Giordano v. Roudebush

• Decision Date: 11 November 1977
• Docket Number: No. 77-1613,77-1613
• Citation: 565 F.2d 1015
• Parties: Robert P. GIORDANO, M.D., Appellant, v. Richard L. ROUDEBUSH, Administrator of Veterans Affairs, Veterans Administration, John Chase, Eugene Caffey, Jr., Louis Polumbo, T. E. Corcoran, Richard Bjork, Robert Pepiot, M. D. Pareira, and United States of America, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1015

565 F.2d 1015

Robert P. GIORDANO, M.D., Appellant, v. Richard L. ROUDEBUSH, Administrator of Veterans Affairs,

Veterans Administration, John Chase, Eugene Caffey, Jr.,

Louis Polumbo, T. E. Corcoran, Richard Bjork, Robert Pepiot,

M. D. Pareira, and United States of America, Appellees.

No. 77-1613.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 7, 1977.

Decided Nov. 11, 1977.

Richard G. Santi and Lance A. Coppock, of Ahlers, Cooney, Dorweiler, Haynie & Smith, Des Moines, Iowa, for appellant.

William Kanter and Harry R. Silver, Washington, D. C., for appellees.

Before BRIGHT, STEPHENSON and HENLEY, Circuit Judges.

PER CURIAM.

Dr. Robert P. Giordano, the plaintiff in the action below, brings this appeal from an order of the district court. ¹ In the district court, plaintiff sought review of his dismissal as a staff physician at the Veterans Administration Hospital in Des Moines, Iowa. Defendants-appellees move this court to dismiss the appeal for a lack of appellate jurisdiction. We grant the motion to dismiss.

Because of complaints received about plaintiff's competence and diligence, and friction between plaintiff and other personnel at the hospital, the hospital administrator advised plaintiff that he would have to transfer to another hospital or resign. Plaintiff was informed that if he failed to accept either of these two alternatives, a professional standards review board would be convened and the results might be detrimental to him.

Plaintiff refused to accept a transfer or resign and a professional standards review board was convened to determine if he should be retained. During its considerations, the review board called various witnesses, including plaintiff, but plaintiff was not allowed to question other witnesses nor was he allowed to be present when they were questioned. In December of 1975 this board concluded that dismissal was not warranted.

The administrator of the Veterans Administration Hospital in Des Moines sought review of this decision by a permanent professional standards review board at Veterans Administration headquarters in Washington, D. C. Plaintiff was not given notice of the appeal nor apprised of the contents of a report from a special investigator sent to Des Moines by this appeals board. In addition, plaintiff's former supervisor sent reports from himself and other employees of the Des Moines hospital to the Washington board without advising plaintiff. These materials were considered by the Washington board. After reviewing the decision of the local board, the appeals board recommended dismissal of plaintiff for failure to qualify and perform satisfactorily, effective February 21, 1976.

The plaintiff then brought this suit, alleging that his due process rights had been violated. The district court agreed, holding that the actions by the Veterans Administration affected plaintiff's "liberty" interest ² in his professional reputation sufficient to warrant a due process hearing because his personnel file contains information that is damaging to his professional reputation and which, if disclosed, would limit his future employment opportunities. Accordingly, the court ordered the permanent professional standards review board in Washington, D.C., to reconsider its ruling within 120 days, taking into account plaintiff's response to the charges against him. However, confrontation of witnesses and other trial-type procedures are not required by the district court's order. The district court did not order immediate reinstatement or back pay, but rather retained jurisdiction to consider these issues upon completion of administrative procedures.

Plaintiff has appealed from the district court's refusal to award immediate back pay, to require the Veterans Administration to conduct a due process hearing with full trial-type procedures, and to declare 38 U.S.C. § 4106(b) and regulations promulgated thereunder as contained in the Veterans Administration's personnel manual unconstitutional for failure to provide due process. In response to defendants' motion to dismiss the appeal, plaintiff agrees that 28 U.S.C. § 1291 controls and that this court has jurisdiction thereunder because the district court reached a final decision on the above stated issues raised by plaintiff in his lawsuit.

Under 28 U.S.C. § 1291 this court has appellate jurisdiction only if an order of the district court is a "final decision." "A 'final decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pauls v. Secretary of Air Force, 457 F.2d 294, 297 (1st Cir. 1972), quoting from Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). The order appealed from in the present case does not meet the final decision test. Here the district court has only remanded the case for further administrative proceedings and thus its order is not a final judgment within the meaning of section 1291. See Pauls v. Secretary of Air Force, supra; United Transportation Union v. Illinois Central R.R., 433 F.2d 566, 568 (7th Cir. 1970), cert. denied, 402 U.S. 915, 91 S.Ct. 1374, 28 L.Ed.2d 661 (1971); Transportation-Communication Div. v. St. Louis-San Francisco Ry., 419 F.2d 933, 935 (8th Cir. 1969), cert. denied, 400 U.S. 818, 91 S.Ct. 34, 27 L.Ed.2d 45 (1970); Bohms v. Gardner, 381 F.2d 283 (8th Cir. 1967), cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968). See also Fugate v. Morton, 510 F.2d 307 (9th Cir.), cert. denied, 422 U.S. 1045, 95 S.Ct. 2665, 45 L.Ed.2d 697 (1975).

In Bohms v. Gardner, supra, the district court reversed a decision of the Secretary of HEW which had denied plaintiff disability benefits and remanded the case to...