Lerner v. Shinseki
| Decision Date | 24 April 2013 |
| Docket Number | CIVIL ACTION NO. 3:12-CV-00565-TBR |
| Parties | GUY M. LERNER Plaintiff v. ERIC K. SHINSEKI, et al. Defendant |
| Court | U.S. District Court — Western District of Kentucky |
This matter is before the Court upon Defendants' Partial Motion to Dismiss. (Docket No. 18.) Plaintiff has responded, (Docket No. 25), and Defendants have replied, (Docket No. 26). This matter is now ripe for adjudication. For the reasons that follow, the Court will GRANT Defendants' Partial Motion to Dismiss.
BACKGROUND
Plaintiff Guy Lerner, M.D. (Lerner), is a Kentucky-licensed physician employed by the U.S. Department of Veterans Affairs (VA), pursuant to 38 U.S.C. § 7401(1), as a full-time permanent physician at the Robley Rex Veterans Administration Medical Center (VAMC) in Louisville, Kentucky. Defendants in this action are Edwin Earl Garr, III, M.D., the VAMC's chief of surgical service; Wayne L. Pfeffer, the VAMC's medical center director; Eva M. Egolf, who serves as patient advocate at VAMC and administrative assistant to Defendant Gaar; Christy A. Rowzee, a supervisory human resources specialist at the VAMC; and Jennifer Vaught, a human resources specialist at the VAMC (collectively "Employee Defendants"). Also Defendants in this action arethe VA and Eric K. Shinseki, in his official capacity as the Secretary of Veterans Affairs (collectively "VA Defendants").
Lerner alleges that after informing his superiors of certain deficiencies in care at the VAMC, the Employee Defendants "embarked on a campaign of progressive discipline against him," which "began with micro-management of his work, but quickly progressed to a program designed to yield his termination." (Docket No. 25, at 1.) This led to a "proposed reprimand" issued by Defendant Garr in February 2011, which was later reduced to an "admonishment" in April 2011. (Docket No. 1, at 9.) Lerner further claims that in the months thereafter, "Gaar continued to scrutinize [him] and initiated investigations for any perceived infraction [Gaar] could conjure . . . focusing on trivial, inconsequential, and erroneous issues pertaining to his practice." (Docket No. 1, at 10.) According to Lerner, the Employee Defendants fabricated patient complaints, which culminated in a "proposed action" against him in the form of a ten-day suspension. Defendant Pfeffer conducted a hearing on November 2, 2011, and, later that month, upheld Gaar's proposed ten-day suspension of Lerner.
Lerner appealed his suspension to the Disciplinary Appeals Board (DAB) in December 2011, and the DAB conducted a two-day hearing in March 2012. The DAB issued its decision in August 2012. The DAB determined that the charges against Lerner should be sustained in part, concluding "that the sustained specifications were serious enough to warrant discipline"; however, the DAB reversed the ten-day suspension and substituted a five-day suspension in light of the testimony and evidence presented on appeal. (See Docket No. 1-1.)
Lerner alleges that in the time since the DAB's March 2012 hearing the Employee Defendants' actions against him have persisted. He also claims that "Defendants are determined to oust [him] from the VAMC due to his First Amendment activities and his repeated expressed concerns for patient welfare." (Docket No. 1, at 17.) He insists that he "has no valid belief that, absent the Court's intervention, Defendants will cease their present campaign against him." (Docket No. 1, at 17.)
In an unnumbered Count, Lerner seeks review of the DAB's final decision pursuant to 38 U.S.C. § 7462. (Docket No. 1, at 17-24.) Lerner's Complaint also alleges nine numbered counts against the several Defendants arising out of disciplinary action taken against him. (See Docket No. 1.) In Counts I - V, Lerner alleges that the Employee Defendants each violated his civil rights under the First and Fifth Amendments. In Count VI, Lerner alleges that the Employee Defendants engaged in a civil conspiracy to oust him from the VAMC and to prevent and/or retaliate against him for exercising his First Amendment rights. In Count VII, Lerner alleges wrongful retaliation by the VA Defendants in taking personnel action against him because he exercised his First Amendment right to free speech. In Count VIII, Lerner seeks declaratory relief in the form of a judicial declaration that the VA must adhere to the requirements of the Fifth and Fourteenth Amendments. And finally, in Count IX, Lerner seeks injunctive relief related to personnel investigations, (Docket No. 1, at 41-42.)
STANDARD
The Federal Rules of Civil Procedure require that pleadings, including complaints, contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A complaint may be attacked for failure "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, the court will presume that all the factual allegations in the complaint are true and will draw all reasonable inferences in favor of the nonmoving party. Total Benefits Planning Agency v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983)). "The court need not, however, accept unwarranted factual inferences." Id. (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).
Even though a "complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Instead, the plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)."Id. (citations omitted). A complaint should contain enough facts "to state a claim to relief that is plausible on its face." Id. at 570. A claim becomes plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). If, from the well-pleaded facts, the court cannot "infer more than the mere possibility of misconduct, the complaint has alleged— but has not 'show[n]'—'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id.
Furthermore, the Rules provide that a party may file a motion for "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). "Subject matter jurisdiction is always a threshold determination," Am. Telecom Co. v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998)), and "may be raised at any stage in the proceedings," Shultz v. Gen. R.V. Ctr., 512 F.3d 754, 756 (6th Cir. 2008). "A Rule 12(b)(1) motion can either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists." DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3); see also Bauer v. RBX Indus. Inc., 368 F.3d 569 (6th Cir. 2004).
DISCUSSION
The Employee Defendants move, pursuant to Fed. R. Civ. P. 12(b)(1) & (6), to dismiss the individual claims against them in Counts I - VI, arguing that the Court lacks subject-matter jurisdiction and that Lerner has failed to state a claim upon which relief can be granted. (Docket No. 18, at 1.) The VA Defendants move, also pursuant to Fed. R. Civ. P. 12(b)(1) & (6), to dismiss Counts VII, VIII, and IX to the extent those counts seek relief and review by this Court beyond that permitted by 38 U.S.C. § 7462(f). The Court will begin by addressing those arguments relative to the Employee Defendants and Counts I - VI before turning to those relative to the VA Defendants and Counts VII - IX.
The Employee Defendants argue that the individual constitutional claims asserted against them in Counts I - VI are not actionable and must be dismissed. The Employee Defendants further argue that even if those claims are actionable, they nevertheless fail because they are barred by the doctrine of qualified immunity. The Court agrees with both points.
Generally, the United States is immune from suit unless it consents to be sued, "and the terms of its consent to be sued in any court define that court's jurisdiction to entertain suit." United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). The Sixth Circuit, in the context of sovereign immunity, holds...
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