Newmark v. Principi

• Citation: 262 F.Supp.2d 509
• Decision Date: 15 May 2003
• Docket Number: Civil Action No. 02-6799.
• Parties: Arthur NEWMARK, M.D., Plaintiff, v. Anthony PRINCIPI, Secretary, United States Department of Veterans Affairs; The Philadelphia Veterans Affairs Center; Michael Sullivan, Director of the Veterans Affairs Medical Center of Philadelphia; John Murphy, Director of Primary Care; Michael Berkwits, Director of the Emergency Room; Karen Sharrar, Director of the Emergency Room; John Doe Nos. 1-5; Fordell Physician Services, Inc. and Michael Beers, President, Fordell Physician Services, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

262 F.Supp.2d 509

Arthur NEWMARK, M.D., Plaintiff, v. Anthony PRINCIPI, Secretary, United States Department of Veterans Affairs; The Philadelphia Veterans Affairs Center; Michael Sullivan, Director of the Veterans Affairs Medical Center of Philadelphia; John Murphy, Director of Primary Care; Michael Berkwits, Director of the Emergency Room; Karen Sharrar, Director of the Emergency Room; John Doe Nos. 1-5; Fordell Physician Services, Inc. and Michael Beers, President, Fordell Physician Services, Inc., Defendants.

Civil Action No.02-6799.

United States District Court, E.D. Pennsylvania.

May 15, 2003.

Alice W. Ballard, Law Office of Alice W. Ballard, PC, Philadelphia, PA, for Plaintiff.

Susan Dein Bricklin, U.S. Attorney's Office, Michael D. Jones, Reed Smith LLP, Philadelphia, PA, for Defendants.

MEMORANDUM

DUBOIS, District Judge.

Presently before the Court is defendants' Motion to Dismiss Counts IV—VI of Plaintiffs Amended Complaint (Document No. 10, filed March 11, 2003), and the related submissions of the parties. For the reasons set forth below, defendants' Motion is granted. I. BACKGROUND

Plaintiff, Arthur Newmark, M.D. ("Dr.Newmark"), began working for the Philadelphia Veterans Affairs Medical Center ("PVAMC") on April 1, 1996 as a physician in the emergency room. He then became a "house physician" in the Geriatrics Department of PVAMC. Complaint f 14. In November 1997, Dr. Newmark received a letter from Earl F. Fallast, who was then the Director of PVAMC, notifying him that his employment with PVAMC would be terminated on December 5, 1997 due to a reorganization of the hospital. Id. 119. Dr. Newmark was terminated on that date.

Shortly after his termination, Dr. Newmark applied to defendant Fordell Physician Services ("Fordell"), which at that time was under contract with PVAMC to "recruit and schedule certain house physicians to work at the hospital," for reemployment as a house physician with PVAMC. Id. 1120. He submitted his application directly to defendant Dr. Michael Beers ("Dr.Beers"), President of defendant Fordell. In January 1998, Dr. Beers rejected the application. Efforts by Dr. Newmark to regain employment with PVAMC, from December 1997 to June 1998, by applying to several directors of PVAMC were also unsuccessful.

Dr. Newmark filed formal complaints with the United States Department of Veterans Affairs ("VA") in June and August 1998, alleging that the VA had discriminated against him on the basis of age and had retaliated against him for complaining of such discrimination. Attempts by PVAMC to resolve the matter in December 1998 and January 1999—by offering Dr. Newmark reemployment with PVAMC in exchange for releasing his claims of age discrimination and retaliation against the VA—failed as Dr. Newmark declined to sign the release. Id. ¶ 36.

On November 19, 1999, Dr. Newmark filed a Bivens¹ action against, inter alia, Togo D. West, Jr., then the Secretary of the United States Department of Veterans Affairs, PVAMC, and several officials of PVAMC, alleging violations of his procedural due process, substantive due process, and free speech rights, stemming from his termination on December 5, 1997. On March 31, 2000, Dr. Newmark amended his complaint, adding three claims against one defendant, PVAMC: (a) termination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"); (b) retaliation in violation of the ADEA; and (c) failure to rehire in violation of the ADEA. On August 28, 2000, defendant VA submitted an Offer of Judgment in the amount of $297,154.00 against Togo West, Secretary of the Department of Veterans Affairs, with respect to Dr. Newmark's ADEA claims. Dr. Newmark accepted the Offer on September 29, 2000 and pursuant to the terms of the Offer, dismissed the Bivens claims.

On November 21, 2000, Dr. Newmark sent a letter to defendant Fordell requesting that he be referred for employment with PVAMC. Defendants Fordell and Beers did not respond to that request because they thought Dr. Newmark was still litigating his Bivens and ADEA claims. Id. ¶ 50. Dr. Newmark also sent a letter dated November 21, 2000 to defendant Dr. Michael Sullivan, Director of PVAMC, seeking reemployment with PVAMC. In his letter to Dr. Sullivan, Dr. Newmark requested a review of "all records that would be considered in deciding his applications for employment, for purposes of determining the factual accuracy of all such records." Id. 1160. In response, Douglas Stewart, Director of PVAMC's Department of Human Resources Management, sent a letter dated December 22, 2000 to Dr. Newmark directing him to "refer all further inquiries [regarding reemployment] to the" Department of Human Resources Management. Id. ¶ 62. Mr. Stewart did not respond to Dr. Newmark's request to review his records and he was not afforded an opportunity to do so.

In addition, Dr. Newmark sent a letter dated November 21, 2000 to defendant Dr. Michael Berkwits, Director of PVAMC's Emergency Room, requesting that "he be credentialed for the Emergency Room moonlighter list." In response, Dr. Berkwits' office notified him that there were "no fulltime vacancies, that the PVAMC was temporarily not accepting applications for the moonlighter list, and that [defendant] Dr. [Karen] Sharrar [—then Director of PVAMC's Emergency Room—] would consider [Dr. Newmark's] application when there were openings." Id. ¶ 65.

In July 2001, PVAMC hired Dr. Jane Givens, who is "substantially younger than Dr. Newmark," as a full-time staff physician in the Emergency Department. Id. H 66. Further, in June and July 2001, four new physicians were added to the PVAMC Emergency Department moonlighter list by defendant Dr. John Murphy, Director of Primary Care. Those newly-hired physicians are also "substantially younger than Dr. Newmark, and none had yet been board certified in Internal Medicine." Id. ¶ 68.

Dr. Newmark filed the instant suit on August 16, 2002. In Counts I and II of the Complaint, he alleges that defendants Fordell and Beers wilfully refused to refer him for employment with PVAMC because of his age and "in order to retaliate against him for complaining of age discrimination at the VA," in violation of the ADEA and the Pennsylvania Human Relations Act, 43 P.S. § 957 et. seq. Id. Ml 74, 78. In Count III, Dr. Newmark makes similar age discrimination and retaliation claims under the ADEA against the VA and PVAMC. Counts IV through VI are Bivens claims against several officials of PVAMC alleging that: (a) they refused to rehire him after September 2000 "in order to retaliate against him for exercising his right to free speech as guaranteed by the First Amendment [in connection with his previous complaints of age discrimination]" (Count IV); (b) they denied him "his statutory right [under the Privacy Act of 1974²] to a meaningful review of his employment records without due process of law" (Count V); and (c) their hiring and retention of non-citizen physicians "when Dr. Newmark was available to work," in violation of 38 U.S.C. § 7407³, deprived him of "his liberty interest in preferential physician employment at the VA over noncitizen physicians, without due process and without rational basis," violating the Fifth Amendment (Count VI). Id. ¶¶ 84, 88, 91.

II. DISCUSSION

Rule 12(b)(6) of the federal rules of civil procedure provides that a defense of "failure to state a claim upon which relief can be granted" may be raised by motion in response to a pleading. Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss under Rule 12(b)(6), a court must take all well pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969). Only those facts alleged in the complaint may be considered in deciding such a motion. See ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir.1994). A complaint should be dismissed if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). Therefore, the facts alleged in Dr. Newmark's Complaint are accepted as true in deciding this motion.

Defendants argue that Counts IV, V, and VI of the Complaint—the Bivens claims—should be dismissed. That argument is based on the Supreme Court decision in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Because the Bivens claims arise from Dr. Newmark's employment relationship with the Government and his attempts to regain his position as a physician with PVAMC, defendants contend that, under Bush, the Bivens claims are barred in view of the remedial scheme provided under the ADEA and "encompassed" in his ADEA claims, Counts I and III.

A. Exceptions to the Bivens Doctrine— Bush and its Progeny

In Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court held that individuals whose constitutional rights are violated by federal officials may sue those officials for damages in their individual capacities. Although Bivens itself dealt only with Fourth Amendment violations, the Bivens doctrine has subsequently been extended to cases arising under the Due Process Clause of the Fifth Amendment, see Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and the First Amendment. See Paton, 524 F.2d at 870. The Bivens Court cautioned, however, that such a damages remedy should not be made available if there are "special factors counseling hesitation in the absence of affirmative action by Congress," Bivens, 403 U.S. at 396, 91 S.Ct. 1999, or "Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the constitution and viewed as equally effective." Carlson v. Green, 446 U.S. 14, 19, 100 S.Ct. 1468, 64 L.Ed.2d 15 (19...