Sung v. Gallagher et al
ORDER Denying Plaintiff's Motion for Preliminary Injunction re 17 . Signed by JUDGE J. MICHAEL SEABRIGHT on 6/30/12. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHEN-LI SUNG, M.D.,
KEITH W. GALLAGHER, in his
official capacity as Commander of )
Tripler Army Medical Center; et al., )
CIV. NO. 11-00103 JMS/KSC
ORDER DENYING PLAINTIFF’S
MOTION FOR PRELIMINARY
ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY
Plaintiff U.S. Army Major Chen-Li Sung, M.D. (“Plaintiff” or
“Sung”), was terminated from the Tripler Army Medical Center (“TAMC”)
General Surgery Residency training program on February 9, 2011.1 Sung moves
for a preliminary injunction “confirming the ineffectuality of [his] termination
from the surgical Residency Program, and preventing Defendants from making any
adverse reports about [him] to the National Practitioner Data Bank or other
Sung was a Captain when he was terminated from the surgical residency program. He
has since been promoted to Major. See Doc. No. 23-15.
bodies[.]” Doc. No. 17-2, at 20.2 Sung argues he was terminated without due
process of law, and that the dismissal was a pretext for unlawful disability
discrimination. For the reasons set forth, the Motion for Preliminary Injunction is
Sung graduated from Mount Sinai School of Medicine in New York
City with a Doctor of Medicine degree on April 29, 1998. Doc. No. 23-3. He
began a surgical residency at Saint Barnabas Medical Center in Livingston, New
Jersey, on July 1, 1998. Doc. No. 23-4. He withdrew from his surgical residency
during his second year, and worked in the financial field on Wall Street for the next
five years. Doc. No. 17-20, at 1; Doc. No. 23-5, at 4; Doc. No. 23-11, at 92.
On March 4, 2005, Sung was appointed as a Captain, U.S. Army, in
the U.S. Army Medical Department (“AMEDD”). Doc. No. 23-2; Doc. No. 23-5,
at 5-6. He completed the AMEDD Officer Basic course on May 13, 2005, and was
assigned to TAMC to resume a surgical residency on May 14, 2005. Doc. No. 235, at 6-8. While at TAMC, he received high ratings on his officer evaluation
The court cites directly to document numbers in the electronic case file (“ECF”), and to
the corresponding pages of that ECF entry. “Doc. No. 17-2, at 20” refers to page 20 of ECF
reports from 2005 to 2009. Doc. No. 23-6, at 4-11. He began his last year of
surgical residency (his chief resident year) on May 14, 2009. Id. at 2.
Sung had difficulties in his chief resident year. Id. at 3; Doc. No. 237, at 2. In July and August 2009, the general surgery program director, Dr. Ronald
Gagliano, counseled Plaintiff. Dr. Gagliano stated that Sung “began avoiding
work due to stress.” Doc. No. 23-5, at 3. In September 2009, Sung suffered a
recurrence of “major depressive disorder,” Doc. No. 9 ¶ 11, and was on medical
leave through November 2009. Doc. No. 23-7, at 1. He returned to full duty on
December 1, 2009, but was at a “service remediation” level for sixty days. Id. at 2.
The “causes of remediation” were listed as by Dr. Gagliano as: “work
avoidance/hard case avoidance,” “poor patient care,” “not carrying out the
administrative and supervisory duties of a [fifth year resident],” “relying on other
residents to do his work and failure of appropriate supervision,” and “interpersonal
skills and communication, i.e., reporting on other residents’ patient assessments as
his own.” Id. at 2-3. Sung’s First Amended Complaint asserts that the late-2009
recurrence of his depression was “attributable to conflicts between [Sung] and two
of his superiors in the Department of Surgery who falsely accused [him] of being
untruthful[.]” Doc. No. 9 ¶ 12.
On February 2, 2010, Dr. Gagliano recommended to the TAMC
Graduate Medical Education Committee (“GMEC”) that Sung be put on probation.
Doc. 23-8, at 3-10. The recommendation indicated that Sung had “failed [his]
required rotation while on service level remediation for January 2010.” Id. at 3. It
documented, or alleged, certain incidents of substandard performance such as
where Sung apparently mis-diagnosed a child who had appendicitis. Id. at 5.
(Sung later disputed the details of these incidents. Doc. No. 23-10, at 4-11.) Sung
accepted the probation plan on February 5, 2010. Doc. No. 23-8, at 1.
On March 3, 2010, Dr. Gagliano relieved Sung of his clinical duties,
and recommended he be terminated from the surgical residency program. Doc. No.
23-9. Sung refused the proposed dismissal, and provided a lengthy written
response disputing many of Dr. Gagliano’s details and explaining that he was
being treated unfairly. Doc. No. 23-10. Sung elected to appear before the GMEC
with counsel. Id. at 12. A dismissal hearing was held before the GMEC on March
29, 2010. On April 5, 2010, the GMEC denied Dr. Gagliano’s recommendation to
terminate Sung. Doc. No. 23-11, at 115. Sung’s First Amended Complaint states
that the GMEC found Sung “had been compelled to work in a hostile
environment.” Doc. No. 9 ¶ 12.3
Neither the transcript of the March 29, 2010 GMEC proceedings, nor any specific
findings from that proceeding, are part of the record. Dr. Gagliano’s successor (Dr. Dwight
Kellicut), however, told the GMEC on December 16, 2010:
Certain conditions were placed on Sung being able to remain in
residency training, including allowing Sung to try to transfer to another training
program away from TAMC. Doc. No. 23-11, at 115. If such a program was not
found, Sung was to resume his residency at TAMC and his probation would be
continued. Id. By the end of April 2010, Sung was not able to find a residency
program outside TAMC, so he returned to TAMC where he was placed on
probation for two months. Id. at 116.
From June to August 2010 Sung performed “adequately” and was
rated “satisfactory.” Id. at 125-35. On September 2, 2010, however, Sung was
removed from providing patient care “for medical reasons.” Id. at 137. A new
acting program director, Dr. Dwight Kellicut, wrote that
[Sung’s] performance over the last five weeks has
degraded substantially, i.e., oversleeping for rounds,
sleeping 20+ hours at a time, missing meals due to no
appetite. Residents report seeing him sleeping
excessively in the call room which culminated in his
absence from academic conference yesterday and his
failure to complete required Morbidity and Mortality
[d]uring [Sung’s] initial dismissal hearing, there was a perception that perhaps the
general surgery program was in fact toxic towards Capt. Sung; that we had
unfairly singled him out. . . . As I reviewed that whole process and looked at
everything, perhaps in my mind I felt that [Capt.] Sung in certain situation had
been targeted. But . . . I wasn’t there.
Doc. No. 23-11, at 11.
Reports in a timely fashion.
Id. Dr. Kellicut acknowledged Sung’s illness:
I have a real and honest concern for this resident’s well
being and his ability to care for patients safely. . . . CPT
Sung’s difficulties, in my opinion, are due to severe
depression and emotional stress. . . . CPT Sung is
technically able to operate and he is in good academic
standing. However, being a surgeon and making life and
death decisions require someone who is 100% at all
times, not someone who is 60% at best [as Sung has
estimated] . . . . I recommended he see his psychiatrist
Id. at 138. On September 8, 2010, Sung was suspended from patient care, pending
a mental health evaluation. Id. at 139.
On November 24, 2010, Sung was notified that the program director
was recommending he be terminated from the TAMC General Surgery Residency
training program, based on his “regression after removal from probation.”
According to the notification, “there was consensus [with the program faculty] that
you remain deficient in your performance despite remediation and probation.” Id.
at 140. The notification referenced the prior September 2, 2010 and September 8,
2010 suspension memoranda. On December 1, 2010, Dr. Kellicut recommended
that Sung’s residency training be terminated. Id. at 142.
Sung appeared before the GMEC to challenge his termination. Id. A
hearing before the GMEC was held on December 16, 2010, where Sung appeared
with counsel present. Doc. No. 23-11. Under the applicable rules, however,
counsel “may not ask questions or make arguments or address committee members
during the proceedings, but the trainee may consult the attorney.” Doc. No. 23-13,
at 19. (The details of the hearing process are explained in the discussion section
below where the court analyzes whether the hearing provided Sung with adequate
On December 20, 2010, the GMEC agreed with Dr. Kellicut’s
recommendation and terminated Sung’s surgical residency. Doc. No. 17-19. An
appeal, through counsel, was filed with the TAMC Commander, Brig. Gen. Keith
W. Gallagher. Doc. No. 17-20. The appeal was denied on February 9, 2011, and
Sung’s termination became final. Doc. No. 17-21.
Plaintiff filed this action on February 16, 2011. Doc. No. 1. He
named as Defendants Keith W. Gallagher, in his capacity as TAMC Commander;
Holly Olson, in her capacities as Director of Medical Education and Chairperson of
the TAMC GMEC; and the GMEC itself. The court refers here to the Defendants
collectively as “the Army.” Plaintiff filed a First Amended Complaint on April 26,
2011. Doc. No. 9. Plaintiff’s Motion for Preliminary Injunction was filed on May
13, 2011. Doc. No. 17. The Army filed an Opposition, combined with a Counter7
motion to Dismiss, on May 27, 2011.4 Doc. No. 23. Plaintiff’s Reply and
Opposition to Motion to Dismiss was filed on June 3, 2011. Doc. No. 26. The
Army filed a Reply on June 13, 2011. Doc. No. 29. A hearing was held on June
III. STANDARD OF REVIEW
“A preliminary injunction is an extraordinary and drastic remedy
[that] is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008)
(citation and quotation signals omitted). In Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 129 S. Ct. 365 (2008), the Supreme Court explained that
“[a] plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Id. at ___, 129 S. Ct. at 374. So long as all
four parts of the Winter test are applied, “a preliminary injunction [may] issue
where the likelihood of success is such that ‘serious questions going to the merits
were raised and the balance of hardships tips sharply in [plaintiff's] favor.’”
As the court stated at the hearing, the Army’s Counter-motion to Dismiss is improper
to the extent it relies on evidence for resolving disputed issues unrelated to subject matter
jurisdiction -- issues which should more properly be addressed by a motion for summary
judgment. For administrative purposes, and without objection from the parties, the Countermotion is deemed withdrawn without prejudice.
Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting
Clear Channel Outdoor, Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003)).
“In other words, ‘serious questions going to the merits’ and a hardship balance that
tips sharply toward the plaintiff can support issuance of an injunction, assuming
the other two elements of the Winter test are also met.” Id. at 1132.
A heightened standard of irreparable harm applies when reviewing
military decisions involving internal or personnel matters. See Hartikka v. United
States, 754 F.2d 1516, 1518 (9th Cir. 1985) (indicating that a moving party seeking
injunctive relief against the armed services must make a stronger showing of
irreparable harm than is required under an ordinary situation) (citing Sampson v.
Murray, 415 U.S. 61, 84, 91-92 n.68 (1974));5 see also Guerra v. Scruggs, 942
F.2d 270, 274 (4th Cir. 1991) (“Sampson’s higher requirement of irreparable injury
should be applied in the military context given the federal courts’ traditional
Plaintiff argues Hartikka is no longer valid after Winter because Hartikka applied a
“sliding scale” standard for injunctive relief. True, Hartikka repeated part of the standard that
Winter found improper. See 754 F.2d at 1518 (stating that a court can grant an injunction upon a
showing of “a combination of probable success on the merits and the possibility of irreparable
injury”) (emphasis added). But the essential premise of Plaintiff’s argument is incorrect -- the
Ninth Circuit subsequently confirmed that “the ‘serious questions’ version of the sliding scale
test for preliminary injunctions remains viable after the Supreme Court’s decision in Winter[.]”
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). More
importantly, Winter itself reiterated that, in cases involving “complex, subtle, and professional
decisions as to the composition, training, equipping, and control of a military force,” courts “give
great deference to the professional judgment of military authorities concerning the relative
importance of a particular military interest.” Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7, ___, 129 S. Ct. 365, 377 (2008) (citations omitted).
reluctance to interfere with military matters.”).
Sung argues that he has met all the requirements under Winter for
entry of a preliminary injunction. The court proceeds to analyze whether (1) Sung
is likely succeed on the merits, (2) he is likely to suffer irreparable harm in the
absence of preliminary relief, (3) the balance of equities tips in his favor, and
(4) an injunction is in the public interest.
Likelihood of Success on the Merits
Sung contends he is likely to succeed on the merits because he was
deprived of due process when his residency was terminated, where the termination
was a pretext for disability discrimination -- that is, was based not on his academic
competency, but on his major depressive disorder.
Due Process Principles in a Medical Residency Termination
To evaluate the strength of Sung’s due process claim, the court applies
Stretten v. Wadsworth Veterans Affairs Hospital, 537 F.2d 361 (9th Cir. 1976) and
Ong v. Tovey, 552 F.2d 305 (9th Cir. 1977), both of which analyzed due process
challenges by medical residents terminated from federal residency programs. The
court ordinarily first determines whether a protected property or liberty interest is
at stake, and if so, then addresses whether, in light of the competing interests of the
individual and the government, the procedures afforded plaintiff satisfied due
process. Stretten, 537 F.2d at 365; Ong, 552 F.2d at 307.
Here, however, the Army does not contest whether Sung has a
property interest in continuing his residency. Rather, it assumes Sung has a
constitutionally-protected interest, but argues that the process provided in his
GMEC proceeding was more than sufficient. Cf. Stretten, 537 F.2d at 367 (holding
that “Dr. Stretten’s claim to his residency is a property interest deserving of
appropriate due process before it is removed,” relying on particular language in his
appointment form). The court thus focuses on the process that was provided.
“[D]ue process, unlike some legal rules, is not a technical conception
with a fixed content unrelated to time, place and circumstances.” Ong, 552 F.2d at
307 (citing Mathews v. Eldridge, 424 U.S. 319, 334 (1976)). “Due process is
flexible and calls for such procedural protections as the particular situation
demands.” Id. (quoting Mathews, 424 U.S. at 334). Mathews set forth three
factors to consider:
first, the private interest that will be affected by
the official action; second, the risk of an
erroneous deprivation of (a property) interest
through the procedures used, and the probable
value, if any, of additional or substitute procedural
safeguards; and finally, the government’s interest,
including the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would entail.
Considering those factors in a medical residency context, Stretten held
that “due process does not require a full adversary hearing either before or after
termination [of a medical residency].” 537 F.2d at 369. The Ninth Circuit
reasoned that “[t]he ultimate decision-maker must have wide discretion in
considering the evidence against a resident[,] includ[ing] the power to attach great
value to the considered opinions of the resident’s colleagues.” Id. Stretten set
forth the following standards, well short of a full adversary hearing:
The resident’s interest is important enough that he
should have notice of his deficiencies, should
have an opportunity to examine the evidence
against him, and should be allowed to present his
side of the story to the decision-maker. These
procedures will insure that all relevant data are
before the decision-maker and will allow the
terminated resident and any reviewing court to
judge whether the decision-maker acted in bad
faith or arbitrarily and capriciously.
Applying Stretten, Ong addressed a situation where a doctor was
suspended from a surgical residency program without formal notification (although
his operating privileges had previously been limited) and without a prior formal
adversarial hearing. 552 F.2d at 305. After termination, the resident and his
attorney met with the decision-making doctors in a “question and answer” session
that allowed “the opportunity to question the other doctors and the decision-makers
about how they arrived at their decision to terminate [the resident] from his
residency program.” Id. at 308. That post-termination process “satisfied the
Stretten standard that the decision-maker have enough data before him that his
decision to terminate is not arbitrary, capricious or unfair.” Id. Ong held that:
the government’s interest in protecting patients
from medical incompetence outweighs the
physician’s private interest in greater income and
higher position. In cases such as this where
doctors work very closely together and the
decision to terminate a resident is made based
upon their personal observation, less rigid
procedures are necessary to prevent an “erroneous
deprivation” of the resident’s property interest.
Id. at 307. Although the procedures used were not “the best possible,” Ong
determined “they satisfied the basic requirements of constitutional due process.”
Application to Plaintiff’s Termination
Applying the preceding due process principles, it is unlikely Sung will
succeed on his due process challenge to his termination of residency. Sung’s
termination was conducted pursuant to the United States Army Medical
Command’s “Policy on Due Process for Participants in Military Graduate Medical
Education Programs” (the “Due Process Policy”). See Doc No. 23-13.
The Due Process Policy -- adopted by TAMC in essential form and
followed in Sung’s termination proceeding -- provides that a program director can
recommend termination of a resident, but termination itself must be approved by at
least a two-thirds vote by secret ballot of a GMEC. Id. at 12. It provides a resident
with extensive rights prior to termination, including (1) the right to hear the
reasons for action as put forth by the program director, (2) the right to review all
documents before the committee, (3) the right to legal counsel (who may not ask
questions or make arguments during the proceedings, but who may advise the
resident), (4) the right to respond both orally and in writing to the program
director’s statements, (5) the right to present testimony of witnesses, (6) the right to
submit statements or documentation, or other information, to show why
termination should not occur, and (7) the right to appeal the decision. Id. at 16; see
also Doc. No. 23-14, at 24-25 (setting forth same rights in the TAMC Handbook
Under the Due Process Policy, a recommendation for dismissal must
be based on: (1) failure to satisfactorily progress toward correction of deficiencies
while on probation; (2) regression or failure to satisfactorily progress after removal
from probation; or (3) any act of gross negligence or willful misconduct. Doc. No.
23-14, at 17. The program director must notify the resident in writing that
dismissal is being considered, and the notification must include “specific reasons”
for the proposed dismissal. Id. A resident is then given a minimum of five
working days to submit a written response. Id. A hearing may be convened, which
must be at least ten working days after notification to the resident. Id. at 17-18.
The GMEC itself decides whether to terminate a resident -- the program director
does not vote. Id. at 18. Deliberations and voting are done in closed session,
although the decision is documented with confidential written records. Id. The
resident may file an appeal of a dismissal to the TAMC Commander. Id. at 19.
The TAMC’s decision is final, and there is no right to further appeal. Id.
Facially, the Due Process Policy easily complies with the minimum
standards set forth in Stretten. Under the Due Process Policy, a resident is
(1) given ample and timely notice of alleged deficiencies, (2) has an opportunity to
examine the evidence against him, and (3) is allowed to “present his side of the
story” to the GMEC. Stretten, 532 F.2d at 369. The procedures “insure that all
relevant data are before the decision-maker” and are sufficient to “allow the
terminated resident and any reviewing court to judge whether the decision-maker
acted in bad faith or arbitrarily and capriciously.” Id. And the procedures well
exceed the process provided in Ong. See 552 F.2d at 307.
Sung’s termination process complied in all essential respects with the
Due Process Policy. He was provided with a notice of proposed termination and
the reasons supporting termination (the September 2, 2010 and November 22, 2010
memoranda from program director Dr. Kellicut). See Doc. No. 23-11, at 137-141.
The notice indicated proposed termination for “regression or failure to
satisfactorily progress after removal from probation.” Id. at 140. The memoranda
outlined in detail the reasons for Sung’s suspension from duties -- oversleeping for
rounds, sleeping twenty hours at a time, sleeping excessively in the call room,
absence from an academic conference, failure to complete required “morbidity and
mortality reports.” Id. at 137. According to Dr. Kellicut, Sung admitted his
performance on a daily basis was only “adequate sixty-percent of the time.” Id.
Further, at the December 16, 2010 termination hearing -- as well as
before the hearing -- Sung had ample opportunity to examine the evidence against
him. He met with Dr. Kellicut before the hearing. He asked pertinent questions at
the hearing (especially regarding the effect of his disability on his performance).
He examined Dr. Kellicut. Doc. No. 23-11, at 22-32. He presented three witnesses
of his own -- his examining and treating psychiatrists, Drs. Morris and Levy, and
an “ombudsman,” Dr. Zagorski. Id. at 44, 57, 80. Sung testified on his own
behalf, presenting “his side of the story” passionately. Id. at 91-95. Many of the
nineteen members of the GMEC asked pertinent questions regarding Sung’s
performance and competency, and how his depressive disorder might affect his
performance, both during training and as a surgeon. See, e.g., id. at 36, 46-49, 5455, 59, 63, 67, 76, 80, 87, 88, 90.
After the GMEC issued its termination decision, Sung’s counsel
appealed to Brig. Gen. Gallagher on December 28, 2010. Doc. No. 17-20. Brig.
Gen. Gallagher reviewed the applicable policies and regulations, Sung’s records,
the transcript of the GMEC hearing, and Sung’s written appeal. He also
interviewed staff physicians and administrators, and a psychiatrist who had
evaluated Sung. On February 9, 2011, he upheld the GMEC’s decision and Sung’s
termination became final. Id.6
It follows without question that Sung was given sufficient due process
in the termination proceedings before the GMEC. His proceedings easily satisfied
due process when measured against the requirements set forth in Stretten and Ong.
The First Amended Complaint alleges that Brig. Gen. Gallagher’s decision was late, as
the Due Process Policy states that “written notification of the decision regarding an appeal must
be provided to the trainee within two working days following receipt of the appeal.” Doc. No.
23-14, at 19 (emphasis added). It is unclear whether this means the TAMC Commander must
notify a resident within two days that the Commander has decided the appeal, or that the
Commander must actually decide the appeal within two days. In any event, even if Brig. Gen.
Gallagher’s decision was late under the latter interpretation, there is no showing that not
deciding the appeal within two days was prejudicial to Sung or that his due process rights were
otherwise violated. Any violation of this seemingly unreasonable deadline would work only to
an appellant’s benefit.
Indeed, Sung cannot seriously argue that the Due Process Policy was not followed.
Rather, he argues that he was deprived of due process “on the unique facts of this
case” (as his counsel stated at oral argument) because his dismissal was a pretext
for disability discrimination. He contends that he was dismissed because of his
disability (a depressive disorder), and not because of academic or surgical failings.
In this regard, Sung claims an Army Medical Evaluation Board
(“MEB”) -- rather than the GMEC -- was the appropriate body to make a medical
determination. Sung believes the GMEC was “ill-equipped” to make a termination
decision based on a medical condition. If an MEB had determined that Sung did
not meet retention standards, it could have referred him to a Physical Evaluation
Board, where additional due process protections would apply. See Doc. No. 17-9,
at 4. By convening a GMEC -- so Sung’s argument goes -- the Army deprived him
of the opportunity for his counsel to actively participate in the process.7 Sung also
contends General Gallagher should have consulted with officials familiar with his
ongoing participation in the Impaired Healthcare Personnel Program (“IHCPP”).
Sung argues that questions by his counsel during the GMEC hearing could have
clarified that his termination was based on his disability and not on his performance, and thus
amounted to a due process violation. But the record reflects that this issue (whether termination
was recommended because of disability, or performance) was a central concern during the
proceedings. The proceedings gave ample opportunity for exploration of Sung’s ability to
perform as a surgeon, both while his depressive disease was “in remission” and while it was
episodic. See, e.g., Doc. No. 23-11, at 40-43, 50-54. The Due Process Policy provided Sung
sufficient opportunity to present his position on this specific issue.
The Army points out, however, that neither an MEB nor the IHCPP is
qualified to assess academic matters such as whether a physician should be
terminated from a medical residency program. Rather, an MEB is used to
determine whether a soldier is “fit for duty,” and, if not, whether he or she should
be dismissed from active duty. Doc. No. 23-19, at 4. Likewise the IHCPP’s
function is “to provide support, assistance, and rehabilitation to those healthcare
personnel who suffer from a condition that negatively influences, or has the
potential to negatively influence, optimal performance.” Doc. No. 17-6, at 1.
These bodies have no defined role in medical residency decisions. It is therefore
not likely that Sung was deprived of due process even if the Army could have
convened an MEB to address Sung’s fitness, and even if it could have gained
further insight by considering the IHCPP.
Pretext for Disability Discrimination
Sung next argues that his termination was unlawful disability
discrimination -- claiming the Army terminated him from TAMC’s surgical
residency program because he suffered from a major depressive disease, not
because he could not perform as a surgeon -- and even if such a consideration by
the GMEC did not deny him due process, it is otherwise actionable such that the
court should enjoin the Army from acting on the termination. As with a due
process challenge, however, Sung is unlikely to succeed on this aspect of his claim.
It bears emphasizing that this proceeding is not a direct appeal from
Brig. Gen. Gallagher’s decision upholding the GMEC’s termination of Sung’s
residency. There is no provision for direct judicial review of such a decision.
Rather, this is an action seeking a declaration that the termination violated Sung’s
constitutional rights -- rights to procedural or substantive due process. See Doc.
No. 9 ¶ 51. The court’s role, therefore, is not to determine whether Sung should
have been terminated from the residency program, or even to determine whether
the termination was based on Sung’s disability. The court is limited to reviewing
whether the process was proper, and whether the decision was arbitrary and
capricious. See, e.g., Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 222 (1985)
(applying substantive due process).
The court’s review is also constrained because it examines a decision
that involves both (1) a military determination regarding an active-duty officer’s
training, and (2) a professional school’s judgment regarding qualifications to be a
general surgeon and not simply a physician. See, e.g., Winter, 129 S. Ct. at 377
(reasoning that courts “give great deference to the professional judgment of
military authorities concerning the relative importance of a particular military
interest” in cases involving “complex, subtle, and professional decisions as to the
composition, training, equipping, and control of a military force”) (citations
omitted); Wong v. Regents of Univ. of Cal., 192 F.3d 807, 817 (9th Cir. 1999)
(“[A]n educational institution’s academic decisions are entitled to deference”
because “courts generally are ‘ill-equipped,’ as compared with experienced
educators, to determine whether a student meets a university’s ‘reasonable
standards for academic and professional achievement.’”) (quoting Zukle v. Regents
of the Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999)).
Federal Disability Discrimination Statutes Do Not Apply
Sung asks this court to examine and apply the principles in Zukle, in
which the Ninth Circuit upheld the termination of a medical student, but did so
where the University of California had provided “reasonable accommodations” to
the student as required by the Americans with Disabilities Act, 42 U.S.C. § 12132
(the “ADA”), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Zukle,
166 F.3d at 1048-50. Zukle cautioned that, in enforcing the ADA and
Rehabilitation Act, courts “must be careful not to allow academic decisions to
disguise truly discriminatory requirements.” Id. at 1048. Sung argues that he was
terminated ostensibly for “academic” reasons but where -- in contrast to Zukle -no accommodations for his disability were provided.
Zukle is unpersuasive. First, Zukle’s reasoning stems entirely from
requirements of the ADA and the Rehabilitation Act. Its discussion of “reasonable
accommodations,” and whether particular requested accommodations would
fundamentally alter the medical school curriculum, is based on those particular
federal laws. But neither the ADA nor the Rehabilitation Act applies to Sung as a
uniformed member of the armed forces. See, e.g., Coffman v. Michigan, 120 F.3d
57, 59 (6th Cir. 1997) (“[C]laims under the Rehabilitation Act [and the ADA] may
not be asserted by uniformed members of the armed forces.”); Doe v. Garrett, 903
F.2d 1455, 1462 (11th Cir. 1990) (holding that uniformed military personnel have
“no remedy under the Rehabilitation Act”); Smith v. Christian, 763 F.2d 1322,
1325 (11th Cir. 1985) (reasoning that the Rehabilitation Act did not override the
Navy’s countervailing statutory authority to prescribe physical qualifications for
sailors); see also 42 U.S.C. § 12111(5)(B)(i) (providing under the ADA that “the
term ‘employer’ does not include the United States”); and 29 C.F.R.
§ 1614.103(d)(1) (“[The Rehabilitation Act] does not apply to . . . Uniformed
members of the military departments[.]”).
Thus, because the Rehabilitation Act does not apply, it cannot form
the basis of a legal duty by the Army to provide reasonable accommodations to an
active duty military resident before considering whether to terminate his or her
residency. Aside from the Rehabilitation Act, Sung points to several sets of
regulations that he claims provide a basis for this court to find a duty to
accommodate his disability. See Doc. No. 17-11 (32 C.F.R. § 56.4, providing in
part, “It is DoD policy that no qualified handicapped person shall be subjected to
discrimination on the basis of handicap under any program of activity that receives
or benefits from Federal financial assistance[.]”); Doc. No. 17-12 (32 C.F.R.
§ 56.8, which sets forth “Guidelines for determining discriminatory practices”);
Doc. No. 17-13 (Army Policy on Harassment); Doc. No. 17-14 (Department of
Defense (“DOD”) Directive 1020.1, Nondiscrimination on the Basis of Handicap
in Programs and Activities); and Doc. No. 17-15 (Army Regulation 600-7).
These regulations do not support Sung’s position. Title 32 C.F.R. Part
56 contains the regulations implementing the Rehabilitation Act. See 32 C.F.R.
§ 56.1 (“This part implements section 504 of Public Law 93-112, “Rehabilitation
Act of 1973[.]”). Similarly, DOD Directive 1020.1 specifically refers to the
Rehabilitation Act in its prefatory paragraph. See Doc. No. 17-14, at 1. And, in
turn, Army Regulation 600-7 “implements DOD Directive 1020.1” and contains
the same language of the Rehabilitation Act. See Doc. No. 17-15 at 1, 16. If the
Rehabilitation Act itself does not apply to active duty military members, its
regulations also do not apply.
Moreover, the cited regulations do not create a private right of action
for a violation. See, e.g., Hanson v. Wyatt, 552 F.3d 1148, 1157 (10th Cir. 2008)
(“To the extent that Col. Hanson may be suggesting that the alleged violation of
[the military regulation] in itself gives him a cause of action, this theory fails
[because] [t]he Supreme Court . . . will rarely recognize an implied private cause of
action arising from a mere regulation.”) (citing Alexander v. Sandoval, 532 U.S.
275 (2001)); see also Idahosa v. Blagojevich, 2006 WL 6322685, at *6 (C.D. Ill.
Mar. 9, 2006) (“Regulations generally prohibiting discrimination do not transform
Plaintiff’s discrimination claims [against the military] into justiciable matters.”).
The GMEC Considered Non-Discriminatory Factors
Even applying Zukle’s general concept that “the court must be careful
not to allow academic decisions to disguise truly discriminatory requirements,”
166 F.3d at 1048, the record provides ample evidence that the GMEC considered
Sung’s performance -- a non-discriminatory factor -- in its decision. Dr. Kellicut
emphasized repeatedly that Sung’s performance was “tumultuous” and “not
predictable” on a daily basis. Doc. No. 23-11, at 10, 19, 21, 25, 27, 30, 32. That
viewpoint was shared by others. Id. at 25-26 (“I have the backing of every
attending -- that we do not feel that surgery is the right fit for you based on
performance”), and 88 (“our staff feels that it was with unanimity that [Sung
should not be allowed to graduate and be a fully functional surgeon on his own]”).
Evidence indicates performance problems even when Sung’s depression was not
episodic. See, e.g., id. at 109.
As to pretext, the court recognizes that is difficult to separate Sung’s
disability from his performance -- a reality that Dr. Kellicut and others repeatedly
acknowledged. See, e.g., id. at 27, 30, 31, 75-76, 89-90, 103. Sung admitted the
difficulty. See id. at 91 (“There’s no clear way to me to separate my diagnosis and
its worsening from the decline in my performance.”). Whether that difficulty of
separating Sung’ disease from his performance could amount to unlawful disability
discrimination is not a question before the court. But what is clear is that the
GMEC considered and balanced Sung’s disease with the concomitant duty of the
Army to produce qualified general surgeons. Dr. Kellicut testified to this several
times. And his words before the GMEC bear repeating:
[W]e also have an obligation, I think, to society . . . [to]
train [surgical residents] with the understanding that once
they leave here, they go forward, able to perform at a
given level wherever the Army might send them . . . it
could be on the battle field of Iraq or Afghanistan. . . .
[O]nce they’ve completed their training, regardless of
where they’re sent, they have to be prepared. And to
prepare them for their role as a surgeon in the United
States Army, we have specific guidelines . . . we have
Id. at 9-10. He reiterated his duty:
[I]t is the obligation of a program director . . . to ensure
that the resident demonstrates sufficient competence to
enter practice without direct supervision. . . . My
obligation to the soldiers who wear the uniform, to his
future patients . . . [i]s that the individual [be] competent
and dependable to go out and practice surgery
. . . . [F]rom a surgical standpoint [we] take care of very
sick people who have very small margins for error.
Id. at 18-19. Based on his observations, Dr. Kellicut told the GMEC:
. . . . [A]s I looked back at [Sung’s] performance,
patterns of performance, consistency of performance, I
came to the decision that for me personally, and I took
this to the surgery staff, I do not feel that CPT Sung has
demonstrated through his chief resident year on
numerous occasions a pattern of consistency.
I personally am very fearful that if CPT Sung is
allowed to continue to ultimately go out and practice
surgery, that this pattern or performance will repeat itself
and someone will get hurt.
Again, the obligation to society, the obligation to
the men and women in uniform is something that I do not
Id. at 21-22. Dr. Zagorski, a witness called by Sung supported this rationale by
. . . . And as a general surgeon, . . . you’re the man. . . .
And when somebody’s bleeding or blown up, it’s not the
intensive care nurse putting them back together, it’s the
general surgeon. And you either do it or you don’t. And
oftentimes, you are doing things that you’ve never done
Id. at 85. He told Sung at the hearing:
. . . . I don’t think you have . . . the competency to be a
general surgeon. And you are able to perform as a
resident, but there are grave -- there are concerns that you
will not be able to be competent as an . . . independent
Id. at 83. Dr. Zagorski was asked whether Sung possesses competency for
independent practice of surgery, and responded “[n]ot even to his own -- even by
his own admission, not a hundred percent of the time.” Id. at 87. He repeated:
I do not feel Dr. Sung is not competent to be a physician.
I just don’t think he possesses the competency to be a
surgeon . . . . I don’t believe he possesses some of the
intangibles in order to allow him to fully be competent in
every situation. And competency requires bringing a
minimum level of skill to every single situation.
Id. at 89.
Given the preceding testimony, and from a complete review of the
current record, the GMEC’s decision was not arbitrary and capricious. The court’s
review is limited to whether due process was provided, and -- even considering that
the Army has some policy to refrain from disability discrimination -- Sung has
little likelihood of success on a substantive due process claim based on a theory
that his termination was a pretext for unlawful disability discrimination.
Justiciability of a Claim for Disability Discrimination
Even if Sung could directly raise a discrimination challenge before
this court (that is, if he had a cognizable cause of action that would allow this court
to address whether his dismissal was pretext for unlawful disability
discrimination), the record is unclear whether such a claim would be reviewable in
the current action.
“Under the [Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971),] test as
modified by [the Ninth] Circuit, a person challenging a military decision generally
must satisfy two threshold elements before a court can determine whether review
of his claims is appropriate.” Wenger v. Monroe, 282 F.3d 1068, 1072 (9th Cir.
2002). “An internal military decision is unreviewable unless the plaintiff alleges
(a) a violation of [a recognized constitutional right], a federal statute, or military
regulations; and (b) exhaustion of available intraservice remedies.” Id. (quoting
Khalsa v. Weinberger, 779 F.2d 1393, 1398 (9th Cir. 1985)).
Sung has met the first part of the test (allegation of a recognized
constitutional right), but it is not established that he has either exhausted “available
intraservice remedies” or that no such remedies are available. In an analogous
context, caselaw indicates that, although an active duty service member has no
statutory remedies under Title VII for discrimination, the service member
nevertheless has administrative remedies. See Hodge v. Dalton, 107 F.3d 705, 712
n.5 (9th Cir. 1997) (citing Chappell v. Wallace, 462 U.S. 296, 303-05 (1983)); see
also Gonzalez v. Dep’t of Army, 718 F.2d 926, 929 n.2 (1983). It appears Sung
recognizes an exhaustion requirement -- he filed a disability discrimination
complaint against TAMC on April 6, 2011, but asserts in his First Amended
Complaint that he has not received a response and that “the administrative process
appears to allow for an indefinite period of appeals.” Doc. No. 9 ¶ 41; Doc. No.
17-22. Thus, on the current record it appears Sung has not exhausted a claim based
solely on disability discrimination, rending such a claim unreviewable here. To
that extent, Sung is unlikely to succeed on the merits of such a claim.
Because Sung has not demonstrated that he is likely to succeed on the
merits of any of his claims, he necessarily cannot obtain a preliminary injunction.
Winter requires all four elements (likelihood of success, likelihood of irreparable
harm, a favorable balance of equities, and demonstrating that an injunction is in the
public interest). Winter, 129 S. Ct. at 374. Nevertheless, the court briefly
addresses all the elements and concludes that Sung has not demonstrated that he
meets any of the factors necessary for imposition of a preliminary injunction.
To obtain a preliminary injunction, Sung would also have to
demonstrate that irreparable harm is not only “possible” but “likely.” Winter, 129
S. Ct. at 376. The harm must be “actual and imminent, not conjectural or
hypothetical[.]” Summers v. Earth Island Inst., 555 U.S. 488, 129 S. Ct. 1142,
Sung seeks to prevent the Army from reporting his termination from
his residency to “state licensing boards, hospital credentialing committees, the
National Practitioner Data Bank [(“NPDB”)], and/or the Healthcare Integrity and
Protection Data Bank [(“HIPDB”).]” Doc. No. 9 ¶ 46. In response, the Army
represents that his termination “will not be reported as an ‘adverse action’ and does
not require reporting to the NPDB or state licensing agencies.” Doc. No. 23-1, at
30. Sung was not a credentialed physician and had no clinical privileges. He was
not charged with willful misconduct or found to have been grossly negligent -either of which would be reportable. And so his termination, according to the
Army, is not reportable to the NPDB or to the HIPDB. See Doc. No. 23-16, at 4-5.
Sung nevertheless indicated at the hearing that the Army might still
seek to report his termination to relevant boards or committees. Such a possibility,
however, does not amount to a likelihood of irreparable injury -- especially where
the court has found that Sung is not likely to succeed on the merits of his initial
claims. He has not established the second Winter requirement. For this additional
reason, Sung’s Motion for Preliminary Injunction fails.
Other Elements -- Balance of Equities and Public Interest
Because Sung has failed to establish either a likelihood of success on
the merits or that he faces a likelihood of irreparable harm, it necessarily follows
that the balance of equities does not tip in his favor.
The Army had valid reasons for terminating Sung from his residency - it has a responsibility to certify surgeons who are capable of working
independently and consistently in unpredictable situations. The judgment of
military doctors was that he was not competent to be an independent surgeon. That
concern, balanced against a low likelihood of success on Sung’s claim that the
termination decision violated Sung’s constitutional rights, tips the equities against
Similarly, given the findings on the first two prongs of the Winter
analysis, Sung cannot demonstrate that an injunction “confirming the ineffectuality
of his termination” would be in the public interest. Given a low likelihood of
success on Sung’s constitutional claim, the public has little if any interest in
allowing him to continue his surgical residency.
For the foregoing reasons, Plaintiff’s Motion for Preliminary
Injunction, Doc. No. 17, is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 30, 2011.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Sung v. Gallagher, Civ. No. 11-00103 JMS/KSC, Order Denying Plaintiff’s Motion for
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