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August 31, 2005.

ANTHONY J. PRINCIPI, Secretary, Department of Veterans' Affairs, et al., Defendants.

The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge


Harishankar L. Sanghi is a psychiatrist who was good at his job with the Department of Veterans' Affairs ("VA"). Dr. Sanghi, however, appears to have had an aversion to completing discharge summaries, which inform subsequent treating physicians of the course of treatment provided by the VA. When counseling, a written reprimand, and a 10-day suspension did not result in completed discharge summaries, Dr. Sanghi was removed from patient care and ultimately discharged. He sues the VA, alleging that the decision on his discharge was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule or regulation having been followed; and unsupported by substantial evidence. This short summary tells the tale: having reviewed the administrative record and the arguments of the parties, the Court finds that the VA is entitled to summary judgment. Plaintiff's complaint will be dismissed. I. BACKGROUND

Dr. Sanghi began his employment with the VA on July 11, 1977. Defendants' Statement of Material Facts Not in Dispute ("Facts") ¶ 1. Effective December 30, 1990, he was assigned to the Biloxi VA Medical Center as a Physician, Chief Grade. Id. He was discharged effective November 4, 1994. Id.

  During March 1993, Dr. Sanghi was verbally counseled regarding his delinquent discharge summaries by Dr. Lowell Husband, Acting Chief, Psychiatry Service. Id. ¶ 2. By memorandum dated August 27, 1993, Dr. Sanghi was issued a written counseling memo by Dr. George B. Tipton, Acting Chief, Psychiatry Service. Id. ¶ 3. Dr. Tipton had earlier directed Dr. Sanghi to complete all of his delinquent discharge summaries before leaving work on August 19, 1993, but Dr. Sanghi had not completed that assignment. Id. Dr. Tipton directed Dr. Sanghi to dictate all delinquent discharge summaries by no later than September 2, 1993, and to keep current on all future discharge summaries. Id. Dr. Tipton warned of "serious disciplinary action" if Dr. Sanghi failed to comply. Id.

  Another written counseling memorandum was issued to Dr. Sanghi by Dr. Tipton on December 17, 1993. This counseling memorandum indicated that Dr. Sanghi had been "verbally counseled on numerous occasions regarding delinquent discharge summaries, most recently in person on 12/9/03 and by telephone on 12/16/03." Id. ¶ 4. On January 21, 1994, Dr. Tipton issued another memorandum to Dr. Sanghi making the following points:
(1) that he was pleased with Dr. Sanghi's active response to his memo of December 17, 1993 and his completion of the required dictation prior to the established deadline; (2) that he follows delinquent dictation closely and notes that Dr. Sanghi is again in violation of the hospital policy which requires dictation of the discharge summary prior to discharge; (3) that because of Dr. Sanghi's previously demonstrated disregard for prompt dictation, he would be required to be in strict compliance with local and national guidelines; and (4) that he was required to complete the narrative discharge dictation on each patient prior to the discharge order being written.
Id. ¶ 5. Dr. Sanghi was required to complete all of his delinquent dictation prior to 4:00 p.m. on January 26, 1994. Id.

  These actions did not cure the problem and a formal Reprimand was issued to Dr. Sanghi on April 1, 1994, for failing to comply with his supervisor's directions to complete 19 delinquent discharge summaries by March 21, 1994. Id. ¶ 6. Thereafter, on May 4, 1994, Dr. Sanghi was suspended for ten days for failing to comply with directions to complete 26 delinquent discharge summaries by April 19, 1994. Id. By letter dated June 28, 1994, the VA proposed to discharge Dr. Sanghi due to his failure to complete 27 delinquent discharge summaries by June 15, 1994, as directed. Id. ¶ 7. Dr. Sanghi was detailed to non-clinical responsibilities pending a decision on the proposed discharge. Id. The VA notified Dr. Sanghi on July 18, 1994, that it had decided to discharge him but would allow him to file an application for disability retirement instead, as he had suggested in his response to the initial discharge notice. Id. ¶¶ 8-9.

  Dr. Sanghi applied for disability retirement and it was approved on September 19, 1994, by the Office of Personnel Management ("OPM"). Id. ¶ 11. However, Dr. Sanghi subsequently requested to withdraw his disability retirement application and OPM approved his withdrawal by letter dated October 28, 1994. The VA notified Dr. Sanghi on November 1, 1994, that his discharge would be made effective November 4, 1994. The discharge was based on three separate charges: 1. You failed to comply with VHA Standards and the Medical Center's requirements regarding dictation of discharge summaries which require that patient discharge summaries be completed prior to discharge and final summaries signed within ten (10) days of discharge;

2. You failed to follow your supervisor's directions dated June 6, 1994, to complete twenty-seven (27) delinquent summaries by June 15, 1994; and
3. Your failure to dictate discharge summaries compromises quality patient care and violates 5 CFR 2635.101(b)(5) which states that employees must put forth an honest effort in the performance of their duties.
Administrative Record ("A.R.") at 813.

  As a physician appointed under the authority of 38 U.S.C. § 7401(l), Dr. Sanghi had the right to appeal his discharge (a "major adverse action") pursuant to 38 U.S.C. § 7461. Subsection (c)(3) of section 7461 states that "[a] question of professional conduct or competence is a question involving any of the following: (A) Direct patient care; (B) Clinical competence." 38 U.S.C. § 7461(c)(3). Dr. Sanghi filed a timely appeal of the discharge action and requested a hearing before a Disciplinary Appeals Board ("DAB") on the charges. Facts ¶ 18. The DAB hearing was conducted during the week of March 14, 1995, and the DAB sustained the discharge, finding that each of the charges was sustained in whole. The Under Secretary for Health approved the DAB decision on July 31, 1995. Id. ¶ 19.

  Dr. Sanghi filed his complaint in this action on July 20, 2001 and an amended complaint on August 20, 2001.*fn1 He is proceeding pro se. Perhaps as a result, the case has had a troubled procedural history. The complaint was dismissed on May 24, 2002, for failure to effect timely service under Rule 4(m) of the Federal Rules of Civil Procedure. Dr. Sanghi's motion to reconsider the dismissal order was granted on July 24, 2002, and the amended complaint was reinstated. After two extensions, the VA filed its answer on November 22, 2002. When Dr. Sanghi did not appear at the initial scheduling conference on January 3, 2003, an Order to Show Cause by January 21, 2003 why the case should not be dismissed was issued. Dr. Sanghi timely filed his response and the order to show cause was discharged. Another scheduling conference was held telephonically on February 24, 2003, and the Court directed that the administrative record be filed by March 26, 2003, and that dispositive motions be filed in May 2003.

  Dr. Sanghi repeatedly challenged the adequacy of the administrative record and the Court suspended the briefing schedule on May 12, 2003. The VA filed an amended record on June 16, 2003, but Dr. Sanghi remained dissatisfied with it. The parties fully briefed his motion to compel and the Court directed the VA to augment the administrative record with specified documents. The briefing schedule was revised to order dispositive motions by March 22, 2004. Unfortunately, that was not the end of the matter and the briefing schedule was again suspended. The Court held a hearing on May 10, 2004, to address the scope of the administrative record. Thereafter, the scheduling order was extended repeatedlyon Dr. Sanghi's motion*fn2 but, on November 17, 2004, both parties filed motions for summary judgment on the discharge claim. After a series of requests for additional time by both sides, briefing was finally completed on March 31, 2005, when the Court granted Dr. Sanghi's motion for leave to file a surreply.

  The case is now ripe for resolution. II. LEGAL STANDARD

  Summary judgment is appropriate when the record shows that no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fed.R.Civ.P. 56(c). Summary judgment is not a "disfavored legal shortcut[;]" rather, it is a reasoned and careful way to resolve cases fairly and expeditiously. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). In determining whether a genuine issue of material fact exists, the court must view all facts and reasonable inferences in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Only factual disputes that are capable of ...

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