The opinion of the court was delivered by: LOUIS F. OBERDORFER
This is an action brought by the American Federation of Government Employees ("AFGE"), a labor union representing professional employees of the Department of Veterans Affairs, and Local 2328, which has been appointed by the AFGE to represent a unit of registered nurses at the VA Medical Center in Hampton, Virginia. The plaintiffs have sued the Acting Secretary of the Department of Veterans Affairs (the "VA"), the Chief Medical Director of the VA, and the Director of the VA Medical Center in Hampton, Virginia, all in their official capacities, seeking declaratory and injunctive relief to prevent defendants from refusing to arbitrate a grievance. Pending in this matter is defendants' motion to dismiss and plaintiffs' motion for summary judgment.
The statutory framework relevant to this matter permits certain employees of the Veterans Administration, including registered nurses, to engage in collective bargaining activities. 38 U.S.C. §§ 7422, et seq.. However, matters that concern or arise out of "(1) professional conduct or competence, (2) peer review, or (3) the establishment, determination or adjustment of employee compensation" are exempt and are not subject to collective bargaining agreements and related grievance procedures. 38 U.S.C. § 7422(b). The phrase "professional conduct or competence" has been defined to include matters affecting "direct patient care" or "clinical competence." 38 U.S.C. § 7422(c). The Secretary of Veterans Affairs, or his designee, is authorized to determine whether an issue constitutes a matter affecting professional conduct or competence. 38 U.S.C. § 7422(d). On February 26, 1992, the Secretary of Veterans Affairs delegated authority to make such determinations to the Chief Medical Director of the VA. Feb. 26, 1992 Memo. from VA Secretary to Chief Medical Director, Att. A to Complaint.
The Medical Center and AFGE Local 2328 are parties to a collective bargaining agreement (the "Agreement") that establishes certain terms for work schedules of nurses. The Agreement states in particular that "[a] weekend for a night nurse shall include Sunday and Monday." Complaint at 3, P 10, quoting Article XII, Section 5 of the Agreement. When the Medical Center scheduled night nurse weekends on days other than Sunday and Monday, Local 2328 filed a grievance pursuant to the terms of the Agreement. When the grievance was denied by the Medical Center, Local 2328 invoked arbitration to resolve the dispute.
On July 24, 1992, the Chief Medical Director, in "responding to the issues raised concerning the . . . grievances filed by the American Federation of Government Employees," invoked the above-quoted provisions of § 7422(b) and declared that "any matter relating to tours of duty and assignments of nurses at any VA facility is related to the professional competence or conduct of these employees" and is not grievable. July 24, 1992 letter from James W. Holsinger, Jr., M.D. to Allan S. Goss, Att. C to Complaint. Relying on the Chief Medical Director's statement, the Director of the VA Medical Center informed the arbitrator on July 29, 1992, that it would not participate in the scheduled arbitration. July 29, 1992 Letter from Allan S. Goss to Leon B. Applewaite, Exhibit B to Complaint. On December 23, 1992, plaintiffs filed the instant action, claiming that the determination that the grievance regarding weekend scheduling of night nurses concerned "professional conduct or competence" is arbitrary, capricious and an abuse of discretion under 38 U.S.C. § 7422(d). See 5 U.S.C. § 706.
However, on March 3, 1994, the Acting Under Secretary for Health issued a memorandum that reversed the VA's previous position and declared, upon further consideration, that:
the scheduling of a night nurse's weekend to be Sunday and Monday, as opposed to . . . any other combination of days, does not impact professional conduct and competence . . . and that the grievances at VAMC Hampton on the designation of weekends for night nurses do not affect a matter of professional conduct or competence.
Mar. 3, 1994 Memo. from John Farrar, M.D. to Assistant General Council of the Department of Veteran Affairs, Ex. A to Def's Motion to Dismiss (emphasis added). Based on the VA's new position, the defendants claim that this action is now moot and should be dismissed.
This Court's jurisdiction extends only to the adjudication of live controversies. A case is deemed moot when:
(1) it can be said with assurance that 'there is no reasonable expectation . . .' that the alleged violation will ...