# Eng

> District Court, M.D. Florida · July 23, 2026

URL: https://www.frixlaw.com/law-library/cases/11417917

## Case

- **Full name:** Clifford Eng, M.D. v. Douglas A. Collins
- **Court:** District Court, M.D. Florida
- **Decided:** July 23, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11417917

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

CLIFFORD ENG, M.D.,

Plaintiff,

v. Case No: 6:24-cv-1289-PGB-LHP

DOUGLAS A. COLLINS,

Defendant.
/
ORDER
This cause comes before the Court upon the following filings:
1. Defendant Douglas A. Collins1 in his capacity as Secretary of the
Department of Veterans Affairs’ (“Defendant”) Motion for Summary
Judgment (Doc. 31 (“Defendant’s Motion));
2. Plaintiff Clifford Eng, M.D.’s (“Plaintiff”) Cross-Motion for Partial
Summary Judgment and Response in Opposition to Defendant’s
Motion (Doc. 39 (“Plaintiff’s Cross-Motion” or “Plaintiff’s
Response”));2

1 Although Plaintiff named Denis McDonough as Defendant in his capacity as the Secretary of
the Department of Veterans Affairs, this position is now held by Douglas A. Collins. (See Doc.
19 (the “Amended Complaint”)). Pursuant to Federal Rule of Civil Procedure 25(d), upon
assuming office, Douglas A. Collins was automatically substituted as the party Defendant in
this action.

2 Collectively, Defendant’s Motion (Doc. 31) and Plaintiff’s Cross-Motion (Doc. 39) will be
referred to as the “Motions.”
3. Defendant’s Response to Plaintiff’s Cross-Motion and Reply in
Support of Defendant’s Motion (Doc. 40);
4. Plaintiff’s Reply in Support of Plaintiff’s Cross-Motion (Doc. 45); and

5. The parties’ Stipulation of Agreed Material Facts (Doc. 29).
Upon consideration, Defendant’s Motion is due to be found as moot in part
and denied in part and Plaintiff’s Cross-Motion is due to be granted.
I. BACKGROUND
Through this action, Plaintiff seeks review of the Disciplinary Appeals

Board’s (“DAB”) decision finding it lacked jurisdiction over Plaintiff’s appeal
related to Plaintiff’s purported discharge from employment and revocation of
clinical privileges by the Department of Veterans Affairs (“VA”).3 (Doc. 19, ¶¶ 25–
29).
Plaintiff is a former staff pathologist for the Orlando VA Medical Center (the
“Orlando VA”). (Doc. 29, ¶¶ 1–2). Plaintiff thus maintained clinical privileges

with the Orlando VA relevant to that role, including privileges in anatomic
pathology, diagnostic pathology, and laboratory medicine. (See id. ¶¶ 6–7).
However, on March 23, 2022, Plaintiff was notified that his anatomic pathology
privileges were being suspended. (Id. ¶ 6). Two days later, Plaintiff was notified
that his diagnostic pathology and laboratory privileges were likewise being

suspended. (Id. ¶ 7). It is uncontested that these suspensions occurred after

3 The DAB is “a statutorily established administrative appeals body specific to Title 38
employees of the [VA] that hears appeals of major adverse actions against such employees.”
(Doc. 29, ¶ 18).
Plaintiff committed a medical error, though Plaintiff contends this was simply a
process error rather than the result of a lack of professional competence. (E.g.,
Doc. 31-12, p. 75). Defendant then conducted a retrospective review of the cases

handled by Plaintiff from 2020 to 2022.4 (Doc. 29, ¶ 8).
Ultimately, on March 24, 2023, Timothy Cooke (“Cooke”), the Medical
Center Director for the Orlando VA, issued a memorandum (Doc. 31-12, pp. 7–11
(the “Decision Memo”)) to Plaintiff. (Doc. 29, ¶¶ 4, 14). Therein, Cooke notified
Plaintiff of his decision to discharge Plaintiff from employment and revoke his

privileges with the Orlando VA. (Id. ¶ 14; Doc. 31-12, p. 7). The Decision Memo
further informed Plaintiff of his “right to appeal both of these decisions to the
[DAB] and to request a formal hearing before the [DAB].” (Doc. 31-12, p. 9). Of
importance, it also contained the following paragraph (“Paragraph 7”):
7. Impact of Voluntary Surrender Of Privileges: Should
you surrender or voluntarily accept a restriction of your
clinical privileges, or resign or retire from your position
with the Department of Veterans Affairs prior to the
effective date of your discharge, your fair hearing
and appeal rights regarding privileges will be limited to
a hearing on whether you took such action while under
investigation for professional incompetence,
professional misconduct or substandard care.

(Id. at p. 10 (emphasis added)). Finally, the Decision Memo notified Plaintiff that
the effective date of his discharge would be March 29, 2023. (Id. at p. 7; Doc. 29 ¶
15). On March 29, 2023—the same day as Plaintiff’s date of discharge—Plaintiff

4 The administrative record reveals that Defendant believed it had discovered additional
medical errors made by Plaintiff during this review, while Plaintiff contested the majority of
Defendant’s findings. (E.g., Doc. 31-12, pp. 74–88).
submitted his retirement paperwork with the Orlando VA. (Doc. 29, ¶ 16).
According to Plaintiff, he “chose to retire so as not to lose his retirement benefits,”
but he “set the retirement date so that it would coincide with the effective date of

the discharge decision because he did not wish to forfeit his appeal rights.” (Doc.
39, p. 12).
On April 4, 2023, Plaintiff requested to appeal to the DAB the VA’s decisions
to discharge him from employment and revoke his privileges. (Doc. 29, ¶ 17). On
April 27, 2023, the DAB issued a Show Cause Order to Plaintiff (Doc. 31-12, p. 47

(the “Show Cause Order”)) stating, in relevant part, as follows:
[P]rior to the [contested] removal being effected, you elected
to voluntarily retire prior to your removal being processed. As
such, it appears that the [DAB] does not have jurisdiction of
[sic] your appeal. In order to show a retirement is involuntary,
you must raise a non-frivolous allegation that the retirement
resulted from misinformation, deception, or coercion by the
agency. Therefore, you are being given an opportunity to file
evidence and argument showing the [DAB] has jurisdiction of
[sic] your appeal.

(Id.).
Plaintiff submitted a response to the Show Cause Order. (Doc. 31-12, pp. 33–
35 (the “Show Cause Response”)). Therein, in relevant part, Plaintiff pointed
to the language in Paragraph 7 of the Decision Memo, which only cautioned
Plaintiff that his “fair hearing and appeal rights” would be limited if he retired from
the VA “prior to” the effective date of his discharge. (Id. at p. 33 (citation omitted)).
Plaintiff highlighted that he did not retire prior to the effective date of his
discharge, but rather, he retired on the same day. (Id. at p. 34). Plaintiff thus
argued that his retirement was involuntary, as “the statement provided in
[Paragraph 7] was misinformation [Plaintiff] relied upon that caused his . . .
involuntary relinquishment of his fair hearing and appeal rights.” (Id.).

Defendant replied in opposition to Plaintiff’s Show Cause Response and
argued Plaintiff had voluntarily retired, depriving the DAB of jurisdiction over the
appeal. (Id. at pp. 64–67). The DAB agreed with Defendant, thus concluding that
it lacked jurisdiction to hear the appeal because no “major adverse action” had
been taken against Plaintiff.5 (Doc. 31-13 (the “Board Action”); see also Doc. 29,

¶ 19).
As a result of the foregoing, on January 13, 2025, Plaintiff filed the operative
Amended Complaint, wherein Plaintiff states two causes of action against
Defendant—one for ethnicity and national origin discrimination under Title VII
(Count I) (the “Title VII claim”)), and one for judicial review of the DAB decision
pursuant to 38 U.S.C. § 7462(f) (Count II) (the “DAB review claim”)). (Doc. 19,

¶¶ 18–29).
In Defendant’s Motion, Defendant seeks summary judgment as to both of
Plaintiff’s claims. (See generally Doc. 31). However, in Plaintiff’s Response,
Plaintiff indicates that he “will no longer pursue” his Title VII claim.6 (Doc. 39, p.

5 As discussed infra, the relevant statute requires a “major adverse action” to have occurred for
the DAB to have jurisdiction over such an appeal. 38 U.S.C. § 7462(a)(1)(B). See discussion
infra Section II.B.

6 Because Plaintiff has abandoned his Title VII claim, the Court dismisses Count I without
prejudice. (Doc. 39, p. 2). Therefore, the portion of Defendant’s Motion that seeks summary
judgment as to Count I is due to be found as moot. (Doc. 31, pp. 9–20).
2). Thus, through Plaintiff’s Cross-Motion, Plaintiff seeks summary judgment in
his favor only as to the DAB review claim. (See generally Doc. 39). Specifically,
Plaintiff asks the Court to reverse the DAB’s finding that it lacks jurisdiction over

his appeal and to remand to the DAB for further proceedings. (See id. at pp. 14–
15). The parties have each filed responses and replies to the respective Motions,
and as such, the Motions are now ripe for the Court’s review. (Docs. 39, 40, 45).
II. STANDARD OF REVIEW
A. Summary Judgment

A court may only “grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a). The moving party bears the initial burden
of “citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations . . . , admissions, interrogatory answers, or other materials” to support

its position that it is entitled to summary judgment. FED. R. CIV. P. 56(c)(1)(A).
Alternatively, the movant may meet its burden by “showing that the materials cited
do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.” FED. R. CIV. P.
56(c)(1)(B). “The burden then shifts to the non-moving party, who must go beyond

the pleadings, and present affirmative evidence to show that a genuine issue of
material fact exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006).
An issue of fact is “genuine” only if “a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In determining whether a genuine dispute of material fact exists, the Court

must read the evidence and draw all factual inferences therefrom in the light most
favorable to the non-moving party and must resolve any reasonable doubts in the
non-movant’s favor.7 Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).
“The court need consider only the cited materials” when resolving a motion
for summary judgment. FED. R. CIV. P. 56(c)(3); see also HRCC, LTD v. Hard Rock

Café Int’l (USA), Inc., 703 F. App’x 814, 816–17 (11th Cir. 2017) (per curiam)
(holding that a district court does not err by limiting its review to the evidence cited
by the parties in their summary judgment briefs and the arguments raised
therein).8
B. 38 U.S.C § 7462
Under 38 U.S.C. § 7462(a)(1)(A)–(B), the DAB has “exclusive jurisdiction”

to review any case that (1) concerns “a question of professional conduct or
competence of a section 7401(1) employee”9 (2) “in which a major adverse action

7 In the context of cross motions for summary judgment, “[t]he Court must consider each
motion separately, resolving all reasonable inferences against the party whose motion is under
consideration.” Boatwright v. Aetna Life Ins. Co., 599 F. Supp. 3d 1218, 1222 (M.D. Fla.
2022).

8 “Unpublished opinions are not controlling authority and are persuasive only insofar as their
legal analysis warrants.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1345 (11th
Cir. 2007).

9 In Defendant’s Motion, Defendant does not dispute that Plaintiff qualifies as a section 7401(1)
employee or that the DAB appeal concerns a question of his professional conduct or
competence. See § 7642(a)(1)(A); (see generally Doc. 31). Accordingly, the only question
was taken.” A “major adverse action” is expressly defined to include discharge from
employment. 38 U.S.C. § 7461(c)(2)(E). Of note, in administrative actions, an
involuntary retirement is “treated as if it were a removal.” Cooper v. Dep’t of the

Navy, 108 F.3d 324, 326 (Fed. Cir. 1997) (citations omitted).
Once the DAB issues a final order or decision, under § 7462(f)(1), any §
7401(1) employee who is “adversely affected” thereby “may obtain judicial review”
of such order or decision. § 7462(f)(1). A court’s review of a DAB final order or
decision is governed by § 7462(f)(2), which provides as follows:

(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.

§ 7462(f)(2). “The Court’s review under this section ‘directly mirrors the standards
for judicial review of other administrative actions.’” Beck v. Shinseki, No. CV 113–
126, 2015 WL 1202196, at *11 (S.D. Ga. Mar. 16, 2015) (quoting Lerner v. Shinseki,
No. 3:12-CV-00565, 2013 WL 5592906, at *5 (W.D. Ky. Oct. 10, 2013)).
“Analogous administrative law precedents, therefore, are applicable.” Id. (citing
Abaqueta v. United States, 255 F. Supp. 2d 1020, 1024 (D. Ariz. 2003)).

before the Court concerns whether any “major adverse action” was taken against Plaintiff. See
§ 7642(a)(1)(B).
III. DISCUSSION
In Defendant’s Motion, Defendant argues the DAB properly found that it
lacked jurisdiction as Plaintiff did not suffer a “major adverse action” under §

7462(a)(1)(B).10 (Doc. 31, p. 21). Defendant thus argues it is entitled to summary
judgment in its favor as to Plaintiff’s DAB review claim. (Id. at p. 24).
Plaintiff, by contrast, argues the DAB’s finding that it lacked jurisdiction was
“arbitrary and capricious, obtained without procedures required by [the U.S. Office
of Personnel Management’s (“OPM”)] rules having been followed, and

unsupported by substantial evidence.” (Doc. 39, p. 14). In relevant part, Plaintiff
contends that Paragraph 7 of the Decision Memo contained a material
misrepresentation, since it stated Plaintiff’s fair hearing and appeal rights would
only be limited if he retired prior to the effective date of his discharge. (Id. at p. 10
(citing Doc. 31-12, p. 10)). Indeed, Plaintiff states that there is no indication that
the DAB even considered Plaintiff’s arguments that he lacked notice that his

retirement would affect his fair hearing and appeal rights or that he was misled by
Paragraph 7. (Id. at pp. 12–13). Plaintiff thus contends that the Court should grant

10 Defendant also briefly asserts that Plaintiff did not argue his retirement was involuntary
before the Show Cause Order issued, and that, even after the Show Cause Order issued,
Plaintiff failed to produce evidence to support his position. (Doc. 31, p. 24). These arguments
are unavailing. Because the Court ultimately finds Plaintiff was misled into believing he had
preserved his right to appeal, it is no great surprise that Plaintiff failed to brief the DAB’s
jurisdictional concerns until it issued the Order to Show Cause. Moreover, Plaintiff’s
arguments in his Show Cause Response were, at bottom, legal arguments regarding the
language included in the Decision Memo, which was issued by Defendant itself. (See generally
Doc. 31-12, pp. 33–35). Consequently, the Court does not find that either of Defendant’s
aforementioned arguments provides a basis for affirming the DAB’s jurisdictional
determination.
summary judgment in his favor as to the DAB review claim.11 (See generally Doc.
39). For the reasons discussed below, the Court agrees with Plaintiff.
A. Plaintiff’s Purported Reliance upon Extra-Record Evidence

As a threshold matter, the Court must address Defendant’s argument that
Plaintiff improperly asks the Court to consider evidence that was not before the
DAB in ruling on the instant Motions. (Doc. 40, pp. 2–4). Defendant notes that it
had attached Plaintiff’s Application for Immediate Retirement (Doc. 31-9 (the
“Application”)) and his Certified Summary of Federal Service (Doc. 31-11 (the

“Certified Summary”)) to Defendant’s Motion in support of its arguments
regarding Plaintiff’s now abandoned Title VII claim. (Doc. 40, p. 2). Yet, Plaintiff
cites these exhibits in support of its arguments regarding the DAB review claim.
(Id. at pp. 2–3). Thus, Defendant contends the Court should not consider the
Application and Certified Summary when ruling on the DAB review claim.12 (Id. at

11 In support of Plaintiff’s Motion, Plaintiff additionally argues that neither Defendant nor the
DAB cite to any authority to support that an employee’s decision to retire on his effective date
of discharge limits the employee’s fair hearing and appeal rights and “Plaintiff is not aware of
any.” (Doc. 39, p. 11). The Court disagrees, as both Defendant and the DAB have repeatedly
pointed to the jurisdictional statute’s requirement of a “major adverse action” in support of
this argument. (See generally Docs. 31, 31-13). In any event, because the Court finds that
Paragraph 7 was misleading and that the DAB was arbitrary and capricious in reaching its
conclusion to the contrary, Plaintiff nevertheless prevails on his request for summary
judgment.

12 The Court notes that Defendant raises a related argument seeking to prevent Plaintiff from
relying upon an OPM provision in support of Plaintiff’s Motion despite Plaintiff’s failure to
cite that provision to the DAB below. (Doc. 40, pp. 2–4). Notably, Plaintiff appears to cite to
the OPM provision in support of its argument that the DAB reached its jurisdictional
determination “without procedures required by law, rule, or regulation having been followed”
pursuant to § 7462(f)(2)(B). (See, e.g., Doc. 39, pp. 8–11). However, the Court does not reach
Plaintiff’s argument regarding the OPM provision under § 7462(f)(2)(B), as it concludes the
DAB’s determination was arbitrary and capricious under § 7462(f)(2)(A). Consequently, the
p. 3). Of note, Plaintiff fails to respond to Defendant’s arguments as to the
Application and Certified Summary. (See Doc. 45, p. 6).
“[T]he district judge sits as an appellate tribunal in appeals under § 7462

and confines its review to the administrative record.” Salmon v. McDonough, No.
3:22-cv-01207-MPS, 2024 WL 404542, at *4 (D. Conn. Feb. 2, 2024) (internal
citations and quotation marks omitted); see also Pres. Endangered Areas of
Cobb’s Hist., Inc. v. U.S. Army Corps of Eng’rs, 87 F.3d 1242, 1246 (11th Cir. 1996)
(“The focal point for judicial review of an administrative agency’s action should be

the administrative record.” (citation omitted)). Further, “[w]hile certain
circumstances may justify going beyond the administrative record, a court
conducting a judicial review is not ‘generally empowered’ to do so.” Id. at 1246
(quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
Here, the Court agrees with Defendant that Plaintiff may not rely upon the
Application and Certified Summary in support of his DAB review claim. (Doc. 40,

pp. 2–4). Neither document was before the DAB when it rendered the decision
under review and Plaintiff identifies no basis for departing from the general rule
that judicial review is confined to the administrative record. (See Doc. 45, p. 6).
That said, the practical import of this finding is, in the Court’s view, rather limited,
as the parties have expressly stipulated that the effective date of Plaintiff’s

Court need not address Defendant’s contention that the Court should exclude the OPM
provision from its consideration when ruling on the parties’ Motions. (See Doc. 40, pp. 2–4).
discharge was March 29, 2023, and that Plaintiff submitted his retirement
paperwork the same day.13 (Doc. 29, ¶¶ 15–16).
B. Judicial Review under 38 U.S.C. § 7462(f)(2)

The Court’s analysis begins—and in this case, ends—with its consideration
of whether it must overturn the DAB’s jurisdictional finding as it was “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law[.]” §
7462(f)(2)(A). “The arbitrary and capricious standard is ‘exceedingly deferential.’”
Defs. of Wildlife v. U.S. Dep’t of the Navy, 733 F.3d 1106, 1115 (11th Cir. 2013)

(quoting Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996)). This
standard is met where the agency has:
relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the
product of agency expertise.

13 Similarly, the Court notes that, in a single passage of the Board Action, the DAB referenced
that Plaintiff’s Show Cause Response “provided no evidence . . . to support when [Plaintiff’s]
retirement paperwork was submitted.” (Doc. 31-13, p. 5). However, the Show Cause Order had
expressly represented to Plaintiff that the DAB was already in possession of this information.
(Doc. 31-12, p. 47 (“[The Decision Letter] sustained the [contested] removal with an effective
date of March 29, 2023. However, on March 29, 2023, prior to the removal being effected,
you elected to voluntarily retire[.]” (emphasis added))). And indeed, the DAB apparently had
no difficulty determining the date of Plaintiff’s retirement, given that the Board Action
expressly rested on the DAB’s finding that Plaintiff had retired before his removal was
effected. (E.g., id. (“Regardless [of the information provided in Plaintiff’s Show Cause
Response], the Decision to Discharge was made March 24, 2023, but [Plaintiff] retired prior
to the major adverse action being taken.”)). As a result, the Court does not place significant
weight on this isolated reference, which is difficult to reconcile with the DAB’s express finding
elsewhere in the Board Action that Plaintiff had retired before his removal was effected. (E.g.,
id.).
Beck, 2015 WL 1202196, at *11 (quoting Defs. of Wildlife, 733 F.3d at 1115). Thus,
“[t]he scope of review . . . is narrow and does not permit a court to substitute its
judgment for the agency.” Wolfe v. Sec’y, Dep’t of Veterans Affs., No. 8:18-cv-841-

T-23TGW, 2020 WL 7408602, at *4 (M.D. Fla. July 10, 2020) (citing Motor
Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983)), report and recommendation adopted, 2020 WL 7408272 (M.D. Fla.
Nov. 9, 2020). Instead, the standard “requires the agency to examine the relevant
data and articulate a satisfactory explanation for its action with a rational

connection between the facts found and the choice made.” Id. (citing Motor Vehicle
Mfrs., 463 U.S. at 43).
Acknowledging the deferential standard that the Court applies in its
analysis, the Court nevertheless finds that the DAB’s jurisdictional determination
was arbitrary and capricious. See § 7462(f)(2)(A). Specifically, for the reasons
explained below, the Court finds that the DAB failed to adequately support its

determination that Plaintiff’s retirement was voluntary, and that there was thus no
“major adverse action” as required by § 7462(a)(1)(B).
“A decision to resign from government service is presumed to be voluntary.”
Harris v. United States, 102 Fed. Cl. 390, 412 (Fed. Cl. 2011) (collecting sources).
However, this presumption can be rebutted by the government employee. E.g., id.;

Bergman v. United States, 28 Fed. Cl. 580, 585 (Fed. Cl. 1993) (citations omitted).
“To determine whether a resignation or retirement is voluntary, a court must
examine ‘the surrounding circumstances to test the ability of the employee to
exercise free choice.’” Scharf v. Dep’t of the Air Force, 710 F.2d 1572, 1574 (Fed.
Cir. 1983) (quoting Perlman v. United States, 490 F.2d 928, 933 (Ct. Cl. 1974)).
“With freedom of choice as the guiding principle,” courts have held that a

retirement is involuntary where it has been “obtained by agency
misrepresentation[.]” Id. (citations omitted). An objective test applies when
determining if a retirement was obtained by such misrepresentation, and thus, “a
court in applying this test will not inquire into the ‘subjective perceptions of the
employee’ or ‘the subjective intentions of the agency.’” Covington v. Dep’t of

Health & Hum. Servs., 750 F.2d 937, 942 (1984) (quoting Scharf, 710 F.2d at
1575); see also Bergman, 28 Fed. Cl. at 587–88 (“[A]pplication of an objective test
is apposite for claims of government misrepresentation.”). Thus, “there is no
requirement that an employee be intentionally deceived about his employment
options, it being sufficient that ‘the employee shows that a reasonable person
would have been misled by the agency’s statements.’” Covington, 750 F.2d at 942

(quoting Scharf, 710 F.2d at 1575).
To begin, applying an objective standard to the given context, the Court
agrees with Plaintiff that Paragraph 7 of the Decision Memo was misleading. See
id. The misleading nature of Paragraph 7 is even more apparent when it is
considered in conjunction with Paragraph 5, which almost immediately precedes

it. (Doc. 31-12, pp. 9–10); Scharf, 710 F.2d at 1574 (noting that courts must
“examine the surrounding circumstances” in ruling upon whether a retirement was
voluntary). Paragraph 5 informed Plaintiff that, “[s]ince the reason for the action
as stated in the [Decision Memo] involves a question of professional conduct or
competence, you have the right to appeal both of these decisions to the [DAB] and
to request a formal hearing before the [DAB].” (Doc. 31-12, p. 9). Paragraph 5 then

provided detailed information regarding such an appeal, at one point specifically
citing to § 7462. (Id.). Next, Paragraph 6 notified Plaintiff that, upon “[a] finding
that the discharge and revocation of clinical privileges are based on substandard
care, professional misconduct, or professional incompetence, the medical center is
required to file a report with the National Practitioner Data Bank[.]” (Id. at p. 10).

Finally, as discussed above, Paragraph 7 then cautioned Plaintiff as follows:
Should you surrender or voluntarily accept a restriction of
your clinical privileges, or resign or retire from your position
with the [VA] prior to the effective date of your discharge, your
fair hearing and appeal rights regarding privileges will be
limited to a hearing on whether you took such action while
under investigation for professional incompetence,
professional misconduct or substandard care.

(Id.).
The Court finds that, when read in the context of Paragraph 5 above, a
reasonable person would believe that Paragraph 7 pertains to Plaintiff’s previously
referenced appeal and hearing rights before the DAB, and that such rights would
only be limited if Plaintiff “resign[ed] or retire[d] prior to the effective date of [his]
discharge.” (See id. at pp. 9–10 (emphasis added)); see Scharf, 710 F.2d at 1574.
The Court further concludes that a reasonable person would interpret the words
“prior to” as having their ordinary meaning and would be interchangeable with the
term “before.” See Prior To, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/prior%20to (last visited July 15,
2026) (defining “prior to” as meaning “in advance of” or “BEFORE”). Thus
understood, Paragraph 7 appeared to warn that Plaintiff’s fair hearing and appeal

rights would be limited only if Plaintiff retired before his effective date of
discharge, March 29, 2023.14 See id. Consequently, to the extent that this
statement was untrue—because Plaintiff’s decision to retire on March 29, 2023,
affected his appeal rights under the “major adverse action” requirement imposed
by § 7642(a)(1)—Paragraph 7 was materially misleading. See id. Further, Plaintiff

relied upon this misleading provision to his detriment by deciding to retire on the
effective date of his discharge under the misguided belief that this would preserve
his appeal rights. (Doc. 39, p. 12).
More fundamentally, even assuming there exists a satisfactory explanation
for why Paragraph 7 was not materially misleading, the Board Action fails to
connect the DAB’s reasoning to that conclusion. (See generally Doc. 31-13).

Therein, although the DAB addressed various arguments raised by Plaintiff’s Show
Cause Response, it failed to grapple with the gravamen of Plaintiff’s position, and
instead flatly concluded that Paragraph 7 contains “standard language from
OCHCO Templates and is accurate[.]” (Id. at p. 5). The DAB did not further identify
the source of Paragraph 7’s language or explain what that language was meant to

convey. (See id.). Nor did the DAB explain why the fact that Paragraph 7 was

14 It is noteworthy that Paragraph 7 could have cautioned Plaintiff that his fair hearing and
appeal rights would be limited if Plaintiff retired “on or before” his effective date of discharge,
but Paragraph 7 failed to convey such inclusive language.
“standard language from OCHCO Templates” necessarily meant that the language
was not misleading in the given context. (See id.). Instead, the DAB simply applied
§ 7462 in performing its jurisdictional analysis and found that no “major adverse

action” occurred, depriving the DAB of jurisdiction over Plaintiff’s appeal. (See
generally Doc. 31-13).
Finally, in support of its finding that Plaintiff’s retirement was voluntary, the
DAB noted that “[l]egal precedent has long held that just because an employee is
faced with an inherently unpleasant situation . . . does not make his situation any

less voluntary.” (Id. at pp. 5–6). While this is a correct statement of the law, it is
important to note that:
[T]he law also requires that a choice between two alternatives,
however unpleasant, must be understood by the employee
and that such a decision be freely made. . . . A decision made
“with blinders on,” based on misinformation or a lack of
information, cannot be binding as a matter of fundamental
fairness and due process.

Harris, 102 Fed. Cl. at 414–15 (emphasis added) (quoting Covington, 750 F.2d at
942–43). Here, because Paragraph 7 misled Plaintiff as to the consequences of his
retirement on the effective date of his discharge, the record does not support a
finding that Plaintiff’s choice was “freely made.” See id.
Importantly, when applying the arbitrary and capricious standard, the
Court’s review is confined to the rationale articulated by the decisionmaker, and
thus the Court may not supply reasoning that is absent from the decision under
review. Id. at 417 (“The reviewing court should not attempt itself to make up for
such deficiencies; we may not supply a reasoned basis for the agency’s action that
the agency itself has not given.” (quotation omitted)). Here, the DAB failed to
provide the reasoning necessary to support its conclusion, and the Court may not
supply that rationale on the DAB’s behalf. See id. As a result, the Court finds that

the DAB “entirely failed to consider an important aspect of the problem” and
likewise failed to “examine the relevant data and articulate a satisfactory
explanation for its action with a rational connection between the facts found and
the choice made.” Beck, 2015 WL 1202196, at *11 (quoting Defs. of Wildlife, 733
F.3d at 1115); Wolfe, 2020 WL 7408602, at *4 (citing Motor Vehicle Mfrs., 463

U.S. at 43). Accordingly, Defendant’s Motion is due to be denied, and Plaintiff’s
Cross-Motion is due to be granted with the matter remanded to the DAB for further
proceedings.
IV. CONCLUSION
As a result of the foregoing, it is ORDERED AND ADJUDGED as follows:
1. Count I of Plaintiff’s Amended Complaint (Doc. 19, ¶¶ 18–24) is

DISMISSED WITHOUT PREJUDICE.
2. Defendant’s Motion for Summary Judgment (Doc. 31) is FOUND AS
MOOT in part and DENIED IN PART.
a. Defendant’s request for summary judgment as to Count I is
FOUND AS MOOT.

b. Defendant’s request for summary judgment as to Count II is
DENIED.
3. Plaintiffs Cross-Motion for Partial Summary Judgment (Doc. 39) is
GRANTED. The Disciplinary Appeals Board’s finding that it lacks
jurisdiction over Plaintiffs appeal is found to bb UNLAWFUL and is
thus SET ASIDE pursuant to 38 U.S.C. § 7462(f)(2)(A). Accordingly,
this matter is REMANDED to the Disciplinary Appeals Board for
further proceedings consistent with this Order.
4. The Clerk of Court is DIRECTED to close the file.
DONE AND ORDERED in Orlando, Florida on July 23, 2026.

PAUL G.
UNITED STATESM@ISTRICT JUDGE

Copies furnished to:
Counsel of Record
Unrepresented Parties

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11417917. Public record. Not legal advice.