United States Court of Appeals
For the First Circuit
No. 96-1409
JUAN A. DAVILA-LOPES,
Plaintiff, Appellant,
v.
JOSE SOLER ZAPATA, ET AL.,
Defendants, Appellees.
ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on April 17, 1997, is
corrected as follows:
Page 2, second paragraph, line 5, change "appellants" to
"appellees."
United States Court of Appeals
For the First Circuit
No. 96-1409
JUAN A. DAVILA-LOPES,
Plaintiff, Appellant,
v.
JOSE SOLER ZAPATA, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Circuit Judge.
Guillermo Ramos Luina for appellant.
Sigfredo Rodriguez-Isaac, Assistant Solicitor General, Department
of Justice, with whom Carlos Lugo Fiol, Solicitor General, and Edda
Serrano Blasini, Assistant Solicitor General, were on brief for the
Commonwealth of Puerto Rico.
Eli B. Arroyo for appellees Ausberto Alejandro Benitez, Jose M.
Dalmasy Montalvo and Edgar Belmonte.
April 17, 1997
COFFIN, Senior Circuit Judge. This is an appeal by a
physician from a judgment dismissing his 1983 complaint against
officials of a Puerto Rico regional hospital who rejected his
initial application for limited courtesy privileges without
explanation or hearing, in violation of hospital by-laws. It
raises the interesting question whether the hospital's detailed
set of procedural regulations created a property interest
entitling appellant to procedural due process. We conclude that
they did not.
Appellant, a licensed physician, has invoked 42 U.S.C.
1983, claiming that his constitutional right to procedural due
process was violated by defendants, who are various officials
responsible for the operation of the Guayama Area Hospital (the
"Hospital").1 While some of the appellees argued below that no
state action was involved, the argument was only very cursorily
pursued on appeal, without citation to authorities. Since the
Hospital is financed by the Commonwealth, its by-laws were
approved by the Secretary of Health, and its "Governing Body" or
final decider is the Secretary or his Regional Director, we, like
the district court, shall assume that the 1983 prerequisite of
state action is satisfied. Appellant seeks a declaratory
1 There are two groups of defendants-appellees. One
consists of the present and former Secretary of the Department of
Health of the Commonwealth, Regional Director of the Department
for the Southern Region, and Chief Executive Director of the
Guayama Area Hospital. The second consists of the three hospital
officials, Dr. Alejandro and two other doctors, who constituted
the Executive Committee which initiated the action complained of.
Our reference to "the Hospital" will embrace the interests of
all.
-3-
judgment, compensatory and punitive damages, and an injunction
giving him his requested hospital privileges.2
Factual Background
The factual setting is the following. In 1986 appellant
joined the Hospital's regular staff in the Department of Internal
Medicine. In 1987, after some history of difficulties, he was
dismissed from the Medical Faculty of the University charged with
operating the Hospital, and all his privileges were terminated.
Appellant thereupon brought suit in a Commonwealth Superior
Court. That court rendered a judgment on June 7, 1990 that the
Hospital acted on ample grounds, citing some seven reasons
proffered by the Hospital, ranging from appellant not making
rounds when on call, to being tardy or not attending outpatient
clinics, and seeking out intensive care patients who were
insured.
Less than ten months later, on April 29, 1991, appellant
applied anew for Hospital privileges. Not having a contract with
the University, he was eligible for only Courtesy Privileges,
which were reserved for physicians who would not admit more than
2 Appellant mentions in his brief a pendent state claim
which he asserts was improperly and inadvertently included in the
dismissal of the complaint. He asks us, in the event of an
affirmance, to clarify the record to show that the dismissal of
the state claim was for lack of jurisdiction. We see nothing in
the complaint that rises to the dignity of a state claim.
Although at one point it invokes 28 U.S.C. 1367 (concerning
supplemental jurisdiction), the only reference to state law is
found in the prayer for relief from, inter alia, violation "of
the applicable laws of the Commonwealth of Puerto Rico and
regulations." This falls far short of identifying any pendent
state claim.
-4-
fifteen patients for hospital care per year. Thereafter,
appellant faced a period of apparent stonewalling by the
hospital, as he made repeated inquiries as to the status of his
request. Eventually, on November 11, 1991, his request for
privileges was denied by the Regional Director and he sought
review. A hearing of sorts was held on January 17, 1992, at
which appellant was unable to obtain a statement of reasons for
the rejection of his request. Shortly thereafter, appellant was
notified that the decision to reject his application for
privileges had been ratified. On October 23, 1992, appellant
filed his complaint in the present case.
The By-Laws of the Hospital are comprehensive and
procedurally detailed. There are five categories of staff, of
which the Courtesy Staff is one, along with Consulting, Active,
Associate, and Special Associate Staff. (Art. III, Sec. 2)
Appointment of the Courtesy Staff is "through regular Medical
Staff channels." (Art. VIII, Sec. 5) After an applicant
furnishes some fifteen different documents (Art. III, Sec. 3) and
various releases and authorizations (Art. III, Sec. 4),
subsequent steps include a written report by the Department
Chief, deliberation and recommendation by the Executive
Committee, and, in the event of an adverse recommendation, a
hearing before a specially convened hearing committee.
Prior to any hearing, a notice to the practitioner "shall
contain a concise statement of the practitioner's alleged acts or
omissions, including [patient records] or the other reasons or
-5-
subject matter forming the basis for the adverse recommendation."
Provisions governing hearings cover the composition of the panel,
the duties of the moderator, allowance for representation, the
examining and cross examining of witnesses, the introduction of
exhibits, the making of a record, and the filing of written
memoranda. In hearings on most issues, the By-Laws place the
burden on the institutional body to show that the adverse
recommendation was not "arbitrary, irrational or capricious."
But in hearings involving a "Denial of initial appointment to
staff status" (Item 1, Article IV, page 16 of By-Laws) or a
"Denial of requested clinical privileges" (Item 7, Article IV,
page 17 of By-Laws), the By-Laws provide that
it will be the practitioner who shall thereafter be
responsible for supporting by evidence his challenge to
the recommendation or action and shall prevail only if
he establishes by clear and convincing evidence that
the recommendation or action was arbitrary, irrational
or capricious. (Page 26 of By-Laws)
Moreover, in hearings relating to these same items,
the evidence presented by the . . . Executive Committee
in support of its initial determination . . . may
relate to . . . negative judgments of such body
regarding information contained in the practitioner's
application or request, and related references and
documentation to the effect that such materials, for
reasons explained by such body, fail to establish an
acceptable basis for granting the application or
request. Id.
Analysis
It is clear that the process given to appellant did not
follow the steps set forth in the By-Laws. The appellees, like
the district court, relied for the notice requirement of due
process on the appellant's knowledge of the 1987 charges of
-6-
misconduct, as contained in the "Findings of Fact" of the
Commonwealth Superior Court. This would seem to be a shaky
foundation in light of the passage of time, although we note the
entire absence of any indication given by appellant that changes
in his conduct could be expected.
The critical and threshold question is whether appellant's
interest in being given courtesy privileges is "grounded in
substantive legal relationships defined by . . . specific state
or federal rules of law."3 As the Supreme Court explained in
Board of Regents v. Roth, 408 U.S. 564, 577 (1972), to have a
constitutionally protected interest, one must have "more than an
abstract need," one must have "a legitimate claim of
entitlement," "defined by an existing rule or understanding that
stems from an independent source such as state law . . . ." For
example, where rules so defined welfare eligibility that an
applicant had a right to a hearing to attempt to demonstrate that
he was within the statutory definition, this met the above
requirements. See Goldberg v. Kelly, 397 U.S. 254, 268 (1970);
see also Bishop v. Wood, 426 U.S. 341 (1976); Meachum v. Fano,
427 U.S. 215, (1976).
Our own opinion in Lowe v. Scott, 959 F.2d 323, 338 (1st
Cir. 1992), is relied upon by appellant for the proposition that
requirements of adequate process in decisions "affecting"
hospital privileges can create a property interest. Appellant
3 Laurence H. Tribe, American Constitutional Law 677 (2d
ed. 1988).
-7-
overreaches. In that case plaintiff was protesting the
suspension of a staff privilege to supervise nurse midwives. See
id. at 325. When we stated that "[A] state may create the
property interest in privileges directly by imposing the
requirement . . . that all hospitals provide physicians adequate
process in decisions affecting privileges," we were speaking in
the context, made clear by the preceding sentence, of an action
taking away something that had been enjoyed -- i.e. that a public
hospital could create a property interest by "regulations
guaranteeing that these privileges will not be revoked without
cause or a hearing." Id. at 338 (emphasis supplied). This
meaning was reaffirmed when we subsequently referred to the kind
of state law that would be applicable to all hospitals, i.e., a
statute or court decision "requiring that the revocation of
hospital privileges comport with due process." Id. (emphasis
supplied).4
Appellant does not assert that any preexisting status or
privilege was taken from him. Rather, his claim to a property
interest is based on the detailed procedural rules of the By-Laws
of the Hospital, together with what he asserts is such a
4 Similarly, appellant has sought to overextend Hernandez
v. Asociacion Hosp. del Maestro, 106 P.R. Offic. Trans. 96
(1977). Appellant cites it for the proposition that actions by
hospitals that "affect" staff privileges must comply with due
process. But that case involved hospital action in canceling
membership on a hospital's medical staff and summarily suspending
all privileges. See id. at 101. The Puerto Rico Supreme Court
detailed the procedures which were triggered by a suspension or
revocation and concerned itself solely with ascertaining whether
they had been followed. See id. at 106.
-8-
stringent substantive limitation on the Hospital's discretion
that he has "a legitimate claim of entitlement," citing Laborde-
Garciav. PuertoRico TelephoneCo., 993F.2d 265,267 (1stCir. 1993).
The existence of a detailed set of procedural rules is
clearly inadequate to create a constitutionally protected
property right. As Professor Tribe notes, "the existence of a
'careful procedural structure' is not enough," although he
characterizes such an approach as "narrowly formalistic."5 In
Hewitt v. Helms, 459 U.S. 460, 471 (1983), the Supreme Court made
it clear that "a careful procedural structure," without more,
cannot create a constitutionally protected interest, saying
It would be ironic to hold that when a State embarks on
such desirable experimentation it thereby opens the
door to scrutiny by the federal courts, while States
that choose not to adopt such procedural provisions
entirely avoid the strictures of the Due Process
Clause.
The first part of appellant's argument therefore fails.6
This brings us to appellant's last argument, that appellees'
discretion was so limited that appellant could reasonably expect
to obtain the desired status if he could present his case. The
Supreme Court articulated the possibility that where stringent
5 Tribe, supra note 3, at 698.
6 This is not to say that it makes any policy sense to
enact comprehensive rules and then not apply them to those who,
facially, are covered by them. It may be that appellees feared
another lawsuit if they advanced reasons for their refusing to
grant courtesy privileges to appellant. Ironically, their
failure to follow their own rules, however, did not avoid another
lawsuit. But, while state law might command faithful adherence
to an institution's mandatory rules, and result in some remedy or
sanction, violating a procedural rule does not alone accomplish
the creation of a protectible constitutional interest.
-9-
regulations strictly limit state officials' discretion, these
procedures may give rise to a constitutionally protected
interest. See Hewitt, 459 U.S. at 472. In that case, state
statutes governing the placing of prisoners in administrative
segregation limited correction officials' discretion to
situations in which there was "a need for control," "a threat of
a serious disturbance, or a serious threat to the individual or
others," and notices, hearings, investigations, and release
conditions were the subject of mandatory provisions. Id. at 470-
71 n.6. The Court held that "[T]he repeated use of explicit
mandatory language in connection with requiring specific
substantive predicates demands a conclusion that the State has
created a protected liberty interest." Id. at 472.
This is to be contrasted with the situation in Olim v.
Wakinekona, 461 U.S. 238, 249 (1983), where, despite regulations
requiring a hearing before an interstate transfer of an inmate,
the Court held that no state-created liberty interest was created
since the regulations did not impose "substantive limitations on
official discretion." The contours of "substantive limitations"
were discussed in Justice Brennan's concurring opinion in
Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467
(1971), cited with approval by the Olim court, as requiring that
"particularized standards" and "objective and defined criteria"
guide the State's decision makers.
Our own precedents are instructive. In Lombardo v. Meachum,
548 F.2d 13, 15 (1st Cir. 1977), despite prison transfer
-10-
regulations which contained a statement of purpose,
rehabilitation, and a directive to officials to treat inmates
"with the kindness which their obedience, industry and good
conduct merits," we held that no liberty interest had been
created since no significant limitations had been imposed on
officials' discretion in ordering transfers.
Quite a different situation was presented in Laborde-Garcia
v. Puerto Rico Telephone Co., 993 F.2d 265 (1st Cir. 1993). A
telephone employee sought treatment from the State Insurance Fund
within two months after a recent accident. See id. at 266. She
was terminated from her job because the company concluded that
more than twelve months had elapsed since an earlier illness.
See id. The company argued that reinstatement was only an
expectation of reemployment. See id. at 267. However, the
statute required employers to "reserve" an employee's job and
"reinstate" the employee if "no more than 'twelve months' have
"lapse[d] . . . from the date of the accident." Id.
Then Chief Judge Breyer, writing for our court, said:
[T]he workmen's compensation statute so narrows the
government's discretion to refuse to reinstate Ms.
Laborde (during the relevant twelve months) that it
provides her with a 'legitimate claim of entitlement'
to that continued employment. That is to say, local
law's narrowing of the employer's discretion to decide
not to reinstate means that Ms. Laborde could
reasonably have believed, and relied upon her belief,
that local law would likely permit her to remain
employed. Id.
With these strictures in mind, we assess whether the
standards governing the Hospital's extension of privileges are so
particularized, objective, and defined, and also narrow the
-11-
Hospital's discretion so significantly that an applicant in
appellant's position could be reasonably confident that he would
be granted courtesy privileges.
To begin, the substantive standard set forth in the By-Laws
is that decisions must not be made arbitrarily, irrationally, or
capriciously. Contrary to appellant's argument, these words are
not synonymous with "just cause." Decisions could be wrong-
headed, based on false assumptions, overcautious or overzealous,
penny-pinching or open-handed, and exhibit a poor sense of
priorities and yet escape denomination as arbitrary, irrational,
and capricious. Moreover, in cases involving the kind of request
appellant was making, the burden of proving arbitrariness, etc.
had been placed on him. Not only that, but he had the severe
burden of proof by clear and convincing evidence. Finally, the
decision makers were entitled to arrive at a negative judgment
that the materials and information submitted failed "to establish
an acceptable basis for granting the application."
We cannot believe that words of maximum generality and
minimum bite such as "arbitrary, irrational and capricious",
twice and perhaps three times diluted by the shifting of burden,
the heightening of required proof to carry the burden, and the
provision for a catch-all negative judgment of what was
"acceptable," suffice to create a constitutionally protectible
property right that could serve as the basis for compensatory and
punitive damages. Administrative officials generally are held
under administrative procedure acts to a standard free of
-12-
arbitrariness, irrationality, and caprice. See Administrative
Procedure Act, 5 U.S.C.A. 706(2)(A) (West 1996). It cannot be
that an explicit articulation of the same standard changes an
"abstract need or desire" into a protectible right. In short,
their discretion was not so circumscribed that such an interest
was created.
Affirmed. Only the Alejandro appellees are entitled to
costs.7
7 Normally, a successful appellee is entitled to costs. In
this appeal we have found the Commonwealth's brief so unhelpful
that we depart from the usual rule.
-13-
Davila-Lopes v. Soler-Zapata
Combined Opinion