Univ. Of Tx Med. Br. at Galves. v. Barrett

• Decision Date: 31 July 2003
• Docket Number: No. 14-01-00529-CV.,14-01-00529-CV.
• Parties: THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON d/b/a John Sealy Hospital ("UTMB"), Appellant, v. Kevin BARRETT, M.D., Appellee.
• Court: Texas Court of Appeals

112 S.W.3d 815

THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON d/b/a John Sealy Hospital ("UTMB"), Appellant, v. Kevin BARRETT, M.D., Appellee.

No. 14-01-00529-CV.

Court of Appeals of Texas, Houston (14th Dist.).

July 31, 2003.

Merle Hoffman Dover, Austin, for appellants.

Mark W. Stevens, Galveston, for appellees.

Before the court en banc.

EN BANC MAJORITY OPINION ON REHEARING

SCOTT BRISTER, Chief Justice.

Kevin Barrett, M.D. sued his employer, the University of Texas Medical Branch at Galveston (UTMB) alleging violations of the Texas Whistleblower Act.¹ The Act required Dr. Barrett to initiate a grievance before filing suit.² In a prior interlocutory appeal, we found there was some evidence he did, albeit imperfectly.³

The Act also required Dr. Barrett to wait 60 days after filing his grievance before filing a lawsuit.⁴ It is undisputed he did not, waiting only 27 days. UTMB has again filed an interlocutory appeal, arguing the trial court should have dismissed the case for lack of subject-matter jurisdiction because of the premature filing.⁵ A panel of this Court agreed.⁶ We granted Dr. Barrett's motion for rehearing en banc, and now reach the opposite conclusion for the reasons set out below. Accordingly, we withdraw our opinion of December 12, 2002, and issue the following as the opinion of the Court en banc.

First, section 554.0035 of the Whistleblower Act, entitled "Waiver of Immunity," is unconditional:

A public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter. Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter.

This is all the Whistleblower Act says about sovereign immunity; there are no other conditions.⁷ Applying the proper standard of review,⁸ we cannot add conditions when the Legislature did not. A plain reading of the provision shows it is not "narrowly tailored";⁹ it fits all claims alleged under the chapter—big or little, early or late. Because Dr. Barrett alleged a violation and sought relief allowed by the Act, sovereign immunity was waived.

Second, it is clear that every deadline and procedure found throughout the Act is not jurisdictional. For example, the Act contains its own venue provision,¹⁰ which the Texas Supreme Court has held is not jurisdictional.¹¹ In University of Houston v. Elthon,¹² we held the Act's limitations provision (requiring suit within 90 days of a violation) is a plea in bar that must be raised by motion for summary judgment, not by a plea to the jurisdiction.¹³ If a claimant must meet every prerequisite in the Act before sovereign immunity is waived, these cases cannot be correct.

Third, in Essenburg v. Dallas County,¹⁴ the Texas Supreme Court drew a distinction between "exhaustion" and "presentment" statutes:

• statutes requiring exhaustion of administrative remedies confer primary jurisdiction upon an administrative agency; failure to comply requires dismissal for want of jurisdiction.

• statutes requiring presentment give a governmental defendant notice and an opportunity to settle claims without litigation; failure to comply requires only an abatement.¹⁵

As we have recognized before (including the first appeal in this case), the Whistleblower Act (1) does not require claimants to exhaust grievance procedures, and (2) was enacted to give government entities an opportunity to settle claims before litigation.¹⁶ It does not involve an administrative agency with primary jurisdiction to adjudicate specialized disputes (the "hallmark of a jurisdictional statute," according to the Texas Supreme Court¹⁷). Thus, the Act's 60-day waiting period can only fall in Essenburg's "presentment" category.¹⁸

Our dissenting colleagues correctly point out that the Act does not mention abatement. But of course it does not mention dismissal for want of jurisdiction, either. The statute simply does not say what penalty applies to suits filed too early. But as noted above, Essenburg does.

Everyone agrees the purpose of the Whistleblower Act's 60-day waiting period is to encourage parties to resolve disputes short of litigation. Abatement ensures the parties have that window of opportunity.¹⁹ Dismissal merely ensures they go away—usually permanently, as the Act's very short limitations deadlines will pass before most jurisdictional pleas can be filed and heard.

Like mandatory notice requirements in the Texas Deceptive Trade Practices Act²⁰ and the Medical Liability and Insurance Improvement Act article 4590i,²¹ noncompliance with the Whistleblower Act's 60-day waiting period requires abatement instead of dismissal if a claimant jumps the gun. Thus, when Dr. Barrett did so, abatement was the proper remedy to allow UTMB to investigate and try to settle the claim. Because six years have passed since he filed suit, UTMB has had more than a fair opportunity to do so; neither dismissal nor abatement is warranted.²²

Several intermediate appellate courts have stated that an employee's failure to initiate a grievance is a jurisdictional defect.²³ Pursuant to the Act, an employee must initiate a grievance before filing suit:

A public employee must initiate action under the grievance or appeal procedures of the employing state or local governmental entity relating to suspension or termination of employment or adverse personnel action before suing under this chapter.²⁴

But again, this mandatory section does not say what the consequences are if an employee fails to comply. No court has explained why a grievance could not be ordered during an abatement, or why the grievance requirement in section 554.006 limits the unconditional waiver of immunity in section 554.0035, when neither section says so. Accordingly, we disapprove of any language in our previous cases suggesting noncompliance is jurisdictional.

We also recognize the Fourth Court of Appeals has held that failure to wait 60 days before filing suit is jurisdictional.²⁵ The 60-day provision is stated in terms that are elective, not mandatory:

If a final decision is not rendered before the 61st day after the date procedures are initiated under Subsection (a), the employee may elect to: (1) exhaust the applicable procedures under Subsection (a), in which event the employee must sue not later than the 30th day after the date those procedures are exhausted to obtain relief under this chapter; or (2) terminate procedures under Subsection (a), in which event the employee must sue within the time remaining under Section 554.005 to obtain relief under this chapter.²⁶

Again, there is nothing here to suggest sovereign immunity is waived only after the stated deadline, or that subject-matter jurisdiction suddenly pops into existence at that point. And unlike section 554.006(a), this section does not even state that an employee "must" wait until the deadline passes to sue.²⁷ Accordingly, we respectfully decline to follow Marin.

A few final words about dictum—obiter or otherwise. The rule stated in this opinion is: filing too early is not jurisdictional, but requires abatement unless waived by delay. Subject-matter jurisdiction, of course, cannot be waived.²⁸ By deciding this case based on waiver, it is hard to see why our jurisdictional conclusion is unnecessary.

Undoubtedly, the State may place conditions on its consent to be sued, but it did not do so here. The deadlines in the Whistleblower Act have important purposes, but there is no indication those include tossing whistleblowers out of court permanently if they file suit too early. Though compliance with the Act's 60-day waiting period is mandatory, noncompliance should result in abatement (if timely raised), not dismissal for want of subjectmatter jurisdiction. Accordingly, we grant Dr. Barrett's motion for rehearing en banc, and affirm the trial court's order.

En Banc Majority Opinion delivered by Chief Justice BRISTER and Joined by Justices HUDSON, FOWLER, EDELMAN, FROST and GUZMAN.

En Banc Dissenting Opinion filed by Justice ANDERSON and joined by Justice SEYMORE.

Justice YATES also filed an En Banc Dissenting Opinion.

JOHN S. ANDERSON, Justice, dissenting on Rehearing En Banc.

Now we are engaged in a great struggle to determine whether the Whistleblower Act, clearly formed and narrowly tailored to waive sovereign immunity only when strictly followed, can long endure as originally conceived. Because the majority adds new terms to an unambiguous statute, I respectfully dissent. But first, the question squarely presented: is this en banc exercise required by the rules of appellate procedure?

WHERE IS THE CONFLICT?

The original panel opinion in this case has been withdrawn by the majority without any explication of the basis for that action pursuant to Rule 41.2(c) of the Rules of Appellate Procedure. Tex.R.App. P. 41.2(c). Rule 41.2(c) sets out the circumstances under which this court may hear a case en banc:

En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court's decisions or unless extraordinary circumstances require en banc consideration.

TEX.R.APP. P. 41.2(c).

The rule is clear. There are only two bases on which to grant en banc review. Because the majority has neither identified a conflict in our jurisprudence regarding the Whistleblower Act nor articulated extraordinary circumstances requiring full court review, en banc review is not warranted here. If this court does not follow the Rules of Appellate Procedure, this failure undermines the legitimacy of our en banc opinions by suggesting there are other, unstated, bases, for engaging in full court review, and withdrawing the panel opinion.

OVERVIEW

This case involves the Whistleblower Act, which provides a waiver of sovereign immunity, to the extent of liability for the relief allowed under the Act, when a party seeks redress for...