Ward v. Brown

• Decision Date: 02 May 1994
• Docket Number: No. 237,D,237
• Citation: Ward v. Brown, 22 F.3d 516 (2nd Cir. 1994)
• Parties: William J. WARD, Plaintiff-Appellee, v. Jesse BROWN, in his capacity as Secretary of the Department of Veterans Affairs; Department of Veterans Affairs, an executive agency of the United States of America; and Michael Lawson, in his capacity as Medical Center Director, Veterans Administration Medical Center, Defendants-Appellants. ocket 93-6044.
• Court: U.S. Court of Appeals — Second Circuit

Page 516

22 F.3d 516

William J. WARD, Plaintiff-Appellee, v.Jesse BROWN, in his capacity as Secretary of the Department of Veterans Affairs; Department of Veterans Affairs, an executive agency of the United States of America; and Michael Lawson, in his capacity as Medical CenterDirectorVeterans Administration Medical Center, Defendants-Appellants.

No. 237, Docket 93-6044.

United States Court of Appeals Second Circuit.

Argued Sept. 30, 1993.

Decided May 2, 1994.

Douglas Ross, Atty., Appellate Staff, Civil Div., Dept. of Justice, Washington, DC (William Kanter, Appellate Staff, Civil Div.; Stuart E. Schiffer, Acting Asst. Atty. Gen., Dennis C. Vacco, U.S. Atty., Dept. of Justice, Washington, DC, of counsel), for appellants.

Martin R. Cohen, Asst. Gen. Counsel, American Federation of Government Employees, Bala Cynwyd, PA(Mark D. Roth, Gen. Counsel, American Federation of Government Employees, Washington, DC, of counsel), for appellee.

Before: LUMBARD, CARDAMONE, and LAY^*, Circuit Judges.

CARDAMONE, Circuit Judge:

Plaintiff, a male registered nurse employed at a Veterans Administration Medical Center in upstate New York was found, after an administrative hearing, on a single occasion to have verbally abused a patient.For this infraction of the rules as set forth in the agency's policy manual, the Secretary of Veterans Affairs (Secretary), accepting the administrative decisions and recommendations of subordinate officials of the Department of Veterans Affairs(VA), terminated plaintiff's employment.When the district court vacated the Secretary's decision, the VA appealed.

The VA's apparent objective, like that expressed by Gilbert and Sullivan in the "Mikado", is to let the punishment fit the crime.¹We know this is the VA's objective not only because it accords with basic notions of fairness, but because the VA's policy manual itself also so provides.Nonetheless, the principal question before us is whether the VA followed this policy and adopted a punishment that fits the offense.

BACKGROUND

William Ward worked as a registered nurse with psychiatric patients at the Veterans Administration Medical Center in Canandaigua, New York from December 14, 1981 until he was discharged on December 3, 1990.He was fired after two nursing assistants and a registered nurse who was Ward's supervisor filed written incident reports alleging that nearly two weeks earlier, on March 31, 1989, Ward had verbally abused three patients.The record indicates that on the morning of the alleged incidents Ward had reprimanded the two nursing assistants for leaving a suicidal patient with a shaving razor unattended while they smoked cigarettes in a shower room, in violation of VA policies.The record also shows that Ward was an active union officer and had filed numerous grievances against his supervisor for unfair labor practices.A three-member panel conducted an administrative investigation between April 21 and July 7, 1989, and concluded all three incidents were substantiated.It recommended Ward be discharged.

The Associate Deputy Chief Medical Director of the Veterans Administration Department of Medicine and Surgery(Department) sent Ward a letter of proposed discharge on September 25, 1989.Plaintiff exercised his rights under 38 U.S.C. Sec. 4110(1988)² and requested a hearing before the Department's Disciplinary Board(Board).The Board, comprised of three nurses from other VA facilities, conducted a hearing from March 19 to 21, 1990.It determined that only one of the three charges against Ward was sustained.But it specifically found Ward had committed major patient abuse by "intentionally teasing, speaking harshly to, and threatening and intimidating the patient," and recommended discharge as the penalty.The Chief Medical Director adopted the Board's decision and recommendation as his own.In December 1990 Ward appealed the Chief Medical Director's decision to the Secretary.

While the appeal was pending, Ward's union submitted to the Secretary an opinion of an Administrative Law Judge (ALJ) of the Federal Labor Relations Authority in a related unfair labor practice proceeding.This action had been brought by Ward's union on his behalf and on behalf of David Bellomo, another employee at the Canandaigua facility whom the Department recommended discharging at about the same time as Ward.In his opinion, the ALJ found that he had no jurisdiction to hear the claims, but that if he could have heard them, he"would conclude that the General Counsel has established by a preponderance of the evidence that the proposed discharges of Ward and Bellomo were motivated by their protected activity" and that even if some disciplinary action were warranted, discharge would not have been proposed in the absence of their union activities.

The 26 page opinion also documented action taken against other Canandaigua employees for allegations of patient abuse, which revealed that no such employee had ever been discharged.The VA responded that the Secretary would consider the ALJ's findings.But the Secretary sustained the Chief Medical Director's decision and ordered plaintiff's termination of employment.

Several months later in April 1991 Ward brought suit in the United States District Court for the District of Columbia against the VA, the Secretary of Veterans Affairs, and the Director of the Veterans Administration Medical Center (defendants or appellants).He sought review of the Secretary's decision under the Administrative Procedure Act (APA),5 U.S.C. Secs. 701-706(1988), and claimed violations of his First and Fifth Amendment rights.Ward asked the district court for a reversal of the Secretary's decision, reinstatement, back pay, the cleansing of his record, costs and attorney fees.The parties filed cross motions for summary judgment.The district court--believing a trial necessary on the First Amendment claims, which would require substantial testimony from witnesses located in New York--transferred the case to the Western District of New York, where both parties renewed their motions for summary judgment.

The District Court for the Western District(Larimer, J.) granted in part and denied in part the parties' motions.It first found jurisdiction to hear the appeal because although decisions of the Secretary are "final" under 38 U.S.C. Sec. 7462, the Secretary did not persuade the district court by clear and convincing evidence that Congress intended to preclude judicial review of his decisions.Second, the district court held that the Secretary's ruling that Ward's conduct with respect to one of the charged incidents constituted patient abuse was not arbitrary and capricious.But third, the trial court ruled that to impose a penalty of discharge was arbitrary and capricious in light of the policy in the VA Personnel Policy Manual (VA Manual).That policy requires the Department to treat similar offenses with similar penalties and to penalize employees in proportion to the offense committed.

In its third ruling, the district court placed great weight on examples it found in the ALJ's opinion of much more egregious conduct by other Department employees that did not result in their discharge.The district court therefore remanded the case to the Secretary to redetermine the appropriate penalty.It did not reach Ward's constitutional claims or his request for back pay, but retained jurisdiction over the case.

DISCUSSION

As a threshold matter, appellants insist the district court had no jurisdiction over Ward's suit and that its order must therefore be vacated.Were the case properly in the district court, they maintain as a second point, the discharge penalty imposed by the Secretary was not arbitrary and capricious.In concluding that the Secretary's decision was arbitrary, appellants continue, the trial court wrongly considered materials that had not been considered in the first instance by the Board, and restricted its review of Department penalties imposed only to those employees working at the Canandaigua facility.Appellants assert, as a third issue, that it was error for the court to decide the penalty was excessive, instead of leaving that decision to the Secretary or to the Board on remand.In the discussion that follows, we deal with each of these issues.

I Jurisdiction

Defendants for the first time on appeal declare that Ward's suit was not properly before the district court because he sought monetary relief from the United States in excess of $10,000, and under the Tucker Act, 28 U.S.C. Secs. 1346,1491(1988 & Supp. IV 1992), his claims for relief belong within the exclusive jurisdiction of the Court of Federal Claims.The VA defendants are entitled to raise this issue for the first time on appeal because it has been the rule since nearly the inception of our republic that subject matter jurisdiction may be raised any time.SeeMansfield, Coldwater & Lake Mich. R.R. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462(1884)(citingCapron v. Van Noorden, 6 U.S. (2 Cranch) 126, 2 L.Ed. 229(1804) as the genesis of the rule).While we agree that the Court of Federal Claims would have had jurisdiction over Ward's suit had he chosen to bring it in that forum, we are unable to adopt defendants' view that the Tucker Act divests a federal district court of its original jurisdiction over claims against the government for more than $10,000 when the claim is based on a statute, other than the Tucker Act, containing a waiver of sovereign immunity.

The Tucker Act grants jurisdiction to the United States Court of Federal Claims to decide claims against the United States founded either upon the Constitution, a federal statute, or any regulation of an executive department.See28 U.S.C. Sec. 1491(a)(1).Since Ward's suit is against an agency of the United States and is founded on a federal statute, namely the statute governing discipline of Department senior employees, 38 U.S.C. Secs. 7461-7464, his...