PHILIP M. PRO, Chief United States District Judge
Presently before this Court is Plaintiff Dr. T.S.S. Rajan's ("Rajan") action for judicial review of an administrative decision finalized on October 25, 2000. Rajan's Opening Brief (Doc. #18) was filed on May 20, 2002. Defendant Anthony Principi (hereinafter "Defendant") filed a Response to Plaintiff's Opening Trial Brief (hereinafter "Def.'s Opp'n") (Doc. #22) on September 6, 2002. Rajan filed a Reply (Doc. #23) on September 19, 2002.
I. FACTS
Pursuant to the authority in 38 U.S.C. § 7401(1), Rajan was appointed to federal service, as a physician, on January 7, 1996. (Def.'s Opp'n at 2.) Via letter dated December 3, 1999, Dr. James Snyder ("Snyder"), Chief of Medical Services for the Las Vegas Veterans Medical Center, notified Rajan of his proposed discharge. (Compl. ¶ III.) The letter outlined seven charges as grounds for the proposed discharge. (Admin. Record [hereinafter "AR") at 16-19.) The letter also informed Rajan that a final termination decision would be made by the Medical Center Director, Dr. Anthony Salem ("Salem"), after considering any reply Rajan wished to submit. (AR at 18.) In addition, the notice informed Rajan that he had the right to inspect the evidence on which the proposed discharge was based and the right to be represented by a representative of his choice throughout the termination proceedings. (AR 16-19.)
The seven charges alleged in the proposed discharge of Rajan included:
I. . . . You were informed that approval of sick leave would be contingent on presentation of appropriate medical certification upon your return to duty. You failed to present appropriate medical certification, therefore, you were absent without leave (AWOL) for one day on September 24, 1999. . . .
II. . . . You failed to issue a proper request for leave . . . [t]herefore, you were absent without leave (AWOL) for one day on October 12, 1999. . . .
III. You have been the subject of numerous patient complaints. You have failed to exercise the competence and interpersonal skill necessary to develop and maintain a positive relationship with your patients. . . .
IV. On September 9, 1999, patient [I] . . . returned medications to, Pharmacy Service, which had been mailed to him. The returned medications . . . are used to treat [specified conditions]. Patient [I] . . . does not suffer from any of these conditions. The medication orders for [patient] were entered into [the computer system] by you on August 16, 1999. . . .
V. You were assigned as the primary care provider for patient [II] . . . You received a View Alert regarding the abnormal chest x-ray [but] did not, however, order a follow up procedure on the abnormal chest x-ray on [Patient II] as required and directed.
VI. On October 6, 1999, Dr. Ellen Wesley contacted you . . . in order to have patient [III] admitted to the . . . Hospital. You told Dr. Wesley that the patient did not sound sick to you and to send him home. You did not report to the [hospital] to confirm your conclusions. Dr. Wesley then spoke with . . . a cardiologist, who determined that [Patient III] was in cardiogenic shock and should be admitted. Dr. Wesley contacted you with the diagnosis and . . . you agreed to admit patient [III]. . . .
VII. On December 21, 1998, you admitted patient [IV] to . . . [h]ospital. . . . You failed to place the patient on cardiac monitoring. The patient should, instead, have been placed in. . . ICU. Your actions did not meet the expected level of care. . . .
All of the charges were described as violations of "5 C.F.R. § 2625.101(14); 5 C.F.R. § 725.203; and Medical Center Memorandum 05-98-25." (AR at 16-19.)
Snyder's proposal that Rajan be terminated was accepted by Salem on March 2, 2000. (Comp. ¶ III.) Rajan appealed his termination and the decision was then reviewed by a Veteran's Administration ("VA") Disciplinary Appeals Board ("Board"). (Id. ¶ IV; AR at 11.) The Board was comprised of three physicians, selected to serve on the Board by the VA's Chief Network Officer. (AR at 9-10.)
In his appeal, Rajan claimed that the termination decision resulted from a conspiracy between Salem and others. (AR at 11.) Rajan also raised other patient-management issues. (Id.) After a two-day hearing, held on June 20-22, 2000, the Board upheld Salem's decision to terminate Rajan. (Id. ¶ IV.) The Deputy Under Secretary for Health ("Secretary") subsequently upheld the Board's affirmance of Rajan's termination. (Id. ¶ V, AR at 3.)
Rajan later filed this suit, claiming that the decision of the Board and the Secretary was "not supported by substantial evidence in the record, is erroneous as a matter of law, violates [Rajan's] due process rights, and is otherwise illegal." (Id. ¶ VI.) Rajan seeks reinstatement, back pay and benefits, as well as attorney fees and costs. (Compl. at 3.) Rajan requests that this court review the facts for each of the seven charges against him and determine whether his termination was appropriate or in bad faith. (Pl.'s Opening Br. at 9.)
II. STANDARD OF REVIEW
The administrative and judicial review procedures applicable to the removal of an employee appointed under Section 38 U.S.C. § 7401 are set forth in §§ 7461-7464.
Specifically, Section 7461 provides that:
a) Whenever 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.
38 U.S.C. § 7461. The Board has exclusive jurisdiction to review cases in which the professional competence of a Section 7401 appointee is at issue and in which a major adverse action was taken.
38 U.S.C. § 7462(a)(1)(A). Termination is a major adverse action.
38 U.S.C. § 7461(c)(2)(E). The decision of the Board is reviewable by the Under Secretary of Health ("Secretary").
38 U.S.C. § 7462(d)(1)-(4). The Secretary's execution of the Board's decision constitutes the final administrative action in the case.
38 U.S.C. § 7462(d)(4). Judicial review is available to an employee who is adversely affected by the final administrative decision.
Id. This judicial review is, however, limited to a review of the record.
38 U.S.C. § 7462(f)(2).
A district court reviews a final administrative decision under an abuse of discretion standard. Id. The decision will be set aside only if it is found to have been obtained without following the pertinent administrative procedures, if it is unsupported by substantial evidence, or is otherwise contrary to law. Id.
III. DISCUSSION
Rajan first contends that he was terminated based on charges trumped up by Salem and Snyder. (Pl.'s Opening Brief at 2-5.) Specifically, Rajan claims that the decision sustaining the two charges of being AWOL were arbitrary and capricious because he obtained prior authorization for each absence. (Reply at 2-5.) Rajan also contends that the regulations cited as authority for his termination — 5 C.F.R. § 2635.101(14) and 5 C.F.R. § 735.203 — do not apply to Rajan or the facts of his case. (Id. at 6-7.) Lastly, Rajan contends that Medical Center Memorandum 05-98-25, which he allegedly violated, does not apply to the accusations against him. (Id. at 8.)
5 C.F.R. § 2635.101(14) provides:
Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.
5 C.F.R. § 735.203 provides:
An employee shall not engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the Government.
Memorandum 05-98-25 provides, in part:
2. POLICY
Each Medical Center employee is expected to serve diligently, loyally, and cooperatively, to avoid misconduct and other activities which conflict with his/her employment . . . It is the policy of this Medical Center that each employee will exhibit sensitivity, compassion, and concern in dealing with the veterans we serve. Failure to comply with conduct requirements may result in appropriate disciplinary action.
3. ACTION
. . . .
c. Treatment of patients: The VA is committed to providing high quality care to its patients. Patients are in no way to be mistreated or abused, physically or verbally by a VA employee. The gross abuse of a patient will be cause for dismissal. Less severe penalties . . . may be imposed when the abuse is of a minor nature such as speaking rudely to a patient, ridiculing a patient indifference etc. may be deemed a major abuse dependent on the circumstances.
AR 167-68.
Defendant points to the applicable standard of review and claims that Rajan's action should be dismissed because the Board and Secretary's decision was supported by substantial evidence. (Def.'s Opp'n at 2, 6.) Further, Defendant claims that an agency need not articulate a statutory or regulatory violation in order to impose disciplinary action under 38 U.S.C. § 7461-7464. (Id. at 3.) Regardless, Defendant claims that because the seven charges against Rajan constituted violations of the Memorandum 05-98-25, the disciplinary action was proper even if the cited regulations did not support the charges. (Id. at 5.)
After hearing the evidence presented during the two-day hearing, the Board sustained each of the seven charges against Rajan and concluded that termination was warranted. (AR at 4.) The Board set forth a detailed analysis of the reason why each charge was sustained, citing to the portions of the record which support each finding. (AR 6-8.) As to the charge pertaining to Patient III (Charge VI), the Board found that although the patient was not in cardiogenic shock as alleged, Rajan still evidenced poor clinical judgment by not seeing the patient when called and not personally evaluating the patient's status once admitted. (AR at 8.)
The Ninth Circuit Court of Appeals has previously held that "judicial review of dismissal from federal employment is limited to a determination that the applicable procedures have been complied with and that the dismissal was supported by substantial evidence and was not arbitrary and capricious." Alsbury v. United States Postal Serv., 530 F.2d 852, 854 (9th Cir. 1976) cert. denied, 429 U.S. 828 (1976). Although Alsbury v. United States Postal Service, did not involve a Section 7401 appointee, another district court has reached the same conclusion in a case which is factually analogous to the present case. Classen v. Brown, 33 F. Supp.2d 511, 514 (N.D. W. Va. 1998).
Classen v. Brown involved an action brought by a physician appointed under Section 7401. Id. at 512. Like in this case, the physician sought judicial review from a Disciplinary Appeals Board's decision to discharge him. Id. The court affirmed the Board's decision and held that under 38 U.S.C. § 7462(f), judicial "review is limited to a determination of whether the applicable procedures have been followed, whether the dismissal was supported by substantial evidence, and whether it was arbitrary and capricious." Id.
Here, the record indicates that the procedures outlined in § 7462(f) were followed. The letter notifying Rajan of his proposed termination informed him of: the charges against him, his right to review the evidence supporting the proposed action, his right to be represented throughout the proceedings, and his right to seek a hearing before the Board. (AR at 16-18.) Rajan was also provided sufficient time to reply to the charges against him. (Id.) Further, Rajan received a hearing before a three-member panel of physicians and was represented by counsel throughout the process. (See AR at 423.) Rajan does not raise any issues relating to the composition of the Board nor does he suggest that the Board members were in any way involved in the alleged conspiracy underlying the decision to terminate him. The Board and the Secretary rendered their respective decisions within the time frames provided for in 38 U.S.C. § 7462. Defendant therefore fully complied with all applicable procedural requirements outlined in 38 U.S.C. § 7462(f).
Since Rajan was provided fair notice of his proposed discharge and afforded the opportunity to be fully heard during the two-day hearing, during which he was represented by counsel, his termination does not give rise to any due process concerns. See Hibbs v. Dep't of Human Res., 273 F.3d 844, 873 (9th Cir. 2001).
In addition, Rajan's termination was not contrary to law. Pursuant to 38 U.S.C. § 7462(b)(1)(A), Defendant was required to provide "a statement of any specific law, regulation, policy, procedure, practice or other specific instruction that had been violated with respect to each charge." Rajan received such a statement in the notice of proposed discharge. (AR at 19-18.) Defendant claimed that each charge was a violation of C.F.R. § 2625.101(14); 5 C.F.R. § 725.203; and Medical Center Memorandum 05-98-25. (Id.) The regulations and the internal policy memorandum cited by Defendant all relate to the conduct expected from VA employees. The Board did not specify whether the charges were sustained as violations of the internal memorandum, as regulatory violations, or both. However, the Board concluded that Rajan's interactions with patients fell below acceptable standards. (AR 6-8.) Further, the Board found that Rajan exhibited poor clinical judgment, professional misconduct, or incompetence in treating four patients. (Id.)
Rajan invites this Court to reconsider arguments which were presented to, and apparently considered by, the Board. In view of the narrow scope of judicial review proceedings, this Court must decline this invitation. Although "[t]he agency must articulate a `rational connection between the facts found and the choice made,'" the administrative agency's final decision must be given due deference by a reviewing court. Bowman Transp., Inc., v. Arkansas — Best Freight Sys., Inc. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
Here, the Board considering Rajan's appeal made specific findings in sustaining each of the charges against him. (AR at 6-8.) Based on the charges sustained, the Board recommended that Rajan be discharged from his position as a VA physician. (AR at 5.) This decision is not contrary to law even if the policy and regulations cited did not apply to each of the charges sustained. In addition, the record evidences that the Board gave full consideration to the evidence presented by both parties.
Since this Court concludes that the discharge decision was supported by substantial evidence, was not arbitrary and capricious, and that all of the disciplinary procedures were satisfied, there is no basis for granting Rajan's request for reinstatement.
IV. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff T.S.S. Rajan's request for reversal of the discharge decision (Doc. #18) is hereby DENIED.