Franks v. Nimmo
| Citation | 796 F.2d 1230 |
| Decision Date | 07 July 1986 |
| Docket Number | No. 83-2672,83-2672 |
| Parties | John J. FRANKS, M.D., Plaintiff-Appellant, v. Robert P. NIMMO, United States Veterans Administration, T.P. Mullon, Mansell G. Piper, William S. Hammond, M.D., and Philip A. Varneck, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard J. Wedgle of Cox, Wedgle & Padmore, P.C., Denver, Colo., for plaintiff-appellant.
Nancy E. Rice, Asst. U.S. Atty. (Robert N. Miller, U.S. Atty., with her on brief), Denver, Colo., for defendants-appellees.
Before HOLLOWAY, Chief Judge, McWILLIAMS, and SEYMOUR, Circuit Judges.
John J. Franks, M.D., brought this lawsuit asserting claims arising out of proceedings to terminate his employment as Associate Chief of Staff (ACOS) for Research at the Veterans Administration Medical Center (VAMC) in Denver, Colorado. Named as defendants in their official capacities are Robert S. Nimmo, administrator of Veterans' Affairs, and T.P. Mullon, Regional Director. Mansell Piper, who was the VAMC Director, William Hammond, who was Chief of Staff and Dr. Franks' immediate supervisor, and Philip Varneck, who was the VAMC Personnel Director, are sued both in their official capacities and individually. Dr. Franks asserted that defendants improperly treated him as a probationary employee, or were estopped from claiming that he was probationary. Alternatively, Dr. Franks argued that, if he was on probation, defendants failed to reduce his probationary period by creditable time and failed to follow the administrative procedures governing termination of probationary employees. Dr. Franks also asserted claims based on alleged constitutional and common law torts, and attempted to disqualify the trial judge. The trial judge refused to disqualify himself and granted summary judgment for defendants on all issues. We affirm.
This lawsuit was instituted after administrative separation proceedings had begun but before any decision had been reached. Dr. Franks obtained a preliminary injunction directing defendants to treat him as a non-probationary employee, which had the effect of halting the termination process until this court vacated the injunction. See Franks v. Nimmo, 683 F.2d 1290 (10th Cir.1982). Although the relevant facts up to that point in the proceedings are set out in that opinion, we briefly repeat them here to help place subsequent events in context. We will discuss in detail facts relevant to specific issues on appeal when we address those issues individually.
Dr. Franks began his employment in 1969 with the Department of Medicine and Surgery of the Veterans Administration (VA) at the VAMC. He served as a temporary part-time employee until July 1980, when he agreed to accept a full-time permanent appointment. Subsequently, the hospital director received complaints from researchers about Dr. Franks' administration and requested a site visit team to evaluate Dr. Franks' performance of his administrative duties. Following a visit in May 1981, the site visit team recommended that Dr. Franks be relieved of his administrative position as ACOS, but did not evaluate or make recommendations with respect to Dr. Franks' work at the VAMC as a medical researcher and instructor. When attempts by Dr. Franks and VA officials to resolve the situation failed, administrative separation proceedings were begun in July 1981.
At the time administrative action was taken regarding Dr. Franks' termination, he had served as full-time ACOS less than one year and defendants were then treating him as a probationary employee under the applicable statutes and regulations. The appointment of permanent full-time physicians is made pursuant to 38 U.S.C. Sec. 4104 (1982) and is governed by section 4106, which provides:
"Such appointments as described in subsection (a) of this section shall be for a probationary period of two years and the record of each person serving under such appointment in the Medical, Dental, and Nursing Services shall be reviewed from time to time by a board, appointed in accordance with regulations of the Administrator, and if said board shall find him not fully qualified and satisfactory he shall be separated from the service."
Id. Sec. 4106(b) (emphasis added). Before the section 4106(b) procedures had been completed, Dr. Franks obtained an injunction directing defendants to accord him non-probationary status. After this court vacated the injunction, a review board met pursuant to section 4106(b). The board subsequently recommended Dr. Franks' separation, which was to become effective on July 23, 1982. On that date Dr. Franks filed a motion to postpone final agency action.
Following proceedings before the district court that same day, Dr. Franks and defendants stipulated that Dr. Franks would continue employment in another position at the VAMC pending resolution of this suit in the district court.
Both parties subsequently moved for partial summary judgment. In March 1983, the court granted defendants' motion, ruling as a matter of law that Dr. Franks' status was that of a probationary employee. Defendants then filed a motion for summary judgment on the remaining issues. Dr. Franks thereafter moved to disqualify the district judge, alleging grounds arising out of the proceedings held July 23, 1982, during which the court had been involved in encouraging the parties to reach the stipulation referred to above. The court denied the motion to disqualify and subsequently granted defendants' motion for summary judgment on the remaining issues. The court also denied a motion by Dr. Franks to amend his complaint for the third time. On appeal Dr. Franks contends that the district judge erred in failing to disqualify himself, in ruling as a matter of law that Dr. Franks was a probationary employee, in denying his motion to amend the complaint, and in granting summary judgment for defendants on the constitutional tort claims.
Dr. Franks filed a motion to disqualify the trial judge under 28 U.S.C. Secs. 144, 455(a), and 455(b)(1) (1982). In his supporting affidavit, Dr. Franks stated that during the July 23 hearing on the motion to stay his termination, the judge called counsel for both sides into his chambers, and then spoke with Dr. Franks alone. Dr. Franks further stated that the judge told him these matters never work out for a plaintiff unless they are settled, and that he ought to settle because the judge could not rule in his favor on the injunction issue. Dr. Franks stated his belief that the judge was biased, and that he had prejudged the case and created an appearance of impropriety.
In response, defendants presented a statement made by their co-counsel as an officer of the court, and an affidavit by an attorney for the VAMC. Both attorneys were present at the July 23 hearing. Their documents state that Dr. Franks' wife was having emergency surgery on that day or the next, and that Dr. Franks was distraught and unable to concentrate. The judge expressed concern because, having heard the evidence, he believed he would have to rule against Dr. Franks, and that if Dr. Franks were terminated that day he could lose VA employee health insurance coverage for his wife. The judge was also concerned because ruling against Dr. Franks would interrupt the doctor's ongoing research which the judge believed to be of substantial importance as Dr. Franks had described it. The judge asked defendants whether they would consider an agreement under which Dr. Franks would be offered an alternative temporary position pending resolution of all the issues in the district court, and defendants ultimately agreed. When Dr. Franks' counsel questioned whether the doctor would accept the offer, all counsel agreed to the suggestion that the judge talk to Dr. Franks and explain the situation to him. Significantly, Dr. Franks did not rebut defendants' statements describing these circumstances with an affidavit from his former counsel who was a participant, and there is no transcript of the proceedings in the record on appeal.
We conclude that disqualification is not warranted under either statute relied on by Dr. Franks. Section 144 provides in pertinent part:
"Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding."
Id. Sec. 144 (emphasis added). "By the terms of section 144, a district court judge must In this case, the disqualification motion was filed over a year after the proceedings giving rise to the alleged bias. During that interval, Dr. Franks filed a motion for partial summary judgment which the district court decided adversely to him, and he also changed attorneys. When Dr. Franks filed his disqualification motion, defendants' motion for summary judgement on the remaining issues was pending before the same district judge.
recuse himself in any proceeding upon the filing of a timely and sufficient affidavit of personal bias or prejudice, even if he has no actual personal bias or prejudice." United States v. Hines, 696 F.2d 722, 728 (10th Cir.1982). In Hines we noted that "the timeliness of the affidavit must ... be judged by a standard of reasonableness in light of the given facts." Id. at 728 n. 8
In evaluating the timeliness of a section 144 motion, "courts will often consider whether the affiant has participated in substantial pre-trial motions between the time he first learned of the asserted bias and the time he filed the Sec. 144 request." Smith v. Danyo, 585 F.2d 83, 86 (3d Cir.1978). We find it significant that Dr. Franks filed an unsuccessful motion for partial summary judgment with the trial judge after the alleged bias had arisen. "The judicial process can hardly tolerate the practice of a...
To continue reading
Request your trial
-
Yvonne L., By and Through Lewis v. New Mexico Dept. of Human Services
...whether the substantive law was correctly applied." McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir.1988) (quoting Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986)). We review the district court's determination of issues of law de novo. E.g., United States v. Maher, 919 F.2d 1482, 1485......
-
Bausman v. Interstate Brands Corp., 96-4119-SAC.
...is "simply an attempt to create a `sham fact issue.'" Durtsche v. American Colloid Co., 958 F.2d at 1010 n. 2 (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986)). Factors relevant in this determination include: "whether the affiant was cross-examined during his earlier testimony,......
-
Wheeler v. Hurdman
...view of the facts must indulge all reasonable inferences in favor of the party opposing a motion for summary judgment. Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986); Baker, 788 F.2d at 653; Lindley v. Amoco Prod. Co., 639 F.2d 671, 672 (10th Cir.1981). In this case, the essential fac......
-
Andersen v. U.S.
...physicians may obtain judicial review under the APA. Berry v. Hollander, 925 F.2d 311, 315 (9th Cir.1991) (citing Franks v. Nimmo, 796 F.2d 1230, 1239-40 (10th Cir.1986); Heaney v. United States Veterans Admin., 756 F.2d 1215, 1219 (5th Cir.1985)). However, Veterans Administration physician......
-
Summary Judgment Practice and Procedure
...summary judgment purposes). Defense counsel should anticipate and attempt to rebut plaintiff counsels likely reliance on Franks v. Nimmo, 796 F.2d 1230 (10th Cir. 1986) and/or similar cases for the proposition that the plaintiff’s declarations are not a “sham”—“Factors relevant to the exist......
-
Summary judgment
...discovered evidence, and [(3)] whether the earlier testimony relects confusion which the a൶davit attempts to explain.”) Franks v. Nimmo , 796 F.2d 1230, 1237 (10th Cir. 1986) (citing Camield Tires, Inc. v. Michelin Tire Corp. , 719 F.2d 1361, 1364-65 (8th Cir. 1983); Perma Research & Dev. C......
-
Summary judgment
...evidence, and [(iii)] whether the earlier testimony relects confusion which the a൶davit attempts to explain.”) Franks v. Nimmo , 796 F.2d 1230, 1237 (10th Cir. 1986) (citing Camield Tires, Inc. v. Michelin Tire Corp. , 719 F.2d 1361, 1364-65 (8th Cir. 1983); Perma Research & Dev. Co. v. Sin......
-
Discovery
...deposition testimony must be carefully taken and the plainti൵’s attorney must make sure that it is accurate. See also Franks v. Nimmo , 796 F.2d 1230, 1237 (10th Cir. 1986) (Courts considering whether an a൶davit is a “sham a൶davit” consider “[(1)] whether the a൶ant was cross-examined during......