Sung v. Gallagher et al
Filing
45
ORDER Granting Defendants' Motion to Dismiss or, In The Alternative, For Summary Judgment re 35 . Signed by JUDGE J. MICHAEL SEABRIGHT on 10/13/11. (gls, )CERTIFICATE OF SERVICEParticipants registered to receiv e 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.,
)
)
Plaintiff,
)
)
vs.
)
)
KEITH W. GALLAGHER, in his
)
official capacity as Commander of )
Tripler Army Medical Center; et al., )
)
Defendants.
)
_____________________________ )
CIV. NO. 11-00103 JMS/KSC
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS OR, IN THE
ALTERNATIVE, FOR SUMMARY
JUDGMENT
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS OR, IN THE
ALTERNATIVE, FOR SUMMARY JUDGMENT
I. INTRODUCTION
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 He filed this action on
February 16, 2011 against 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 Graduate Medical Education Committee
1
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, Defs.’ Opp’n to Pl.’s Mot. Prelim. Inj.
(“Opp’n”) Ex. 14.
(“GMEC”); and the GMEC itself (collectively “Defendants” or “the Army”). Sung
contends his termination from the residency program is void because he was
denied due process and it was a pretext for unlawful disability discrimination. See
Doc. No. 9 at 15-18, Am. Compl. at 15-18.
Before the court is Defendants’ Motion to Dismiss or, in the
alternative, for summary judgment, in which they argue that (1) Plaintiff’s claims
are barred for failure to exhaust administrative remedies, and (2) the court lacks
jurisdiction over claims based upon violations of Army regulations. Alternatively,
they seek summary judgment on claims for deprivation of procedural or
substantive due process. As set forth below, the court agrees that Sung has failed
to exhaust available administrative remedies and the failure requires dismissal of
the Amended Complaint.
II. BACKGROUND
A.
Factual Background
On June 30, 2011, the court denied Sung’s Motion for Preliminary
Injunction, determining that he failed to establish (1) a likelihood of success on the
merits, (2) a likelihood of irreparable harm, (3) a favorable balance of equities, and
(4) that an injunction would be in the public interest. See Doc. No. 33, Order Den.
Pl.’s Mot. for Prelim. Inj. That Order set forth the details of Sung’s termination,
2
reviewed and described the hearing and other process provided by the Army, and
analyzed the challenges Sung made to those processes in seeking an injunction.
The court draws from that Order in setting forth the background facts here.
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, Defs.’
Opp’n Ex. 2. He began a surgical residency at Saint Barnabas Medical Center in
Livingston, New Jersey, on July 1, 1998. Doc. No. 23-4, Defs.’ Opp’n Ex. 3. 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. 23-5, at 4, Defs.’
Opp’n Ex. 4, at 3; Doc. No. 23-11, Defs.’ Opp’n Ex. 10, at 92.
On March 4, 2005, Sung was appointed as a Captain in the U.S. Army
Medical Department (“AMEDD”). Doc. No. 23-2, Defs.’ Opp’n Ex. 1. 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. 23-5, at 6-8,
Defs.’ Opp’n Ex. 4, at 5-7. While at TAMC, he received high ratings on his officer
evaluation reports from 2005 to 2009. Doc. No. 23-6, at 4-11, Defs.’ Opp’n Ex. 5,
at 3-10. He began his last year of surgical residency (his chief resident year) on
May 14, 2009. Id. at 2, Defs.’ Opp’n Ex. 5, at 1.
Sung had difficulties in his chief resident year. Doc. No. 23-7, at 2,
3
Defs.’ Opp’n Ex. 6, at 1. 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. 23-8, at 3; Defs.’ Opp’n Ex. 7, at 2.
In September 2009, Sung suffered a recurrence of “major depressive disorder,”
Doc. No. 9 ¶ 11, Am. Compl. ¶ 11, and was on medical leave through November
2009. Doc. No. 23-7, at 2, Defs.’ Opp’n Ex. 6, at 1. He returned to full duty on
December 1, 2009, but was at a “service remediation” level for sixty days. Id. The
“causes of remediation” were listed 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, Am. Compl. ¶ 12.
On February 2, 2010, Dr. Gagliano recommended to the GMEC that
Sung be put on probation. Doc. 23-8, at 3-10, Defs.’ Opp’n Ex. 7, at 2-9. The
recommendation indicated that Sung had “failed [his] required rotation while on
4
service level remediation for January 2010.” Id. at 3, Defs.’ Opp’n Ex. 7, at 2. It
documented, or alleged, certain incidents of substandard performance such as
where Sung apparently mis-diagnosed a child who had appendicitis. Id. at 5,
Defs.’ Opp’n Ex. 7, at 4. (Sung later disputed the details of these incidents. Doc.
No. 23-10, at 4-11, Defs.’ Opp’n Ex. 9, at 3-10.) Sung accepted the probation plan
on February 5, 2010. Doc. No. 23-8, at 2, Defs.’ Opp’n Ex. 7, 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, Defs.’ Opp’n Ex. 8. 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, Defs.’ Opp’n Ex. 9. Sung
elected to appear before the GMEC with counsel. Id. at 12, Defs.’ Opp’n Ex. 9, at
11. 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, Defs.’ Opp’n Ex. 10, at 114. Sung’s First Amended
Complaint states that the GMEC found Sung “had been compelled to work in a
hostile environment.” Doc. No. 9 ¶ 12, Am. Compl. ¶ 12.2
2
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:
(continued...)
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Certain conditions, however, 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, Defs.’ Opp’n Ex. 10,
at 114. 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, Defs.’ Opp’n Ex. 10,
at 115.
From June to August 2010 Sung performed “adequately” and was
rated “satisfactory.” Id. at 125-35, Defs.’ Opp’n Ex. 10 at 124-34. On September
2, 2010, however, Sung was removed from providing patient care “for medical
reasons.” Id. at 137, Defs.’ Opp’n Ex. 10 at 136. 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
2
(...continued)
[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 situations had
been targeted. But . . . I wasn’t there.
Doc. No. 23-11, at 12, Defs.’ Opp’n Ex. 10, at 11.
6
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
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
immediately.
Id. at 138, Defs.’ Opp’n Ex. 10, at 137. On September 8, 2010, Sung was
suspended from patient care, pending a mental health evaluation. Id. at 139, Defs.’
Opp’n Ex. 10, at 138.
On November 22, 2010, Sung was notified that the program director
was recommending that 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, Defs.’ Opp’n Ex. 10, at 139. The notification referenced
the prior September 2, 2010 and September 8, 2010 suspension memoranda. Sung
7
acknowledged the recommendation on November 24, 2010. Id. at 141, Defs.’
Opp’n Ex. 10, at 140. On December 1, 2010, after receiving a notice from Dr.
Kellicut, Sung indicated that he did not accept the proposed dismissal and
exercised his rights to present evidence to the GMEC, to have witnesses appear on
his behalf, and to have an attorney present. Id. at 142, Defs.’ Opp’n Ex. 10, at 141.
Sung appeared before the GMEC to challenge his termination. Id.
Sung’s termination proceedings were 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, Defs.’ Opp’n Ex. 12. A hearing before the GMEC was held on December
16, 2010, where Sung appeared with counsel. Doc. No. 23-11, Defs.’ Opp’n Ex.
10. 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, Defs.’ Opp’n Ex. 12, at 18.
Sung proceeded to ask questions and represent himself, with counsel at his side for
consultation.
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
8
least a two-thirds vote by secret ballot of a GMEC. Id. at 12, Defs.’ Opp’n Ex. 12,
at 11. 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, Defs.’ Opp’n Ex. 12, at 15; see also Doc. No. 23-14, at 2425 (setting forth same rights in the TAMC Handbook for Residents).
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, Defs.’ Opp’n Ex. 13, at 16. 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
9
be convened, which must be at least ten working days after notification to the
resident. Id. at 17-18, Defs.’ Opp’n Ex. 13, at 16-17. The GMEC itself decides
whether to terminate a resident -- the program director does not vote. Id. at 18,
Defs.’ Opp’n Ex. 13, at 17. 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,
Defs.’ Opp’n Ex. 13, at 18. The TAMC’s decision is final, and there is no right to
further appeal. Id.
On December 20, 2010, the GMEC agreed with Dr. Kellicut’s
recommendation and terminated Sung’s surgical residency. Doc. No. 17-19, Mot.
Prelim. Inj. Ex. O. An appeal, through counsel, was filed with the TAMC
Commander, Brig. Gen. Keith W. Gallagher. Doc. No. 17-20, Mot. Prelim. Inj.
Ex. P. The appeal was denied on February 9, 2011, and Sung’s termination
became final. Doc. No. 17-21, Mot. Prelim. Inj. Ex. Q.
B.
Procedural Background
Plaintiff filed his initial Complaint on February 16, 2011, followed by
an Amended Complaint on April 26, 2011. Doc. Nos. 1, 9. The court denied
Plaintiff’s Motion for Preliminary Injunction on June 30, 2011. Doc. No. 33.
Defendants filed the present Motion to Dismiss or, in the alternative, for Summary
10
Judgment on July 22, 2011. Doc. No. 35. Plaintiff filed his Opposition on
September 20, 2011, Doc. No. 41, and Defendants filed their Reply on September
27, 2011, Doc. No. 43. The court heard the Motion on October 11, 2011.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) allows a party to seek
dismissal of a claim for lack of subject matter jurisdiction. “[A] Rule 12(b)(1)
motion can attack the substance of a complaint’s jurisdictional allegations despite
their formal sufficiency, and in so doing rely on affidavits or any other evidence
properly before the court.” St. Clair v. Chico, 880 F. 2d 199, 201 (9th Cir. 1989).
“With a [Rule] 12(b)(1) motion, a court may weigh the evidence to determine
whether it has jurisdiction.” Autery v. United States, 424 F.3d 944, 956 (9th Cir.
2005). When a court considers evidence in a Rule 12(b)(1) motion, it construes
disputes of fact in favor of the non-movant. Dreier v. United States, 106 F.3d 844,
847 (9th Cir. 1996).
In situations where exhaustion of administrative remedies is not
jurisdictional, it is an affirmative defense that a defendant has both the burden of
raising and proving. Jones v. Bock, 549 U.S. 199, 216 (2007); see also Wyatt v.
Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (addressing exhaustion requirements
under 28 U.S.C. § 1997e(a)). A nonexhaustion defense should be raised in an
11
unenumerated Rule 12(b) motion rather than in a motion for summary judgment.
Wyatt, 315 F.3d at 1119. In deciding such a motion, the district court may look
beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. When
such a motion to dismiss requires the court to look beyond the pleadings and
consider evidence, it does so under “a procedure closely analogous to summary
judgment.” Id. at 1120 n.14.
IV. DISCUSSION
Defendants argue that Sung’s claims are barred because he has yet to
exhaust available administrative remedies before the Army Board for the
Correction of Military Records (“ABCMR”). That is, Defendants contend Sung’s
claims for due process violations and disability discrimination are not justiciable
because the ABCMR can grant relief for such types of injustices, and the claims
are addressable in federal court only after a decision by the ABCMR. The court
agrees.
“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
12
(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)). If the plaintiff meets
these two conditions, a court then weighs four factors to determine whether review
is appropriate: (1) the nature and strength of the plaintiff’s claim; (2) the potential
injury to the plaintiff if review is denied; (3) the extent of interference with military
functions; and (4) the extent to which military discretion or expertise is involved.
Id.3
3
Darby v. Cisneros, 509 U.S. 137 (1993), subsequently held that exhaustion of
administrative remedies under the Administrative Procedures Act (“APA”) “is a prerequisite to
judicial review only when expressly required by statute or when an agency rule requires appeal
before review and the administrative action.” Id. at 154. Darby came after Mindes v. Seaman,
453 F.2d 197 (5th Cir. 1971), was adopted in the Ninth Circuit in Khalsa v. Weinberger, 779
F.2d 1393, 1398 (9th Cir. 1985), under which intramilitary remedies must ordinarily be
exhausted. Some courts have thus determined that, following Darby, constitutional claims for
correction of military records need not be administratively exhausted. See, e.g., Nation v.
Dalton, 107 F. Supp. 2d 37, 42 n.4 (D. D.C. 2000). Other courts disagree. See, e.g., Saad v.
Dalton, 846 F. Supp. 889, 891 (S.D. Cal. 1994) (concluding that Navy officer may not pursue
judicial review before petitioning the Board for the Correction of Naval Records for relief, and
distinguishing Darby because “[r]eview of military personnel actions . . . is a unique context
with specialized rules limiting judicial review”).
Although the Ninth Circuit has not specifically addressed whether Darby applies to
military decisions, it has continued to apply a version of the Mindes exhaustion requirement well
past Darby. See, e.g., Wenger v. Monroe, 282 F.3d 1068, 1072 (9th Cir. 2002). But, in any
event, Darby could not affect the exhaustion requirement in this case because Sung did not bring
his claims under the APA. His Amended Complaint invokes only 28 U.S.C. §§ 1331 and 1343
as bases for federal jurisdiction, and does not mention the APA at all. Doc. No. 9 ¶ 2, Am.
Compl. ¶ 2. See, e.g., Hamblet v. Brownlee, 319 F. Supp. 2d 422, 426 (S.D. N.Y. 2004)
(dismissing Army cadet’s action challenging suspension for failure to exhaust claim with
ABCMR, and recognizing that Darby is limited to claims involving the APA -- as the Supreme
Court explicitly recognized that “the exhaustion doctrine continues to apply as a matter of
judicial discretion in cases not governed by the APA.”) (quoting Darby, 509 U.S. at 153);
(continued...)
13
Sung has met the first condition (allegation of a deprivation of a
recognized constitutional right), but he has not exhausted “available intraservice
remedies.” Nor has he established that such remedies would be futile or that he
should otherwise be excused from completing the process. See Meinhold v. U.S.
Dep’t of Def., 34 F.3d 1469, 1474 (9th Cir. 1994) (“[E]xhaustion is not required
where an administrative appeal would be futile.”) (citing Watkins v. United States
Army, 875 F.2d 699, 705 (9th Cir. 1989) (en banc)); Muhammad v. Sec’y of the
Army, 770 F.2d 1494, 1495 (9th Cir. 1985) (excusing exhaustion of administrative
remedies in military discharge cases: “(1) if the remedies do not provide an
opportunity for adequate relief; (2) if the petitioner will suffer irreparable harm if
compelled to seek administrative relief; (3) if administrative appeal would be
futile; or (4) if substantial constitutional questions are raised.”).
The ABCMR is an administrative body established pursuant to 10
U.S.C. § 1552. It consists of civilians appointed by the Secretary of the Army. 32
C.F.R. § 581.3(c)(1). Among other duties, “it directs or recommends correction of
military records to remove an error or injustice.” 32 C.F.R. § 581.3(c)(2)(i); see
also 10 U.S.C. § 1552(a)(1) (allowing Secretary of a military department to
3
(...continued)
Cunningham v. Loy, 76 F. Supp. 2d 218, 220-21 (D. Conn. 1999) (requiring exhaustion of
remedies before the Coast Guard Board of Correction of Military Records, limiting Darby to
claims under the APA).
14
“correct any military record . . . when the Secretary considers it necessary to
correct an error or remove an injustice.”). The Director of the ABCMR, Conrad V.
Meyer, has reviewed Sung’s Complaint and attests that “[t]he Secretary of the
Army or his designee, acting upon the [ABCMR’s] recommendation, can address
MAJ Sung’s claims regarding wrongful termination from residency training.”
Doc. No. 36-1 ¶ 2, Meyer Decl. ¶ 2. Meyer’s Declaration is consistent with case
law indicating that the ABCMR “has authority to consider claims of constitutional,
statutory, and regulatory violations.” Guerra v. Scruggs, 942 F.2d 270, 273 (4th
Cir. 1991) (citing the former 32 C.F.R. § 581.3(c)(5)(v)); see also Bowman v.
Brownlee, 333 F. Supp. 2d 554, 557 (W.D. Va. 2004); Guitard v. Sec’y of Navy,
967 F.2d 737, 741 (2d Cir. 1992).4
Similarly, specifically as to Sung’s claim of disability discrimination,
10 U.S.C. § 1552 also provides a potential remedy for such discriminatory acts.
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
4
Bowman v. Brownlee, 333 F. Supp. 2d 554 (W.D. Va. 2004), noted that 32 C.F.R.
§ 581.3 was amended in 2000 such that the phrase referring to “the applicant’s claims of
constitutional, statutory and/or regulatory violations” in the prior § 581.3(c)(5)(v) “was
eliminated and transferred to a Department of the Army Pamphlet.” Bowman, 333 F. Supp. 2d at
557 n.5. As analyzed in Bowman, however, the ABCMR still has authority to consider claims of
constitutional violations when deciding whether to correct an “injustice.” Id. at 559; see also
Hamblet, 319 F. Supp. 2d at 427-28; Janniere v. United States Army, 34 F. Supp. 2d 850, 853
(E.D. N.Y. 1999).
15
F.2d 926, 929 n.2 (1983). Indeed, Sung has already filed “an administrative claim
with the Department of the Army that his termination from the Residency Program
constituted an impermissible act of discrimination on the basis of disability.” Doc.
No. 9, FAC ¶ 41. That discrimination complaint, which was not filed with the
ABCMR, apparently remains pending. The First Amended Complaint indicates
this complaint was filed on April 6, 2011, but that Sung 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. 17-22.5
Sung has not filed an application under § 1552 for relief with the
ABCMR. See Doc. No. 36-1, Meyer Decl. ¶ 3. At the hearing, Sung essentially
argued that the ABCMR process would be futile, and his written Opposition
similarly states that “it is doubtful that the ABCMR can grant Plaintiff the relief he
is seeking of being allowed to complete his surgical residency[.]” Doc. No. 41 at
11, Pl.’s Opp’n at 6. But the ABCMR’s Director declares otherwise -- the
ABCMR could “address MAJ Sung’s claims regarding wrongful termination from
residency training” and, if appropriate “recommend that the Secretary of the Army
5
It is unclear whether this discrimination complaint would duplicate relief that could
also be sought in an application invoking the ABCMR process. What is important, however, is
that the complaint remains pending and there is no indication that such a process could not
provide Sung relief from any unlawful discrimination.
16
grant relief.” Doc. No. 36-1, Meyer Decl. ¶ 2.6 And Sung has not demonstrated
that the ABCMR administrative process could not provide a genuine opportunity
for relief, or that he should otherwise be excused from exhaustion under factors as
discussed in Muhammad. Indeed, this court in its June 30, 2011 Order Denying
Sung’s Motion for Preliminary Injunction has already found, after extensive and
careful review of the record, that Sung has little likelihood of success on the merits
and that irreparable harm is not likely in the absence of preliminary relief. That is,
“substantial constitutional questions” are not raised, and Sung will not suffer
“irreparable harm if compelled to seek administrative relief.” Muhammad, 770
F.2d at 1495. Under present circumstances, exhaustion is not excused.
Accordingly, the court dismisses the Amended Complaint without
prejudice. Sung may seek review in this court under the APA after a decision by
the ABCMR. See Clinton v. Goldsmith, 526 U.S. 529, 539 (1999) (“A
servicemember claiming something other than monetary relief may challenge [an
Air Force Board of Correction for Military Records’s] decision to sustain a
6
If relief were granted, completion of his residency would then be contingent on Sung’s
performance. It would be unrealistic, for example, to expect the ABCMR or this court to require
the Army to allow Sung to complete his residency if he later legitimately fails to meet the
program’s requirements or is deemed incompetent by unbiased authorities. Thus, even if the
ABCMR could not “grant Plaintiff the relief he is seeking of being allowed to complete his
surgical residency,” as Sung argues, this is not a legitimate basis to excuse exhaustion. At most,
whether relief was granted by this court or the ABCMR, Sung would be reinstated to the
residency program in the position he was at before being terminated.
17
decision to drop him from the rolls (or otherwise dismissing him) as final agency
action under the Administrative Procedure Act[.]”); Chappell, 462 U.S. at 303;
Burns v. Marsh, 820 F.2d 1108, 1110 (9th Cir. 1987) (“A district court reviews an
ABCMR decision to determine if it is arbitrary, capricious, or unsupported by
substantial evidence.”).
Given this dismissal, the court need not reach Defendants’ alternative
arguments that (1) the court lacks jurisdiction over Sung’s claims that are based on
violations of Army regulations, or (2) Defendants are entitled to summary
judgment on Sung’s procedural and substantive due process claims.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss or, in the
alternative, for Summary Judgment, Doc. No. 35, is GRANTED. The First
Amended Complaint is dismissed without prejudice. The Clerk of Court is
directed to enter judgment in favor of Defendants and close the case file. If
Plaintiff refiles an action under the Administrative Procedures Act in this district - after he exhausts administrative remedies before the Army Board for the
Correction of Military Records -- such new action may be reassigned to this court
///
///
18
under Local Rule 40.1, and the $350 filing fee will be waived.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 13, 2011.
/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge
Sung v. Gallagher, Civ. No. 11-00103 JMS/KSC, Order Granting Defendants’ Motion to
Dismiss or, in the alternative, for Summary Judgment
19
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