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Goodrich v. Teets

September 26, 2007

MICHAEL D. GOODRICH, PLAINTIFF,
v.
PETER B. TEETS, ACTING SECRETARY OF THE AIR FORCE, DEFENDANT.



MEMORANDUM OPINION

Plaintiff Michael D. Goodrich, a former Captain in the United States Air Force, brings this action under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., against Peter B. Teets, in his capacity as Acting Secretary of the Air Force. Before the Court are cross-motions for summary judgment concerning two decisions by the Air Force Board for Correction of Military Records ("BCMR") denying Plaintiff's applications to alter his military records.*fn1 After considering all of the Parties' filings, the relevant statutes and case law, and the administrative record, the court shall [5] DENY Plaintiff's Motion for Summary Judgment and GRANT [9] Defendant's Cross-Motion for Summary Judgment. Although Plaintiff is clearly disappointed with the BCMR's adverse decisions, an analysis of the foregoing does not lead the Court to find any discernable arbitrariness, capriciousness, or error by the BCMR.

I. BACKGROUND

A. Air Force Investigation

The facts underlying the instant suit are largely uncontested.*fn2 Beginning June 17, 1990, Plaintiff served as an Active Duty Captain in the United States Air Force. Pl.'s Stmt. ¶ 1; Def.'s Stmt. ¶ 1. Plaintiff was assigned to Spangdahlem air base, Germany, where he worked as a Board Certified pediatrician with full clinical privileges. Pl.'s Stmt. ¶ 2; Def.'s Stmt. ¶ 1. Plaintiff was also the Chief of the Spangdahlem air base adolescent health clinic. Def.'s Stmt. ¶ 1; Pl.'s Resp. to Def.'s Stmt. at 1.

In October 1995, while working as a pediatrician at the air base, Plaintiff mail-ordered nine videotapes from a California-based company that were intercepted by German Customs officials on suspicion of child pornography. Pl.'s Stmt. ¶ 3; Def.'s Stmt. ¶ 2. The videotapes had plot lines that were "directed at adolescent activities and older men with younger boys."*fn3 AR 2, Ex. B at 32; Def.'s Stmt. ¶2; Pl.'s Resp. to Def.'s Stmt. at 1-2. German officials did not file any charges against Plaintiff under their child pornography laws, although they did contact the Air Force and report their findings. Def.'s Stmt. ¶ 3, 4; Pl.'s Resp. to Def.'s Stmt. at 2-3. The Air Force executed a search warrant at Plaintiff's residence on February 1, 1996. Def.'s Stmt. ¶ 5; Pl.'s Resp. to Def.'s Stmt. at 3. All nine videotapes were recovered, seven of which had been viewed. Id.

By memorandum dated February 21, 1996, Commander William J. Heitzeg notified Plaintiff that he was initiating an administrative discharge action pursuant to Air Force Instruction 36-3206, ¶¶ 3.2.1 ("moral dereliction") and 3.6.9 ("sexual perversion"). Def.'s Stmt. ¶ 9; Pl.'s Resp. to Def.'s Stmt. at 1. Plaintiff sought to avoid the discharge proceedings by tendering his resignation on March 8, 1996. See AR 2, Ex. B at 4. In his resignation letter, Plaintiff indicated that he had "consulted with counsel" and that he tendered his resignation "voluntarily." Id. Plaintiff also acknowledged that he could receive a "discharge under honorable conditions (general)" unless the Secretary of the Air Force determined that he should receive an honorable discharge. Id. By resigning, Plaintiff waived his right to an administrative discharge hearing where specific factual findings would have been made concerning his discharge status. See AR 2 at 34.

Plaintiff's resignation was accepted on July 29, 1996, and he received a discharge under honorable conditions (general). Def.'s Stmt. ¶ 10; Pl.'s Resp. to Def.'s Stmt. at 1. His separation from the Air Force became official on August 15, 1996. Def.'s Stmt. ¶ 11; Pl.'s Resp. to Def.'s Stmt. at 1. Plaintiff's official discharge certificate, called a "DD Form 214," contained a "BKL" separation code, which indicates a separation related to "sexual perversion." Def's Stmt. ¶ 11; Pl.'s Resp. to Def's Stmt. at 1.

B. Air Force Credentials Hearings and Appeals

Notwithstanding Plaintiff's decision to tender his resignation, the Air Force launched an inquiry in March 1996 to review whether Plaintiff's clinical privileges should be revoked for misconduct.*fn4 Pl.'s Stmt. ¶ 7; Def.'s Resp. to Pl.'s Stmt. at 1. On March 23, 1996, Colonel David E. Boggs, the Hospital Commander, notified Plaintiff that he intended to revoke all of his clinical privileges pursuant to Air Force Instruction ("AFI") 44-119.*fn5 Def's Stmt. ¶ 13; Pl.'s Resp. to Def's Stmt. at 1; AR 1 at 37. He explained that his action was based on "evidence of misconduct that seriously impairs [Plaintiff's] credibility within the health care system and [Plaintiff's] suitability to practice medicine, especially pediatrics." Id. In response to the letter, Plaintiff requested a credentials hearing to review Colonel Boggs' decision. Def's Stmt. ¶ 14; Pl.'s Resp. to Def.'s Stmt. at 1.

The Credential Hearing Committee met on June 6, 1996, to review the allegations against Plaintiff that "have impaired [Plaintiff's] overall effectiveness and credibility within the health care system, and abrogated [Plaintiff's] professional responsibilities." AR 1 at 38; Def.'s Stmt. ¶ 14; Pl.'s Resp. to Def.'s Stmt. at 1. After considering all of the facts at issue, a majority of the three-member committee recommended that Plaintiff's privileges be reinstated without conditions. AR 40-42; Def's Stmt. ¶¶ 15-16; Pl.'s Resp. to Def.'s Stmt. at 1, 5-6. The Committee found that Plaintiff's conduct did "impair [Plaintiff's] overall effectiveness and credibility within the health care system" but did not "constitute a commission of an act of sexual abuse or exploitation."*fn6 AR 1 at 41; Def's Stmt. ¶ 16; Pl.'s Resp. to Def.'s Stmt. at 1. The dissenting member of the committee recommended limiting Plaintiff's privileges so that Plaintiff could treat patients under the age of 18 only if accompanied by chaperones." AR 1 at 42; Def's Stmt. ¶ 16; Pl.'s Resp. to Def.'s Stmt. at 1.

On July 18, 1996, a Credentials Function Committee*fn7 met in an ad hoc session to consider the findings of the Hearing Committee. AR 1 at 54; Def's Stmt. ¶ 17; Pl.'s Resp. to Def.'s Stmt. at 6. The Committee recommended, by majority vote, limiting Plaintiff's clinical privileges to "patients not in the 10-18 year old age group," in addition to recommending therapy and a separation from the Air Force." Id. These recommendations were forwarded to Colonel Boggs on July 19, 1996. Def's Stmt. ¶ 17; Pl.'s Resp. to Def.'s Stmt. at 6. Despite these recommendations and those of the Hearing Committee, on August 5, 1996, Colonel Boggs rejected the recommendations and revoked all of Plaintiff's clinical privileges. Def.'s Stmt. ¶ 18; Pl.'s Resp. to Def.'s Stmt. at 1; AR 1 at 43.

Plaintiff, through counsel, appealed Colonel Boggs' decision on August 12, 1996, to the Air Force Surgeon General. Def.'s Stmt. ¶ 19; Pl.'s Resp. to Def.'s Stmt. at 1; AR 1 at 44-45. Plaintiff argued that his "only morally offensive conduct . . . involved possessing legal pornographic materials of a homosexual nature." AR 1 at 44. Plaintiff also relied on the opinion of an Air Force psychiatrist who testified at Plaintiff's Credentials Hearing that Plaintiff "carries no risk of potential harm to or mistreatment of patients." Id.

The Air Force Surgeon General Medical Practice Review Board (the "Board") considered Plaintiff's appeal on October 24, 1996.*fn8 Def's Stmt. ¶ 20; Pl.'s Resp. to Def.'s Stmt. at 1; AR 1 at 49. The Board reviewed a verbatim transcript of the credentials hearing and two of the videotapes at issue. Id. The Board concluded that "any pediatric or adolescent patients that [Plaintiff] might have contact with in a professional setting in the future could be endangered because [Plaintiff] demonstrated a preference for watching portrayals of sex between minors." AR 1 at 49-50; Def.'s Stmt. ¶ 20; Pl.'s Resp. to Def.'s Stmt. at 1. The Board decided to modify Colonel Bogg's decision and recommended that Plaintiff's privileges be limited by requiring direct line of sight supervision for patients under the age of eighteen. Def's Stmt. ¶ 20; Pl.'s Resp. to Def.'s Stmt. at 1; AR 1 at 50. On January 15, 1997, the Air Force Surgeon General adopted the Board's recommendation as his final action, explaining that he was "convinced that [Plaintiff's] conduct did potentially place the welfare of a vulnerable pediatric community in question." AR 1 at 55; Def.'s Stmt. ¶ 21; Pl.'s Resp. to Def.'s Stmt. at 1.

On January 24, 1997, the Surgeon General reported the limitations on Plaintiff's credentials to external agencies, including the National Practitioner Data Bank ("NPDB"). Pl.'s Stmt. ¶ 11; Def's Stmt. ¶ 22. The Surgeon General's report to the NPDB stated that "[Plaintiff's] clinical privileges are restored but limited by requiring direct line of sight supervision for all patients under the age of eighteen. The action is taken to insure the safety and welfare of the pediatric community due to [Plaintiff's] demonstrated prurient interest in homo erotic and pornographic materials which portray individuals as adolescents or in adolescent situations."*fn9 AR 1 at 20; Def's Stmt. ¶ 22; Pl.'s Resp. to Def.'s Stmt. at 1.

In response to the Surgeon General's report, Plaintiff drafted a letter to the Secretary of the Department of Health and Human Services requesting its removal from the NPBD. See AR 1 at 24. On September 22, 1997, the Secretary denied Plaintiff's request finding "no basis upon which to conclude that the report should not have been filed with the [NPDB]." Id. The Secretary also found "no evidence that the Air Force did not regard this matter as presenting a potential threat to ...


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