Hakki v. Sec'y, Dep't of Veterans Affairs, 19-14645

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtANDERSON, CIRCUIT JUDGE
PartiesSAID I. HAKKI, M.D., Plaintiff-Appellant, v. SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Defendant-Appellee.
Decision Date03 August 2021
Docket Number19-14645

SAID I. HAKKI, M.D., Plaintiff-Appellant,


No. 19-14645

United States Court of Appeals, Eleventh Circuit

August 3, 2021

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:18-cv-01269-MSS-JSS

Before JORDAN, BRASHER, and ANDERSON, Circuit Judges.


A physician's discharge from employment with the Department of Veterans Affairs ("VA") over a decade ago gives rise to the questions of federal subject-matter jurisdiction addressed in this case. The physician, Plaintiff-Appellant Said I. Hakki, M.D. ("Dr. Hakki"), challenged his discharge in federal court, but the district court held that it did not have jurisdiction to hear his claims brought pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, and the Mandamus Act, 28 U.S.C. § 1361, because the Veterans' Benefits Act ("VBA"), 38 U.S.C. § 7461 et seq., is a comprehensive statutory scheme governing the discipline of VA employees and was the exclusive remedy for review of Dr. Hakki's employment discharge. The district court also held that while the VBA did not bar Dr. Hakki's procedural due process claims, the claims were not colorable because he received all the process due to him. After thorough review and with the benefit of oral argument, and as explained below, we conclude that the district court did not have subject-matter jurisdiction over any claim under the APA because the VBA is a comprehensive statutory scheme that precludes APA review, Dr. Hakki presents no colorable due process claim and thus there is no equitable constitutional jurisdiction, and Dr. Hakki failed to establish a clear right to relief or the VA's clear duty to act and thus there is no Mandamus Act jurisdiction.


Dr. Hakki began working as a urologist at the Bay Pines VA Health Care System ("Bay Pines") in Pinellas County, Florida in 1986.[1] In 2003, the U.S. Department of Defense asked Dr. Hakki, and he agreed, to assist in the efforts to develop the government and healthcare systems in Iraq. Dr. Hakki worked as an advisor to the Iraqi Prime Minister's office and led the Iraqi Red Crescent ("IRC"). The VA granted him leave without pay-abbreviated as "LWOP"-in connection with his work in Iraq. In March 2007, Dr. Hakki requested and was granted an extension of LWOP through December 31, 2008. Dr. Hakki requested several additional extensions of LWOP, which, along with the VA's decisions regarding those requests, eventually gave rise to his discharge. We review those requests and the VA's related decisions. Then, we proceed to explain the procedures that more immediately led to Dr. Hakki's discharge and related litigation.

A. Requests for Extension of LWOP and the VA's Decisions

On August 1, 2008, the VA notified Dr. Hakki that his LWOP would be terminated and that he was expected to return to work at Bay Pines on August 4, 2008. The VA had learned from the Department of State that his duties with the IRC had ended. Dr. Hakki filed a grievance with the VA on August 28, 2008, asserting he needed to remain in Iraq because Iraq's Prime Minister had brought false criminal charges against him and illegally removed him from his position at the IRC. On September 26, 2008, the VA sustained the grievance, rescinded the August 1 letter, and reinstated Dr. Hakki's term of LWOP through Wednesday, December 31, 2008. In conjunction with the decision to sustain his grievance, the VA directed him to return to duty on Friday, January 2, 2009.

On October 3, 2008, Dr. Hakki's LWOP was rescinded for a second time. The Bay Pines Hospital Director, Wallace Hopkins, wrote that the State Department notified the VA that the IRC had been dissolved effective July 31, 2008, by the Iraqi Prime Minister and thus the basis for Dr. Hakki's LWOP no longer existed. Dr. Hakki filed another grievance, which was granted by Bay Pines Hospital Director Hopkins on October 28, 2008. In sustaining the grievance, the October 28 letter explained that the VA reinstated LWOP through December 31, 2008, with a return date of January 2, 2009. In a separate letter dated November 3, 2008, Dr. Hakki was again informed that his return date remained January 2, 2009.

On December 19, 2008, Dr. Hakki requested a six-month extension of LWOP from the existing expiration date of December 31, 2008, to a new date of June 30, 2009, because he needed to defend himself against the criminal charges, to be available for testimony in related civil matters, and to pursue his own defamation lawsuits.

By letter dated December 23, 2008, Hopkins denied this request. This denial letter underlies a large part of Dr. Hakki's theory in this case. Hopkins addressed one of Dr. Hakki's attorneys in the December 2008 LWOP denial letter, stating that "there [wa]s no basis upon which to justify the continuation of Dr. Hakky's[2] LWOP." He explained the decision as follows:

VA Handbook 5011 stipulates that LWOP decisions require there be a certainty regarding the date of the employee's return. During our meeting on October 27, 2008, at which you were in attendance, [co-counsel] requested Dr. Hakky's LWOP be extended through December 31, 2008, and expressed Dr Hakky's wish to return to duty at the beginning of 2009 Your written request does not establish that it would serve the Department of Veterans Affairs interests by approving an extension of LWOP beyond the December 31, 2008 deadline. This most recent request demonstrates multiple personal issues of Dr. Hakky's and seems to indicate there is uncertainty of Dr. Hakky's return date; VA regulation requires certainty in order to approve LWOP. Therefore, Dr. Hakky's request for LWOP through June 30, 2009 is denied. . . . As stated in my letter to Dr. Hakky dated November 3, 2008, of which [co-counsel] received a copy, I direct Dr. Hakky to return to duty at the Bay Pines VA Healthcare System, Surgical Service effective Friday, January 2, 2009.

We will refer to this decision and the request that prompted it, as the December 2008 LWOP denial and the December 2008 LWOP request (respectively) or in combination.

On December 31, 2008-i.e., the last day of his approved LWOP-Dr. Hakki responded to the December 2008 LWOP denial. In his response, Dr. Hakki described the LWOP denial letter as "suggest[ing] that the request for LWOP seems to indicate there is uncertainty of Dr. Hakky's return date." Dr. Hakki "advised that [his] request for LWOP through June 30, 2009 means he would return to duty on July 1, 2009," and stated that "this will confirm that Hakky wishes to return to duty on July 1, 2009 and will not request any further LWOP." "In light of the certainty of Dr. Hakky's return, as reaffirmed herein," the letter explained, "we ask that you reconsider your decision. In the meanwhile, we have filed a grievance concerning your decision." In addition to this response, on December 31, 2008, Dr. Hakki filed a union grievance challenging the December 2008 LWOP denial.

Dr. Hakki did not return to work two days later on the established return date of January 2, 2009. Because he did not return to work, and because he was absent without approval of leave, he was considered to be absent without leave, or "AWOL," as of January 2, 2009.

On January 28, 2009, Hopkins denied the December 31 union grievance.[3]Hopkins explained that he had considered Dr. Hakki's grievance, as well as previous related decisions, and "determined that due to the extended length of Dr. Hakky's absences to date, related to his personal affairs, and because there is no way to definitively determine the actual date his personal affairs will be resolved," extended LWOP was not in the VA's best interest. The letter also explained that Dr. Hakki was charged as AWOL since January 2, 2009, because he did not return on that date as directed, and he would continue to be considered AWOL.

The union, the American Federation of Government Employees, requested arbitration of the January 28 grievance denial. A settlement was proposed that would require Dr. Hakki to report to work on July 1, 2009, and would set Dr. Hakki's status as AWOL from January 2 through June 30, 2009. Dr. Hakki did not sign the proposed agreement.[4]

On June 22, 2009, Dr. Hakki requested an extension of LWOP for the period of July 1, 2009, through September 30, 2009. The VA did not respond to this June 22 request.

B. Proposed Discharge and Grievance

On July 8, 2009, Dr. Hakki, having not yet returned to work, was issued a proposed discharge-i.e., a proposal that he be discharged from his employment with the VA-by Dr. Terry Wright, the Chief of the Surgical Service. Dr. Wright explained in the proposed discharge that Dr. Hakki had been approved for LWOP through December 31, 2008, and that a request to extend LWOP was denied in December 2008, i.e., the December 2008 LWOP request and denial. Furthermore, Dr. Hakki, though directed to return to Bay Pines on January 2, 2009, failed to return and was charged AWOL since January 2, 2009. This meant that as of the date of the proposed discharge, he had been AWOL for 26 weeks. Allowing his continued unauthorized absence did not support the VA's mission or the efficiency of the service, and he was charged with unauthorized absence. The proposed discharge continued by outlining Dr. Hakki's procedural rights, including an opportunity to be heard, to inspect the evidence on which the proposed discharge was based, and to be represented by counsel.

Dr. Hakki responded to the proposed discharge on July 21, 2009. He explained his belief that he should not be discharged and why he believed his continued absence supported the mission of the VA and the efficiency of the service as "set forth in both Dr. Hakky's December 19, 2008 . . . and June 22, 2009 . . . request[s] for LWOP, which [we]re both incorporated by...

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