# Hutchinson v. United States Department of Veterans Affairs

> District Court, N.D. Alabama · March 30, 2021

URL: https://www.frixlaw.com/law-library/cases/9990228

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** March 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9990228

## How later opinions describe it (automated extraction)

- applying this presumption to regulations
- applying this presumption to statutes

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

DR. MATTHEW HUTCHINSON )
)
Plaintiff, )
)
vs. ) Case No. 7:19-cv-01168-LSC
)
)
ROBERT WILKIE )
Secretary of Veterans Affairs, )
)
Defendant. )

MEMORANDUM OF OPINION

I. INTRODUCTION

Before the Court are two cross-motions for summary judgment—one filed by
Plaintiff Dr. Matthew Hutchinson (“Hutchinson”) and one filed by Defendant
Robert Wilkie, as Secretary of Veterans Affairs. (Docs. 16, 22.) For the reasons
stated below, Plaintiff’s motion is due to be granted in part and denied in part.
Defendant’s motion is due to be denied in full.
II. BACKGROUND
The following facts are undisputed by the Parties and supported by the record.
Since November 3, 2013, Hutchinson has served as the sole Radiologist for the
Tuscaloosa Veterans Affairs Medical Center, and at times he has served as the Chief
Radiologist. (AR 112.) On December 21, 2016, Hutchinson was found to be “under
the influence of alcohol while on duty.” (AR 001.) The next day, TVAMC

summarily suspended Hutchinson’s clinical privileges pending a further
investigation. (AR 293.)

Following this investigation, TVAMC charged Hutchinson with two
additional infractions: “documenting patient medical reports without clinical
privileges” and “improper documentation.” (AR 01–09.) On May 22, 2017,

TVAMC’s acting chief of staff proposed Hutchinson’s removal and the revocation
of his clinical privileges. (AR 055–065.) TVAMC’s director sustained the proposed
removal on June 20, 2017. (AR 01–09.) Pursuant to the three sustained charges,

TVAMC revoked Hutchinson’s clinical privileges and removed him from federal
employment effective June 26, 2017. (Id.)
On July 19, 2017, Hutchinson requested a hearing before the disciplinary

appeals board (“DAB”) for review of TVAMC’s decision to remove him and revoke
his privileges. (AR 012–119.) Hutchinson did not contest that he was under the
influence of alcohol while at work on December 21, 2016. (AR 1120.) However, the

DAB unanimously rejected TVAMC’s two remaining charges against Hutchinson.
(AR 1121–36.) The DAB specifically found that these two charges “were crafted in
an effort to support eventual removal which Charge 1, based upon the bylaws, would
not.” (AR 1136.) Accordingly, the DAB mitigated Hutchinson’s penalty to a thirty-
day suspension. (AR 1132.)

On February 13, 2018, the Principal Deputy Under Secretary for Health
(“PDUSH”) sustained the DAB’s findings and approved the DAB’s

recommendations. (AR 1137.) Specifically, he ordered TVAMC “to cancel
[Hutchinson’s] removal, and replace it with a 30-day suspension, and return [him]
to duty.” (Id.)

PDUSH also ordered an appropriate amount of back pay and told Hutchinson
to submit any request for attorney’s fees so that PDUSH could make a final
determination “regarding entitlement and an appropriate award.” Id. Hutchinson

timely submitted a request for attorney’s fees to PDUSH on March 16, 2018. (AR
1140.) On January 3, 2019, PDUSH denied Hutchinson’s request because a fee
award would not be “in the interest of justice.” (AR 1198.) PDUSH provided no

further elaboration for his decision. (Id.)
Following PDUSH’s review of the DAB decision, TVAMC re-hired
Hutchinson on February 23, 2018. (AR 1199–20.) However, TVAMC did not return

his clinical privileges because he had “not been in direct patient care in excess of 90
days.” (Id.) On February 7, 2018, TVAMC began advertising an open position for a
new radiologist, and by December 6, 2018, TVAMC had selected two new
individuals for the position of Physician—Chief of Radiology Service. (AR 1248–
1261.) Since re-hiring Hutchinson, TVAMC has never allowed Dr. Hutchinson to

perform radiological duties. (AR 1199-1217.)
III. JURISDICTION

A. Claim One—Attorney’s Fees
Any claimant challenging a “final order or decision of a Disciplinary Appeals
Board (as reviewed by [PDUSH]) may obtain judicial review of the order or

decision.” 38 U.S.C. § 7462. During his review of the Disciplinary Appeals Board’s
final decision, PDUSH denied Hutchinson’s fee petition. Because this fee
determination is part of PDUSH’s final decision, this Court has jurisdiction to

review his denial of Hutchinson’s fee petition under § 7462.
B. Claim Two—Implementation of the DAB decision
The APA allows judicial review of “final agency action for which there is no

other adequate remedy.” 5 U.S.C. § 704. An action is final when it is the
“consummation of agency decision making . . . from which legal consequences
flow.” Bennett v. Spear, 520 U.S. 154, 178 (1997). TVAMC consummated the

Veterans Affairs decision-making process when it interpreted the DAB decision to
require reapplication for clinical privileges. Because TVAMC designated him as an
initial applicant, Hutchinson was unable to appeal TVAMC’s subsequent denial of
clinical privileges. See AR 827 (The “denial of initial clinical privileges does not carry
with it any right to due processes.”). Without a right to appeal, TVAMC’s decision

was unreviewable. Accordingly, it was “final” within the meaning of the APA.
Therefore, 5 U.S.C. § 704 grants this Court jurisdiction to review TVAMC’s

decision.
IV. STANDARD OF REVIEW
Appeals under 38 U.S.C. § 7462(f) and 5 U.S.C. § 704 are subject to similar

standards of review. Under § 7462(f), a court will set aside an agency action found
to be (1) arbitrary or capricious, (2) obtained without procedures required by law, or
(3) unsupported by substantial evidence. 38 U.S.C. § 7462(f). Meanwhile, under the

APA, a court will set aside agency action found to be “unlawfully withheld or
unreasonably delayed” or “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706.

Under the arbitrary and capricious standard, “the scope of review is a narrow
one.” Bowman Transp. Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285
(1974). The reviewing court’s primary consideration is “whether the decision was

based on a consideration of the relevant factors.” Id. Indeed, the agency “must
articulate a ‘rational connection between the facts found and the choice made.’” Id.
(quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
V. DISCUSSION

A. Claim One—Attorney Fees
Under the Back Pay Act, a prevailing employee is entitled to reasonable

attorney’s fees if this fee shifting is “in the interest of justice.” 5 U.S.C. § 7701(g)(1).
To determine whether a payment would be “in the interest of justice,” adjudicators
consider (1) whether the agency engaged in a prohibited personnel practice, (2)

whether the agency action was clearly without merit or wholly unfounded, (3)
whether the agency initiated the action in bad faith, (4) whether the agency
committed a gross procedural error that prolonged the proceeding or severely

prejudiced the employee, and (5) whether the agency knew or should have known
that it would not prevail on the merits when it brought the proceeding. Allen v. U.S.
Postal Serv., 2 M.S.P.R. 420, 436 (M.S.P.B. 1980); See also Torkshire v. Merit Sys.

Prot. Bd., 746 F.2d 1454, 1456 (Fed. Cir. 1984). These factors, known as the Allen
factors, are not exhaustive. Massa v. Dep’t of Def., 833 F.2d 991, 992 (Fed. Cir. 1987).
However, they serve as “directional markers toward defining ‘the interest of

justice’” standard.” Id.
Although these standards give the adjudicator broad discretion, “it is
ordinarily necessary for the adjudicator to provide some sort of explanation for its
action.” AFGE Local 3599 v. E.E.O.C., 920 F.3d 794, 798–800 (Fed. Cir. 2019). If
the adjudicator grants a fee petition, he must make “a specific finding . . . setting

forth the reasons such payment is in the interest of justice.” 5 C.F.R. §
550.807(c)(2). However, even a denial requires some explanation from the

adjudicator—otherwise, a court could not responsibly review the decision for
arbitrariness or capriciousness. See AFGE Local 3599, 920 F.3d at 799.
The Court reprints the entirety of PDUSH’s fee denial below:

The Office of General Counsel (OGC) review of the fee petition in the
above-referenced matter is complete. We are denying a total recovery
of $67,726 for the reason that Mr. Hutchinson was unable to show that
fees and costs should be granted in the interest of justice.

(AR 1198.) Here, PDUSH denied Hutchinson’s fee petition because the award
would not be “in the interest of justice.” PDUSH gave no further explanation. He
did not analyze any of the Allen factors or support his determination with any facts.
This cursory parroting of the statute does not qualify as an “explanation” and
precludes this Court from meaningfully determining whether his denial was arbitrary
or capricious. Indeed, without an explanation from PDUSH, the Court is unable to
tell whether he denied Hutchinson’s petition for a permissible reason or an
impermissible reason.

Therefore, PDUSH’s denial of attorney’s fees is due to be vacated and
remanded so that PDUSH can articulate a “rational connection between the facts
found” and his decision on Hutchinson’s attorney fees in light of the Allen factors.
See Bowman, 419 U.S. at 285.

B. Claim Two—Revocation of Privileges
The DAB can rule on any issue “which arises out of (or which includes) a

question of professional conduct or competence.” 38 U.S.C. § 7462(a). TVAMC’s
removal of Hutchinson’s clinical privileges arose from questions about his
professional conduct—namely his prior alcohol abuse and allegedly improper

documentation (AR 1122–24.) Therefore, the DAB had the ability to rule on any
appeal of TVAMC’s revocation of Hutchinson’s privileges. Indeed, any “due
process proceeding for the revocation of privileges occurs through . . . the

Disciplinary Appeals Board process.” (AR 841.) Thus, the only question is whether
the DAB exercised its authority and required TVAMC to reinstate Hutchinson’s
clinical privileges.

Common principles of language guide this Court’s interpretation of the
DAB’s and PDUSH’s decisions. Courts should presume that documents mean what
their plain language says. See, e.g., Lee v. Flightsafety Serv. Corp., 20 F.3d 428, 433

(11th Cir. 1994) (applying this presumption to regulations); Lowery v. Ala. Power Co.,
483 F.3d 1184, 1199 (11th Cir. 2007) (applying this presumption to statutes); U.S. for
Use and Ben. of Eastern Gulf, Inc. v. Metzger Towing, Inc., 910 F.2d 775, 779 (applying
this presumption to maritime contracts under federal common law). To determine
the plain meaning of a term, courts often turn to dictionary definitions for guidance.

Boyd v. Warden, 856 F.3d 853, 868 (11th Cir. 2017). However, “[t]he meaning of a
statement often turns on the context in which it is made.” United States v. Briggs, 141

S.Ct. 467, 470 (2020) (citing Tyler v. Cain, 533 U.S. 656, 662 (2001)). Indeed, courts
disfavor an interpretation that would render language “meaningless, redundant, or
mere surplusage.” Davis v. Oasis Legal Finance Operating Co., 936 F.3d 1174, 1180

(11th Cir. 2019) (quoting United States v. Canals-Jiminez, 943 .2d 1284, 1287 (11th
Cir. 1991)). See also Antonin Scalia & Bryan Garner, Reading Law: An Interpretation
of Legal Texts 174 (2012) (“If possible, every word and every provision is to be given

effect . . . . None should be ignored.”).
The DAB’s order unambiguously overturns both Hutchinson’s removal and
his revocation. In its decision, the DAB overturned two of TVAMC’s three charges

against Hutchinson. (AR 1132.) The DAB specifically found that these two
overturned charges “were crafted in an effort to support eventual removal which
Charge 1, based upon the bylaws, would not.” (Id.) In the absence of these two

overturned charges, the DAB found “no evidence that the MEC would have
recommended revocation of privileges.” (Id.; see also AR 1051.) Accordingly, the
DAB “recommend[ed] that [Hutchinson’s] penalty be mitigated to [a] 30-day
suspension.” (AR 1132.) The word “penalty” ordinarily means “a type of
punishment . . . that is given to you if you . . . do not follow rules.” Penalty, Cambridge

Online Dictionary, dictionary.cambridge.org/us/dictionary/English/penalty (last
accessed March 29, 2021). TVAMC punished Hutchinson for alleged violations of

the VHA handbook by both revoking his clinical privileges and removing him from
the medical staff. (See AR 840) (“A revocation of privileges requires removal from
. . . the medical staff.”) Thus, both Hutchinson’s removal from the medical staff and

the revocation of his privileges constitute a single, intertwined “penalty.” By
mitigating this penalty to a thirty-day suspension, the DAB impliedly ordered a
reinstatement of Hutchinson’s privileges as well.

The DAB’s comments about the revocation of clinical privileges in section VII
of its decision do not conflict with this interpretation. First, the DAB’s comments
were “solely” for the purpose of determining whether TVAMC’s “revocation of

clinical privileges is reportable to the National Practitioner Data Base.” (AR 1135.)
Because these comments relate solely to TVAMC’s reporting requirements for
Hutchinson’s initial revocation, they have no bearing on the DAB’s subsequent

order. However, to the extent that these comments do provide context for the
DAB’s subsequent order, they support the reinstatement of Hutchinson’s
privileges. Indeed, the DAB found that TVAMC’s revocation of Hutchinson’s
privileges was not based on “substandard care, professional incompetence and
professional misconduct.” (Id.) The absence of this misconduct supports the DAB’s

decision to mitigate Hutchinson’s removal and revocation to a thirty-day
suspension.

PDUSH’s review of the DAB’s decision further supports this interpretation.
PDUSH recognized that Hutchinson framed his appeal as a challenge to both his
“removal and revocation of privileges.” (AR 1137) (emphasis added). In response to

this appeal, PDUSH chose to “execute” the DAB’s decision. (AR 1137.)
Specifically, he (1) cancelled Hutchinson’s removal, (2) replaced it with a thirty-day
suspension, and (3) ordered TVAMC to “return [Hutchinson] to duty.” (Id.)

“Return” commonly means “to restore to a former . . . state.” Return, Merriam
Webster Online Dictionary, Merriam-webster.com/dictionary/return (last accessed
March 29, 2021). Therefore, PDUSH plainly ordered TVAMC to restore the duties

Hutchinson had before his disciplinary hearing—namely, his duties as Chief of
Radiology.
The rest of PDUSH’s order supports this interpretation as well. PDUSH

directed TVAMC to both “cancel [Hutchinson’s] removal” and “return
[Hutchinson] to duty.” (AR 1137.) Because the first order requires TVAMC to
rehire Hutchinson, the second order must provide some additional meaning. The
most straightforward interpretation would require TVAMC not only to rehire
Hutchinson but also to reinstate his privileges and return him to clinical duty. A

second interpretation would require TVAMC not only to rehire Hutchinson, but to
return him to duty as the Chief Radiologist. Either interpretation requires

Hutchinson to have clinical privileges.
Instead of complying with PDUSH’s order, TVAMC has effectively rehired
Hutchinson to a new position. Indeed, when TVAMC revokes a physician’s

privileges, that revocation also requires “removal from . . . employment” or
“reassign[ment] . . . to a position not requiring clinical privileges.” (AR 840.) After
PDUSH’s order requiring TVAMC to cancel Hutchinson’s removal, TVAMC

chose to reassign him to a position that does not require clinical privileges. To
“reassign” someone means “to give someone a different job or position.” Reassign,
Cambridge Online Dictionary, Dictionary.cambridge.org/us/dictionary/reassign

(last accessed March 29, 2021). However, giving Hutchinson a different job violates
PDUSH’s order to “return [him] to duty.” Indeed, Hutchinson has not been on
clinical duty since his appeal, and TVAMC subsequently hired a new chief of

radiology in Hutchinson’s place.
If TVAMC could treat Hutchinson as an initial applicant post-appeal, it could
effectively evade DAB review of any of its adverse privileging decisions. Indeed,
Hutchinson’s appeal took well over ninety days. Therefore, even for a capricious
revocation, TVAMC could simply wait for the DAB’s reversal of its decision, treat

the physician as an initial applicant because the appeal took longer than 90 days, and
then deny the physician’s privileges again—this time giving the physician no right to

appeal.
PDUSH plainly ordered TVAMC to return Hutchinson to his position as a
Radiologist and reinstate his privileges. The context and function of the

administrative appeals process supports this interpretation. Therefore, as to Claim
Two, TVAMC’s motion for summary judgment is due to be denied, and
Hutchinson’s motion for summary judgment is due to be granted.

VI. CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment (doc.
16) is due to be GRANTED in part and DENIED in part. Defendant’s Motion for

Summary Judgment (doc. 22) is due to be DENIED in full. As to Claim One, the
Secretary’s denial of Hutchinson’s fee petition is VACATED and REMANDED to
be reconsidered in accordance with the Court’s memorandum opinion, above. As to

Claim Two, TVAMC is ordered to reinstate Dr. Matthew Hutchinson’s clinical
privileges in accordance with Principal Deputy Under Secretary of Health’s
execution of the Disciplinary Appeal Board’s order. A separate order will be entered.
DONE and ORDERED on March 30, 2021.

L. Scott G
United States Dist¥ét Judge
203171

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9990228. Public record. Not legal advice.