Neal v. Walters, 83-1577

• Decision Date: 28 December 1984
• Docket Number: No. 83-1577,83-1577
• Citation: 750 F.2d 347
• Parties: William W. NEAL, M.D., Plaintiff-Appellant, v. Harry N. WALTERS, Administrator of the United States Veterans Administration, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 347

750 F.2d 347

William W. NEAL, M.D., Plaintiff-Appellant, v. Harry N. WALTERS, Administrator of the United States Veterans Administration, et al., Defendants-Appellees.

No. 83-1577.

United States Court of Appeals Fifth Circuit.

Dec. 28, 1984.

Thompson & Knight, Stephen F. Fink, Dallas, Tex., for plaintiff-appellant.

James A. Rolfe, U.S. Atty., Charles Ory, Asst. U.S. Atty., Dallas, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, POLITZ, and GARWOOD, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge: ^*

The Veteran's Administration reassigned a physician who was head of a hypertension unit to another position with like rank and status but with duties that do not demand as much of his expertise and that might well be considered more routine and less rewarding professionally. The doctor asserts that, although no charges were filed against him, the reassignment was in fact based on charges of his inaptitude or inefficiency and that, under 38 U.S.C. Sec. 4110, he is entitled to a hearing by a disciplinary board before he is reassigned. We affirm the rule that a physician cannot be deprived of his statutory right to a disciplinary board hearing by the pretext that a reassignment is a functional reorganization instead of disciplinary action, even when he suffers no reduction in rank or status. We conclude, however, that, on the facts found by the district court, which are amply supported by the record, the reassignment of Dr. Neal was not disciplinary in nature, and we, therefore, affirm the judgment.

I.

By statute, a Veterans Administration (VA) physician has the right to a disciplinary board hearing before disciplinary action may be taken against him when he is charged with inaptitude, inefficiency, or misconduct. ¹ By regulation, a VA physician has certain administrative due process rights, including the right to a review or a hearing, when he is reassigned to new duties within the same facility. ² In this case, we face the question whether Dr. William W. Neal, a tenured VA physician, ³ was denied his statutory right to a disciplinary board hearing before being reassigned to new duties at the Dallas VA Medical Center (DVAMC). Dr. Neal claims that, although no formal charges of inaptitude, inefficiency, or misconduct were filed against him and his salary and rank were not reduced, his reassignment was disciplinary in nature and was based upon implied charges relating to his conduct and aptitude as Coordinator of the Hypertension Unit at DVAMC. Dr. Neal contends that the district court's finding of fact to the contrary is clearly erroneous and that its findings of fact were tainted by an error of law.

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Claiming that the district court's findings of fact are clearly erroneous, Dr. Neal contends that the reassignment was in reality disciplinary action based on concealed charges of inefficiency and he was entitled to a disciplinary board hearing before reassignment. He also contends that the district court's legal conclusion that he had no right to a Sec. 4110 disciplinary board hearing because the action taken was not adverse, in the sense that it entailed a reduction in rank, suspension, removal, or reduction in pay or grade, is an erroneous view of the law, which tainted the district court's other findings of fact.

II.

Neither Sec. 4110 nor the VA Policy Manual speak explicitly to Dr. Neal's case, and we are, therefore, called upon to fill in the interstices of the statutory and regulatory scheme. Section 4110 provides a VA physician with the right to demand a disciplinary board hearing when he is charged with inaptitude, inefficiency, or misconduct, before any disciplinary action is taken against him, and, if such charges are sustained, allows the disciplinary board to recommend "suitable disciplinary action." ⁴ The grievance provision in the VA Policy Manual accords a VA physician who is dissatisfied with a reassignment within the same facility the right to file a grievance ⁵ and the right to a review and an explanation of the reassignment if it has resulted in no reduction in rank or salary. ⁶ If the reassignment involves a reduction in rank or salary, the physician is entitled to a hearing as part of the grievance procedure. ⁷ Moreover, if during such a grievance hearing it is determined that the reason for the reassignment is an allegation of inaptitude, inefficiency, or misconduct, the physician is entitled to a disciplinary board hearing before reassignment. ⁸ No provision is made, therefore, for the case in which a physician suffers no reduction in rank or salary and no formal charges against him have been filed, but he is nevertheless reassigned as a disciplinary measure because his superiors find his aptitude, efficiency or conduct wanting.

Although it is undeniable that VA medical center officials have broad authority to organize and operate medical center programs in order to ensure their proper and efficient management, ⁹ this authority is not so broad as to allow these officials to violate a physician's statutory right to a disciplinary board hearing by reassigning him to a new position when they are dissatisfied with his performance in order to avoid filing formal charges against him. Indeed, the VA, in its brief, states that a reassignment on the basis of implied charges would violate a physician's statutory right to a disciplinary board hearing, and the grievance provision in the VA Policy Manual acknowledges that a physician who has filed a grievance is entitled to a disciplinary board hearing if, during the grievance hearing, charges of inaptitude, inefficiency, or misconduct surface as the reason for his reassignment. ¹⁰

Noting that the procedural safeguards of Sec. 4110 could not be evaded merely by transferring a physician to another institution, the Second Circuit held, in Kletschka v. Driver, ¹¹ that a physician ordered transferred to another duty station has a right to a disciplinary board hearing if he can prove that his transfer was disciplinary in nature, and, upon adducing such proof, would be entitled to declaratory or injunctive relief entitling him to the statutory procedural protection. ¹² A district court reached a similar result in Gilbert v. Johnson, ¹³ in which it held that a physician was entitled to a disciplinary board hearing on evidence that, without the filing of charges, he had been stripped of his supervisory position, reassigned to a menial position unrelated to his specialty in cardiothoracic surgery, transferred to another duty station, and terminated upon refusing reassignment.

We again state the rule to be deduced from these cases and the Policy Manual: a physician who proves that the action taken against him without the filing of charges was in effect an effort to discipline him for suspected inaptitude, inefficiency, or misconduct has the same statutory rights as if a formal charge had been filed. The Veterans Administration may not evade the statutory due-process requirement by the pretext of articulating a non-disciplinary reason for a proposed employment action. As the Second Circuit noted in Kletschka, enforcement of the doctor's right to a hearing does not imply that the court will make the final decision on the merits of the case. ¹⁴ What is enforced is the right to have a disciplinary board determine both whether the doctor's performance is wanting as charged, expressly or impliedly, and, if so, the disciplinary action to be taken.

The district court, therefore, correctly stated the law when it concluded that a VA physician "is entitled to a 'fair hearing' before any proposed adverse employment action based upon 'charges of inaptitude, inefficiency, or misconduct' becomes effective," so long as we broadly construe "adverse employment action" to mean "disciplinary or punitive employment action." ¹⁵ The district court erroneously stated the law, however, when it narrowly defined "adverse action" to mean only "a reduction in rank, suspension, removal, or reduction in pay or grade."

As the Court of Claims noted in Fucik v. United States, ¹⁶ the meaning of "adverse action," as interpreted by federal regulations applicable to Title 5 (Civil Service) employees, ¹⁷ is not as broad as the meaning of "disciplinary action," as used in Sec. 4110, which applies to Title 38 (VA professional) employees. As used in the Civil Service regulations, the term is technical, including only termination, reduction in pay or rank, suspension, and furlough without pay. ¹⁸ As used in the statute applicable to VA professionals, the same words also include transfers and reassignments effected for a disciplinary purpose on grounds of inefficiency, inaptitude or misconduct. The statute itself suggests that disciplinary actions are not confined to reduction in rank, suspension, removal, or reduction in pay or grade. ¹⁹ Thus, a transfer or reassignment that is an implied reprimand or that, for disciplinary reasons, denies a physician the opportunity to practice in a specialty for which he is credentialed would entitle him to a disciplinary board hearing under Sec. 4110, ²⁰ but would not necessarily entitle a Title 5 employee to the same or similar protections under adverse action procedures. ²¹

Considering the statutory and regulatory scheme and the statutory protection accorded VA physicians who face implied charges of inaptitude, inefficiency, or misconduct, we address Dr. Neal's contentions that the district court's findings of fact are clearly erroneous; that, consequently, he is entitled to a disciplinary board hearing; and that the district court's error of law tainted its findings of fact.

III.

The district court found that the decision to reassign Dr. Neal was not based on his inaptitude, inefficiency, or misconduct, but was based on the administration's desire to make the hypertension program more efficient and effective in its treatment of veterans. To counter...