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Sangar v. Geren

March 4, 2008

VIJAY SANGAR, M.D. PLAINTIFF,
v.
THE HONORABLE PETE GEREN, SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Vijay Sangar, a former Medical Corps Officer in the United States Army, brings this action under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., against Pete Geren, in his capacity as Secretary of the Army (the "Secretary").*fn1 On March 28, 2005, an Army Board of Inquiry recommended Dr. Sangar's separation from active service because he lost and failed to re-obtain his credentials to practice in his medical specialty. The Army Board of Corrections for Military Records ("ABCMR") later denied Dr. Sangar's application for relief from that decision. Dr. Sangar has filed the instant action claiming that the ABCMR's denial of his application for relief was arbitrary, capricious, and otherwise in violation of the law. The Parties have filed Cross-Motions for Summary Judgment on that issue. The Secretary has also filed a Partial Motion to Dismiss because Dr. Sangar's Complaint purportedly invoked the Court's jurisdiction under the Mandamus Act, 28 U.S.C. § 1361, and the Writ of Habeas Corpus, 28 U.S.C. § 2241.

See Compl. ¶ 1. Although it is unclear whether Dr. Sangar intended to assert claims under these statutes, Dr. Sanger failed to respond to the Secretary's arguments explaining why those statutes were inapplicable to the instant action. See Def.'s Partial Mot. to Dismiss and Mot. for Summ. J. at 4-7 (hereinafter "Def.'s Mot. for Summ. J."). Accordingly, the Court shall deem any claims asserted under those statutes to be abandoned and shall grant the Secretary's Partial Motion to Dismiss as conceded. As to the remaining claims subject to the Parties' Cross-Motions for Summary Judgment, the Court has thoroughly reviewed the Parties' submissions, applicable case law, statutory authority, Army Regulations, and the Administrative Record as a whole, and shall deny Plaintiff's [4] Motion for Summary Judgment and grant [9] Defendant's Motion for Summary Judgment, for the reasons that follow.

I. BACKGROUND

A. Applicable Army Regulations

Officer transfers and discharges are governed by Chapter 4 of Army Regulation 600-8-24. See Army Regulation 600-8-24, Ch. 4 at 1.*fn2 That Regulation lists three non-exclusive conditions that may result in an elimination action: (1) substandard performance of duty; (2) misconduct, moral or professional dereliction, or in the interest of national security; and (3) derogatory information. Id. at 4-2(a)-(c). All three conditions include subsections listing specific conduct contemplated by the Regulation. For example, "misconduct, moral or professional dereliction, or in the interest of national security," includes circumstances where an officer mismanages his or her personal affairs to the discredit of the Army, see id. at 4-2(b)(2), or where an officer loses or abandons a professional license that is necessary to the performance of his or her duties, see id. at 4-2(b)(9). When an official initiates elimination proceedings against an officer, he must specify the reasons supporting the elimination by referencing at least one of these conditions. Id. at 4-19.

An officer subject to an elimination proceeding is entitled to a fair and impartial hearing before a three-person Board of Inquiry. Id. at 4-6(a). At the hearing, "[t]he Government is responsible [for] establish[ing], by [a] preponderance of the evidence, that the officer has failed to maintain the standards desired for his or her grade and branch or that the officer's conduct has been prejudicial to national security." Id. See also id. at 4-11 ("the board will determine whether each allegation in the notice of proposed separation is supported by a preponderance of the evidence"). The officer is entitled to appear in person with legal counsel and present evidence in his defense. Id. at 4-11(f). At the conclusion of the proceedings, the Board will either vote to retain the officer (with or without reassignment) or eliminate the officer. Id. at 4-15(b)(2). If the Board of Inquiry votes to eliminate the officer, the case is referred to a Board of Review. Id. at 4-17(a). If the Board of Review recommends elimination, the case is forwarded to the Secretary of the Army for a final determination. Id. at 4-17(c)(2).

B. Factual Background

Dr. Sangar was commissioned as an officer in the Medical Corps of the United States Army in 1988.*fn3 Pl.'s Stmt. ¶ 1. In 1994, Dr. Sangar was promoted to the rank of Lieutenant Colonel, and in August 1995, he was assigned to Walter Reed Army Medical Center ("Walter Reed") as a Physician in Nuclear Medicine. Def.'s Stmt. ¶¶ 1-2. In 1997, Sangar was diagnosed with Chronic Inflammatory Demyelinating Polyneuropathy, a neurological disorder that impairs a person's cognitive and sensory functions. Pl.'s Stmt. ¶ 3; Def.'s Stmt. ¶ 4. On September 30, 1998, Dr. Sangar received an Officer Evaluation Report ("OER") that gave him a ranking of "Below Center of Mass" relative to his peers, and indicated that "[a]s a result of his significant medical condition, LTC Sangar's performance and potential as a leader, builder or motivator have not been demonstrated. Additionally, his technical skills and ability to execute plans have been impaired, likely as a result of this medical condition." Def.'s Stmt. ¶ 4; A.R. 132 (1997-1998 OER).

On February 5, 1999, Walter Reed suspended Dr. Sangar's clinical privileges based on "evaluations that demonstrated that [he] was not competent to perform clinical duties as a Nuclear Medicine Physician." Def.'s Stmt. ¶ 6; A.R. 273 (Letter from Yancy Phillips, Deputy Commander for Clinical Services). Following a hearing, Dr. Sangar's credentials were revoked on November 3, 1999. Def.'s Stmt. ¶ 6; A.R. 276. His 1999-2000 OER indicated that he "does not exhibit the fund of knowledge and image interpretation skills expected of a board-eligible nuclear medicine physician. This is particularly troublesome since he has had the benefit of an assignment at [Walter Reed], one of the strongest training programs in the country." A.R. 128 (1998-1999 OER). The OER recommended that Dr. Sangar not be retained in service. Id.

Having lost his credentials to practice medicine, the Army reassigned Dr. Sangar to the Tumor Registry at Walter Reed beginning in 1999 where he was placed in an administrative position and responsible for the abstraction of medical records. Def.'s Stmt. ¶ 7. Dr. Sangar's 1999-2000 OER indicated that his "performance as a nuclear physician for which he is being paid cannot be evaluated since he has not worked in that area during this entire rating period . . . He can only be rated in the role as a Tumor Registry Clerk, normally a [General Schedule 6 level employee]." A.R. 126 (1999-2000 OER). The OER rated Dr. Sangar "Below Center of Mass" relative to his peers and concluded that "the Army should not and cannot retain this officer." Id. Dr. Sangar's 2000-2001 and 2001-2002 OERs echoed these sentiments. See A.R. 123-24 (2000-2001 OER) ("the Army should not retain this officer as his clinical privileges to practice medicine at Walter Reed have been revoked . . . Dr. Sangar's technical planning, and motivating abilities are severely impaired due to his inability to practice medicine. Therefore, he has no potential to continue in the US Army as a Medical Corps officer, since he has no privileges to practice his specialty"); A.R. 121-22 (2001-2002 OER) (Dr. Sangar's "potential is severely limited and I recommend that he not be retained").*fn4

On March 26, 2002, the Army sent a notice to Dr. Sangar indicating that it had initiated elimination proceedings against him based on the "downward trend in [his] overall performance resulting in a consistent record of mediocre service and failure to properly perform assignments commensurate with [his] grade and experience." Pl.'s Mot. for Summ. J., Ex. 6 at 1 (Initiation of Elimination Proceedings Letter). The notice specifically referenced Army Regulations 600-8-24, 4-2(a)(1) and 4-2(a)(5), which authorize elimination based on "a downward trend in overall performance" and a "failure to properly perform assignments commensurate with an officer's grade and experience."

A Board of Inquiry was convened on December 16, 2002. See Pl.'s Mot. for Summ. J., Ex. 7 (Board of Inquiry Findings). The Board found that Dr. Sangar's substandard performance of duty . . . from July 97 thru Nov 99 is potentially attributable to [his] diagnosed [medical condition]. The two OERs covering the period Nov. 99 thru Nov 01 do not address a downward trend, but address the fact that he is not performing as a Nuclear Medicine Physician. Furthermore, there is disagreement among Nuclear Medicine Experts concerning his qualifications.

Id. at 5. Rather than recommend Dr. Sangar's elimination from the Army based on these findings, the Board recommended that Dr. Sangar "be retained in service with reassignment with a period of supervision to assess his suitability to be credential[ed] and practice as a Nuclear Medicine Physician." Id.

On May 16, 2003, Sangar was granted supervised privileges by Walter Reed for the period May 6, 2003, through May 5, 2004. Def.'s Stmt. ¶ 16. Plaintiff was thereafter sent to Madigan Army Medical Center ("Madigan") for a 12-week rotation designed to provide Dr. Sangar with training and comprehensive assessment of his abilities. Def.'s Stmt. ¶ 17; Pl.'s Mot. for Summ. J., Ex. 10 at 6 (Madigan Performance Assessment). Based on a review and recommendation by the Credentials Committee and the approval by the Commander of Madigan, Dr. Sangar was granted supervised clinical privileges at Madigan from September 25, 2003 through May 5, 2005. Pl.'s Stmt. ¶ 20. Magidan prepared a final report evaluating Dr. Sangar's performance during this training period. Pl.'s Stmt. ¶ 21. The report stated that Dr. Sangar "is a pleasant physician who availed himself of the learning opportunities at [Madigan]. However . . . we do not feel that [he] can practice independently at this time." Pl.'s Stmt. ¶ 21. The report also stated that Dr. Sanger submitted multiple erroneous reports, that his knowledge of anatomy and current pharmaceuticals was weak, that he struggled while performing physical exams, and that he had difficulty dealing with the details of scan interpretation. Def.'s Stmt. ¶ 17.

Dr. Sangar returned to Walter Reed following his training at Madigan and resumed his assignment in the Tumor Registry. Pl.'s Stmt. ¶ 24. Colonel Thomas Fitzpatrick, the Deputy Commander of Walter Reed Hospital, asked Dr. Sangar to voluntarily relinquish his clinical practice credentials after returning to Walter Reed from Madigan. Pl.'s Stmt. ¶ 25. Dr. Sangar did not voluntarily relinquish his credentials, and they expired on May 5, 2004. A.R. 280 (Letter to Colonel Fitzpatrick); A.R. 281 (Letter from Colonel Fitzpatrick). Dr. Sangar did not seek to have his credentials reinstated. A.R. 218 (Board of Inquiry Testimony).

In June 2004, the Department of the Army Inspector General investigated the circumstances surrounding Dr. Sangar's 2002 Board of Inquiry. Def.'s Stmt. ¶ 18. The Inspector General found no credible evidence that the Board of Inquiry was improperly initiated or that it improperly failed to return Dr. Sangar to clinical practice. See A.R. 372 (Inspector General Letter dated June 1, 2004). The Inspector General also noted that "given [Dr. Sangar's] unsuccessful retraining at [Madigan], the decision to retain him on active duty appears questionable." Id. He recommended that the Army Surgeon General "consider whether a [Board of Inquiry] should be re-convened to assess [Dr. Sangar's] suitability for continued duty [because] [i]t does not appear to be in the best interest of the Army to continue the employment of a medical doctor to perform what was reported to be General Schedule-7 level administrative work as a Tumor Registration clerk." Id.

On September 23, 2004, Dr. Sangar was notified that the Army had initiated elimination proceedings against him. Pl.'s Stmt. ¶ 30. In contrast to the initial proceedings that were based on the "downward trend" in his performance and his failure to "properly perform assignments commensurate with [his] grade and experience," Pl.'s Mot. for Summ. J., Ex. 6 at 1, these elimination proceedings were initiated based on the limitations and subsequent loss of his medical credentials: conduct or actions that result in the loss of a professional status, such as withdrawal, suspension or abandonment of professional license, endorsement, or certification that is directly or indirectly connected with or is necessary for the performance of one's military duties. (For [medical officers], this includes the partial or complete suspension, limitations, withdrawal, or denial of clinical practice privileges).

Army Reg. 600-8-24, 4-2(b)(9); See also A.R. 227 (Initiation of Elimination Letter dated Sept. 23, 2004).

The Board of Inquiry convened March 28, 2005. Def.'s Stmt. ΒΆ 20. The Board recommended Sangar's separation from the Army because after the loss of [his] credentials to practice Nuclear Medicine, [he] failed to perform to the standards expected of a Lieutenant Colonel in the United States Army. This includes [his] lack of initiative to become recredentialed [sic], [his] apparent lack of insight in recognizing [his] clinical limitations and deficiencies and how to pursue ...


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