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WILHELM v. CALDERA

January 6, 2000

GARY B. WILHELM, PLAINTIFF,
V.
LOUIS B. CALDERA IN HIS CAPACITY AS SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Hogan, District Judge.

MEMORANDUM OPINION

Pending before the Court are Defendant's Motion to Dismiss or Alternatively for Summary Judgment and Plaintiff's Cross Motion for Summary Judgment.

Background

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 47.

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 motion.

Discussion

I. Defendant's Motion to ...


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