Kransky v. United States Dep't of Veterans Affairs
| Docket Number | CV 22-138-BLG-SPW |
| Decision Date | 11 September 2023 |
| Parties | JENNIFER KRANSKY, Plaintiff, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS AND SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS DENIS RICHARD MCDONOUGH, in his Official Capacity, RALPH GIGLIOTTI, DR. JUDY HAYMAN, JILL THOLT, LORI TURNER, STEPHEN JACKSON, AND DAVID HUNTOON, all in their Official and Individual Capacities, Defendants. |
| Court | U.S. District Court — District of Montana |
Before the Court is Defendants United States Department of Veterans Affairs and Secretary of the Department of Veterans Affairs Denis Richard McDonough, et al.'s Motion to Dismiss Plaintiff Jennifer Kransky's Second Amended Complaint (“Complaint”). (Doc. 31). Defendants ask the Court to dismiss Plaintiffs suit pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (Id.). For the following reasons, the Court finds that it lacks jurisdiction to consider the matter and that dismissal is proper.
Congress vested the Department of Veterans Affairs (“the VA”) with the power to employ health care professionals, including registered nurses, as “necessary for health care of veterans.” 38 U.S.C. § 7401. Such health care professionals are appointed “without regard to civil-service requirements.” Id. § 7403(a)(1). They therefore are not covered by the provisions of the Civil Service Reform Act (“CSRA”), which establishes a “remedial scheme through which federal employees can challenge their supervisor's ‘prohibited personnel practices,'” including discharges. 5 U.S.C. § 751 l(b)(l 0); Orsay v. U.S. Dep't of Just., 289 F.3d 1125, 1128 (9th Cir. 2002), abrogated on other grounds by Millbrook v. United States, 569 U.S. 50 (2013) (quoting 5 U.S.C. § 2302). Rather, nurses hired by the VA are governed by the Veterans' Benefits Act (“VBA”), Title 38 of the United States Code. The parties agree that Plaintiff was employed as a nurse with the VA pursuant to 38 U.S.C. § 7401(1). (Doc. 32 at 9; Doc 35 at 18). Under the VBA, if the VA takes “an adverse action” against a § 7401(1) employee based on conduct or performance-including discharging an employee-the disciplinary procedures prescribed in 38 U.S.C. § 7461 apply.
Two types of disciplinary procedures exist under § 7461. If the VA's case “involves or includes a question of professional conduct or competence in which a major adverse action was taken,” the employee may appeal the VA's decision to a Disciplinary Appeals Board (“DAB”). 38 U.S.C. § 7461(b)(1). A major adverse action includes discharge, and a question of professional conduct or competence is a question involving either direct patient care or clinical competence. Id. § 7461(c)(2)-(3). The DAB has exclusive jurisdiction to review such cases. Id., § 7462(a)(1).
When a DAB receives an appeal of an adverse decision taken by the VA against a § 7401(1) employee, it first must determine whether the case is properly before it, meaning whether the case involves a major adverse action and a question of professional conduct or competence. Id. § 7462(c)(1). Only upon determining that the case is properly in front of the DAB does it consider the merits of the VA's decision. Id. If the DAB reaches the merits of a case, it must provide the employee with a hearing and render a decision within 45 days of the hearing. Id. § 7462(c)(3)-(4). Based on its consideration of the evidence, the DAB may sustain, dismiss, or sustain in part and dismiss in part each charge against the employee. Id. § 7462(c)(2). Within 90 days of the DAB's decision, the Secretary of the VA then must implement the decision and order reinstatement, back pay, or any other remedies the DAB found appropriate. Id. § 7462(d)(1).
“A § 7401(1) employee adversely affected by a final order or decision of a [DAB] (as reviewed by the Secretary) may obtain judicial review of the order or decision.” Id. § 7462(f)(1). The court “shall review the record and hold unlawful and set aside any agency action, finding, or conclusion found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) obtained without procedures required by law, rule, or regulation having been followed; or (C) unsupported by substantial evidence.” Id. § 7462(f)(2).
All other types of adverse employment actions-i.e. those that do not involve a major adverse action or a question of professional conduct or competence-are governed by the VA's grievance procedures in § 7463. Id. § 7461(b)(2). Under the VA's grievance procedures, the aggrieved employee is entitled to notice and an opportunity to respond to the charges. Id. § 7463(c)(1). The employee also has the right to a formal review of the decision by an impartial examiner within the VA, to a prompt report of the findings and recommendations from the impartial examiner, to a prompt review of the examiner's findings and recommendations by an official of a higher level than the official who originally made the decision involving the employee, and to legal representation. Id. § 7463(d), (e). The statute does not provide for review by a federal court.
Plaintiff was hired as a nurse with the VA pursuant to § 7401(1) on July 25, 2004. (Doc. 22 at 1; Doc. 34-1). She worked at the VA Community Living Center (“CLC”) in Miles City. (Doc. 29 at 6). In 2019, she was promoted to Nurse Manager for the CLC. (Id.).
On December 7,2021, the then-activities director of the CLC reported to the VA an instance of abuse of a veteran at the CLC. (Id. at 7). According to Plaintiff, the activities director never witnessed any of the events she reported. (Id.). In response, the VA assigned VA Officer Colin Norris to investigate. (Id.). Plaintiff claims Officer Norris interviewed the allegedly abused veteran, who said a nurse berated him but did not identify Plaintiff as that nurse, and a number of people who did not have personal knowledge of the allegations. (Id. at 8). Plaintiff asserts that Officer Norris did not interview the nurses present for the alleged abuse. (Id.). Officer Norris did not finish his investigation because the Office of Inspector General took over. (Id.). Plaintiff has not been given a copy of the Office of Inspector General's report. (Id. at 9).
On January 13, 2022, Dr. Judy Hayman, the executive director of the Montana VA Health Care System, appointed three people to an Administrative Investigative Board (“AIB”) to investigate the abuse. (Doc. 22 at 2). The AIB did not recommend terminating Plaintiff, though Plaintiff nevertheless contends that the AIB investigation was defective. (Doc. 29 at 9-10).
On June 1, 2022, Jill Tholt, Associate Chief Nurse Inpatient/Specialty Care, sent a letter to Plaintiff recommending her termination. (Doc. 34-2). The letter charged her with “Conduct Unbecoming of a Federal Employee,” based on six incidents:
(Id. at 1-2). Tholt characterized these incidents as “egregious” and having “negatively impacted [Tholt's] confidence in [Plaintiffs] integrity and ability to maintain the substantial trust placed in [her] as Nurse Manager” at the CLC. (Id. at 2). The letter notified Plaintiff that she had the right to respond to Tholt's letter within seven business days.
On June 22, 2022, having reviewed Plaintiffs reply, the character statements filed on her behalf, and other evidence, Dr. Hayman accepted Tholt's recommendation for termination. (Doc. 35-1). The letter informed Plaintiff that she had the right to appeal the decision to the DAB because the reasons for her discharge involved a question of professional conduct or competence, pursuant to 38 U.S.C. § 7462. (Id. at 3).
Plaintiff appealed to the DAB. On August 11, 2022, the DAB determined that it did not have jurisdiction to consider Plaintiff s appeal because though the VA had taken a major adverse action against her, the charge upon which the action was based did not involve a question of professional conduct or competence. (Doc. 35-2). Accordingly, Plaintiff did not have a right to appeal her discharge to the DAB. (Id.). However, the DAB explained she was entitled to challenge her discharge through the VA's grievance procedures. (Id.). Dr. Hayman provided Plaintiff with the grievance procedures the same day. (Doc. 35-3).
Plaintiff sent Dr. Hayman her grievance and request for a hearing on August 23, 2022. (Doc. 35-4). Plaintiff argued that the allegations made against her did not...
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