Tompkins v. U.S. Dep't of Veterans Affairs

• Decision Date: 25 October 2021
• Docket Number: No. 20-6060,20-6060
• Citation: 16 F.4th 733
• Parties: John TOMPKINS, M.D., Plaintiff - Appellant, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS ; Denis McDonough, in his official capacity; Ralph T. Gigliotti, in his official capacity; Kristopher Wade Vlosich, in his official capacity, Defendants - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

16 F.4th 733

John TOMPKINS, M.D., Plaintiff - Appellant,

v.UNITED STATES DEPARTMENT OF VETERANS AFFAIRS ; Denis McDonough,^* in his official capacity; Ralph T. Gigliotti, in his official capacity; Kristopher Wade Vlosich, in his official capacity, Defendants - Appellees.

No. 20-6060

United States Court of Appeals, Tenth Circuit.

FILED October 25, 2021

Danny K, Shadid, of Counsel with Riggs Abney Neal Turpen Orbison & Lewis Law Firm, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Rebecca A. Frazier, Assistant United States Attorney (Timothy J. Downing, United States Attorney, and Tom Majors, Assistant United States Attorney, with her on the brief), Oklahoma City, Oklahoma, for Defendants-Appellees.

Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

For thirty years, John Tompkins worked as a physician at the United States Department of Veterans Affairs ("VA") in Oklahoma City, Oklahoma. From 2012 through 2016, he served as Chief of Surgery. In 2017, he was terminated from his position as a physician based on administrative deficiencies during his tenure as Chief of Surgery. After exhausting the VA's administrative remedies, Tompkins brought this action in district court. He asserted entitlement to (1) review under the Administrative Procedures Act ("APA") and (2) relief under the Fifth Amendment's Due Process Clause. Tompkins appeals from an order of the district court dismissing his complaint without prejudice based on his failure to identify an applicable waiver of the government's sovereign immunity.

The district court correctly dismissed Tompkins's complaint. This court joins all other circuit courts of appeals in holding that Subchapter 5 of Chapter 74 of the Veterans’ Benefits Act ("VBA"), 38 U.S.C. §§ 7461 to 7464, is a comprehensive statutory scheme governing the discipline of VA physicians and is, therefore, the exclusive remedy for review of Tompkins's termination. Accordingly, Tompkins is not entitled to judicial review under the provisions of the APA. Nor did the district court err in dismissing for lack of jurisdiction over Tompkins's due process claims. This court made clear in Lombardi v. Small Business Administration , 889 F.2d 959, 961-62 (10th Cir. 1989), that Supreme Court precedents "virtually prohibit intrusion by the Courts into the statutory [employment] scheme[s] established by Congress. This judicial intervention is disfavored whether it is accomplished by the creation of a damages remedy or injunctive relief." Because Tompkins completely failed to address how his claim for injunctive relief falls outside the ambit of the rule set out in Lombardi , the district court correctly concluded Tompkins could not evade the VBA's limitations on judicial review by means of a due-process based claim for injunctive relief. Thus, exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the order of the district court dismissing Tompkins's complaint for lack of jurisdiction.¹

II. BACKGROUND

A. Legal Background—The VBA

The VA is empowered to employ physicians as "necessary for the health care of veterans." 38 U.S.C. § 7401(a)(1). Those physicians are appointed "without regard to civil-service requirements." Id. § 7403(a)(1). They are not, therefore, covered by the provisions of the Civil Service Reform Act. 5 U.S.C. § 7511(b)(10) ; see also id. §§ 2102(a)(1)(A), 2103. Instead, the VBA sets out its own grievance process for § 7401(a)(1) physicians. See 38 U.S.C. §§ 7461 to 7464. That grievance process is split into two different tracks.

If a physician is the subject of a "major adverse action" arising out of a question of "professional conduct or competence," see id. § 7461(c)(2), (3), an enhanced grievance procedure is set out in § 7462. These physicians are entitled to detailed, advance written notice of a potential charge; an opportunity to respond, both orally and in writing, with affidavits and other evidence; and a decision by a "deciding official," an individual "who shall be an official higher in rank than the charging official." Id. § 7462(b). A physician aggrieved by the resolution reached by the "deciding official" can appeal to the Disciplinary Appeals Board ("DAB"). Id. §§ 7462(c), 7464. The DAB is entitled to affirm, reverse, or modify the resolution reached by the "deciding official." Id. § 7462(c)(2). The VA Secretary is tasked with "execut[ing]" the DAB's decision. Id. § 7462(d)(1). The Secretary can reverse the decision of the DAB, or remand the matter to the DAB for further proceedings, only upon a finding that the DAB decision is "clearly contrary to the evidence or unlawful." Id. § 7462(d)(2). The Secretary does, however, have discretion to "mitigate the adverse action imposed," upon a determination that the DAB's decision is not "justified by the nature of the charges." Id. § 7462(d)(3). The Secretary's decision counts as "the final administrative action in the case." Id. § 7462(d)(4). The DAB's decision, as modified by the Secretary, is subject to judicial review. Id. § 7462(f)(1). A court conducting review under § 7462(f)

shall review the record and hold unlawful and set aside any agency action, finding, or conclusion found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) obtained without procedures required by law, rule, or regulation having been followed; or

(C) unsupported by substantial evidence.

Id. § 7462(f)(2).

All other types of adverse employment actions are controlled by the grievance provisions set out in § 7463. Section 7463 provides a significantly limited number of grievance procedures compared to those set out in § 7462. Section 7463(a) obligates the Secretary to "prescribe by regulation procedures for the consideration of grievances of section 7401(1) employees arising from adverse personnel actions in which each action taken either ... is not a major adverse action[ ] or ... does not arise out of a question of professional conduct or competence." Id. § 7463(a). Notably, with an exception not relevant here, the DAB "shall not have jurisdiction to review such matters." Id.² "[A]n employee who is a member of a collective bargaining unit" is entitled to "seek review of an adverse action described in [ § 7463(a) ] either under the grievance procedures provided through regulations prescribed under [ § 7463(a) ] or through grievance procedures determined through collective bargaining, but not under both." Id. § 7463(b). Physicians subject to charges that may potentially result in a major adverse action, even if the charges do not involve professional conduct or competence, are entitled to elevated rights to notice and an opportunity to be heard. Id. § 7463(c)(1). Such physicians are "entitled to notice and an opportunity to answer with respect to those charges in accordance with subparagraphs (A) and(B) of section 7462(b)(1)." Id. That is, physicians subject to a potential major adverse action not involving a question of professional conduct or competence are entitled to the same notice and opportunity-to-respond rights as those physicians subject to a major adverse action for a charge relating to professional conduct or competence. "In any other case," diminished notice and opportunity-to-respond rights are provided. Id. § 7463(c)(2). Finally, § 7463(d) sets the following minimum requirements for grievance procedures prescribed by the Secretary:

(1) A right to formal review by an impartial examiner within the Department of Veterans Affairs, who, in the case of an adverse action arising from a question of professional conduct or competence, shall be selected from the [DAB].

(2) A right to a prompt report of the findings and recommendations by the impartial examiner.

(3) A right to a prompt review of the examiner's findings and recommendations by an official of a higher level than the official who decided upon the action. That official may accept, modify, or reject the examiner's recommendations.

Id. § 7463(d). "[T]he employee is entitled to be represented by an attorney or other representative ... at all stages of the case." Id. § 7463(e).

B. Factual Background

Tompkins worked as an orthopedic surgeon at the VA in Oklahoma City for thirty years.³ He served as Interim Chief of Surgery starting September 2010, and as Chief of Surgery from January 2012, through mid-October 2016. Tompkins voluntarily resigned as Chief of Surgery,⁴ but remained at the VA as a full-time orthopedic surgeon.

Kristopher Vlosich was named the System Director of the Oklahoma City VA facility in May 2016. Vlosich, relying on the recommendation of Chief of Staff Susan Bray-Hall, tried to fire Tompkins for medical deficiencies in July of 2017. That effort failed when an outside review by three separate VA orthopedic surgeons concluded Tompkins's medical practice was "extremely good and well within the accepted standard of care."

Shortly thereafter, Vlosich and Bray-Hall formulated a different reason to terminate Tompkins. On October 30, 2017, Bray-Hall issued to Tompkins a letter of "Proposed Separation & Revocation of Clinical Privileges" based on alleged administrative deficiencies occurring in 2015-2016 while Tompkins was Chief of Surgery.⁵ Tompkins, represented by counsel, submitted to Vlosich both formal and personal responses to his proposed termination. Separate from his substantive responses, Tompkins requested that Vlosich recuse himself as a decision-maker. Tompkins asserted Vlosich demonstrated a predisposition to find he should be terminated due to a prior statement that Vlosich had reviewed the draft OIG report and agreed with the findings of that report. Vlosich refused to recuse himself.

On November 21, 2017, Vlosich issued to Tompkins a formal discharge letter. The letter advised Tompkins he could appeal the action under the VA's grievance procedure by submitting a grievance to Ralph Gigliotti. Tompkins, through counsel, submitted a formal grievance and demand for an evidentiary hearing....