Pathak v. Department of Veterans Affairs

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.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Margaret J. Kravchuk, U.S. Magistrate Judge]

____________________

Before

Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

____________________

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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