Kletschka v. Driver, 418

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation411 F.2d 436
Docket NumberDocket 32698.,No. 418,418
PartiesDr. Harold D. KLETSCHKA, Plaintiff-Appellant, v. William J. DRIVER, Individually and as Administrator of the Veterans Administration, et al., Defendants-Appellees.
Decision Date22 April 1969



Bernard T. King, Syracuse, N. Y. (Blitman & King, Syracuse, N. Y., on the brief), for plaintiff-appellant.

Lillian Z. Cohen, New York, N. Y. (Louis J. Lefkowitz, Atty. Gen., of the State of New York and William G. O'Brien, on the brief), for defendants-appellees, Dr. C. Barber Mueller and Dr. Carlyle Jacobsen.

Stephen R. Felson, Washington, D. C., (Justin J. Mahoney, U. S. Atty., and Samuel T. Betts, III, Syracuse, N. Y., on the brief), for defendants-appellees, William J. Driver, Dr. H. Martin Engle, Dr. Lyndon Lee, Jr., Dr. Morris Thomas, Dr. Lloyd S. Rogers, Dr. Herbert D. Gullick and John W. Macy, Jr.

Before LUMBARD, Chief Judge, and SMITH and KAUFMAN, Circuit Judges.

LUMBARD, Chief Judge:

Appellant Dr. Harold D. Kletschka brought this suit in the Northern District of New York seeking relief from action taken by the Veterans Administration transferring him from the V. A. hospital in Syracuse, New York, to one in Houston, Texas. He alleges that this transfer, and certain other administrative actions taken against him, were the products of a conspiracy among the officials of the V. A. and the state medical school at Syracuse and violated his rights under the Constitution, various federal and state statutory provisions, and state common law. The complaint prays for declaratory and injunctive relief, as well as damages against the defendants.

The district court granted summary judgment in favor of the defendants, relying on different grounds for the various causes of action. The facts alleged were found insufficient to establish the violation of any federal right, and in addition the court ruled that sovereign immunity barred several of the causes of action. No meritorious or substantial federal claim being presented the district court declined to exercise pendent jurisdiction over the state common law claims.

We reverse in part and affirm in part. We hold that material issues of law and fact, making summary judgment inappropriate, exist with respect to plaintiff's claims that he was entitled by statute and by the due process clause to a hearing prior to his transfer, and with respect to his damage claims under the Civil Rights Act, 42 U.S.C. § 1983. Unless these claims are dismissed upon further fact-finding we hold that the district court should exercise pendent jurisdiction over the closely related damage claims founded upon state common law.

We affirm the district court's disposition of all claims against defendant John W. Macy, Jr., Chairman of the United States Civil Service Commission, on the ground that the actions complained of are nonreviewable, and the damage claims against William J. Driver, Administrator of the Veterans Administration, on the ground of official immunity. We likewise affirm the grant of summary judgment with respect to those claims against defendants which rest upon § 1985 of the Civil Rights Act, the federal and state military reemployment statutes, 50 U.S.C. App. § 459, N.Y.Military Law, McKinney's Consol.Laws, c. 36, § 242, and upon the Administrative Procedure Act except with respect to the statutory claim to a hearing. The case is remanded for further proceedings not inconsistent with this opinion.

The complaint states that Dr. Kletschka commenced work at the Syracuse V. A. Hospital in 1959. He was appointed Assistant Professor of Surgery in 1959 at the Upstate Medical Center in Syracuse, a medical school operated by New York State in close cooperation with the V. A. hospital. Plaintiff served in these two positions until he was recalled to active military duty in October, 1961.

It was during his military service that Dr. Kletschka alleges the defendants began to conspire among themselves to undermine his position at the hospital and the school, the conspiracy culminating in Kletschka's transfer without a hearing to the V. A. hospital in Houston in 1967. The cast of defendants, all sued in both their individual and representative capacities, reads as follows:

William J. Driver — Administrator of the V. A., Washington.
Dr. Lyndon Lee, Jr. — Director of Surgical Services, V. A., Washington.
Dr. Morris Thomas — Hospital Director, V. A. Hospital, Syracuse.
Dr. Lloyd S. Rogers — Chief, Surgical Services, V. A. Hospital, Syracuse.
Dr. Herbert D. Gullick — Assistant Chief, Surgical Services, V. A. Hospital, Syracuse.
Dr. C. Barber Mueller — Chairman, Department of Surgery, State University of New York, Upstate Medical Center, Syracuse.
Dr. Carlyle Jacobsen — President, State University of New York, Upstate Medical Center, Syracuse.
John W. Macy, Jr. — Chairman, United States Civil Service Commission, Washington.

From the complaint, the truth of which we must assume for these purposes, the following picture of the conspiracy emerges. In August, 1961, plaintiff had obtained from the V. A. a research grant of approximately $20,000 for use in the development of a "Plastic Implantable Artificial Heart." Defendants Rogers and Mueller attempted to gain control over this project from plaintiff, but he successfully resisted their efforts. However, he was called to military service before he could utilize the grant. In his absence Rogers and Mueller initiated the conspiracy against plaintiff, which was subsequently joined by all the defendants except Macy.

Upon his return to Syracuse from the Armed Forces in October, 1962, plaintiff discovered that his status at the hospital and the school had been reduced as a result of the defendants' efforts. Before his activation he had been the Chief of the Thoracic Surgery division at the hospital, and had performed 90% of the hospital's thoracic operations. On his return he was designated simply a "Staff Physician," and was assigned no thoracic surgery. Likewise, at the school his former three-year term appointment, with substantial consulting and teaching responsibilities, had been reduced to a "Temporary Appointment" with appreciably fewer responsibilities. The defendants' conspiracy also prevented plaintiff from using any research facilities at the hospital or school, and in particular frustrated his attempts to have the $20,000 research grant restored.

The United States Civil Service Commission refused to intercede on plaintiff's behalf to reverse these changes in status, and this "arbitrary and unreasonable" refusal of the Commission, together with its refusal to block the transfer to Houston, is the basis for the inclusion of Macy as a defendant. But prior to the transfer plaintiff was able to gain, through various federal and state administrative appeals, the restoration of all elements of his premilitary status with the exception of the research grant. Thus while the other elements of status mentioned above are relevant to proof of a conspiracy, the only harm plaintiff presently suffers from is the transfer itself and the continued refusal of the V. A. to restore the research grant.

The next stage of the alleged conspiracy concerned a periodic proficiency review, which was conducted in May, 1966, pursuant to V. A. regulations. Plaintiff was summoned to a counselling session in connection with this review and was told by defendants Rogers and Gullick that he had lost the confidence of his colleagues. It was hinted to plaintiff at this session that he would be terminated from the hospital.

Dr. Kletschka claims that any loss of confidence in him by his colleagues was solely due to the action of the defendants in spreading malicious and slanderous statements concerning his professional competence. These statements were made for the purpose of damaging plaintiff's reputation and were part of the defendants' conspiracy to terminate him without cause from the hospital and the school. Plaintiff claims as evidence of the lack of cause the fact that he has never been furnished with a copy of any charges made against him.

The plaintiff claims that sometime after the counselling session he, in part through the intercession of his congressman, was able to persuade Driver to order an investigation into the harassment of plaintiff concerning his employment at Syracuse. During this investigation the Syracuse officials, having completed their proficiency review of plaintiff, gave him an "unsatisfactory" performance rating in September, 1966. Since under established V. A. policy such a rating cannot be given while an investigation is in progress the rating was later withdrawn at Driver's direction. Similarly Driver postponed the convening of a medical board, which was to have considered the possibility of separating the plaintiff from the V. A.

After receiving the investigation report, which is not part of the record before us, Dr. Driver on January 18, 1967, the same day he withdrew the unsatisfactory rating, ordered the plaintiff transferred to the V. A. hospital in Houston, Texas. Driver denied plaintiff's request for a hearing under 38 U.S.C. § 4110 on the grounds that the transfer was not punitive in nature, and therefore did not constitute "disciplinary action" within the meaning of § 4110.

Plaintiff, in summary, claims that this transfer was the final result of a conspiracy between the federal and state defendants. In addition to depriving plaintiff of his employment rights at the Syracuse hospital and medical school the conspiracy has deprived plaintiff of his reputation and his ability to pursue his profession effectively. Finally, we are told that subsequent to his transfer to the Houston hospital, at which plaintiff was assigned very few duties, plaintiff was transferred to the V. A. hospital in Montgomery, Alabama. Plaintiff has accepted these transfers under protest since had ...

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