The opinion of the court was delivered by: Hogan, District Judge.
Pending before the Court are Defendant's Motion to Dismiss or
Alternatively for Summary Judgment and Plaintiff's Cross Motion
for Summary Judgment.
In 1991, Plaintiff, an active duty physician, enrolled in
graduate medical training as an orthopedic surgery resident at
William Beaumont Army Medical Center ("WBAMC") and Texas Tech
University Health Sciences Center ("Texas Tech"), a joint
military-civilian program located in El Paso, Texas. Plaintiff
was a senior Major, who had already completed a Ph.D in anatomy.
In April 1994, Plaintiff received notice that the teaching
staff believed that he was "inept in the operation room," far
behind the expected level of progress for a fourth year resident,
and that he should consider another field of medicine outside of
Orthopedics. See Administrative Record ("Admn.Rec.") at 118-19,
137-45. Plaintiff also received a referred Officer Evaluation
Report ("OER") in 1994, reflecting the faculty's concerns for his
low testing scores and poor performance in the operating room.
See Admn. Rec. at 160-62. Col. Thomas J. Scully, Chief of
Orthopedic Surgery for the training program, counseled Plaintiff
to withdraw from Orthopedics because of his "inadequate"
performance in the "cognitive and psychomotor domains." See
Admn. Rec. at 188.
In January 1995, Plaintiff was notified that he was being
placed on probation for failure to meet academic and technical
performance standards in accordance with the recommendation of
the William Beaumont Army Medical Center Education Committee, in
accordance with Army Regulation 351-3, ¶ 6-5. See Admn. Rec. at
184-87. In August 1995, Plaintiff was non-selected a second time
for promotion to Lieutenant Colonel. See Complaint at 4. He
received regular reviews and counseling sessions about his
continued inability to perform
routine and complex surgical procedures independently. See
Admn. Rec. at 192-247.
During this period, members of the faculty recommended that
Plaintiff be removed from his residency. Admn. Rec. at 248-61.
However, the Education Committee recommended an extension of
Plaintiff's probation status; this extension was approved on July
20, 1995. Admn. Rec. at 265-67. Plaintiff did not receive notice
of the committee's decision, and resigned in order to avoid being
involuntarily terminated from the resident program. Admn. Rec. at
262-80; see also Complaint at ¶¶ 9-10. In light of this
miscommunication, the Hospital reinstated Plaintiff and placed
him on probation again for the same technical deficiencies, as of
January 2, 1996. Admn. Rec. at 281-82. The hospital also reduced
him in his residency training program. Admn. Rec. at 289-305.
Plaintiff still appeared to have difficulties in this program.
Admn. Rec. at 306-30.
On June 24, 1996, Dr. Copeland, the Orthopedic Surgery Program
Director, recommended that Plaintiff be terminated from the
orthopedic residency program based on his inability "to
satisfactorily progress toward correction of deficiencies while
on probation." Admn. Rec. at 331-37. This recommendation was
based on several evaluations which concluded that Plaintiff was
unable to perform at the required level of expertise. Admn. Rec.
at 306-30, 338-48. On July 3, 1996, the Graduate Medical
Education Committee approved Dr. Copeland's recommendation that
Plaintiff be terminated from the residency training. Admn. Rec.
at 356-58. Consequently, on July 8, 1996, the Commander of the
hospital notified Plaintiff that he was terminated from his
orthopedic residency. Admn. Rec. at 359-62, 366-70.
The Army notified Plaintiff that he would be allowed to
continue on active duty as part of a "selective continuation"
program. Complaint at ¶ 32. The Army then reassigned him to duty
at Fort Leavenworth, Kansas as the Chief of the General
Outpatient Clinic. Complaint at ¶ 31; Admn. Rec. at 32-35. For
the stated reasons of budget constraints and Plaintiff's failure
to possess critical skills, the Army discharged Plaintiff from
active duty on September 1, 1997. Complaint ¶ 33; Admn. Rec. at
Plaintiff filed this action for declaratory judgment on
September 17, 1998, seeking to overturn the Secretary of the
Army's decision to terminate Plaintiff from his graduate medical
training as an orthopedic surgery resident. Plaintiff claims that
the decision to terminate him from his graduate medical training
was arbitrary and capricious, an abuse of discretion, and
otherwise not in accordance with law and military regulation.
Plaintiff seeks to have this Court order Defendant to expunge
from Plaintiff's official personnel files all documents relating
to Plaintiff's orthopedic residency at WBAMC/Texas Tech
Orthopedic Residency from 1991 to 1996, including but not limited
to all Academic Evaluation Reports, termination proceedings from
the residency, Plaintiff's resulting reclassification back to a
general medical officer, and entries or notices filed with the
National Practitioner Data Bank and national residency and
medical accreditation entities. Plaintiff also requests an award
of attorneys' fees.
On August 20, 1999, Plaintiff filed a motion for leave to file
an amended complaint, expressly waiving any claims for monetary
damages. No opposition was ever filed. The Court granted this
I. Defendant's Motion to ...