Eleraky v. McDonald et al

Filing 17

Memorandum Opinion and Order granting 8 MOTION to Dismiss plaintiff's remaining claim against the individual defendants, i.e., a putative Bivens claim for alleged due process violations, is dismissed with prejudice. Signed by District Judge Tom S. Lee on 2/19/16 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MOHAMED ELERAKY, M.D.
VS.

PLAINTIFF
CIVIL ACTION NO. 3:15CV509TSL-RHW

ROBERT A. MCDONALD, IN HIS OFFICIAL
CAPACITY AS SECRETARY OF THE UNITED
STATES DEPARTMENT OF VETERANS AFFAIRS;
JOE BATTLE; DAVID WALKER, M.D., RONALD
BRASWELL, M.D.; AND JOHN DOES 1-10

DEFENDANTS

MEMORANDUM OPINION AND ORDER
By memorandum opinion and order entered February 2, 2016,
this court granted the motion of defendants to dismiss the
employment discrimination claims asserted by plaintiff Mohamed
Eleraky, M.D. against individual defendants Joe Battle, David
Walker, M.D. and Ronald Braswell under Title VII of the Civil
Rights Act.

At the same time, the court reserved ruling on

defendants’ further request to dismiss plaintiff’s separate
putative Bivens claim against these defendants for alleged
violations of his substantive and procedural due process rights
unrelated to employment discrimination.

The court noted that

defendants’ original motion did not adequately cover such claim
but their rebuttal did advance a basis for its dismissal, namely,
that the Civil Service Reform Act (CSRA), 5 U.S.C. § 1101, et
seq., preempts any judicial remedy for plaintiff’s claims, as such
claims purport to challenge a “prohibited personnel practice.”

See Schwartz v. Int’l Federation of Prof. and Technical Eng’rs,
AFL-CIO, 306 Fed. Appx. 168, 172, 2009 WL 62236, 2 (5th Cir. 2009).
See also Mangano v. United States, 529 F.3d 1243, 1246 (9th Cir.
2008) (quoting Collins v. Bender, 195 F.3d 1076, 1079 (9th Cir.
1999)) (stating that under CSRA, “a federal employee's
personnel-related complaints are preempted ‘even if no remedy [is]
available ... under the CSRA.’”).

The court offered plaintiff an

opportunity to address defendants’ CSRA argument prior to the
court’s proceeding with consideration of defendants’ motion to
dismiss his Bivens claim, which plaintiff has now done.

The court

has reviewed and considered the parties’ arguments with respect to
plaintiff’s Bivens claim and concludes that it is due to be
dismissed for reasons which follow.
Background
As the court explained in its prior opinion, plaintiff
alleges in his complaint that he became employed as a neurosurgeon
with the G. V. “Sonny” Montgomery Veterans Affairs Medical Center
(VAMC) in 2011.

According to his complaint, beginning in July

2013 and continuing to the present, his operating and clinical
privileges have been summarily suspended, ostensibly pending an
investigation or medical review.

He avers that during all this

time, defendants have failed to timely complete and/or to inform
him of the basis for and/or outcome of said medical review/
investigation, in violation of VAMC’s own bylaws/guidelines and of
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his procedural and substantive due process rights.

He states that

throughout this time, he has remained in a state of uncertainty,
and that while he remains employed by the VAMC as its only
neurosurgeon, he is not allowed to see any patients or perform
surgeries.

He charges that all of this has been done “for various

inappropriate reasons, including any or all of his initial refusal
to amend certain patient records until ordered to do so, his
ethnicity and any related speech pattern issues, and in
retaliation for his filing of an EEOC complaint.”
Based on these allegations, plaintiff filed this action
against Robert A. McDonald, in his official capacity as Secretary
of the Department of Veterans Affairs (VA), and against three
defendants individually:

Joe Battle, Director of the VAMC; David

Walker, M.D., VAMC Chief of Staff; and Ronald Braswell, M.D.,
former VAMC Acting Chief of Surgery.

He has purported to assert

(1) a claim against the VA for various injunctive relief based on
alleged violations of VAMC regulations and plaintiff’s
constitutional rights; (2) a claim against all defendants for
employment discrimination under Title VII; and (3) a Bivens claim
against Battle, Walker and Braswell for violation of his
procedural and substantive due process rights for suspending him
in violation of applicable VA regulations.
Defendants moved to dismiss all plaintiff’s claims against
the individual defendants.

The court granted that motion as to
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plaintiff’s claim against the individual defendants for employment
discrimination, because Title VII is his exclusive remedy for
employment discrimination and because the individual defendants do
not qualify as “employers” under Title VII.

The issue which the

court noted was first raised by defendants’ response was whether
the CSRA precluded any Bivens action against the individual
defendants.

In his surrebuttal, plaintiff acknowledges that “[t]o

the extent that any of [his] claims against the individual
defendants constitute allegations of acts that are enumerated as
‘prohibited personnel practices’ under § 2302 (of the CSRA), then
they are within the CSRA’s confines....”

He still maintains,

though, that he has a cognizable Bivens claim, arguing that
to the extent his due process claims against the
individual defendants do not fall within claims for
discrimination under Title VII or prohibited personnel
practices under § 2302 of the CSRA, then they are
properly before this court in accordance with 38 U.S.C.
§ 7462, which is the basis of the current suspension of
his privileges and which specifically allows for
judicial review.
Plaintiff Has Not Asserted a Viable Bivens Claim
“The federal courts have power to grant relief, including
damages, for violations of constitutional rights under the general
statutory grant of authority to decide all cases ‘aris[ing] under
the Constitution, laws or treaties of the United States.’”

Heaney

v. U.S. Veterans Admin., 756 F.2d 1215, 1219-20 (5th Cir. 1985)

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(quoting 28 U.S.C. § 1331, and citing Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed.
2d 619 (1971).

However, Congress may expressly or impliedly

withhold a remedy:
Bivens established that the victims of a constitutional
violation by a federal agent have a right to recover
damages against the official in federal court despite
the absence of any statute conferring such a right.
Such a cause of action may be defeated in a particular
case, however, in two situations. The first is when
defendants demonstrate “special factors counseling
hesitation in the absence of affirmative action by
Congress.” 403 U.S., at 396 [91 S. Ct. at 2004]; Davis
v. Passman, 442 U.S. 228, 245 [99 S. Ct. 2264, 2277, 60
L. Ed. 2d 846] (1979). The second is when defendants
show that Congress has provided an alternative remedy
which it explicitly declared to be a substitute for
recovery directly under the Constitution and viewed as
equally effective. Bivens, supra, at 397 [91 S. Ct. at
2005]; Davis v. Passman, 442 U.S., at 245-247 [99 S. Ct.
at 2277-2278].
Heaney, 756 F.2d at 1220 (quoting Carlson v. Green, 446 U.S. 14,
18-19, 100 S. Ct. 1468, 1471, 64 L. Ed. 2d 15 (1980)(emphasis
supplied)).
Title 38, United States Code § 7462, to which plaintiff
refers in his surrebuttal, is part of a “specially-crafted set of
disciplinary and grievance procedures for VA physicians” appointed
under 38 U.S.C. § 7401(1)1 that is separate from the CSRA.

Toppo

v. Norby, 157 F. App'x 990, 991 (9th Cir. 2005)(citing Berry v.

1

Plaintiff was appointed pursuant to 38 U.S.C. § 7401,
which authorizes the Secretary of the Department of Veterans
Affairs to appoint personnel, including physicians, as he may find
necessary for the healthcare of veterans.
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Hollander, 925 F.2d 311, 314-15 (9th Cir. 1991), and Khan v.
United States, 201 F.3d 1375, 1379-81 (Fed. Cir. 2000).

Section

7461 provides that
(a) Whenever the Under Secretary for Health (or an
official designated by the Under Secretary for Health)
brings charges based on conduct or performance against a
section 7401(1) employee and as a result of those
charges an adverse personnel action is taken against the
employee, the employee shall have the right to appeal
the action.
(b)(1) If the case involves or includes a question of
professional conduct or competence in which a major
adverse action was taken, such an appeal shall be made
to a Disciplinary Appeals Board under section 7462 of
this title.2
Section 7462 provides that such Disciplinary Appeals Board “shall
have exclusive jurisdiction to review” such cases, and it
prescribes a detailed procedure for appeal which includes notice
and opportunity for an oral hearing prior to a decision by the
Disciplinary Appeals Board.

Following a decision by the

Disciplinary Appeals Board, the Secretary of the Department of
Veterans Affairs may accept or reject the Board’s decision.

The

Secretary’s action is considered the final administrative action
in the case, and is subject to judicial review, as follows:
(f)(1) A section 7401(1) employee adversely affected by
a final order or decision of a Disciplinary Appeals

2

In any other case, an appeal is required to be made
either through Department grievance procedures prescribed by §
7463 or through grievance procedures provided through collective
bargaining under chapter 71 of title 5, depending on the
circumstances. See 38 U.S.C. § 7461(b)(2)(B).
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Board (as reviewed by the Secretary) may obtain judicial
review of the order or decision.
(2) In any case in which judicial review is sought under
this subsection, the court shall review the record and
hold unlawful and set aside any agency action, finding,
or conclusion found to be-(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) obtained without procedures required by law, rule,
or regulation having been followed; or
(C) unsupported by substantial evidence.
Plaintiff’s position with respect to § 7462 is not entirely
clear.

On the one hand, he appears contend that since the

purported purpose of the suspension of his privileges was related
to patient care and clinical competence, then the suspension of
his privileges is subject to judicial review in accordance with
§ 7462(f).

However, there is nothing in plaintiff’s complaint to

indicate that he brought this action pursuant to § 7462(f) to
obtain judicial review of the decision to suspend his privileges.
Moreover, the judicial review for which the statute provides is
judicial review of “a final order or decision of a Disciplinary
Appeals Board (as reviewed by the Secretary)”; as is clear from
plaintiff’s complaint, there has been no such decision.

As a

result, even if the plaintiff had brought this action under
§ 7462(f), the claim would not be cognizable and would be
dismissed.

See Frantz v. Shinseki, No. 1:10CV275, 2012 WL 259980,

at *5 (M.D.N.C. Jan. 27, 2012) (although plaintiff claimed that
major adverse actions occurred, she failed to show that she
attempted to appeal the Agency’s actions to the Disciplinary
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Appeals Board and thus her claim under § 7462 was dismissed for
failure to exhaust administrative remedies, and moreover, there
had been no decision by the Disciplinary Appeals Board and no
review by the Secretary there was no final order or decision for
the Court to review, so her claim for review under § 7462 was not
properly before the court).
Plaintiff argues, presumably in the alternative, that despite
§ 7462, he still has an actionable due process claim for damages
against the individual defendants under Bivens based on his
allegations that they have intentionally delayed or stalled the
process for finally resolving issues relating to the purported
basis for his suspension.3

In this regard, plaintiff’s complaint

alleges that he has been suspended, essentially indefinitely,
pending the conclusion of an investigation which will either
exonerate him and result in the reinstatement of his privileges,
or result in the imposition of further disciplinary action.

He

complains that the individual defendants, in contravention of VA
policies and procedures and his due process rights, have
intentionally delayed or stalled resolution of the investigation
in an apparent attempt to leave him in a state of uncertainty
which they hope will ultimately cause him to resign.

3

He does not allege they have prevented him from
appealing his suspension.
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Courts have consistently held that “the administrative
remedial procedures in Title 38 and its associated VA regulations
preclude Bivens causes of action.”

Lerner v. Shinseki, No.

3:12-CV-00565-TBR, 2013 WL 1758752, at *6 (W.D. Ky. Apr. 24, 2013)
(holding that “because Title 38 provides a comprehensive
regulatory scheme established by Congress, [the plaintiff VA
physician] is precluded from challenging an adverse employment
decision via a Bivens action.”) (citing cases); see also Hardison
v. Cohen, 375 F.3d 1262, 1265-66 (11th Cir. 2004) (holding that VA
physicians, who are provided limited remedies in Title 38, are not
allowed to bring a Bivens action); Heaney, 756 F.2d at 1219
(holding that the enactment of the grievance procedures in the
statutory predecessor to § 7461 et seq. presents a special factor
counseling hesitation and precludes any private damages action
under Bivens).
Therefore, based on the foregoing, it is ordered that
plaintiff’s remaining claim against the individual defendants,
i.e, a putative Bivens claim for alleged due process violations,
is dismissed with prejudice.
SO ORDERED this 19th day of February, 2016.

/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

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