UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JANE DOE, M.D.,

Plaintiff,

v.

STEVEN L. LIEBERMAN, in his official capacity as Acting Principal Under Secretary for Health, Department of Veterans Affairs, Veterans Health Administration, Case No. 20-cv-2148

DISCIPLINARY APPEALS BOARD, Department of Veterans Affairs, Veterans Health Administration, and

EASTERN COLORADO HEALTHCARE SYSTEM, Department of Veterans Affairs, Veterans Health Administration,

Defendants.

MEMORANDUM OPINION

Former Department of Veterans Affairs anesthesiologist Jane Doe challenges the decision

of a Department of Veterans Affairs (“VA”) disciplinary board, following an evidentiary

hearing, to uphold her removal from federal service based on findings of unprofessional

conduct. 1 Dr. Doe assigns various procedural and evidentiary errors to the hearing. She also

contends that the board’s reasoning was flawed and its decision was not supported by sufficient

evidence. The Court rejects all of Doe’s hearing objections save one—that the board did not

adequately explain its exclusion of certain evidence that Doe sought to offer in her defense. The

1 Doe sought and was granted permission to proceed under a pseudonym by the Chief Judge of this Court when she filed this case in August 2020. See ECF No. 4. While this Court harbors some concerns about allowing Doe to remain in that status, the government has not objected. Court will therefore remand the case to enable the board to either explain the exclusion or

reconsider its decision in light of any of the excluded evidence it may now choose to accept with

the benefit of this opinion. The Court will reserve judgment on the sufficiency of the evidence

supporting Doe’s removal pending remand.

I. Background

In March 2015, the VA hired Dr. Doe as a staff anesthesiologist and critical care

physician at its Eastern Colorado Healthcare System (“ECHCS”), a hospital complex in Denver.

Administrative Record (“A.R.”) 181, 1917. In addition to treating patients, Doe supervised

residents from the University of Colorado Medical School who worked at the hospital. See id. at

180.

A. The Agency’s Investigation of Complaints against Doe and Her Proposed Removal

In the fall of 2017, complaints from residents began to emerge about Doe’s patient care,

professionalism, and communications skills. See id. at 231–35. The University responded in

December 2017 by removing her from resident supervision duties pending an internal review.

See id. at 229–30. Around the same time, the chief of the hospital’s anesthesiology department,

Dr. Ian Black, received similar complaints about Doe from numerous colleagues and staff

members. See id. at 816–20. On February 14, 2018, the agency summarily suspended Doe’s

clinical privileges “pending a comprehensive review of the[] allegations.” Id. at 2170. During

the ensuing investigation, the agency interviewed some nine doctors and nurses who had lodged

complaints about Doe or worked with her during the relevant timeframe. See id. at 244–351.

The agency’s Professional Standards Council, consisting of 21 heads of various hospital

services, reviewed the investigation’s findings. See id. at 185, 193. The Council voted to

recommend that Doe’s clinical privileges be permanently revoked. Id. at 193. On July 31, 2018,

2 the chair of the Professional Standards Council, ECHCS Chief of Staff Dr. Ellen Mangione,

drafted a memorandum entitled “Proposed Removal — Title 38 Aggravating & Mitigating

Factors.” Id. at 193, 180–83. The memo discussed the eleven factors that the VA uses to

determine the appropriate penalty to impose following an adverse personnel finding. See id. at

180–83; see also id. at 2986–89 (listing factors in VA handbook). These factors essentially track

the twelve “Douglas factors” used in Title V personnel actions for most other government

employees. See Douglas v. Veterans Admin.,

, 305–06 (M.S.P.B. 1981).

Applying those factors, the memo concluded that removal would be the only adequate sanction.

See A.R. 183.

On August 1, 2018, the agency formally notified Doe of its proposal to remove her from

federal service and permanently revoke her clinical privileges at ECHCS, based on a charge of

“Unprofessional Conduct.”

at 91–92. The charge was supported by eight “specifications” of

inappropriate conduct.

Along with the notification, the agency provided Doe with Dr.

Mangione’s Aggravating & Mitigating Factors memorandum, as well as an evidence file

containing summaries of the investigation interviews noted above and related documentation.

See id. at 93, 180–83, 206–358. Doe submitted a written response two weeks later. See id. at

125–45.

B. Initial Decision

On August 20, 2018, the agency’s deciding official, ECHCS Director Sallie Houser-

Hanfelder, upheld five of the eight specifications of misconduct and the overall charge of

unprofessional conduct. 2 Id. at 101, 103. She also upheld Doe’s proposed removal from

2 Both Ms. Houser-Hanfelder and the proposing official, Dr. Mangione, have since retired from the agency. See A.R. 472, 2371.

3 employment and the revocation of her clinical privileges. Id. at 101. Her decision expressly

incorporated the analysis in Dr. Mangione’s Aggravating & Mitigating Factors memorandum.

Id. The sustained Specifications were numbered 1, 2, 4, 5, and 8. Id.

Specification 1 alleged that:

On February 9, 2018, during a parathyroidectomy procedure on patient C2171, you placed an arterial line without appropriate evaluation and assessment, without confirming through additional readings or physical exam the patient’s vital signs, and without appropriate communication with other staff.

Id. at 91.

Specification 2 alleged that:

On February 7, 2018, during a procedure on patient S8826 involving excision of a pilonidal sinus and left scrotal mass, you removed an inflated endotracheal tube without allowing for evaluation of placement prior to doing so, and you administered medications without appropriate communication and coordination with the CRNA.

Id.

Specification 4 alleged that:

On January 29, 2018, during an endoscopic retrograde cholangiopancreatography (ERCP) procedure on patient W0436, you entered the room where fluoroscopy was in use without lead protection, and you demanded that the fluoroscopy be ceased during the procedure. The reason you entered the room involved another case.

Id.

Specification 5 alleged that:

On November 3, 2017, during a left cubital tunnel release on patient T330 I, you were distracted by a conversation on your cell phone involving an unrelated matter. Due to your distraction, you were unprepared to address the patient’s discomfort, and you were unaware of the surgeon’s progress on the case.

Id. at 91–92.

4 And Specification 8 alleged that:

Between on or about May 1, 2016 and on or about December 1, 2017, while serving as an attending anesthesiologist, you were unprofessional in your interactions with residents from the University of Colorado Anesthesiology Residency Program. Specifically, you were difficult to reach or not present during key parts of patient care, and you provided inadequate supervision and guidance to anesthesiology residents. You also displayed a lack of effective, respectful, and professional communication with residents before, during, and after cases.

Id. at 92.

C. Disciplinary Appeals Board Decision

Doe administratively appealed the hospital’s initial decision, and the agency appointed a

Disciplinary Appeals Board (“DAB”) to consider the appeal. Id. at 5. Prior to the hearing, the

parties exchanged witness lists and objections to proposed evidentiary submissions. As relevant

here, the DAB Chairperson Dr. Yasser Sakawi, Chief of Anesthesiology at another VA medical

center, id., prohibited Doe from introducing a supplemental evidence file containing various

records regarding her past performance, as well as evidence that Doe intended to use to show

bias on behalf of testifying witnesses at the hearing. See id. at 649, 982. The record is silent as

to the reason for this exclusion. See, e.g., id. at 649 (summarily stating that “the board re-iterates

that testimony from other proceedings . . . or other sworn depositions will not be considered); id.

at 982 (“None of those additional records will be considered . . . .”); id. at 1901 (“[Y]ou’re not

allowed to ask . . . about anything that does not exist in the [ECHCS] evidence file.”). The DAB

also did not permit Doe to offer Dr. John Ziegler, a former Chief of Anesthesiology at the Salt

Lake City VA Medical Center, as an expert in her defense. See id. at 499, 638. The DAB Chair

found no need for any expertise in addition to that possessed by the Board, adding that the

agency was not putting on a competing expert witness. See id. at 638 (“The Chairperson will not

allow an expert witness as the chairperson considers himself an expert in the field of

5 anesthesiology.”); id. at 1799–1800 (stating the same in response to a request from Doe’s

counsel). Dr. Ziegler was nevertheless allowed to testify as a lay witness. See id. at 1888–1911

(Dr. Ziegler’s testimony). The DAB evidence file included Doe’s prior responses, statements

from various ECHCS and VA employees, and the evidence file provided to her before the initial

decision. See Index to A.R. 1–3.

Following a hearing in which Doe was able to present evidence, cross-examine witnesses,

lodge objections, and testify on her own behalf, the DAB issued its decision on January 15, 2020.

See A.R. 974–2168 (hearing transcript). The DAB upheld the charge of “Unprofessional

Conduct,” the same underlying specifications as the initial decision, and the penalty of removal.

See id. at 965–71 (DAB decision). The decision discussed the relevant evidence and penalty

factors at length. See id. at 966–70.

D. Doe’s Collateral Complaints

Meanwhile, as the hospital’s investigation and administrative process played out, Doe

lodged two administrative complaints concerning working conditions at the hospital. In

February 2018, she filed a complaint with the agency’s Equal Employment Opportunity office

stemming from a verbal altercation with a fellow doctor over Doe’s treatment of a patient. See

id. at 2492; Defs.’ Answer ¶ 25 (ECF No. 19). And in October 2018, she filed a whistleblower

claim with the Merit Systems Protection Board (MSPB). See A.R. 461–65. That claim alleged

that the hospital’s system for scheduling anesthesiology staff was “fraudulent,” that her

colleagues were providing substandard care, and that Doe had been retaliated against for raising

these concerns. Id. Both claims remained pending as of the briefing in this case. See Defs.’

Mem. in Supp. of Cross-Mot. for Summ. J. (“Defs.’ Mot.”) at 8 (ECF No. 24-1). They are

relevant here only because Doe attempted to introduce evidence about or from these collateral

6 proceedings to show bias or improper motivation on the part of witnesses who testified before

the DAB. See, e.g., A.R. 729–30, 873–75.

E. The Current Suit

After the DAB issued its decision, Doe brought suit in this Court against ECHCS, the

DAB, and a VA official in charge of the Veterans Health Administration. Originally proceeding

pro se, she filed a verified complaint on August 4, 2020, followed closely by a request for a

temporary restraining order and preliminary injunction, seeking to prevent the VA from

reporting any adverse action to the National Practitioner Data Bank, a government database of

adverse actions against health care providers. See Compl. (ECF No. 1); Pl.’s Mot. for TRO and

Prelim. Inj. at 2 (ECF No. 5-1). After retaining counsel, Doe withdrew her request for

preliminary relief and the Court set a schedule for Doe to amend her complaint and for the

parties to brief summary judgment. See ECF No. 14; Oct. 6, 2020 Scheduling Order. Both sides

have now cross-moved for summary judgment, and the motions are ripe.

In her summary judgment motion, Doe argues that the DAB’s decision should be set

aside for legal and evidentiary insufficiency. In particular, Doe argues that the DAB’s decision

failed to consider relevant evidence, violated the standards for lawful administrative action in

(f), did not comply with internal VA directives, denied her due process, and was

not supported by substantial evidence. See Pl.’s Mem. in Supp. of Mot. for Summ. J. (“Pl.’s

Mot.”) at 7–28, 39–45 (ECF No. 21-2). Doe further alleges that the DAB failed to properly

apply the relevant penalty factors when evaluating whether to remove her. See

at 28–39. The

agency asks the Court to uphold the DAB decision in full.

7 II. Legal Standards

Doe contends that the DAB’s decision should be set aside because it violates both her

constitutional right to procedural due process and the statutory standards governing adverse

employment determinations for VA physicians.

The Fifth Amendment guarantees that the government will not deprive citizens of any

property without due process of law. See U.S. Const. amend. V. Because “property” in this

context can include government employment, the Supreme Court has recognized that tenured

government employees are generally entitled to due process protections, including notice and a

hearing, prior to termination. Cleveland Bd. of Educ. v. Loudermill,

, 538–39, 542

(1985). But the Fifth Amendment “only requires that a person receive his ‘due’ process, not

every procedural device that [s]he may claim or desire.” Johnson v. United States,

(D.C. Cir. 1980). Rather, “[t]he precise form of notice and the precise kind of hearing

required depends upon a balancing of the competing public and private interests involved, as

defined by the now familiar Mathews factors: (1) the private interest affected by the government

action; (2) the risk of erroneous deprivation and the value of additional safeguards; and (3) the

government’s interest, including the fiscal and financial burdens that additional or substitute

procedural requirements would entail.” Propert v. District of Columbia,

(D.C. Cir. 1991) (citing Mathews v. Eldridge,

(1976)). Thus, in the public

employment context, a hearing, “though necessary, need not be elaborate.” Loudermill,

. At base, “[t]he tenured public employee is entitled to oral or written notice of the charges

against him, an explanation of the employer’s evidence, and an opportunity to present his side of

the story.”

.

8 Beyond these constitutional constraints, the terms and conditions of the employment of

VA doctors are governed by Title 38 of the U.S. Code. As relevant here,

(f)

permits VA doctors to seek judicial review of DAB decisions. The applicable standards of

review mirror those of the Administrative Procedure Act (“APA”): The reviewing court must

“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.”

(f)(2); see also

Abaqueta v. United States,

(D. Ariz. 2003) (noting applicability of

general administrative law standard of review and precedent); Rajan v. Principi,

, 263 n.1 (9th Cir. 2004) (same).

A “fundamental rule of administrative law” is that a court reviewing an agency’s decision

“must judge the propriety of [the agency] action solely by the grounds invoked by the agency.”

SEC v. Chenery Corp.,

(1947). Judicial review therefore “is to be based on

the full administrative record that was before the [agency] at the time [it] made [its] decision.”

Citizens to Preserve Overton Park, Inc. v. Volpe,

(1971).

When considering whether the agency’s decision was “arbitrary or capricious,” the

“standard of review is a highly deferential one, which presumes the agency’s action to be valid.”

Env’t Def. Fund, Inc. v. Costle,

(D.C. Cir. 1981) (citation omitted). In

applying this “narrow” review, a court may not “substitute its judgment for that of the agency,”

but instead should ask only “whether the [agency’s] decision was based on a consideration of the

relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve

Overton Park,

.

9 Similarly, when reviewing an agency’s findings of fact, the Court “is limited to whether

those findings are supported by substantial evidence.” Brown v. Colvin,

(D.D.C. 2016) (quoting Broyles v. Astrue,

(D.D.C. 2012)).

“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.”

(internal quotation marks omitted). The substantial evidence standard

requires “more than a scintilla, but can be satisfied by something less than a preponderance of

evidence.”

The question is not if the plaintiff’s view of the facts supports her version of

what transpired, but rather if the agency’s interpretation is “reasonably defensible.” J.A. Jones

Mgmt. Servs. v. FAA,

(D.C. Cir. 2000) (quoting Harter Tomato Prods. Co. v.

NLRB,

(D.C. Cir. 1998)).

III. Analysis

Doe raises several procedural objections to her DAB hearing, under both the Due Process

Clause and

(f)(2). She also attacks the decision the DAB reached, contending

that the Board failed to properly consider the relevant factors for upholding the penalty against

her, and that its conclusion was not supported by substantial evidence. For reasons explained

below, the Court finds for the agency on all of Doe’s procedural challenges save one: her

objection to the exclusion of certain supplemental exhibits. Because the DAB failed to explain

this exclusion, the Court will remand this matter to the agency to enable the DAB to provide

such an explanation. The Court will reserve judgment on the propriety of the DAB’s reasoning

and the evidentiary sufficiency of its decision until remand is complete.

A. Challenges to the Pre-Hearing Notice

Doe alleges that the DAB process failed to provide her with full notice of the allegations

against her and the evidence supporting them, in violation of her right to due process and a

10 directive in the VA Handbook governing pre-termination procedures. See Pl.’s Mot. at 18–21;

see id. at 26 (discussing VA Directive 5021/9, see A.R. 2960). In particular, she faults the

agency for failing to give her adequate notice of testimony and allegations by Certified

Registered Nurse Anesthetists (“CRNAs”) Timothy Christie and Sarah Fredriksson, Doctors Ian

Black, Rajshri Bolson, Daniel Beck, and Melanie Torres, and various “unnamed anesthesiology

residents.” See, e.g., Pl.’s Resp. and Reply at 19–22 (ECF No. 25). The Court finds these

objections to be without merit, as the agency gave Doe more than adequate notice of all the

materials under consideration.

As an initial matter, the Court agrees that Doe was entitled to the due process protections

laid out in Loudermill,

. Prior to the disciplinary action under review, Doe was

an active, full-time, permanent employee of the VA. See Amend. Compl. ¶ 57 (ECF No. 18);

Defs.’ Answer ¶ 57. By its plain terms, the DAB decision removed Doe from that federal

service. 3 See A.R. 971. Because federal employment is a well-established property interest, 4 the

3 At times the DAB decision indicated that its determinations were “made solely for the purpose of determining whether the revocation of clinical privileges by the Medical Center Director is reportable to the National Practitioner Data Bank.” A.R. 971. However, the DAB also stated that it was upholding the penalty of removal from federal service, and the letter accompanying the decision stated likewise. See

at 971–72. The Court also notes that the agency does not contest that Doe has some property right affected by the DAB’s decision (and thus that she would be entitled to due process protections under the Fifth Amendment). 4 At points, Doe argues that she also has a liberty interest in her professional reputation. See Pl.’s Mot. at 8–9. But she does not explain why, given her property interest in her employment, any liberty interest would entitle her to additional process. To the extent Doe is attempting to make out a “stigma-plus” or “reputation-plus” claim, the Court notes that the typical remedy for such claims is a “name-clearing hearing” in which the party is permitted to present evidence rebutting negative information. See McCormick v. District of Columbia,

, 67–69 (D.D.C. 2012), aff’d,

(D.C. Cir. 2014) (finding that agency post-termination procedures provided sufficient process and defeated due process claim for further name-clearing hearing). But Doe has not made any argument that the DAB hearing did not fulfill that role to the extent that it complies with the general dictates of due process.

11 DAB could not deprive her of it without due process of law. See Loudermill, 407 U.S. at 538–

39.

Notice is a cornerstone of due process. “The Due Process Clause and the APA require

that an agency setting a matter for hearing provide parties with adequate notice of the issues that

would be considered, and ultimately resolved, at that hearing.” Pub. Serv. Comm’n of Ky. v.

FERC,

(D.C. Cir. 2005) (Roberts, J.) (internal quotation marks omitted).

As with due process generally, notice has no “technical conception,” but focuses instead on

giving individuals a fair opportunity to respond to the allegations in advance of the hearing. See

Ralls Corp. v. Comm. on Foreign Inv. in U.S.,

, 317–18 (D.C. Cir. 2014); see also

English v. District of Columbia,

(D.D.C. 2011), aff’d,

(D.C. Cir. 2013) (“[T]he nature of that notice . . . is flexible.”).

While Doe complains that she was blindsided by several specific allegations raised in the

DAB hearing, it is clear from the record that she had notice of all of the allegations before the

hearing, and even before the initial revocation of her clinical privileges on August 20, 2018.

Prior to the initial decision, ECHCS leadership sent Doe the specifications underlying the charge

of unprofessional conduct, the Aggravating & Mitigating Factors memorandum analyzing her

performance and reviewing the evidence the agency had compiled and intended to rely on, and a

file containing that evidence. See A.R. 91–94, 180–83, 206–358. Doe submitted a written

response to these documents and the proposed removal on August 14, 2018. See id. at 125–45.

That response confronted the allegations of misconduct specification-by-specification and

discussed her interactions with several of the named witnesses noted above. See, e.g., id. at 126–

28 (discussing Specification 1 and CRNA Christie); id. at 128–31 (discussing Specification 2 and

CRNA Fredriksson); id. at 133–34 (discussing Specification 5 and Dr. Bolson).

12 Doe contends that this notice was nevertheless inadequate because, in her view, the

DAB’s final decision improperly relied on general comments by those witnesses about her work

and demeanor, even as the charge document’s specifications gave her notice of their allegations

of particular unprofessional behavior. See Pl.’s Mot. at 19–20. But the Aggravating &

Mitigating Factors memorandum also provided to Doe before the DAB hearing pointed to “other

background documentation in the evidence file” demonstrating “a long-standing pattern going

well beyond the individual charged events.” A.R. 180. In fact, for every statement in the DAB’s

decision with which Doe quibbles, there is a substantially similar allegation in the pre-hearing

evidentiary file—in many cases from the same individual ultimately cited in the DAB’s final

report. See, e.g., id. at 241–42 (CRNA Christie complaints referencing “ongoing issue[s]”); id.

at 253 (CRNA Fredriksson email noting general concerns); id. at 304 (Dr. Bolson statement

evaluating “many interactions”); id. at 232–35 (cataloguing resident complaints); id. at 339–42

(noting dissatisfaction among other staff members). Doe’s initial written response even

addresses such a “general allegation” from Dr. Bolson, id. at 133, “further demonstrat[ing] that

[s]he understood the nature of the charges against [her],” Alvarado v. Dep’t of Air Force,

, 393 (M.S.P.B. 2004). To the extent Doe challenges the Board’s reliance on

opinion evidence speaking to incidents beyond the scope of the relevant specifications, that

objection goes to the proper weight to accord this testimony, not the adequacy of any notice. 5

5 The court notes that the weighing of the evidence is generally a question on which the DAB is entitled to great deference. See J.A. Jones Mgmt. Servs.,

. But because it remands on other procedural grounds, the Court does not resolve this issue here. See infra III.C.6.

13 B. Challenges to the Conduct of the DAB Proceedings

Doe raises two objections to the DAB’s taking of evidence at her 2019 hearing: to the

exclusion of certain supplemental exhibits and expert testimony and to the denial of her request

to cross-examine witnesses. The Court sustains a portion of this first challenge, but otherwise

finds that the DAB’s proceedings comported with both constitutional and statutory requirements.

The Court takes Doe’s challenges in turn.

1. Evidentiary Challenges

Doe objects to the DAB’s decisions to exclude certain supplemental evidence, preclude

her from impeaching witnesses with prior sworn testimony from collateral proceedings, and

prevent her from offering expert testimony at the hearing. She contends that these exclusions

violated her due process rights and were “arbitrary, capricious, [or] an abuse of discretion” under

(f). See Pl.’s Mot. at 14, 41–43.

The Court finds that the DAB’s failure to explain its evidentiary decisions regarding

Doe’s supplemental exhibits and introduction of prior sworn testimony requires remand under

the statutory standards applicable to agency adjudications. As a result, the Court need not reach

the question of whether the DAB’s actions on that front were also constitutionally infirm.

However, the Court reaches a different conclusion with respect to Doe’s offer of expert

testimony before the Board. As to that objection, the Court finds that the DAB’s decision to

reject this testimony violated neither its statutory nor its constitutional obligations.

a. Legal principles

The APA, 5 U.SC. § 556(d), provides that, in agency adjudications,

Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party

14 and supported by and in accordance with the reliable, probative, and substantial evidence. 6

As such, agencies have broad discretion when it comes to what evidence they may admit or

exclude from their proceedings. See, e.g., EchoStar Commc’ns Corp. v. FCC,

(D.C. Cir. 2002); Nat’l Airlines, Inc. v. CAB,

(D.C. Cir. 1963). The Federal

Rules of Evidence do not apply, though they often play a background role in informing agency

decisions on evidentiary matters. See, e.g., FTC v. Cement Inst.,

, 705–06 (1948).

Although agencies have broad discretion on this front, they should generally consider

admitting any relevant evidence unless it violates some policy or procedure or it is, for example,

repetitive. See Atlas Copco, Inc. v. EPA,

, 466–67 (D.C. Cir. 1979);

(d). This is, in some ways, just an application of the more general principle that failure to

consider an “important aspect” of the problem may render an agency’s decision arbitrary,

whether in rulemaking or adjudication. See, e.g., Morall v. DEA,

(D.C. Cir.

2005) (holding “decision does not withstand review because the agency decisionmaker entirely

ignored relevant evidence”); El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of

Health & Human Servs.,

, 1276–78 (D.C. Cir. 2005) (finding agency action

arbitrary and capricious in failing to address relevant evidence before it); Lakeland Bus Lines v.

NLRB,

(D.C. Cir. 2003) (finding decision not supported because agency did

not consider contradictory evidence); Robinson v. NTSB,

, 215–216 (D.C. Cir. 1994)

(noting that agency may not ignore testimony bearing on critical fact in case).

6 The parties agree that the APA and precedents interpreting the APA supply the relevant principles. See Pl.’s Mot. at 7 (citing Abaqueta,

); Defs.’ Mot. at 10 (citing Rajan,

n.1).

15 Agencies are thus generally under an obligation to explain why relevant evidence should

not be admitted. As the D.C. Circuit has emphasized, “[o]ne of the most important safeguards of

the rights of litigants . . . in proceedings before an administrative agency vested with discretion[]

is that it cannot rightly exclude from consideration facts and circumstances relevant to its inquiry

which upon due consideration may be persuasive weight in the exercise of its discretion.” Atlas

Copco, Inc.,

(citation omitted). And when such relevant, potentially probative

evidence is proffered, “[i]n the absence of supporting justification,” a “blanket evidentiary

exclusion is unreasonable.”

An agency’s failure to provide such a justification may render

the exclusion arbitrary. See Pension Benefit Guar. Corp. v. LTV Corp.,

(1990) (explaining that agency must “take whatever steps it needs to provide an explanation that

will enable the court to evaluate the agency’s rationale at the time of decision”); Pub. Citizen,

Inc. v. FAA,

(D.C. Cir. 1993) (noting that “[t]he requirement that agency

action not be arbitrary and capricious includes a requirement that the agency adequately explain

its result”). As noted elsewhere, this Court is limited to considering the justifications offered by

the administrative body when evaluating the reasonability of its decisions. See IMS, P.C. v.

Alvarez,

, 623–24 (D.C. Cir. 1997).

b. Analysis

i. Documentary evidence and prior testimony

Doe argues that the agency improperly excluded certain exhibits she wished to offer into

evidence or use to impeach witnesses called at the DAB hearing. That additional evidence,

amounting to some 280 pages, included documents purportedly relevant to Doe’s claim that

dysfunction and hostility were widespread in the hospital’s anesthesiology department; emails

from DAB witnesses in which they discuss Doe and, she claims, exhibit bias against her; various

16 positive evaluations of Doe’s performance; and an assortment of other evidence Doe claims was

inconsistent either with specific testimony offered by witnesses at the hearing or the penalty

imposed. See A.R. 669–948. Doe also argues that the agency improperly prevented her from

introducing prior sworn––and she says inconsistent––testimony given by DAB witnesses in other

proceedings. See, e.g., id. at 2655.

With respect to this material, the Court agrees with Doe on her statutory claim. 7 The

summary exclusion of Doe’s additional documentary and impeachment evidence violated

established principles of agency adjudication because the materials were at least arguably

relevant and the DAB failed to give any reason justifying the exclusion.

As to relevance, portions of the supplemental evidence file appear to speak to each of the

specifications underlying the charge. The following three examples are illustrative. First, Doe

alleges that her supplemental evidence would have shown bias by testifying witnesses and that

the complaints against her were improperly motivated. For example, Doe argues that the

excluded evidence would have given her a basis to impeach the testimony of Dr. Beck for his

role in the alleged “post-call” scandal. See Pl.’s Mot. at 13 (discussing A.R. 882–98). The DAB

relied on Dr. Beck’s testimony in its final decision on Specification 8. See A.R. 968. But the

evidence Doe wished to use to impeach him was excluded and the DAB elsewhere made clear

that no such evidence could be used as the basis for a question. See id. at 1901 (“[Y]ou’re not

allowed to ask . . . about anything that does not exist in the [ECHCS] evidence file.”). Doe has

7 Because DAB’s failure to explain its evidentiary decision requires remand under the relevant statutory standards, the Court need not reach the question of whether the DAB’s actions on that front were also constitutionally infirm. However, given the great discretion accorded to agencies on both evidentiary matters and hearing procedures more generally, the Court doubts that any due process violation would lie absent a statutory violation.

17 similar complaints regarding Dr. Black and Dr. Barnett, whose testimony the DAB relied on in

Specifications 1 and 8. See id. at 966–68. Second, Doe’s excluded evidence would have

included peer references, previous performance reviews, and case reviews ECHCS had ordered

from the Chief of Anesthesiology at the Miami VA, which found Doe did not violate the

standard of care. See id. at 695–715, 796–814, 832–57. These reflected well on Doe and were

potentially relevant to assessing both the specifications and the penalty factors relating to her

past performance. See id. at 965–70. And third, the prior testimony Doe wished to introduce

from CRNA Fredriksson and Dr. Black, to the extent it was inconsistent with their hearing

testimony, may have spoken to the credibility of those witnesses, both of whom the DAB relied

on in sustaining the charge. See id.

The agency does not contest that the DAB offered no reason for the exclusion of Doe’s

supplemental evidence. And the Court’s own read of the record reveals none. See, e.g., id. at

649 (summarily stating that “testimony from other proceedings such as MSPB hearings or other

sworn depositions will not be considered); id. at 982–83 (“None of those additional records will

be considered . . . .”); id. at 1901 (“[Y]ou’re not allowed to ask . . . about anything that does not

exist in the [ECHCS] evidence file.”). Instead, the agency argues that the DAB was nonetheless

justified in excluding the evidence primarily because it concerned matters over which the DAB

lacked jurisdiction or was generated in non-DAB proceedings. See Defs.’ Mot. at 13; see also

Lerner v. Shinseki, No. 12-cv-565,

, at *12 (W.D. Ky. Apr. 24, 2013) (holding

that the court lacked jurisdiction over the plaintiff’s claims for relief against the VA predicated

on whistleblowing activities). That may well have been the Chairman’s reasoning. 8 But the

8 Because they did not come from the DAB in the first instance, the Court declines to decide whether the government’s proffered justifications would have passed muster. It will note,

18 Court cannot treat the agency’s new justifications as if they came from the DAB. See Citizens to

Preserve Overton Park,

.

“[I]f the reviewing court simply cannot evaluate the challenged agency action on the

basis of the record before it, the proper course, except in rare circumstances, is to remand to the

agency for additional investigation or explanation.” Fla. Power & Light Co. v. Lorion,

(1985). Because the DAB failed to give any explanation for the exclusion of Doe’s

supplemental evidence file or the prior sworn testimony, the DAB’s decision “cross[es] the line

from the tolerably terse to the intolerably mute.” Greater Bos. Television Corp. v. FCC,

(D.C. Cir. 1970); see also AT&T Wireless Servs., Inc. v. FCC,

(D.C. Cir. 2001) (“Conclusory explanations for matters involving a central factual dispute where

there is considerable evidence in conflict do not suffice to meet the deferential standards of our

review.”). The Court will thus remand this matter to the DAB to either explain these exclusions

or reconsider them in light of the Court’s ruling. 9

however, that whether the DAB lacked jurisdiction over Doe’s collateral proceedings is a separate question from whether evidence developed during those proceedings was relevant and otherwise admissible in the DAB hearing. Courts routinely admit evidence from proceedings in other jurisdictions for the purpose of demonstrating such things as witness bias and testimonial inconsistency. See, e.g., Fed. R. Evid. 613 (not limiting the admission of prior inconsistent statements to statements made in the case at bar). 9 The Court notes that any explanation given on remand need not be extensive; a plain statement may suffice. See Bush–Quayle ’92 Primary Comm., Inc. v. FEC,

(D.C. Cir. 1997) (“We may permit agency action to stand without elaborate explanation where distinctions between the case under review and the asserted precedent are so plain that no inconsistency appears.”); Common Cause v. FEC,

(D.C. Cir. 1990) (noting that “a decision of less than ideal clarity must still be upheld so long as the agency’s path may reasonably be discerned” (internal quotation marks omitted)).

19 ii. Expert testimony

The Court reaches a different result with respect to the DAB’s decision to preclude Dr.

John Ziegler from testifying as an expert for Doe regarding patient care, academic contracts with

the VA, and the proper penalty. See A.R. 638, 642–43. Importantly, Dr. Ziegler was still

permitted to––and did––testify without being qualified as an expert. See

at 1888–1911 (Dr.

Ziegler’s testimony). Doe nevertheless urges remand on this point, too, claiming that the DAB’s

choice to consider Dr. Ziegler only as a lay witness violated principles of due process and

administrative law. See Pl.’s Mot. at 14–15. The agency retorts that Dr. Ziegler’s expert

testimony was neither relevant nor necessary to aid the trier of fact, and so was properly

excluded. See Defs.’ Mot. at 19–20. The agency has the better of this argument.

The DAB’s exclusion of expert testimony from Dr. Ziegler was not arbitrary or

capricious because the Board’s Chairman explained his decision, and that explanation was

sufficient under this Court’s deferential standard of review. As explained above, agencies must

provide a “supporting justification” for decisions excluding evidence that may be relevant and

persuasive. Atlas Copco, Inc., 642 F.2d at 466–67. Here—in contrast to its silence with respect

to Doe’s additional documentary evidence—the DAB did so. The DAB Chairperson explained

that, because he served as an Anesthesiology Chief in another VA hospital, the Board possessed

sufficient expertise in the subjects upon which Dr. Ziegler would testify and thus did not need his

assistance. See A.R. 638 (“The Chairperson will not allow an expert witness as the chairperson

considers himself an expert in the field of anesthesiology.”);

at 1799–800 (stating the same in

response to a request from Doe’s counsel).

That explanation is sufficient. Even in formal court proceedings, expert testimony is

generally excludable if it will not aid the trier of fact. See Fed. R. Evid. 702(a). Doe argues that

20 Dr. Ziegler’s expert testimony was necessary to help the DAB establish an “objective standard”

against which Doe’s conduct could be judged. Pl.’s Mot. at 24; see also

at 14–15 (citing

Niam v. Ashcroft,

(7th Cir. 2004), for proposition that “spirit” of Rule 702

should govern administrative proceedings). However, as explained below, the standard here was

sufficiently clear. See infra III.C.1. Further, an agency decisionmaker is generally permitted to

rely on its own expertise when deciding matters within that field. See, e.g., Sabine River Auth.

v. U.S. Dep’t of Interior,

, 678 (5th Cir. 1992) (“The agency may even rely on the

opinions of its own experts, so long as the experts are qualified and express a reasonable

opinion.”); Chem. Weapons Working Grp. v. U.S. Dep’t of Def.,

(D.D.C.

2009). Doe does not dispute that the DAB chair was, in fact, an expert in such matters. See Pl.’s

Mot. at 15. Because the DAB did not require outside expertise in making its decision, it did not

act arbitrarily or capriciously in preventing Dr. Ziegler from testifying as an expert.

Nor did the DAB’s evidentiary decision violate due process. During his direct testimony,

Dr. Ziegler spoke of his extensive credentials and experience working with the VA. See A.R.

1890–94. And in his capacity as a lay witness, Dr. Ziegler was permitted to fully express his

opinion on Doe’s performance, the reasonableness of the investigation and penalty, and the

culture of the VA. See

at 1907–11. Far from denying Doe due process, the DAB went so far

as to prevent the agency from cross-examining or impeaching Dr. Ziegler after he made these

statements. Id. at 1911. Doe has not identified any way in which allowing Dr. Ziegler to testify

as an expert, rather than lay, witness would have offered her meaningful additional protection—a

key element of the due process inquiry. See Mathews,

. Given these features of

Dr. Ziegler’s testimony, Doe cannot show that the agency’s refusal to qualify him as an expert

violated the “flexible” standards of due process. See, e.g., Ralls Corp.,

.

21 2. Cross-Examination of Witnesses

Doe next argues that the agency violated her due process rights by denying her an

opportunity to cross-examine the proposing and deciding officials for her initial removal from

service. The Court disagrees.

In some circumstances, procedural due process may require an agency to afford a party

the right to cross-examine witnesses who testify at the hearing. See Richardson v. Perales,

, 409–10 (1971); Goldberg v. Kelly,

(1970). However,

administrative proceedings are not formal trials, and the right to cross-examine witnesses in

administrative hearings is not absolute, particularly where the individuals a party seeks to cross-

examine did not appear before the tribunal in question. See, e.g., Cellular Mobile Sys., Inc. v.

FCC,

(D.C. Cir. 1985) (“Cross-examination is . . . not an automatic right

conferred by the APA[.]”); Am. Pub. Gas Ass’n v. Fed. Power Comm’n,

(D.C. Cir. 1974) (“Even in a formal adjudicatory hearing under the APA, . . . cross examination

is not always a right.”); Passmore v. Astrue,

, 661–62 (8th Cir. 2008) (holding there

is no absolute right to cross-examination even when the regulation affords some right to

subpoena a witness); Foxy Lady, Inc. v. City of Atlanta,

(11th Cir. 2003)

(“[N]o absolute or independent right to subpoena witnesses exists during administrative

proceedings, and . . . procedural due process . . . does not require an absolute or independent

right to subpoena witnesses in administrative hearings.”).

Here, the officials Doe wishes to cross-examine presided over the initial removal decision

on review before the DAB. They did not appear before the DAB because they had left the

agency prior to the DAB hearing, see A.R. 472, 2371, and, more relevantly, because they were

not direct witnesses substantiating any conduct at issue in Doe’s case. Doe’s justification for

22 cross-examining these officials was to challenge the initial decision. But Doe did not need to

cross-examine these officials to challenge the initial decision, as the entire DAB proceeding was

precisely about whether the findings in the initial decision were correct. The denial of cross-

examination thus did not deprive her of due process. 10

C. Objections to the DAB’s Analysis and Conclusions

Doe also raises several challenges to the DAB’s reasoning and the conclusions it reached.

The Court rejects most of these arguments easily, as it finds that Doe has generally misconstrued

the standards governing the DAB’s analysis. But the Court does not reach the portions of Doe’s

challenge that go to the DAB’s ultimate weighing of evidence. Because the evidence before the

agency may change on remand, the Court holds off on evaluating these claims at this juncture.

1. Application of an “Objective” Standard

Doe claims that the agency failed to properly announce and apply an objective standard

when upholding the charge of “Unprofessional Conduct.” See Pl.’s Mot. at 22–24. For this

reason, she says its decision failed to apprise her of the standard against which her conduct was

measured, rendering the conclusion arbitrary and capricious. This argument is meritless.

An agency may “discipline employees for particular instances of misconduct under

broadly-phrased regulations.” Abaqueta,

(citing Brown v. Dep’t of

Navy,

, 1358–59 (Fed Cir. 2000)). “The fact that there may be no direct precedent

for the action taken in a particular case does not . . . prohibit the agency from taking adverse

10 The same result obtains under any statutory mandate, as a party in an adjudicatory context is only entitled “to conduct cross-examination as may be required for a full and true disclosure of the facts.”

(d). As noted above, the DAB met that standard with respect to the initial decisionmakers by providing Doe with the opportunity to cross-examine witnesses at the DAB hearing and generally test the basis of the initial decision.

23 action if it is consistent with general principles of federal employment law.” Brown,

. Even where an employee’s action violates “no specific hospital regulation,” that employee

may nonetheless “be subject to discipline” where, for instance, that employee acted

“imprudent[ly].” Gipson v. Veterans Admin.,

(D.C. Cir. 1982). Similarly,

“violations of professional conduct” may be punished even where the VA’s regulations are

general in scope. Abaqueta,

. Here, the VA was well within bounds to

rely on the general charge of “Unprofessional Conduct” to discipline Doe. Indeed, when

disputing the penalty in front of the agency, Doe’s attorneys, self-described “long-standing

practitioner[s] of federal employment law who [have] had many cases against the Department of

Veterans Affairs for disciplinary actions taken against employees,” admitted they were “well

aware of the fact that this charge is an extremely common charge . . . .” A.R. 36–37. Doe

likewise conceded that the charge against her is described in the VA’s Table of Penalties. Id. at

37. Accordingly, the standard applied by the DAB here was not arbitrary. 11

2. Burden of Proof for Each Specification

Doe next claims that the agency’s decision was improper because it failed to prove the

essence of each charge—by which she appears to mean the particular conduct in each

specification. However, there is no requirement that the agency uphold each specification

11 Doe also argues that the failure to provide adequate notice of the events underlying the charge renders the DAB’s application of the standard arbitrary and capricious. But the Court has already rejected Doe’s notice arguments. Because the DAB gave sufficient notice of the events at issue, its application of the standard was not arbitrary. See Otero v. U.S. Postal Serv.,

, 202 (M.S.P.B. 1997) (“Nothing in law or regulation requires that an agency affix a label to a charge of misconduct. If it so chooses, it may simply describe actions that constitute misbehavior in a narrative form, and have its discipline sustained if the efficiency of the service suffers because of the misconduct.”).

24 precisely when upholding the overall charge. See Otero v. U.S. Postal Serv.,

,

204 (M.S.P.B. 1997) (“[A]lthough . . . a charge must fall if any element of the charge label is not

proven, that does not thereby mean that a charge must fall if any portion of the narrative

description of the charge is not proven.”). Doe attempts to distinguish Otero by recycling her

notice argument, contending that the agency’s failure to inform her of the substance of the

allegations against her render Otero’s principles inapplicable. See Pl.’s Resp. and Reply at 29.

The Court rejects this effort because, as explained above, notice in this matter was adequate. See

supra III.A. Here, the relevant charge was “Unprofessional Conduct,” and the specifications—of

which Doe was fully aware—simply supplied evidence for that charge. See A.R. 965–72.

Prevailing standards did not require the DAB to find that each specification was precisely correct

to uphold the overall charge. Otero, 73 M.S.P.R. at 204. To the extent that Doe’s real complaint

is that the agency did not have sufficient evidence to support any particular specification, that is

a question of substantial evidence which the Court does not rule on now. See infra III.C.6.

3. Consideration of Hearsay Evidence

Doe argues that the agency could not rely on hearsay when upholding Specification 8.

She is mistaken. “[I]t is well-settled not only that hearsay can be considered by an

administrative agency but that it can constitute substantial evidence.” Lacson v. U.S. Dep’t of

Homeland Sec.,

(D.C. Cir. 2013) (quoting EchoStar Commc’ns Corp.,

). To the extent Doe’s argument on this point goes to the weight given the hearsay

evidence, again, that is a question of substantial evidence on which the Court reserves judgment.

4. Consideration of Additional Medical Documentation

Doe also claims that various VA directives required the DAB to consider additional

documentation she provided of her own medical issues, which she had presented as a defense to

25 the misconduct charge. See Pl.’s Mot. at 27. The relevant directive undermines this claim. It

provides that the agency need only give an appellant who “raises an issue of mental or physical

condition . . . the opportunity to present evidence relating to the condition.” A.R. 3065. The

DAB did, as Doe concedes, provide her with such an opportunity and did consider portions of

her medical documentation. See Pl.’s Resp. and Reply at 35. As a result, Doe has not shown

that the DAB’s failure to consider all her medical documentation violated this directive. 12

5. Failure to Consider Improvement Plan

Doe’s next argument is that the agency violated VA Directive 5013 by failing to put her

on a performance improvement plan. See Pl.’s Resp. and Reply at 36–37. The Court easily

rejects this claim because that directive does not apply to physician employees appointed under

(1), such as Doe. See Ex. 1 to Defs.’ Reply at I-1 (ECF No. 27).

6. Douglas Factors and Substantial Evidence Challenges

Finally, the Court reserves judgment on Doe’s two remaining, substantive concerns about

the DAB’s analysis and conclusion. Doe spends a substantial portion of her briefing discussing

why, in her view, the DAB did not properly consider and weigh the multi-factor test for

upholding penalties, as laid out in VA Handbook 5021 (and mirroring the test set out for Title 5

personnel in Douglas, 5 M.S.P.R. at 305–06). See Pl’s Mot. at 28–39. In addition, she claims

that the DAB’s decision was unsupported by substantial evidence, in violation of

(f)(2). See

at 42–45. As explained above, the Court is remanding this matter to the

agency to supplement the record with respect to the DAB’s refusal to admit certain evidence.

12 Doe’s arguments regarding the extent of her disability and the evidence for a causal relationship between her disability and the charged conduct go to the sufficiency of the evidence and will not be considered at this stage. See Pl.’s Resp. and Reply at 35; infra III.C.6.

26 Should this case return to the district court following remand, the Court will be able to fully

evaluate the DAB’s evidentiary decisions, and then turn to these remaining questions about the

appropriateness of the DAB’s analysis and decision on the final evidentiary record.

IV. Conclusion

For the foregoing reasons, the Court will grant in part and deny in part both the Plaintiff’s

and the Defendants’ motions for summary judgment, and remand the matter to the agency. On

remand, the DAB may provide an explanation for its decision to exclude Doe’s supplemental

evidence and the prior sworn testimony here, or reconsider its decision in light of any of the

excluded evidence it may now choose to admit. A separate Order will follow.

CHRISTOPHER R. COOPER United States District Judge

Date: September 22, 2021

27