filed with the district court a motion for partial summary judgment and, on the same day, defendants filed a motion to dismiss or, in the alternative, for summary judgment. A hearing was held, and the court denied Daly-Murphy's motion and granted defendants' motion for summary judgment.

Daly-Murphy now appeals the district court's judgment. In addition, in her reply brief, she asks this court to consider the investigative report issued in her separate administrative complaint under Title VII of the Civil Rights Act. 2 We will first consider this request, and then address each of Daly-Murphy's claims in order.

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. Nevada v. United States, 731 F.2d 633, 635 (9th Cir.1984); Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). An appellate court's review is governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56(c). Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1328 (9th Cir.1983); M/V American Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1487 (9th Cir.1983). The reviewing court must determine whether there is any genuine issue of material fact and whether the substantive law was correctly applied. Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir.1984); Lojek, 716 F.2d at 677; see Fed.R.Civ.P. 56(c).

I.

The EEO Investigative Report

As noted above, Daly-Murphy asks this court, in her reply brief, to consider the information contained in the Investigative Report and Recommendation submitted by the investigator assigned to Daly-Murphy's discrimination complaint under Title VII of the Civil Rights Act. The investigator submitted her report to the Medical Center EEO Office on December 21, 1984, and appellant's counsel received a copy in June, 1985. There is no indication in the record of the current status of Daly-Murphy's Title VII complaint.

Federal Rule of Appellate Procedure 10 governs the record on appeal. Rule 10(e) provides in part that

If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted.

This circuit has construed this provision narrowly, holding that normally the reviewing court will not supplement the record on appeal with material not considered by the trial court. Karmun v. C.I.R., 749 F.2d 567, 570 (9th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 66, 88 L.Ed.2d 53 (1985); United States v. Canon, 534 F.2d 139, 140 (9th Cir.) (per curiam), cert. denied, 429 U.S. 991, 96 S.Ct. 2202, 48 L.Ed.2d 815 (1976). See also Foster v. C.I.R., 756 F.2d 1430, 1434 n. 2 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 793, 88 L.Ed.2d 770 (1986).

Here, the evidence contained in the Investigative Report was not considered by the trial court because it was submitted

Page 1474

after the summary judgment hearing. Moreover, a review of the record shows, as appellees contend, that the witnesses interviewed by the EEO investigator could have been interviewed by appellant's counsel prior to the summary judgment hearing, and thus any evidence developed in this manner could have been presented to the court. Therefore, we deny Daly-Murphy's request to consider the EEO Report in our review of this case.

II.

Claim Under the Administrative Procedures Act

Daly-Murphy alleges that the VA's actions against her, under the peer review procedures established by the bylaws, violated the Administrative Procedures Act, 5 U.S.C. Secs. 701-706 (1982 & Supp. III 1985) ("APA"), because the VA exceeded its statutory authority in establishing the peer review procedures as part of the disciplinary process. She also argues that these procedures denied her due process. Appellees contend that the VA acted within its authority in establishing the peer review procedure and that the procedures do not violate any due process rights. They further contend that dismissal of this claim was proper because Daly-Murphy has not exhausted her administrative remedies as required by 5 U.S.C. Sec. 704 (1982).

A. The Validity of the Administrative Process

Daly-Murphy contends that the peer review procedure established by the bylaws is invalid and in conflict with 38 U.S.C. Sec. 4110 (1982 & Supp. III 1985), which establishes a disciplinary procedure for general medical and surgical ("GM & S") personnel in VA facilities. Appellees argue that the peer review is the first step of a three-step process which culminates in a section 4110 proceeding. According to the appellees, this process begins with a preliminary investigation or a peer review proceeding at the local level to determine whether to forward the case to VA headquarters in Washington, D.C. for possible action under section 4110. If this occurs, the second step consists of a Central Office Screening Committee ("COSC") review to determine whether formal charges should be brought. Finally, if charges are brought, the individual may request a hearing before a section 4110 disciplinary board.

Under 38 U.S.C. Sec. 4115 (1982), the VA's Chief Medical Director has the authority to promulgate regulations "necessary to the administration of the Department of Medicine...." These regulations are contained in the VA Personnel Manual and Department of Medicine and Surgery Supplements. The VA manual requires that hospitals meet or exceed Joint Committee of Accreditation of Hospitals ("JCAH") standards; these standards, in turn, require that...

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11 practice notes
  • Bryan v. Def. Tech. U.S, No. CIV S-10-2241 KJM GGH P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 10 Febrero 2011
    ...("Bivens action is not a civil action... against the United States...." [internal quotations omitted]); Daly-Murphy v. Winston, 820 F.2d 1470, 1478 (9th Cir. 1987) (money damages suit by individual against U.S. cannot be maintained absent waiver of sovereign immunity); Clemente v.......
  • Church of Scientology Int'l v. Kolts, No. CV 93-1390-RSWL (EEx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 16 Febrero 1994
    ...Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); see also Daly-Murphy v. Winston, 820 F.2d 1470, 1477 (9th Cir.1987). Thus, this Court has jurisdiction under 28 U.S.C. § 1331. See The Presbyterian Church v. United States, 870 F.2d 518, 524......
  • Texaco Refining and Marketing Inc. v. Davis, Civ. No. 93-481-FR
    • United States
    • U.S. District Court — District of Oregon
    • 21 Octubre 1993
    ...that federal action allegedly causing the deprivation of a federal right is insufficient under 42 U.S.C. § 1983. Daly-Murphy v. Winston, 820 F.2d 1470, 1477 (9th Cir.), amended, 837 F.2d 348 (9th Cir.1987). A federal court may apply a state law, but it does not act under color of state law.......
  • Newmark v. Principi, Civil Action No. 02-6799.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 15 Mayo 2003
    ...such a system is in place in the instant case. See also Maxey v. Kadrovach, 890 F.2d 73, 75-76 (8th Cir. 1989); Daly-Murphy v. Winston, 820 F.2d 1470, 1478 (9th Cir.1987). Given that Dr. Newmark's Bivens claims—of First and Fifth Amendment violations in Counts IV, V, and VI—arise out of an ......
  • Request a trial to view additional results
11 cases
  • Bryan v. Def. Tech. U.S, No. CIV S-10-2241 KJM GGH P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 10 Febrero 2011
    ...("Bivens action is not a civil action... against the United States...." [internal quotations omitted]); Daly-Murphy v. Winston, 820 F.2d 1470, 1478 (9th Cir. 1987) (money damages suit by individual against U.S. cannot be maintained absent waiver of sovereign immunity); Clemente v.......
  • Church of Scientology Int'l v. Kolts, No. CV 93-1390-RSWL (EEx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 16 Febrero 1994
    ...Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); see also Daly-Murphy v. Winston, 820 F.2d 1470, 1477 (9th Cir.1987). Thus, this Court has jurisdiction under 28 U.S.C. § 1331. See The Presbyterian Church v. United States, 870 F.2d 518, 524......
  • Texaco Refining and Marketing Inc. v. Davis, Civ. No. 93-481-FR
    • United States
    • U.S. District Court — District of Oregon
    • 21 Octubre 1993
    ...that federal action allegedly causing the deprivation of a federal right is insufficient under 42 U.S.C. § 1983. Daly-Murphy v. Winston, 820 F.2d 1470, 1477 (9th Cir.), amended, 837 F.2d 348 (9th Cir.1987). A federal court may apply a state law, but it does not act under color of state law.......
  • Newmark v. Principi, Civil Action No. 02-6799.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 15 Mayo 2003
    ...such a system is in place in the instant case. See also Maxey v. Kadrovach, 890 F.2d 73, 75-76 (8th Cir. 1989); Daly-Murphy v. Winston, 820 F.2d 1470, 1478 (9th Cir.1987). Given that Dr. Newmark's Bivens claims—of First and Fifth Amendment violations in Counts IV, V, and VI—arise out of an ......
  • Request a trial to view additional results

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