Suess v. Pugh

Decision Date21 September 1965
Docket NumberCiv. A. No. 828-F.
Citation245 F. Supp. 661
PartiesDr. John F. SUESS, Plaintiff, v. Dr. A. E. PUGH, Hospital Director of Veterans' Administration Hospital, Clarksburg, West Virginia, the United States Veterans' Administration, and United States of America, Defendants.
CourtU.S. District Court — Northern District of West Virginia


A. Blake Billingslea, Roderick A. Devison, Fairmont, W. Va., for plaintiff.

John H. Kamlowsky, U. S. Atty., John C. Solomon, Asst. U. S. Atty., Fairmont, W. Va., Emmette L. Mosley, Chief Attorney, Veterans Administration, Huntington, W. Va., for defendants.

CHRISTIE, District Judge:

The broad purpose of this suit is to restrain and enjoin the defendants from terminating the employment of the plaintiff as a physician at the Veterans' Administration Hospital at Clarksburg, West Virginia.

The defense has moved for an order to dismiss The United States Veterans' Administration and United States of America as defendants on the ground that suit may not be maintained against The United States Veterans' Administration under Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534; Declet v. Veterans' Administration, D.C., 129 F.Supp. 566, or against the United States of America under Hatahley v. United States, 351 U.S. 173, 182, 76 S.Ct. 745, 100 L.Ed. 1065; Anderson v. United States, 229 F.2d 675 (5th Cir.). Believing the motion to dismiss to be well taken, the complaint is dismissed as to The United States Veterans' Administration and the United States of America. The Court further finds that the Amended Complaint, absent The United States Veterans' Administration and United States of America, as defendants, may be filed. The maintenance of the action as to the remaining defendant, Dr. A. E. Pugh, Hospital Director of Veterans' Administration Hospital, Clarksburg, West Virginia, is found to be authorized by 28 U.S.C.A. 1361. This defendant has moved to dismiss or in the alternative for summary judgment for the reasons and on the ground that there is no issue of material fact existing and that he is entitled to judgment as a matter of law.

It would appear from the record before the Court that Dr. Suess' appointment and tenure are governed by 38 U.S.C.A. 4106, dealing with the appointment of physicians, dentists, and nurses by the Department of Medicine and Surgery within the Veterans' Administration. Subsection (a) of that section provides that such appointments shall be "in accordance with regulations prescribed by the Administrator, without regard to civil service requirements"; that such appointments shall be for a "probationary period of three years," and that they shall be "reviewed from time to time by a board, appointed in accordance with regulations of the Administrator, and if said board shall find (them) not fully qualified and satisfactory (they) shall be separated from the service." Thus, the Congress by this enactment has clearly spelled out:

(1) That Dr. Suess' appointment must be in accordance with regulations prescribed by the Administrator, without regard to civil service requirements; and

(2) That it must be for a probationary period of three years and shall be reviewed from time to time by a board appointed in accordance with regulations prescribed by the Administrator, and if said board shall find him not fully qualified and satisfactory, he shall be separated from the service.

It is readily seen, therefore, that under this statute Dr. Suess could receive no tenure appointment for any definite period of time, and that by his appointment, he acquired no civil service status. This is made clear by the statute itself, irrespective of any regulations of the Administrator.

So, there can be no doubt but that under this statute Dr. Suess could be, and was, hired on a provisional basis only, regardless of the wishes of the Administrator or anyone else. Thereunder he could not, and did not, acquire any vested right in the job to which he was appointed for any definite duration of time. This is the crux of the case.

Pursuant to the authority expressly given him by the statute to do so, the Administrator promulgated certain rules and regulations. Those pertinent to this case are found under Chapter 4 — Probationary Period — MP-5, Part II, as supplemented June 1, 1964, 4.01 — of the Manual. An examination thereof discloses no fundamental conflict therein with the statute. They do no more than implement it by setting up standard procedure governing physicians, dentists and nurses during their three-year probationary period. Their general import would appear to be reasonable and necessary in the premises. However, the plaintiff has raised certain questions with respect to whether or not some of these procedures were followed by the Professional Standards Board.

First, the Court finds that the procedure provided for by 38 U.S.C.A. 4106 and the Veterans' Manual 4.05 (periodic reviews) was substantially followed and complied with in this case.

Second, the Court finds that on the issue of notice that Dr. Suess had sufficient notice with respect to the charges against him. The record shows that Dr. Suess was duly notified of the nature of the hearing and was given ample opportunity to appear and defend himself. Indeed, the Board appears to have been quite generous with him in this respect. At his request, it granted a continuance from July 6 to July 19 — four days more than he requested. At the end of this 14-day period, he appeared before the Board and submitted a written statement affirming his fidelity to his patients and avowing his competence as a doctor, but voicing objections to the attitudes of certain unnamed Chiefs to Services; declining, however, to elaborate further or to answer any questions due to his stated belief that he was entitled to be represented by counsel at the hearing.

While the June 14, 1965 notice of the first hearing, scheduled for July 6, 1965, did not spell out in detail the specific infractions charged to Dr. Suess, it did, nevertheless, inform him of the general nature of same in these words:

"The Board will consider your interference with the administration of other hospital services despite repeated counselings, attempts to discredit and undermine the authority of the hospital director, ineptness in your administrative and professional relationships with professional staff members and others of the hospital staff."

Furthermore, the proceedings of the July 6 session of the Board, attended by Dr. Suess, as revealed by the transcript thereof, are convincing evidence that Dr. Suess at that time knew of the nature of the complaints against him. Had he not known, he would have undoubtedly asked the Board for specifications at that time, which he did not do, because the transcript shows that the very purpose of his appearing before the Board was to get a continuance to enable him to prepare his defense. Nor did he complain, according to the transcript of the July 19 hearing, that he did not know the nature of the charges against him. The notice of the hearing and the purpose thereof are found to meet legal requirements. Baughman v. Green, 97 U.S.App.D.C. 150, 229 F.2d 33; Blackmar v. United States, 120 F.Supp. 408, 128 Ct.Cl. 693.

It also appears that Dr. Suess was aware of the nature of the charges because on previous occasions, prior to the hearing, these matters had been discussed with him by Dr. Pugh, as well as his supervisor, Dr. Jones. This knowledge, coupled with the notice and the extension of time granted him to prepare his case, did satisfy any requirement with respect to notice so as to enable him to properly prepare his defense.

Third, the matter of the regulation that deprives a probationary employe, such as Dr. Suess, of the right to legal representation before the Professional Standards Board, requires close scrutiny, but it must be considered in the context of the principle that there is no constitutional right to Federal employment.

The right to legal counsel must be found in the Constitution of the United States under the Fifth or Sixth Amendment or by some Act of Congress or some rule or regulation of an agency or administrative tribunal under which the individual functions. The Court is unable to perceive that there is any Constitutional right of counsel in a civil case or in a civil matter pending before an administrative agency. The right to counsel under the Sixth Amendment clearly applies to criminal cases only. Under the due process clause of the Fifth Amendment to the Constitution, the Court is unable to find any violations of due process by the denial of counsel in this case.

Moreover, the functions of the Professional Standards Board are fact-finding and non-adjudicative in nature and they do not rise to the level of judicial determination. Under such circumstances, the safeguards of the ordinary judicial trial are not required. Taft v. Commissioner of Internal Revenue, 304 U.S. 351, 58 S.Ct. 891, 82 L.Ed. 1393; Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377; Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307; Cafeteria, etc. v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230; Malan Const. Corp. v. United States, 318 F.2d 709 (2d Cir. 1963); and F. C. C. v. Schreiber, 329 F.2d 517 (9th Cir. 1964).

Dr. Suess was appointed on a "trial basis" only. He had no permanent status and could acquire none until the expiration of three years. His appointment, during his probationary period, was made subject to review from time to time and was terminable at the will of the reviewing authority. His consequent separation from the service of the hospital within this trial period cannot, therefore, be said to have deprived him of any substantial right.

There is nothing before the Court by way of any Act of Congress which gives to Dr. Suess the right to legal counsel in such matters. The Court has examined the Administrative Procedure Act, Title 5 U.S.C. 1001,...

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  • Zaky v. United States Veterans Admin., Civ. No. F 82-114.
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    ...but he is not entitled to be represented by counsel or to confront and cross-examine witnesses. Giordano II; Schmoll, Suess v. Pugh, 245 F.Supp. 661, 665 (N.D.W.V.1965). Finally, limited review by a professional standards board of a probationary physician's professional competency is the on......
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