United States Court of Appeals
For the First Circuit
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No. 01-1417
NIKHIL I. PATHAK,
Plaintiff, Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Margaret J. Kravchuk, U.S. Magistrate Judge]
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Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
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Alton C. Stevens, with whom Marden, Dubord, Bernier & Stevens was
on brief for appellant.
Mark W. Pennak, United States Department of Justice, with whom
Stuart E. Schiffer, Acting Assistant Attorney General, Paula Silsby,
United States Attorney, and Marleigh D. Dover, United States Department
of Justice, were on brief for appellee.
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December 19, 2001
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LYNCH, Circuit Judge. Nikhil Pathak, a physician at
the Veterans Administration Medical and Regional Office Center
located in Togus, Maine, was suspended from his position for
seven days as discipline for his sexual harassment of a nurse,
Kathleen Lyons. Lyons's sexual harassment claim was first
investigated when, in 1994, she filed an administrative
complaint, which prompted the Chief of Staff at the Center, Dr.
E. Douglas Holyoke, to investigate the matter. A few months
later, and as a result of this investigation, Dr. Holyoke served
Dr. Pathak with a notice of a proposed fourteen day suspension.
The notice cited fourteen "separate incident[s] of sexual
harassment" that "when taken together . . . show a pattern of
sexual harassment." After Dr. Pathak obtained counsel, and his
counsel filed a legal brief and orally argued his case, John
Sims, the Director of the Center, sustained the charges, but
reduced the proposed fourteen day suspension to seven days.
Dr. Pathak refused to accept the discipline, filed a formal
grievance, and went to a hearing before an impartial grievance
examiner. Following a three day hearing, the grievance examiner issued
a written "Report of Findings and Recommendations," finding that Dr.
Pathak had engaged in sexual harassment and recommending that the seven
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day suspension be sustained. T he Department's Regional Director
accepted the grievance examiner's recommendation and sustained the
suspension.
In addition to her administrative complaint, Kathleen
Lyons brought a lawsuit against both the hospital and Dr. Pathak
alleging sexual harassment and other claims. A Maine jury found
the hospital liable1 because of Dr. Pathak's harassment and
awarded Nurse Lyons $375,000.2
Nonetheless, an unchastened Dr. Pathak filed a lawsuit
in the United States District Court for the District of Maine
seeking to challenge his seven day suspension.3 He sought review
of the administrative suspension, arguing that the decisions of
Center Director Sims, the grievance examiner, and the Regional
Director were all arbitrary, unsupported by substantial
evidence, and not in accordance with law. Pathak also alleged
1 Lyons's other lawsuit for assault against Pathak
resulted in a verdict for Pathak.
2 The jury award was reduced to $300,000 under the Civil Rights
Act of 1991's damages cap, 42 U.S.C. § 1981a(b)(3) (1994). The court
awarded Lyons an additional $83,677.50 in attorney's fees. Lyons v.
Brown, No. 95-0194-B, 2000 U.S. Dist. LEXIS 11620, at *9 (D. Me. July
26, 2000).
3 The parties consented to have any and all district court
proceedings conducted before a magistrate judge. Fed. R. Civ. P.
73(b); 28 U.S.C. § 636(c).
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that Center Director Sims exhibited bias against him when
Director Sims sustained the sexual harassment charges and
imposed the seven day suspension and that this constituted a
violation of due process of law.4 The district court entered
summary judgment on all of Pathak's claims. Pathak v. Dep't of
Veterans Affairs, 130 F. Supp. 2d 140, 150 (D. Me. 2001).
I.
Our review of the district court's grant of summary
judgment is de novo. Thomas v. Eastman Kodak Co., 183 F.3d 38,
47 (1st Cir. 1999), cert. denied, 528 U.S. 1161 (2000).
On Pathak's appeal, the Department of Veterans Affairs
for the first time raises a jurisdictional argument that
Pathak's challenge to the seven day suspension is not subject to
judicial review.5 Pathak responds to the Department's argument
by claiming that jurisdiction does in fact exist, at least as to
his assertion of a violation of his constitutional rights. But,
4 Pathak abandoned his equal protection claim in the district
court, Pathak v. Dep't of Veterans Affairs, 130 F. Supp. 2d 140, 147
(D. Me. 2001), and he has not attempted to resurrect it here.
5 "A challenge to federal subject matter jurisdiction may be
raised at any time, including for the first time on appeal." Halleran
v. Hoffman, 966 F.2d 45, 47 (1st Cir. 1992); see also Fed. R. Civ. P.
12(h)(3) ("Whenever it appears . . . that the court lacks jurisdiction
of the subject matter, the court shall dismiss the action.").
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at best, judicial review would only be available for colorable
constitutional claims, Webster v. Doe, 486 U.S. 592, 603 (1988),
and we agree with the Department that Pathak's constitutional
claims are not even colorable. Accordingly, we agree with the
district court that Pathak's complaint should be dismissed, but
vacate the district court's grant of summary judgment and
instead remand for a dismissal for lack of subject matter
jurisdiction.
II.
Jurisdiction over Pathak's challenge to his seven day
suspension is governed by United States v. Fausto, 484 U.S. 439
(1988). The Fausto Court reasoned that because the Civil
Service Reform Act of 1978 ("CSRA"), Pub. L. No. 95-454, 92
Stat. 1111 (codified as amended in scattered sections of 5
U.S.C.), "established a comprehensive system for reviewing
personnel action taken against federal employees," the Act's
"deliberate exclusion of [nonpreference excepted service
members] . . . from the provisions establishing administrative
and judicial review for personnel action . . . prevents
respondent from seeking judicial review . . . under the Back Pay
Act," 484 U.S. at 455. Fausto stands for the general
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proposition that judicial review is unavailable to a federal
employee who has suffered an adverse personnel action if CSRA
does not provide judicial review. Id. at 447-49, 455.
As a physician appointed to the Veterans Health
Administration under 38 U.S.C. § 7401(1) (1994), Pathak is an
"excepted service" employee. This is because, as a Veterans
Health Administration physician, he is appointed "without regard
to civil-service requirements," id. § 7403(a), and so he is not
in the "competitive service," 5 U.S.C. § 2102 (1994), which
means he is part of the "excepted service," id. § 2103(a). As
a nonpreference eligible member of the excepted service, Pathak
is not entitled to CSRA's protections for competitive service
employees. See id. §§ 7501-7504; C.D. Moore, Personnel Actions
that May Be Challenged, in Federal Civil Service Law and
Procedures: A Basic Guide 3, 4-5 (E.M. Bussey, ed., 2d ed.
1990). Even if Pathak were covered by CSRA's provisions
governing employees suspended for fourteen days or less, these
protections do not provide for judicial review. 5 U.S.C. §§
7501-7504; Fausto, 484 U.S. at 443 ("No provision of the CSRA
gives nonpreference members of the excepted service the right to
. . . judicial review of suspension for misconduct.").
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Accordingly, under Fausto, Pathak cannot obtain judicial review
of his suspension. See 484 U.S. at 447-48.
Because CSRA does not provide Pathak with a right to
judicial review, the logic of Fausto dictates that he cannot go
around CSRA and assert federal jurisdiction by relying upon the
Administrative Procedure Act. See Mann v. Haigh, 120 F.3d 34,
37-38 (4th Cir. 1997) (extending Fausto's analysis to prohibit
APA review of an adverse employment decision). If the result
were otherwise, then Pathak, as a nonpreference excepted
employee, would be entitled to judicial review unavailable to
competitive service employees and preference eligibles. The
result would be the same perverse outcome, rejected in Fausto,
in which excepted service employees received more protection
than competitive service employees who are supposed to be in a
"preferred position." 484 U.S. at 449.
Second, Pathak argues that the specific statutory
provisions governing Veterans Health Administration health
professionals, not CSRA, govern his case. Congress has
established an exclusive disciplinary scheme under 38 U.S.C. §§
7461-7463 for Veterans Health Administration health
professionals. It is under this scheme that Pathak was
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suspended. This scheme explicitly provides for judicial review
of discipline when the discipline is based on the professional
conduct or competence of the physician. 38 U.S.C. § 7462
(1994). The statute, however, defines "[a] question of
professional conduct or competence [a]s a question involving .
. . [d]irect patient care . . . [or c]linical competence." Id.
§ 7461(c)(3). In this instance, it was Dr. Pathak's actions as
an employee and as a supervisor that were at issue, not his
clinical competence or direct patient care. In contrast with §
7462, which provides judicial review of discipline based on
professional conduct or competence, Congress provided no right
of review in § 7463, which governs discipline unrelated to
professional conduct or competence. Congress's express
provision of judicial review in § 7462, coupled with a complete
omission of judicial review in § 7463 -- the provision governing
Pathak -- is "persuasive evidence that Congress deliberately
intended to foreclose further review of such claims." United
States v. Erika, Inc., 456 U.S. 201, 208 (1982), quoted in
Fausto, 484 U.S. at 448.
Although judicial review is not specifically precluded
by § 7463, the court notes that these statutory provisions
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generally offer the Secretary greater discretion in employment-
related decisions (e.g., hiring) regarding § 7401(1) employees
than he would have over other civil servants. With that in
mind, and reviewing these statutes as a whole, it makes sense
that Congress would have precluded judicial review of
suspensions of less than fourteen days for § 7401(1) employees
when employees who are otherwise afforded greater statutory
protection would not be entitled to such review. Because
neither of the relevant statutory schemes provide for judicial
review, Pathak may not rely on the Administrative Procedure Act
as an independent source of review here.6
III.
The final issue is whether Pathak's claim of violation
of due process even rises to the level of a colorable
constitutional claim (or if it does, whether he can survive
summary judgment), in which case this court might have
jurisdiction notwithstanding the statutory bars discussed above,
Webster, 486 U.S. at 603. We conclude that Pathak's
constitutional claim is not even colorable, and so we find it
6 We do not address the issue of whether the APA itself would
exclude this disciplinary action from APA review as a matter affecting
Pathak's "tenure" under 5 U.S.C. § 554 (1994).
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unnecessary to reach Pathak's claim that we have jurisdiction
over his constitutional claim notwithstanding our lack of
jurisdiction over his statutory claims.
The claim is that Center Director Sims violated
Pathak's right to due process by performing both investigatory
and adjudicatory functions. As the district court recognized,
even assuming that Director Sims performed both investigatory
and adjudicatory functions, under Withrow v. Larkin, 421 U.S.
35, 47 (1975), the combination of functions does not alone
violate due process. See O'Brien v. DiGrazia, 544 F.2d 543, 547
(1st Cir. 1976) ("Any per se rule seems foreclosed by
Withrow."); 2 K.C. Davis & R.J. Pierce, Jr., Administrative Law
Treatise § 9.9, at 101 (3d ed. 1994) ("The Supreme Court has
never held a system of combined functions to be a violation of
due process, and it has upheld several such systems."). Parties
advancing due process arguments based on a combination of
investigative and adjudicative functions, and the decision
maker's bias allegedly resulting therefrom, have a very
difficult burden of persuasion to carry. Withrow, 421 U.S. at
47; O'Brien, 544 F.2d at 547. Pathak has not met this burden.
See Pangburn v. Civil Aeronautics Bd., 311 F.2d 349, 356-58 (1st
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Cir. 1962) (rejecting a separation of functions challenge
despite investigatory and adjudicatory overlap more significant
than any overlap here).
What makes Pathak's argument not even colorable is that
even if Center Director Sims were biased, it matters not. No
discipline was imposed until there was an independent
determination by an impartial grievance examiner, which was then
accepted by the Department's Regional Director, that Pathak did
indeed engage in sexual harassment and that his suspension was
warranted. The undisputed evidence is that Dr. Pathak engaged
in at least these actions: on a business trip inviting Nurse
Lyons to his room "to look at the view" late at night (after she
had seen the view by daylight), telling her he loved her at
least twice, telling her that her husband would be flattered to
know that he had some competition, making a comment with the
word "sexual" in it and then giving her a "birthday" hug, and
taking actions against her which could reasonably be viewed as
retaliatory when she was not responsive. That Dr. Pathak views
this as mere cultural differences and not sexual harassment is
beside the point. The independent reviewers had ample basis for
their decision, regardless of the alleged bias of Director Sims.
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The same evidence means that Pathak would lose on the merits of
the summary judgment motion.
IV.
Accordingly, we vacate the district court's judgment
and remand for a dismissal for lack of subject matter
jurisdiction. Costs are awarded to the Department.
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