US v. Avila, CIV-87-0289T.

• Decision Date: 01 June 1988
• Docket Number: No. CIV-87-0289T.,CIV-87-0289T.
• Citation: 687 F. Supp. 778
• Parties: UNITED STATES of America, Plaintiff, v. Eduardo Evelio AVILA, Defendant.
• Court: U.S. District Court — Western District of New York

687 F. Supp. 778

UNITED STATES of America, Plaintiff, v. Eduardo Evelio AVILA, Defendant.

No. CIV-87-0289T.

United States District Court, W.D. New York.

June 1, 1988.

Anne VanGraafeiland, Asst. U.S. Atty., (Robin Lee, of counsel), Rochester, N.Y., for plaintiff.

Githler, Macko, Reichert & Clawson (John Macko, of counsel), Rochester, N.Y., for defendant.

DECISION and ORDER

TELESCA, District Judge.

INTRODUCTION

Plaintiff, the United States of America ("the Government") commenced this action claiming that Dr. Eduardo Avila ("Avila"), a Public Health and National Health Service Corps Scholarship Training Program recipient, failed to perform his scholarship service obligation and thus became liable to repay the amount of his scholarship award plus interest. The United States now moves for summary judgment pursuant to Fed.R.Civ.P. 56. Avila opposes the motion, maintaining that there are material issues of fact with respect to whether he breached his obligation and the viability of his affirmative defenses.

FACTS

Unless otherwise noted, the following facts are undisputed. Avila was a medical student at the University of Puerto Rico from 1973 through 1977. On May 22, 1974, Avila applied for a scholarship award from the Public Health Services' Health Professions Scholarship Program ("Scholarship Program"). In his application, Avila indicated his order of preference for service as follows: (1) Coast Guard; (2) FHPS; (3) Indian Health Service; (4) National Health Service Corps; and (5) Bureau of Prisons. Although his application was originally denied, Avila was later notified that he had been selected as a recipient of a Public Health Services' ("PHS") Scholarship.

When notified that he had been selected, Avila received an "Information Bulletin for Medical and Osteopathic Students" ("Information Bulletin"), which discussed the requirements of the Scholarship Program. That Bulletin also outlined the eligibility requirements, the benefits to be received, the service obligation following training, and other general information. It also contained a series of commonly asked questions and answers, including the following:

Q. Can students be assured that they will be permitted to complete their residency training in a specialty of their choice before entering on duty in the PHS for the obligated period of service?

A. Only if they plan to specialize in family practice or general internal medicine. Requests for deferment in all other specialties will be considered when the student enters the Senior or final year of school.

(Government Exhibit D, p. 9).

Q. Can students enrolled in the Scholarship Program be assured that they will be utilized in the PHS Program and geographic area of their choice and no other?

A. No. Bear in mind that the primary purpose of the Scholarship Program is to obtain health professionals to meet the staffing needs of the various Public Health Service Program. Every effort will be made to place participants in the program of their choice, but the Service must reserve the final decision to avoid staffing imbalances. This is an unalterable condition of enrollment in the Scholarship Program.

(Government Exhibit D, p. 11)

Avila accepted the PHS Scholarship on May 15, 1975, when he signed the Notice of Scholarship Award outlining the conditions and terms of the award. (Government Exhibit E) Included among these conditions was an agreement by Avila to serve one year on active duty as a Commissioned Officer in the PHS or as a civilian member of the National Health Service Corps following completion of academic training, for each academic year of support, with a minimum of two years service. (Government Exhibit E at 1(a).) Avila also agreed that if, for any reason, he failed to complete his active duty service obligation, he would be liable for the payment of an amount equal to the scholarship payments, tuition and other educational fees paid, plus interest running from the date such payments were made. (Government Exhibit E at 2(a).) Avila received yearly stipends of approximately $7,300 for the three academic years from 1974 through 1977.

In July, 1976, Avila requested that his service obligation be deferred for four years so that he could pursue a pathology residency outside the Public Health Service. Avila indicated in a subsequent letter dated August 2, 1976, that if his four year deferment request was denied, he wished to enter the PHS as soon as he finished his academic training. (Government's Exhibit H).

On September 13, 1976 Avila signed a formal Request for Deferment form. His first preference, as indicated by the form, was a 4-year pathology residency. His second preference was a 1-year internship program offered outside of the Public Health Service. His third preference was a 1-year residency or internship program offered in a Public Health Service facility. (Government Exhibit K.) Avila received his second deferment choice, and was notified that his service obligation would be deferred for one year so that he could complete his first year of a residency (internship) program offered outside of the PHS. (Government Exhibit L.)

On March 16, 1977, Avila requested a change of deferment in order to complete his pathology residency. This request was denied, and he was again informed that his service obligation would begin on or about July 1, 1978. Avila was also informed that the final determination of his PHS assignment would be made during his deferment year of residency (internship) training. Avila was notified that "Program and geographical preference of scholarship recipients will be considered in making placement but the PHS will make final assignments based on its staffing needs." (Government Exhibit N.)

Avila graduated from the University of Puerto Rico School of Medicine in May, 1977. During the 1977-1978 academic year, he was an intern in pathology at Strong Memorial Hospital in Rochester, New York.

Avila completed and submitted a PHS Site Selection Questionnaire on which he ranked his preferred regions of assignment and the type of community he would prefer. The Midwest was not included in Avila's list of prefered geographic areas. He also noted, "Since I am being forced to interrupt my pathology residency to start serving my time with the PHS I would like to have an assignment where I would have some contact with pathology or research since I intend to finish my residency after completion of my obligation." (Government Exhibit O.)

By letter dated November 30, 1977, Avila was notified of his tentative assignment to the Federal Bureau of Prisons Medical Program. Avila maintains that he returned a list ranking his preferences for the ten vacancies in Bureau of Prison Facilities. According to Avila, he ranked the Federal Correctional Institution at Miami as his first preference, and the Federal Correctional Institution at Milan, Michigan, as his seventh preference. Avila further maintains that he contacted officials at the Miami Correctional Institution to discuss their medical needs and his qualifications, including his fluency in Spanish, and knowledge of Hispanic culture. Avila maintains that an official at the Bureau of Prisons informed him orally that since no one else had requested to serve at the Miami Correctional Facility, Avila "should have no problem being assigned there." (Avila's attachment A at 7). He was ultimately assigned to the Federal Correctional Institution, Milan, Michigan. In the letter advising him of his assignment, Avila was also directed:

The Office of Personnel, USPHS, will issue your Personnel Orders in the near future. You will be authorized travel for yourself and your dependents and shipment of your household effects to your duty station. We must, however, caution you NOT to perform travel or ship your effects until after you have received your official orders from the Office of Personnel, USPHS. (Government's Exhibit R).

Avila states that he was "shocked, disillusioned, and angry at this assignment." He felt that the public health service had not taken into consideration any of his preferences as to branches of service or site location. (Avila's attachment A at 8). Avila maintains that Mr. Krofchik of the Bureau of Prisons informed him that although ten scholarship recipients had originally been assigned to the Bureau of Prisons, seven of the ten had resigned from the scholarship program. According to Avila, Krofchik further stated that when the Bureau of Prisons became aware that only three persons were still willing to serve, "they were assigned to the three least desirable locations". (Avila's attachment A at 8-9).

Avila decided to accept the position at Milan, Michigan. In early May, 1978, he visited the location at his own expense to search for housing and arrange for schooling for his children. Upon his return to Rochester, Avila informed Krofchik of his trip, and that he needed his orders since he had to leave the University of Rochester owned apartments prior to June 21. (Avila's attachment A at 9).

Avila submitted his application to become a Commissioned Officer of the PHS, in order to fulfill his service obligation. By letter dated May 25, 1978, Avila was informed that the medical information he submitted was inadequate, and that a complete summary from his physician regarding his medical history of hypertension and followup was needed. Avila maintains that when he inquired exactly what specific information was needed, Dr. Mildred McDonald, Assistant Chief of the Medical Branch, was unable to offer him specific requirements. (Avila's attachment A at 10). Avila never provided this information.

Avila contends that he called Krofchik on May 29 and again on May 30, and informed him that the matter needed to be resolved by June 5 so that Avila could arrange for his furniture to be moved and in order for Avila to have his commission and orders by the end of June. Krofchik stated that he was unable to help Avila. Avila called him again...