Stretten v. Wadsworth Veterans Hospital

• Decision Date: 18 May 1976
• Docket Number: No. 75-2309,75-2309
• Citation: 537 F.2d 361
• Parties: Marc A. STRETTEN, Plaintiff-Appellee, v. WADSWORTH VETERANS HOSPITAL et al., Defendant-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 361

537 F.2d 361

Marc A. STRETTEN, Plaintiff-Appellee, v. WADSWORTH VETERANS HOSPITAL et al., Defendant-Appellants.

No. 75-2309.

United States Court of Appeals,

Ninth Circuit.

May 18, 1976.

John K. Villa, Atty. (argued), of Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C., for appellants.

Ronald F. Merlino, Los Angeles, Cal., (argued), for appellee.

Before HUFSTEDLER, SNEED and KENNEDY, Circuit Judges.

SNEED, Circuit Judge:

This case reaches us as an appeal from the district court order stating that plaintiff Stretten was entitled both under federal statute and under the Constitution to notice and a trial-type hearing prior to his dismissal from his position as a resident physician in pathology at Wadsworth Veterans Hospital. In addition, the lower court enjoined the dismissal of plaintiff from the residency program. ¹ We find no statutory claim to such a procedure. Further, we disagree with the district court's finding that a liberty interest of plaintiff has been infringed by his dismissal. While we agree with plaintiff and the district court that plaintiff did have a property interest in retaining his residency for four years, we disagree with the conclusion that such an interest mandates a full scale adversary hearing, either before or after dismissal. We feel that the requisites of due process were met in this case and hence we reverse and direct the district court to dissolve its injunction.

I. The Facts.

Plaintiff Marc A. Stretten is a physician who began employment on November 26, 1972 as a resident in pathology at Wadsworth Veterans Administration Hospital in Los Angeles. The form appointing Dr. Stretten described his appointment as being "for (the) duration of this training unless sooner terminated, and . . . subject to periodic review by resident review board." On August 13, 1973, Dr. Fishkin, Chief of Laboratory Services at Wadsworth, sent Dr. Stretten a memorandum informing him that his residency would be terminated in November 1973, the end of Stretten's first year as a resident. The memorandum made explicit that the termination was for unsatisfactory performance and "other considerations." The memorandum pointed out that several staff members had consulted with Dr. Stretten concerning his unsatisfactory performance during the period of his residency.

On October 16, 1973, the Resident Review Board met to consider the reappointment of Dr. Stretten. The three members of that Board, which included Dr. Fishkin, were unanimous in their decision not to reappoint Dr. Stretten. ² This was evidently the first time in the twenty-year history of the residency program at Wadsworth that it had been necessary formally to terminate a resident prior to the end of his training program. ³ The Director of the hospital approved the recommendation of the Resident Review Board not to reappoint Dr. Stretten and he was notified of this action on November 5, 1973. On November 7, 1973, Dr. Stretten, accompanied by, but not formally represented by, counsel, attended a meeting in which he was permitted to question Dr. Fishkin and the staff pathologists about the reasons for their failure to recommend that he be reappointed. At this time, Dr. Stretten was given quite detailed comments concerning the unsatisfactory nature of his performance. It also seems clear from the record of this discussion that Dr. Stretten had been informed, generally in a constructive manner, by several members of the staff of his unsatisfactory performance and attitude far in advance of any move to terminate his employment.

On November 21, 1973, Dr. Stretten filed suit in federal district court alleging that defendants denied him a full hearing prior to termination, as was his right under 38 U.S.C. § 4110. In addition, plaintiff alleged that his Fifth Amendment due process rights were abridged when he was terminated without a full adversary hearing. On this appeal appellees seek reversal of the lower court judgment for defendant on the merits and dissolution of the preliminary injunction.

II. Plaintiff's Right To a Hearing Under 38 U.S.C. § 4110.

The validity of plaintiff's claim of a right to a hearing under existing statutes hinges upon the interpretation to be given to three sections of Title 38 of the United States Code, sections 4104, 4110 and 4114(b), which deal with the Veterans' Administration Department of Medicine and Surgery. Section 4104 gives the administrator the authority to hire physicians; ⁴ section 4114(b) gives the administrator authority to establish residencies and internships. ⁵ The provision on which Dr. Stretten heavily relies, section 4110, provides for notice and a full adversary hearing in front of a disciplinary board composed of senior physicians in cases where there is a charge "of inaptitude, inefficiency, or misconduct of any person employed in a position provided in paragraph (1) of section 4104 of this title." 38 U.S.C. § 4110.

Dr. Stretten's argument is simple. He insists that since residents are physicians, i. e., they have M.D. degrees, the authority to hire residents under section 4114(b) must derive from section 4104. Thus, he continues, section 4110 procedural rights are applicable to residents since they are merely one type of physician. In addition, Dr. Stretten points out that inasmuch as residents have appointments of far longer duration than the ninety-day maximum allowed for section 4114(a) "temporaries," ⁶ he is not within the embrace of that section and thus excluded from the rights afforded by section 4110. We disagree with this reading of the statutory scheme.

First, the plain language of the statute unmistakably indicates that the source of authority to employ residents is section 4114(b) and not section 4104. Section 4114(b) does not say that the authority granted under section 4104 shall include the authority to establish residencies and internships. It states that "(t)he Administrator shall have authority to establish residencies and internships . . ." (emphasis supplied). This is a grant of new authority, not an expansion of old. Section 4110 speaks only of according procedural rights to "any person employed in a position provided in paragraph (1) of section 4104 of this title." If Congress had meant to include positions created by section 4114(b) it could easily have done so.

Second, plaintiff's argument that residents are physicians within the meaning of section 4104 is not persuasive. The Congress clearly meant to use the term "physician" as a title of a position and not as synonymous with a holder of an M.D. degree. This is made plain by examining section 4105 dealing with qualifications of appointees in the Department of Medicine and Surgery. ⁷ A medical service appointee must not only have an appropriate medical degree, but must also have completed an internship and be licensed to practice medicine. Interns and residents do not have to meet these qualifications. ⁸ Section 4114(b) plainly leaves the qualifications of residents and interns within the discretion of the Administrator. Thus it seems to us to be contrary to the logic of the statutory scheme to argue that section 4114(b) residents are also section 4104 physicians.

Finally, the legislative history of section 4114 confirms its plain meaning by strongly indicating that Congress intended it to be a grant of authority to the Administrator which is independent of the authority granted under section 4104. The House Report states:

This section also provides for the establishment of residencies and appointment to such positions without regard to civil service or classification laws, rules, or regulations; the conditions of such employment; and the customary amounts and terms of pay during the period of such training. Residency training in most specialties would embrace training outside the hospital in connection with the school, part of the time not being spent on work directly productive for the Veterans' Administration. It is not practicable to appoint such personnel to an established position, such as the doctor, junior grade. This authority is granted in order to retain uniformity with actual practice throughout the United States . . .. (italics added)

H.R.Rep.No.1238, 79th Cong., 1st Sess. 5 (1945). In addition, the House debates of the Act make clear that the members of the committee which wrote the bill intended that section 4114 employees were different from section 4104 physicians. ⁹ One member stated plainly that section 4114(b) was written in response to VA Administrator Hawley's special concern that there be provided the power to establish residencies. ¹⁰

In short, plaintiff's claim to a hearing under section 4110 is without merit. ¹¹

III. Plaintiff's Constitutional Claim to Due Process.

To evaluate Dr. Stretten's constitutional claim we must employ a two-step analysis. Cf. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). First we must determine whether his interest here being asserted rises to the level of a "property" or "liberty" interest. If the answer is no, the second step becomes unnecessary because Dr. Stretten has no constitutional claim entitled to recognition. If, however, either a property or liberty interest is at stake, then we must weigh the competing interests of the individual and the state to determine what process is constitutionally required. We turn first to determine whether Dr. Stretten's claim involves an interest in liberty. Thereafter we will consider whether a property interest is involved.

A. Plaintiff's Claim of a Deprivation of Liberty.

At the outset it should be made clear that the recent decision of the Supreme Court in Paul v. Davis, --- U.S. ----, 96 S.Ct. 1155, 47 L.Ed.2d 405, 44 U.S.L.W. 4337 (1976) does not obviate the need for inquiry into Dr. Stretten's liberty interest. In Davis the Court held that a liberty interest was not infringed when...