Said I. Hakki, M.D. v. Secretary, Department of Veterans Affairs ( 2021 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14645
________________________
D.C. Docket No. 8:18-cv-01269-MSS-JSS
SAID I. HAKKI, M.D.,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellee.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 3, 2021)
Before JORDAN, BRASHER, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge:
A physician’s discharge from employment with the Department of Veterans
Affairs (“VA”) over a decade ago gives rise to the questions of federal subject-
matter jurisdiction addressed in this case. The physician, Plaintiff-Appellant Said
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I. Hakki, M.D. (“Dr. Hakki”), challenged his discharge in federal court, but the
district court held that it did not have jurisdiction to hear his claims brought
pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, and the
Mandamus Act, 28 U.S.C. § 1361, because the Veterans’ Benefits Act (“VBA”),
38 U.S.C. § 7461 et seq., is a comprehensive statutory scheme governing the
discipline of VA employees and was the exclusive remedy for review of Dr.
Hakki’s employment discharge. The district court also held that while the VBA
did not bar Dr. Hakki’s procedural due process claims, the claims were not
colorable because he received all the process due to him. After thorough review
and with the benefit of oral argument, and as explained below, we conclude that
the district court did not have subject-matter jurisdiction over any claim under the
APA because the VBA is a comprehensive statutory scheme that precludes APA
review, Dr. Hakki presents no colorable due process claim and thus there is no
equitable constitutional jurisdiction, and Dr. Hakki failed to establish a clear right
to relief or the VA’s clear duty to act and thus there is no Mandamus Act
jurisdiction.
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I. BACKGROUND
Dr. Hakki began working as a urologist at the Bay Pines VA Health Care
System (“Bay Pines”) in Pinellas County, Florida in 1986. 1 In 2003, the U.S.
Department of Defense asked Dr. Hakki, and he agreed, to assist in the efforts to
develop the government and healthcare systems in Iraq. Dr. Hakki worked as an
advisor to the Iraqi Prime Minister’s office and led the Iraqi Red Crescent (“IRC”).
The VA granted him leave without pay—abbreviated as “LWOP”—in connection
with his work in Iraq. In March 2007, Dr. Hakki requested and was granted an
extension of LWOP through December 31, 2008. Dr. Hakki requested several
additional extensions of LWOP, which, along with the VA’s decisions regarding
those requests, eventually gave rise to his discharge. We review those requests and
the VA’s related decisions. Then, we proceed to explain the procedures that more
immediately led to Dr. Hakki’s discharge and related litigation.
1
Bay Pines operates within the VA Sunshine Healthcare Network, which is designated as
Veterans Integrated Services Network 8 (or “VISN 8”) and is one of the 18 regional healthcare
networks operated by the Veterans Health Administration (“VHA”). See 48 C.F.R. § 802.101(“VISN means . . . an integrated network of VA facilities that are focused on pooling and
aligning resources to best meet local needs in the most cost-effective manner and provide greater
access to care.”); Veterans Integrated Services Networks (VISNs), Veterans Health
Administration, U.S. Dep’t of Veterans Affairs, https://www.va.gov/HEALTH/visns.asp. The
VHA is a part of the Department of Veterans Affairs. 38 U.S.C. §§ 301(c), 7301(a). “The
primary function of the [VHA] is to provide a complete medical and hospital service for the
medical care and treatment of veterans, as provided in” Title 38 and regulations. Id. § 7301(b).
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A. Requests for Extension of LWOP and the VA’s Decisions
On August 1, 2008, the VA notified Dr. Hakki that his LWOP would be
terminated and that he was expected to return to work at Bay Pines on August 4,
2008. The VA had learned from the Department of State that his duties with the
IRC had ended. Dr. Hakki filed a grievance with the VA on August 28, 2008,
asserting he needed to remain in Iraq because Iraq’s Prime Minister had brought
false criminal charges against him and illegally removed him from his position at
the IRC. On September 26, 2008, the VA sustained the grievance, rescinded the
August 1 letter, and reinstated Dr. Hakki’s term of LWOP through Wednesday,
December 31, 2008. In conjunction with the decision to sustain his grievance, the
VA directed him to return to duty on Friday, January 2, 2009.
On October 3, 2008, Dr. Hakki’s LWOP was rescinded for a second time.
The Bay Pines Hospital Director, Wallace Hopkins, wrote that the State
Department notified the VA that the IRC had been dissolved effective July 31,
2008, by the Iraqi Prime Minister and thus the basis for Dr. Hakki’s LWOP no
longer existed. Dr. Hakki filed another grievance, which was granted by Bay Pines
Hospital Director Hopkins on October 28, 2008. In sustaining the grievance, the
October 28 letter explained that the VA reinstated LWOP through December 31,
2008, with a return date of January 2, 2009. In a separate letter dated November 3,
2008, Dr. Hakki was again informed that his return date remained January 2, 2009.
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On December 19, 2008, Dr. Hakki requested a six-month extension of
LWOP from the existing expiration date of December 31, 2008, to a new date of
June 30, 2009, because he needed to defend himself against the criminal charges,
to be available for testimony in related civil matters, and to pursue his own
defamation lawsuits.
By letter dated December 23, 2008, Hopkins denied this request. This denial
letter underlies a large part of Dr. Hakki’s theory in this case. Hopkins addressed
one of Dr. Hakki’s attorneys in the December 2008 LWOP denial letter, stating
that “there [wa]s no basis upon which to justify the continuation of Dr. Hakky’s[2]
LWOP.” He explained the decision as follows:
VA Handbook 5011 stipulates that LWOP decisions require there be a
certainty regarding the date of the employee’s return. During our
meeting on October 27, 2008, at which you were in attendance, [co-
counsel] requested Dr. Hakky’s LWOP be extended through December
31, 2008, and expressed Dr. Hakky’s wish to return to duty at the
beginning of 2009. Your written request does not establish that it would
serve the Department of Veterans Affairs interests by approving an
extension of LWOP beyond the December 31, 2008 deadline. This
most recent request demonstrates multiple personal issues of Dr.
Hakky’s and seems to indicate there is uncertainty of Dr. Hakky’s
return date; VA regulation requires certainty in order to approve
LWOP. Therefore, Dr. Hakky’s request for LWOP through June 30,
2009 is denied. . . . As stated in my letter to Dr. Hakky dated November
3, 2008, of which [co-counsel] received a copy, I direct Dr. Hakky to
return to duty at the Bay Pines VA Healthcare System, Surgical Service,
effective Friday, January 2, 2009.
2
The record includes some references to Plaintiff’s name spelled as “Hakky.” We
understand both spellings of the name to refer to the same person, Plaintiff-Appellant, and we
will use the spelling used in the parties’ appellate briefs and other filings (i.e., “Hakki”).
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We will refer to this decision and the request that prompted it, as the December
2008 LWOP denial and the December 2008 LWOP request (respectively) or in
combination.
On December 31, 2008—i.e., the last day of his approved LWOP—Dr.
Hakki responded to the December 2008 LWOP denial. In his response, Dr. Hakki
described the LWOP denial letter as “suggest[ing] that the request for LWOP
seems to indicate there is uncertainty of Dr. Hakky’s return date.” Dr. Hakki
“advised that [his] request for LWOP through June 30, 2009 means he would
return to duty on July 1, 2009,” and stated that “this will confirm that Hakky
wishes to return to duty on July 1, 2009 and will not request any further LWOP.”
“In light of the certainty of Dr. Hakky’s return, as reaffirmed herein,” the letter
explained, “we ask that you reconsider your decision. In the meanwhile, we have
filed a grievance concerning your decision.” In addition to this response, on
December 31, 2008, Dr. Hakki filed a union grievance challenging the December
2008 LWOP denial.
Dr. Hakki did not return to work two days later on the established return date
of January 2, 2009. Because he did not return to work, and because he was absent
without approval of leave, he was considered to be absent without leave, or
“AWOL,” as of January 2, 2009.
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On January 28, 2009, Hopkins denied the December 31 union grievance. 3
Hopkins explained that he had considered Dr. Hakki’s grievance, as well as
previous related decisions, and “determined that due to the extended length of Dr.
Hakky’s absences to date, related to his personal affairs, and because there is no
way to definitively determine the actual date his personal affairs will be resolved,”
extended LWOP was not in the VA’s best interest. The letter also explained that
Dr. Hakki was charged as AWOL since January 2, 2009, because he did not return
on that date as directed, and he would continue to be considered AWOL.
The union, the American Federation of Government Employees, requested
arbitration of the January 28 grievance denial. A settlement was proposed that
would require Dr. Hakki to report to work on July 1, 2009, and would set Dr.
Hakki’s status as AWOL from January 2 through June 30, 2009. Dr. Hakki did not
sign the proposed agreement.4
On June 22, 2009, Dr. Hakki requested an extension of LWOP for the period
of July 1, 2009, through September 30, 2009. The VA did not respond to this June
22 request.
3
In denying the December 31 union grievance, Hopkins explained that he had met with
Dr. Hakki’s counsel and discussed the grievance on January 20, 2009; during the meeting, they
both agreed that Hopkins’s response to the grievance could be submitted at Hopkins’s
convenience.
4
Dr. Hakki also filed an unfair labor practice charge against the VA and the American
Federation of Government Employees with the Federal Labor Relations Authority, which did not
issue a complaint.
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B. Proposed Discharge and Grievance
On July 8, 2009, Dr. Hakki, having not yet returned to work, was issued a
proposed discharge—i.e., a proposal that he be discharged from his employment
with the VA—by Dr. Terry Wright, the Chief of the Surgical Service. Dr. Wright
explained in the proposed discharge that Dr. Hakki had been approved for LWOP
through December 31, 2008, and that a request to extend LWOP was denied in
December 2008, i.e., the December 2008 LWOP request and denial. Furthermore,
Dr. Hakki, though directed to return to Bay Pines on January 2, 2009, failed to
return and was charged AWOL since January 2, 2009. This meant that as of the
date of the proposed discharge, he had been AWOL for 26 weeks. Allowing his
continued unauthorized absence did not support the VA’s mission or the efficiency
of the service, and he was charged with unauthorized absence. The proposed
discharge continued by outlining Dr. Hakki’s procedural rights, including an
opportunity to be heard, to inspect the evidence on which the proposed discharge
was based, and to be represented by counsel.
Dr. Hakki responded to the proposed discharge on July 21, 2009. He
explained his belief that he should not be discharged and why he believed his
continued absence supported the mission of the VA and the efficiency of the
service as “set forth in both Dr. Hakky’s December 19, 2008 . . . and June 22, 2009
. . . request[s] for LWOP, which [we]re both incorporated by reference.” He
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stated, “The period of Dr. Hakky’s purported AWOL upon which the proposed
discharge is based is, of course, the very time period for which Dr. Hakky
previously sought leave without pay (‘LWOP’) by a request dated December 19,
2008”—i.e., the December 2008 LWOP request. Dr. Hakki’s July 2009 response
continued: “Mr. Hopkins denied that request for LWOP as well as a subsequent
grievance of that denial”—i.e., the December 2008 LWOP denial. He expressed
his understanding that the settlement agreement arising from the union
arbitration—though admittedly objected to by Dr. Hakki and his counsel—
purported to permit Dr. Hakki to return to work on July 1, 2009. However, Dr.
Hakki acknowledged that he had in fact been carried as AWOL and that the
proposed discharge was based on his 26-weeklong AWOL status from January 2,
2009, through July 1, 2009. He also requested that Hopkins be recused from any
determination related to Dr. Hakki’s proposed discharge due to bias.5
In response to Dr. Hakki’s request for Hopkins to be recused, a human
resources consultant with the VA in Washington, D.C. recused Hopkins. In
addition to granting the request to recuse Hopkins, the consultant recused the
network director for VISN 8, i.e., the head of the VA network that included Bay
Pines. Two VISN 10 directors were appointed to hear Dr. Hakki’s grievance
5
In his July 2009 response to the proposed discharge, Dr. Hakki also noted the failure of
the VA to respond to his June 2009 LWOP request, alleged the VA interfered with the arbitration
of the union grievance, and alleged unfair labor practices.
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regarding his proposed discharge. The VISN 10 directors were Linda Smith, who
would make a recommendation, and Jack Hetrick, who would make the final
decision regarding discharge.
C. Proceedings on the Proposed Discharge and Subsequent Discharge
On October 9, 2009, Dr. Hakki provided an oral response to the proposed
discharge via telephone call with Smith and a human resources advisor. After the
call, Smith prepared a summary and recommendation to Hetrick.
Smith recommended that the discharge be upheld because Dr. Hakki was
AWOL from January 2, 2009, to June 30, 2009, despite being notified of his return
date of January 2, and his personal reasons that formed the basis for his request to
remain on LWOP did not serve the VA. Smith further explained that, as Dr. Hakki
admitted, the criminal matters in Iraq had not been resolved and additional criminal
charges might result in the future.
On November 13, 2009, Hetrick issued a letter notifying Dr. Hakki that “in
conjunction with the July 8, 2009, Notice of Proposed Removal, a decision ha[d]
been made to remove [Dr. Hakki] from employment with [Bay Pines] effective
November 30, 2009.” Hetrick explained the reasons for the decision to discharge
Dr. Hakki, which included that Dr. Hakki had been “uncertain as to when [he] can
return to the duties and responsibilities of [his] position, due to unresolved criminal
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matters.” Hetrick responded to Dr. Hakki’s reference to the arbitration settlement
proposal, as follows:
[A] careful review of the settlement agreement reveals that in order for
you to be designated as ‘Absent without Leave,’ you were required to
report to duty by July 1, 2009. By your own admission, you failed to
return to duty by the established deadline. This aforementioned failure
therefore, supports the charge as set forth in the Notice of Proposed
Removal.
But the reasons Hetrick gave for sustaining the proposed discharge decision
focused on other considerations: “Careful consideration was also given to the
frequency of your conduct. Specifically, since January 2, 2009, you have been
charged Absence without Leave (AWOL) for twenty-six (26) weeks.”
On December 7, 2009, Dr. Hakki challenged his discharge. Dr. Hakki
argued in a grievance that his proposed discharge had been purportedly based on
an alleged failure to return to work on January 2, 2009, and his AWOL status
through June 2009, but he asserted that Hetrick’s discharge decision was in fact
based on his failure to return on July 1, not January 2, a violation of due process
and VA Handbook rules. He also simultaneously relied on the arbitration
settlement agreement as extending his return date to July 1, 2009, while arguing it
was illegal because he did not approve of it (but rather objected to it) and thus the
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Due Process Clause of the Fifth Amendment had been violated.6 As relief, Dr.
Hakki requested reversal of Hetrick’s discharge decision, reinstatement, legal fees,
consequential damages, expungement regarding his AWOL status, and LWOP
through December 30, 2009. This grievance was denied after review by Susan
Bowers, the VISN 18 Network Director, who made a recommendation to VA
Deputy Under Secretary William Schoenhard.
D. Hakki I
In October 2010, Dr. Hakki filed a complaint in federal district court
challenging the VA’s final decision to discharge him, alleging due process
violations and claims pursuant to the APA, 5 U.S.C. § 702, and Mandamus Act, 28
U.S.C. § 1361. As the parties and the district court in the underlying proceedings
in this case did, we will refer to the first lawsuit filed in 2010 and that court’s
dispositive decision in the first lawsuit in 2014 as “Hakki I.”
The Hakki I court entered judgment and remanded the case back to the VA
on March 31, 2014, because the VA had conceded that the procedures governing
Dr. Hakki’s discharge were inconsistent with the VA’s required procedures
because they did not include an opportunity for cross-examination. See Order at 5,
Hakki v. Shinseki, No. 10-CV-2212 (M.D. Fla. Mar. 31, 2014), ECF No. 79. The
6
In the grievance regarding Hetrick’s discharge decision, Dr. Hakki also alleged Hetrick
did not review certain documents and that there were ex parte communications between VISN 8
and 10 personnel.
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court rejected Dr. Hakki’s request for the court to issue a writ of mandamus
requiring Dr. Hakki’s reinstatement and an award of full back pay. Id. at 5–6. He
had “not carried his burden of showing that he has a right to this extraordinary
remedy as a means of achieving any form of relief, especially not reinstatement
and damages,” and he had an adequate alternative remedy in the comprehensive
statutory scheme afforded to VA physicians, 38 U.S.C. §§ 7461–64. Id. at 6–7.
This comprehensive statutory scheme also compelled the court to deny any further
claim for damages. Id. at 7–8 (citing United States v. Fausto, 484 U.S. 439, 448–
49, 108 S. Ct. 668, 674, 98 L. Ed. 2d 830 (1988)).
E. The Second Set of Procedures and Decision Related to the Discharge
On remand to the VA, Dr. Michael Mayo-Smith, the Network Director for
the New England Healthcare System in VISN 1, was appointed to make a
recommendation to Steve Young, the VA Deputy Under Secretary for Operations
and Management, who would make the final decision in this second set of
procedures with respect to Dr. Hakki’s discharge. A hearing was held on June 6
and 7, 2017, during which testimony was heard and cross-examination was
conducted.
On December 22, 2017, Mayo-Smith recommended to Young that Dr.
Hakki’s grievance regarding his discharge be granted because Hopkins (who
denied Dr. Hakki’s December 2008 LWOP request) and Hetrick (who sustained
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the proposed discharge, making effective the discharge) relied upon two incorrect
reasons in making their respective decisions. Both Hopkins and Hetrick made their
decisions based on, first, the lack of certainty as to Dr. Hakki’s return date and,
second, his continued LWOP not serving the VA’s interest. The first reason was
incorrect because VA Handbook 5011, Part III Leave, Section 13, Leave Without
Pay, does not require a definitive return date, just a “reasonable expectation that
the employee will return to duty,” and Dr. Hakki had consistently communicated
his commitment to return to Bay Pines and the VA never expressed any concern
about Dr. Hakki’s not returning on a firm date. The second reason was wrong
because if the VA “abandoned” individuals like Dr. Hakki, it would impair future
recruiting. For these reasons, Mayo-Smith recommended that Dr. Hakki’s
grievance denial be reversed and the discharge grievance be granted, that his
request for LWOP be retroactively granted from December 31, 2009, through
March 31, 2018, and that any reference to his AWOL status in his records be
expunged. Mayo-Smith recommended that consequential damages be denied.
On April 18, 2018, Young issued the final decision, which rejected Mayo-
Smith’s recommendations, and Dr. Hakki’s discharge grievance was denied.
“After reviewing the grievance file and the recommendations made by . . . Dr.
Mayo-Smith, [Young] determined that [Mayo-Smith’s] recommendations were
based on the application of the incorrect portion of policy”; Mayo-Smith used the
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wrong VA Handbook provision, the one for Title 5–appointed individuals, which
Dr. Hakki was not since he was a Title 38 physician. The Handbook provisions for
Title 38 provided that LWOP authorization “is a matter of administrative
discretion” and “[a]n employee cannot demand that LWOP be granted,” except for
FMLA leave or for disabled veterans, which Dr. Hakki did not qualify for. The
Handbook for Title 38 employees required an expectation that the employee will
return to duty, the needs of the service and patient care not be hampered, and the
contribution of the employee merited LWOP. Young determined that the VA
“appropriately exercised its discretion to deny LWOP,” and the “VA [had]
articulated its reason for the denial of LWOP on December 23, 2008”—i.e., the
December 2008 LWOP denial—which was based on the lack of certainty as to Dr.
Hakki’s return and the LWOP request did not establish how the continued leave
would serve the VA. Young concluded, “Because the underlying basis for [Mayo-
Smith’s] recommendations are contrary to applicable VA policy, the
recommendations must be rejected. As such, the grievance must be denied.”
F. District Court Decision Appealed in this Case
On May 25, 2018, Dr. Hakki filed a new lawsuit in the same federal district
court seeking review under the APA of the VA’s final decision issued by Young,
seeking a writ of mandamus, and alleging due process violations.
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The parties filed cross-motions for summary judgment. The court granted
the VA’s motion and denied Dr. Hakki’s motion. The court held that it did not
have subject-matter jurisdiction to review the APA and mandamus claims because,
citing United States v. Fausto, 484 U.S. at 440, 108 S. Ct. at 670, the VBA is a
comprehensive statutory scheme and was Dr. Hakki’s exclusive remedy and thus
barred judicial review of the VA’s decision to discharge him.
The court also determined that while it had jurisdiction over constitutional
claims under its equitable powers, Dr. Hakki failed to present a colorable due
process claim and the undisputed evidence showed he received all the process he
was due. In particular, the district court rejected Dr. Hakki’s argument that there
was a due process violation because Young’s decision addressed the wrong
grievance—i.e., Dr. Hakki’s argument that Hetrick based the denial of his
grievance on Dr. Hakki’s failure to return on July 1, 2009, while Young’s decision
was based on his failure to return on January 2, 2009, and his AWOL status
thereafter. The district court explained that Dr. Hakki had been on notice that the
VA was sustaining his discharge because of a lack of a definite return date and the
efficiency of the service. In any event, the logical outgrowth of a determination
that the December 2008 LWOP request was properly denied, as Young concluded
in rejecting Mayo-Smith’s recommendation, was that Dr. Hakki was AWOL from
January 2, 2009, through his proposed discharge. Furthermore, though Dr. Hakki
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argued that he did not have notice that Young would rely on Mayo-Smith’s alleged
incorrect reference to a particular VA Handbook provision, the district court
determined that it did not have the authority to determine an issue related to the
correct VA Handbook provision.
The district court also rejected Dr. Hakki’s challenge to Young’s decision on
the basis that Young misinterpreted the standard relating to the expectation of an
employee’s return to duty—i.e., whether or not a definitive return date is required.
The district court rejected that argument as a substantive challenge—not a
procedural due process matter—over which the court had no jurisdiction.
Finally, the district court rejected an argument that any bias influenced the
decision to terminate Dr. Hakki. Therefore, the district court entered summary
judgment for the VA.
Dr. Hakki timely appealed.
II. STANDARD OF REVIEW
Although the district court in this case heard and granted a motion for
summary judgment, the motion presented a “factual attack” on subject-matter
jurisdiction and the district court looked beyond the complaint (i.e., to the
administrative record) to determine whether it had subject-matter jurisdiction.
Lawrence v. Dunbar, 919 F.2d 1525, 1528–30 (11th Cir. 1990); Stalley ex rel. U.S.
v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232–33 (11th Cir. 2008).
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Thus, if a valid attack, dismissal would be appropriate pursuant to Federal Rule of
Civil Procedure 12(b)(1), instead of the entry of judgment pursuant to Rule 56(a).
See Stalley, 524 F.3d at 1232 (“A dismissal for lack of subject matter jurisdiction
is not a judgment on the merits and is entered without prejudice.”); Kennedy v.
Floridian Hotel, Inc., 998 F.3d 1221, 1230 (11th Cir. 2021) (“Here, Floridian’s
motion . . . challenged ‘the existence of subject matter jurisdiction in fact,
irrespective of the pleadings.’ The district court reasonably construed Floridian’s
motion for summary judgment as a factual attack on subject matter jurisdiction
under Rule 12(b)(1).” (quoting Lawrence, 919 F.2d at 1529)); see also Fed. R. Civ.
P. 12(h)(3). When reviewing a decision regarding a factual attack on subject-
matter jurisdiction, we review the district court’s legal conclusions de novo and
any jurisdictional factual findings for clear error, though the facts are not in dispute
in this case. See Kennedy, 998 F.3d at 1233 n.5.
A “factual attack,” as opposed to a “facial attack” on the pleadings, means a
motion—though it may be labeled as a motion for summary judgment—
“challenges the existence of subject matter jurisdiction irrespective of the
pleadings, and extrinsic evidence may be considered.” Id. at 1230 (citing
Lawrence, 919 F.2d at 1529); Morrison v. Amway Corp., 323 F.3d 920, 925 n.5
(11th Cir. 2003) (“Appellees’ motion to dismiss was a factual attack because it
relied on extrinsic evidence and did not assert lack of subject matter jurisdiction
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solely on the basis of the pleadings.”). “A district court evaluating a factual attack
on subject matter jurisdiction ‘may proceed as it never could’ at summary
judgment and ‘is free to weigh the evidence and satisfy itself as to the existence of
its power to hear the case.’” Kennedy, 998 F.3d at 1230 (citing Lawrence, 919
F.2d at 1529). Though proceeding like it would in hearing a motion for summary
judgment when presented with a valid factual attack, the district court must
“construe[] . . . [a] motion for summary judgment as a factual attack on subject
matter jurisdiction under Rule 12(b)(1)” because it is without power to enter
judgment without jurisdiction and must dismiss the case. Id.Furthermore, “courts must consider” questions of subject-matter jurisdiction
sua sponte if not raised by the parties. Fort Bend Cnty. v. Davis, 139 S. Ct. 1843,
1849, 204 L. Ed. 2d 116 (2019); Absolute Activist Value Master Fund Ltd. v.
Devine, 998 F.3d 1258, 1264 (11th Cir. 2021) (“‘[P]arties cannot waive subject
matter jurisdiction,’ and we are ‘obligated to inquire into subject matter
jurisdiction sua sponte whenever it may be lacking.’” (first quoting Scarfo v.
Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999); then quoting Mitchell v. Maurer,
293 U.S. 237, 244, 55 S. Ct. 162, 165, 79 L. Ed. 338 (1934))). And “[w]e may
affirm the judgment below on any ground supported by the record, regardless of
whether it was relied on by the district court.” Statton v. Fla. Fed. Jud. Nominating
Comm’n, 959 F.3d 1061, 1065 (11th Cir. 2020).
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III. DISCUSSION
Dr. Hakki appeals the district court’s decision holding that the court did not
have subject-matter jurisdiction and raises three main issues: (A) whether the
district court had subject-matter jurisdiction over his APA claims, (B) whether the
district court had subject-matter jurisdiction over his due process claims for
injunctive relief, and (C) whether the district court had mandamus jurisdiction. For
the reasons explained below, we hold that the district court did not have subject-
matter jurisdiction over the APA claims because the VBA is a comprehensive
statutory remedial scheme that precludes judicial review of the VA’s discharge
decision; that the district court did not have jurisdiction to hear a constitutional
claim because Dr. Hakki did not present a colorable due process claim; and that the
district court did not have mandamus jurisdiction because Dr. Hakki established
neither a clear right to relief nor a clear duty to act on the part of the VA.
A. The VBA Precludes Judicial Review Pursuant to the APA of the Decision to
Discharge Dr. Hakki
Dr. Hakki challenges the substance of the decision to discharge him from
employment with the VA under the APA, arguing the decision was arbitrary,
capricious, an abuse of discretion, and otherwise not in accordance with law. The
district court held that it did not have jurisdiction over such a claim pursuant to
United States v. Fausto. The Supreme Court held in Fausto that the “deliberate
exclusion of employees in [the nonpreference excepted] service category from the
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provisions establishing administrative and judicial review for personnel action” in
the Civil Service Reform Act (“CSRA”)—which “established a comprehensive
system for reviewing personnel action taken against federal employees”—
“prevent[ed] . . . review in the Claims Court under the Back Pay Act.” 484 U.S. at
455, 108 S. Ct. at 677. Relying on the principles of the Fausto holding, our Court
has held that the CSRA precludes APA review of certain federal employment
decisions, Best v. Adjutant Gen., 400 F.3d 889, 892–93 (11th Cir. 2005) (holding
APA review unavailable for terminated nonpreference eligible excepted service
employee excluded from express CSRA judicial review provisions); Stephens v.
Dep’t of Health & Hum. Servs., 901 F.2d 1571, 1576 (11th Cir. 1990) (holding
judicial review of personnel decision related to preference-eligible exempt
employee foreclosed by CSRA); and “the CSRA precludes a Bivens remedy . . .
notwithstanding the fact that the CSRA does not provide administrative or judicial
review of the adverse personnel action,” Lee v. Hughes, 145 F.3d 1272, 1275 (11th
Cir. 1998). More to the point of the particular issue here, we have held that the
employee disciplinary and grievance procedures applicable to VA employees in
the VBA, 38 U.S.C. §§ 7461–64, similarly evidence a congressional intent to
preclude certain VA employees from recovering pursuant to a Bivens action for
damages. Hardison v. Cohen, 375 F.3d 1262, 1264–66 (11th Cir. 2004). For
similar reasons, as explained below, we hold in this case that the same provisions
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of the VBA evidence a clear congressional intent to preclude APA judicial review
of a VA disciplinary decision made pursuant to 38 U.S.C. § 7463, the provision
pursuant to which Dr. Hakki was discharged.
When faced with the question of whether judicial review was available for
certain employees under the CSRA, the Fausto Court examined “the purpose of the
CSRA, the entirety of its text, and the structure of review that it establishes.” 484
U.S. at 444, 108 S. Ct. at 672. We will do the same for the VBA to determine
whether judicial review is available pursuant to § 7463 by outlining the structure of
the VBA’s comprehensive remedial processes for discipline and review.
1. The statutory scheme for discipline in the VBA is comprehensive and
indicates a clear purpose in its structure for review.
Subchapter V of Title 38 is a comprehensive scheme made up of four
statutory sections governing discipline of VA employees, like physicians,
appointed pursuant to 38 U.S.C. § 7401(1).7 38 U.S.C. § 7461(a). The first
section is 38 U.S.C. § 7461, which provides that adverse charges and actions
against VA employees shall go through one of two grievance processes:
(1) If the case involves or includes a question of professional conduct
or competence in which a major adverse action was taken, such an
appeal shall be made to a Disciplinary Appeals Board under section
7462 of th[e] title.
7
Dr. Hakki was a VA employee covered by the provisions of Subchapter V of Title 38 as a
physician appointed pursuant to 38 U.S.C. § 7401(1).
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(2) In any case other than a case described in paragraph (1) that involves
or includes a question of professional conduct or competence in which
a major adverse action was not taken, such an appeal shall be made
through Department grievance procedures under section 7463 of th[e]
title.
38 U.S.C. § 7461(b). A “major adverse action” includes discharge.
§ 7461(c)(2)(E). “A question of professional conduct or competence is a question
involving” “[d]irect patient care” or “[c]linical competence.” § 7461(c)(3). A
disciplinary action involving both means § 7462 governs; if the action is not
“major” or if the action does not involve “a question of professional conduct or
competence,” § 7463 governs.
Section 7462—the section dealing with major adverse actions involving
questions of professional conduct or competence—provides for review by a
“Disciplinary Appeals Board” and outlines the specific procedural features of that
review, including detailed notice 8 and an opportunity to be heard. 9 § 7462(a)–(c).
8
Regarding notice, § 7462(b)(1)(A)—which is incorporated into the minimum procedures
due pursuant to § 7463, as stated later in the text of this opinion—states:
Advance written notice from the Under Secretary for Health or other charging
official specifically stating the basis for each charge, the adverse actions that could
be taken if the charges are sustained, a statement of any specific law, regulation,
policy, procedure, practice, or other specific instruction that has been violated with
respect to each charge, and a file containing all the evidence in support of each
charge, except that the requirement for notification in advance may be waived if
there is reasonable cause to believe that the employee has committed a crime for
which the employee may be imprisoned.
9
Regarding an opportunity to be heard, § 7462(b)(1)(B)—which is also incorporated by
§ 7463—states:
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The decision of the Disciplinary Appeals Board is then reviewable by the
Secretary, who can reverse, vacate, or accept the decision, as well as order certain
remedies like reinstatement or back pay. § 7462(d). In addition, an employee
“adversely affected by a final order or decision of a Disciplinary Appeals Board (as
reviewed by the Secretary) may obtain judicial review of the order or decision.”
§ 7462(f)(1) (emphasis added). Judicial review and a court’s ability to hold
unlawful and set aside the VA’s decision pursuant to Section 7462, however, is
expressly limited:
In any case in which judicial review is sought under this subsection, the
court shall review the record and hold unlawful and set aside any
agency action, finding, or conclusion found to be--
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) obtained without procedures required by law, rule, or regulation
having been followed; or
(C) unsupported by substantial evidence.
§ 7462(f)(2); see Durr v. Shinseki, 638 F.3d 1342, 1346 (11th Cir. 2011)
(“Because Durr’s complaint seeks judicial review of the decision of a VA
Disciplinary Appeals Board, we, like the district court, are limited in our review by
The opportunity, within the time period provided for in paragraph (4)(A), to present
an answer orally and in writing to the Under Secretary for Health or other deciding
official, who shall be an official higher in rank than the charging official, and to
submit affidavits and other documentary evidence in support of the answer.
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38 U.S.C. § 7462(f).”). Thus, though judicial review is afforded to a VA decision
made pursuant to § 7462, the section expressly limits that review to certain
categories of error or bases for reversal. Relatedly, the last section of the four
sections of Subchapter V—i.e., § 7464—describes the function and role of the
Disciplinary Appeals Board.
The remaining of the four sections governing VA employee discipline is
§ 7463, which expressly governs the procedures for those whose discipline did not
involve a major adverse action or did not arise from a question of professional
conduct or competence. This section is significantly limited compared to § 7462.
Section 7463(a) states that “[t]he Secretary shall prescribe by regulation
procedures for the consideration of grievances of section 7401(1) employees
arising from adverse personnel actions in which each action taken either . . . is not
a major adverse action; or . . . does not arise out of a question of professional
conduct or competence.” § 7463(a)(1)–(2). It proceeds to explicitly state that
“Disciplinary Appeals Boards shall not have jurisdiction to review such matters,
other than as part of a mixed case (as defined in section 7462(a)(3) of this title).”
§ 7463(a). “[A] mixed case is a case that includes both a major adverse action
arising out of a question of professional conduct or competence and an adverse
action which is not a major adverse action or which does not arise out of a question
of professional conduct or competence.” § 7462(a)(3). That is, if the action at
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issue does not include anything major or if the action at issue does not include
anything arising out of a question of professional conduct or competence, then
review by a Disciplinary Appeals Board is foreclosed.
Section 7463(b) gives the option to “an employee who is a member of a
collective bargaining unit” to “seek review of an adverse action described in
subsection (a) either under the grievance procedures provided through regulations
prescribed under subsection (a) or through grievance procedures determined
through collective bargaining, but not under both.”
For those employees against whom charges have been brought that may
result in a major adverse action but do not involve professional conduct or
competence, certain procedural protections are due. § 7463(c)(1). In other words,
employees governed by § 7463—because their case did not involve a question of
professional conduct or competence—are distinguished, in any event, if their
discipline may still be considered a “major adverse action.” Id. “[T]he employee
is entitled to notice and an opportunity to answer with respect to those charges in
accordance with subparagraphs (A) and (B) of section 7462(b)(1),” i.e., the notice
and opportunity afforded to employees with charges involving a question of
professional conduct or competence that also may result in a major adverse action
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under § 7462.10 See § 7463(c)(1); supra notes 9 & 10. “In any other case,” less
robust notice and opportunity to be heard are afforded. § 7463(c)(2).11
Section 7463 also sets minimum requirements for procedures prescribed by
the Secretary of the VA. Those minimum requirements are:
(1) A right to formal review by an impartial examiner within the
Department of Veterans Affairs, who, in the case of an adverse action
arising from a question of professional conduct or competence, shall be
selected from the panel designated under section 7464 of th[e] title.
(2) A right to a prompt report of the findings and recommendations by
the impartial examiner.
(3) A right to a prompt review of the examiner’s findings and
recommendations by an official of a higher level than the official who
decided upon the action. That official may accept, modify, or reject the
examiner’s recommendations.
§ 7463(d). Finally, “the employee is entitled to be represented by an attorney or
other representative of the employee’s choice at all stages of the case” in the
grievance procedures prescribed by the Secretary. § 7463(e). Otherwise, § 7463 is
silent on any other issues.
10
Section 7462(c)(3) sets different time periods than those in § 7463(b)(4)–(5) for the
notice and opportunity to be heard for § 7462 cases.
11
In particular, for charges not implicating either a major adverse action or a question of
professional conduct or competence, the employee is entitled to “(A) written notice stating the
specific reason for the proposed action, and (B) time to answer orally and in writing and to
furnish affidavits and other documentary evidence in support of the answer.” § 7463(c)(2).
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2. The statutory disciplinary scheme in the VBA, 38 U.S.C. §§ 7461–64,
forecloses judicial review pursuant to the APA of a decision of the VA
made pursuant to § 7463.
With this entire statutory structure in mind, we conclude that § 7463’s
silence regarding judicial review and its limitation of when Disciplinary Appeals
Board review is available “displays a clear congressional intent to deny the
excluded employees the protections of [§ 7462]—including judicial review—for
personnel action covered by [§ 7463].” See Fausto, 484 U.S. at 447, 108 S. Ct. at
673. Therefore, a district court does not have subject-matter jurisdiction over an
APA claim to review a § 7463 decision.
First, § 7463 is silent with respect to judicial review. This silence compares
with the other section of the VBA that affords more procedures in certain
circumstances—i.e., § 7462, dealing with major adverse actions involving
questions of professional conduct or competence—which expressly provides for
judicial review of a Disciplinary Appeals Board order or decision for an employee
that is “adversely affected by a final order or decision of a Disciplinary Appeals
Board (as reviewed by the Secretary).” § 7462(f)(1).
Second, this silence regarding judicial review is coupled with the limited
circumstances under which an employee disciplined pursuant to § 7463 may seek
Disciplinary Appeals Board review: “Disciplinary Appeals Boards shall not have
jurisdiction to review such matters, other than as part of a mixed case . . . .”
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§ 7463(a). In other words, where the case does not involve a major adverse action
arising out of a question of professional conduct or competence—i.e., one that
cannot be a mixed case—Disciplinary Appeals Board review is unavailable.
Review by a Disciplinary Appeals Board is the first step in obtaining judicial
review under § 7462; allowing for judicial review of a decision made pursuant to
§ 7463 (i.e., not in a mixed case) without that first step of Disciplinary Appeals
Board review would up-end the carefully outlined procedures for discipline and the
funneling of review of decisions through particular procedures and steps. An
employee cannot skip from the decision imposing the adverse action to judicial
review in a federal court under either § 7462 or § 7463; an employee disciplined
pursuant to § 7462 must go through Disciplinary Appeals Board review and then to
review by the Secretary before judicial review is possible. Cf. Fausto, 484 U.S. at449–50, 108 S. Ct. at 674–75 (“Interpreting the exclusion of nonpreference
excepted service personnel from Chapter 75 as leaving them free to pursue other
avenues of review would turn the first structural element upside down . . . . Under
respondent’s view, he would be able to obtain judicial review of a 10–day
suspension for misconduct, even though a competitive service employee would not
. . . .”). Section 7463, with its express limitation on the circumstances in which
Disciplinary Appeals Board review is available, clearly prohibits judicial review of
a decision made pursuant to its procedures.
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Furthermore, the APA—that is, the statute that Dr. Hakki asserts provides a
basis for judicial review of the VA’s decision to discharge him—provides, in part,
that a “reviewing court shall . . . hold unlawful and set aside agency action,
findings, and conclusions found to be”:
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short
of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections
556 and 557 of this title or otherwise reviewed on the record of an
agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to
trial de novo by the reviewing court.
5 U.S.C. § 706(2). Section 7462 of the VBA clearly expresses the limited
circumstances under which a reviewing court can set aside a decision by the
Secretary and “hold unlawful and set aside any agency action, finding, or
conclusion”: when the action, findings, or conclusions are
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) obtained without procedures required by law, rule, or regulation
having been followed; or
(C) unsupported by substantial evidence.
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§ 7462(f)(2). It does not make any common sense that an employee disciplined
pursuant to § 7463—who cannot seek the judicial review granted pursuant to
§ 7462 and thus cannot have his discipline set aside for the reasons outlined in
§ 7462(f)(2)—can proceed using the APA instead. The bases for APA review
overlap with § 7462. Allowing for APA review for § 7463 discipline would “turn”
the VBA’s disciplinary structure of review “upside down.” See Fausto, 484 U.S. at
449, 108 S. Ct. at 674.
The First and Sixth Circuits have similarly examined the VBA and held that
APA review is precluded pursuant to § 7463. In a case in which a VA physician
asserted an APA claim, the First Circuit held that “Congress’s express provision of
judicial review in § 7462, coupled with a complete omission of judicial review in
§ 7463—the provision governing [the physician]—is ‘persuasive evidence that
Congress deliberately intended to foreclose further review of such claims.’”
Pathak v. Dep’t of Veterans Affs., 274 F.3d 28, 32 (1st Cir. 2001) (quoting United
States v. Erika, Inc., 456 U.S. 201, 208, 102 S. Ct. 1650, 72 L. Ed. 2d 12 (1982))
(citing Fausto, 484 U.S. at 448, 108 S. Ct. 668). The Sixth Circuit also held that a
physician was “precluded from invoking the protections of the APA to obtain the
judicial review of her adverse employment action that she was denied by the
Veterans’ Benefits Act” because “[l]ike the CSRA, Title 38 provides a
comprehensive regulatory scheme for employees of the VA,” and “[i]n particular,
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§ 7463 outlines the procedures Congress intended to provide for review of adverse
actions of the type [the physician] encountered.” Fligiel v. Samson, 440 F.3d 747,
752 (6th Cir. 2006).12 We join the First and Sixth Circuits in holding that the VBA
precludes APA review of a VA decision regarding employee discipline made
pursuant to 38 U.S.C. § 7463.
3. As a VA employee discharged pursuant to 38 U.S.C. § 7463, Dr. Hakki
cannot obtain judicial review of the discharge decision pursuant to the
APA.
In this case, Dr. Hakki seeks review of the decision to discharge him
pursuant to the APA. He was disciplined for something not involving professional
12
Dr. Hakki’s only attempt at distinguishing these holdings is to argue that they did not
involve the more serious harm suffered by Dr. Hakki—i.e., discharge—and that courts, including
the former Fifth Circuit, have held that a discharged VA employee has a right to judicial review.
See Opening Br. at 25; see also Reply Br. at 13–14. But as the district court observed, the case
law Dr. Hakki cites in support largely pre-dates Fausto and the governing procedures in those
cases pre-dated the statutory structure currently governing VA employee disciplinary review,
codified at 38 U.S.C. §§ 7461–64, enacted in 1991. See Department of Veterans Affairs Health–
Care Personnel Act of 1991, Pub. L. No. 102–40, sec. 203, 105 Stat. 187, 202–08. Before 1991,
the statutory provisions governing discipline simply provided for review by “disciplinary
boards” for “charges of inaptitude, inefficiency, or misconduct of any person employed in a
position provided in paragraph (1) of section 4104.” See 38 U.S.C. § 4110(a) (1990). A
disciplinary board’s recommendation would then be reviewable by the Administrator of the then-
named Veterans Administration (before it became the VA and a cabinet-level department in
1988), and the statute provided that “[t]he decision of the Administrator shall be final.” Id.§ 4110(d). An employee could appeal the final decision of the Administrator under the APA.
See Heaney v. U.S. Veterans Admin., 756 F.2d 1215, 1219 (5th Cir. 1985). The 1991
amendments substantially changed the disciplinary system, which, as explained above, indicates
a clear congressional intent to limit both board and judicial review. None of the cases Dr. Hakki
cites addressed the post-1991 structure of disciplinary review. See Gilbert v. Johnson, 601 F.2d
761, 762 (5th Cir. 1979); Heaney, 756 F.2d at 1217; Moore v. Custis, 736 F.2d 1260 (8th Cir.
1984); Franks v. Nimmo, 796 F.2d 1230, 1240 (10th Cir. 1986); Giordano v. Roudebush, 617
F.2d 511, 517 (8th Cir. 1980); Berry v. Hollander, 925 F.2d 311, 315 (9th Cir. 1991). Therefore,
these cases do not change our conclusion outlined above.
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conduct or competence. Though a major adverse action was implicated, because
his discharge did not involve a question of professional conduct or competence, his
discipline was governed by § 7463. His case was not mixed. Thus, nowhere in
§ 7463 is Dr. Hakki afforded a right to Disciplinary Appeals Board review or
judicial review. By prescribing and limiting the review available for Dr. Hakki’s
discharge in § 7463, Congress indicated an intent to preclude judicial review in his
case. Therefore, Dr. Hakki cannot circumvent those procedures authorized by
§ 7463 and use the APA to seek judicial review of his discharge. Such review is
barred.
Although our decision in Hardison held that the comprehensive remedial
processes afforded by the VBA for VA employees precluded a Bivens claim for
damages, whereas the issue in our case is whether those remedial processes
preclude judicial review under the APA, we think Hardison provides support for
our conclusion that judicial review under the APA is also precluded. “It would
thwart the will of Congress,” Hardison, 375 F.3d at 1265, to allow APA judicial
review for Dr. Hakki, when the VBA comprehensive remedial procedures allow
judicial review only for more protected VA employees—i.e., those whose major
disciplinary action involved professional conduct or competence. Accordingly, we
hold that Dr. Hakki cannot use the APA to obtain judicial review to challenge the
merits of his discharge. For the foregoing reasons, we conclude that the district
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court was correct in holding that it did not have subject-matter jurisdiction to hear
Dr. Hakki’s claims for review of the decision to discharge him from employment
with the VA pursuant to the APA.
B. The District Court Did Not Have Jurisdiction to Hear a Constitutional Claim
Because Dr. Hakki Did Not Present a Colorable Due Process Claim
Dr. Hakki asserts that, even assuming no APA review, the district court had
jurisdiction to adjudicate his alleged violations of his constitutional procedural due
process rights to notice and an opportunity to be heard in his discharge
proceedings. From our best reading of his briefing, Dr. Hakki presents two bases
for an alleged procedural due process claim. 13 First, he asserts that he had no
notice or opportunity to be heard on the issue of his discharge being based on the
December 2008 LWOP denial. Second, Dr. Hakki asserts that he had no notice or
opportunity to be heard on his discharge being based on a particular VA Handbook
provision regarding the degree of certainty for a proposed return date.
13
While Dr. Hakki repeatedly refers to violations of his due process rights in terms of
administrative procedure, violations of VA rules and regulations, and arbitrary and capricious
agency action, Opening Br. at 6, 11, 26–28, Reply Br. at 6–12, when an agency fails to follow its
own rules or regulations, the case law is clear that a due process claim does not automatically
arise. The question remains whether “[t]he root requirements of due process were . . . met,” i.e.,
“that one be given notice and an opportunity to be heard.” Am. C.L. Union of Fla., Inc. v.
Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1229, 1230 (11th Cir. 2009); Smith v. State of Ga.,
684 F.2d 729, 733 n.6 (11th Cir. 1982) (“We disagree . . . that every deviation by a state or
federal agency from its own rules constitutes a constitutional violation.”); see also Garrett v.
Mathews, 625 F.2d 658, 660 (5th Cir. 1980) (“[N]ot every violation by an agency of rules rises
to the level of a due process claim.”). Therefore, having not established that he was deprived of
the constitutional minima, as explained in this opinion, his tying the purported due process
violations to administrative requirements fails to support a colorable due process claim.
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Noting that our Court has left open the possibility that equitable relief to
address an alleged violation of the Constitution may be available despite a
comprehensive statutory scheme’s preclusion of other judicial review, the district
court determined that Dr. Hakki had not stated a claim for a constitutional due
process violation and thus the court’s jurisdiction could not be invoked. As
explained below, because Dr. Hakki has not presented a colorable due process
claim, the district court was correct that it did not have subject-matter jurisdiction
on the basis of Dr. Hakki’s assertions of due process violations.14
14
We need not and do not answer the question of whether the VBA precludes all colorable
constitutional claims, like it does the APA claims in this case, because, as we explain, Dr. Hakki
has not demonstrated even a colorable due process claim. In other words, without a colorable
claim, no jurisdiction to hear a constitutional claim for injunctive relief exists, regardless of
whether the VBA is a complete bar and thus there is no need to reach the VBA-based issue. See
Pathak, 274 F.3d at 33 (“We conclude that Pathak’s constitutional claim is not even colorable,
and so we find it unnecessary to reach Pathak’s claim that we have jurisdiction over his
constitutional claim notwithstanding our lack of jurisdiction over his statutory claims.”); cf.
Fligiel, 440 F.3d at 754 (“On appeal, Fligiel challenged the denial of statutory due process.
Therefore, we do not reach the issue of whether the preclusion of review extends to due process
claims based on the United States Constitution.”). We faced a similar question in Hardison,
noting that “[t]he Supreme Court has not addressed directly the issue whether a remedial
statutory scheme necessarily precludes an action for equitable relief brought by a federal
employee,” that our sister circuits have reached diverging conclusions, and that “[a]lthough this
Court has not squarely addressed that question, two of our precedents can be read to support
either of the possible answers.” 375 F.3d at 1266 (citing Perry v. Thomas, 849 F.2d 484, 484–85
(11th Cir. 1988); Stephens, 901 F.2d at 1576). In Hardison, 375 F.3d at 1268, we declined to
decide whether the VBA’s comprehensive remedial scheme foreclosed equitable remedies for
violations of constitutional due process because Hardison could establish no protected property
interest—i.e., because he had no colorable due process claim. We follow Hardison’s path;
because Dr. Hakki has failed to present even a colorable claim, we need not decide whether the
VBA remedial scheme—38 U.S.C. §§ 7461–64—would altogether foreclose equitable relief
even for a colorable procedural due process claim.
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1. Equitable constitutional jurisdiction could only extend to a colorable
constitutional due process claim for injunctive relief.
The requirement that a plaintiff raise a colorable constitutional claim is a
part of our inquiry into whether the district court had federal-question jurisdiction.
“The basic statutory grants of federal-court subject-matter jurisdiction are
contained in 28 U.S.C. §§ 1331 and 1332. Section 1331 provides for ‘[f]ederal-
question’ jurisdiction . . . . A plaintiff properly invokes § 1331 jurisdiction when
she pleads a colorable claim ‘arising under’ the Constitution or laws of the United
States.” Arbaugh v. Y&H Corp., 546 U.S. 500, 513, 126 S. Ct. 1235, 1244, 163 L.
Ed. 2d 1097 (2006).
“A claim invoking federal-question jurisdiction under 28 U.S.C. § 1331, . . .
may be dismissed for want of subject-matter jurisdiction if it is not colorable, i.e.,
if it is ‘immaterial and made solely for the purpose of obtaining jurisdiction’ or is
‘wholly insubstantial and frivolous.’” Id. at 513 n.10, 126 S. Ct. at 1244 n.10
(quoting Bell, 327 U.S. at 682–83, 66 S. Ct. 773) (citing Steel Co. v. Citizens for
Better Env’t, 523 U.S. 83, 89, 118 S. Ct. 1003, 1010, 140 L. Ed. 2d 210 (1998)).
That is, “[d]ismissal for lack of subject-matter jurisdiction because of the
inadequacy of the federal claim is proper only when the claim is ‘so insubstantial,
implausible, foreclosed by prior decisions of th[e] [Supreme] Court, or otherwise
completely devoid of merit as not to involve a federal controversy.’” Steel Co.,
523 U.S. at 89, 118 S. Ct. at 1010 (quoting Oneida Indian Nation of N.Y. v.
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County of Oneida, 414 U.S. 661, 666, 94 S. Ct. 772, 777, 39 L.Ed.2d 73 (1974)).
“For a constitutional claim to be colorable, ‘the alleged violation need not be
substantial, but the claim must have some possible validity.’” Arias v. U.S. Att’y
Gen., 482 F.3d 1281, 1284 n.2 (11th Cir. 2007) (quoting Mehilli v. Gonzales, 433
F.3d 86, 93–94 (1st Cir. 2005)).
In this case, the only constitutional claims proffered are procedural due
process claims. “The ‘essential requirements of due process’ are notice and a pre-
termination opportunity to respond.” Laskar v. Peterson, 771 F.3d 1291, 1297
(11th Cir. 2014) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
546, 105 S. Ct. 1487, 1495, 84 L. Ed. 2d 494 (1985)). “[D]ue process . . . requires
notice ‘reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present
their objections.’” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 261,
130 S. Ct. 1367, 1372, 176 L. Ed. 2d 158 (2010) (quoting Mullane v. Cent.
Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950)).
And one must be afforded “the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893,
902, 47 L. Ed. 2d 18 (1976) (citation omitted)). “While some pre-termination
hearing is necessary” in the public employment context, “it need not be elaborate.”
Laskar, 771 F.3d at 1297 (citing Loudermill, 407 U.S. at 545, 105 S. Ct. at 1495).
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2. Neither of Dr. Hakki’s purported theories of a due process violation
supports a colorable constitutional claim.
Dr. Hakki presents no colorable due process claim. His two theories are
devoid of any merit and do not establish subject-matter jurisdiction. We address
each in turn.
a. Dr. Hakki presents no colorable due process claim in his argument
that Young incorrectly relied upon the December 2008 LWOP denial
in making the final decision to discharge him.
First, Dr. Hakki asserts that he had no notice or opportunity to be heard on
the issue of his discharge being based on the denial of LWOP in December 2008
and the related issue of whether he was discharged for not appearing for work on
January 2, or July 1, 2009. That is, Dr. Hakki argues he filed a grievance related to
his discharge in November 2009, i.e., the decision of Hetrick, removing him from
Bay Pines and did not grieve the December 2008 LWOP denial. Dr. Hakki
suggests that Hetrick discharged him for failing to return to work on July 1, 2009,
not for failing to return to work on January 2, 2009. But, his argument proceeds,
Young upheld the discharge decision on the basis that he failed to return on
January 2, 2009, and was AWOL thereafter. Thus, argues Dr. Hakki, Young’s
final decision to sustain his discharge was not based on conduct for which Dr.
Hakki was on notice. But this argument is just plain wrong on the facts, as made
absolutely clear by an overwhelming amount of evidence of notice to Dr. Hakki.
Accordingly, Dr. Hakki fails to present a colorable due process claim. That
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overwhelming evidence indicates that Dr. Hakki knew that the VA’s position was
that Dr. Hakki must report to duty as of January 2, 2009, and knew that his request
for LWOP beyond that date was denied in December 2008, meaning his date of
return continued to be January 2, 2009, and meaning that he was AWOL thereafter.
As an initial matter, before January 2, 2009, Dr. Hakki had been notified that
he must return by that date—i.e., January 2, 2009—four separate times: on
September 26, October 28, November 3, and December 23, 2008. Thus, Dr. Hakki
was on notice that he had to return to work on January 2, 2009.
After he did not return on that solidified date of January 2, 2009, Dr. Hakki
was provided notice of the importance of the December 2008 LWOP request and
its denial. In the proposed discharge, i.e., the document initiating the process of
Dr. Hakki’s discharge, Dr. Wright, the Chief of the Surgical Service, expressly
stated that Dr. Hakki had been approved for LWOP through December 31, 2008—
which, in other words, meant his return date was January 2, 2009—and a “request
for an extension of LWOP was subsequently denied in a letter dated December 23,
2008.” The proposed discharge proceeded to explain that Dr. Hakki did not return
as of the required date (January 2, 2009), which remained the date to return
because the December 2008 LWOP request was not granted. Thus, this proposed
discharge explained that having failed to secure an extension of LWOP, the VA
required Dr. Hakki to return to work on January 2, 2009. And when Dr. Hakki did
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not return to work on January 2, 2009, as the proposed discharge explained, he was
charged AWOL for 26 weeks and that continued unauthorized absence would not
serve the VA’s mission or the efficiency of the service. Clearly, the proposed
discharge gave Dr. Hakki notice of the relevance to the discharge proceedings
being brought against him of the December 2008 LWOP request and denial and of
the January 2, 2009 return date. This notice clearly satisfies the constitutional
minimum. But the evidence does not stop there.
Shortly thereafter, on July 21, 2009, Dr. Hakki acknowledged the relevance
of the December 2008 LWOP request when he sent the VA a response to the
proposed discharge, which (a) expressly incorporated by reference his December
2008 LWOP request and the reasons explained in that request as to why he should
be given extended LWOP status, and (b) acknowledged that “[t]he period of . . .
purported AWOL upon which the proposed discharge is based is, of course, the
very time period for which [he] previously sought leave without pay (‘LWOP’) by
a request dated December 19, 2008. Mr. Hopkins denied that request for LWOP as
well as a subsequent grievance of that denial.” Therefore, Dr. Hakki confirmed
that he had notice of the relevance and importance of the decision to deny the
December 2008 LWOP request.
Then, on November 13, 2009, Hetrick issued a decision sustaining Dr.
Hakki’s discharge, which notified him of the importance of the January 2, 2009
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return date and the denial of the “additional request for LWOP (e.g. January 2009 -
July 2009),” i.e., the December 2008 LWOP request. Hetrick’s decision stated,
“You did acknowledge that you thought you would be able to ‘return’ to the VA in
January of 2009.” Then, Hetrick explicitly stated, “Careful consideration was also
given to the frequency of your conduct. Specifically, since January 2, 2009, you
have been charged absent without leave (AWOL) for 26 weeks.”
Dr. Hakki urges on appeal that Hetrick based his discharge decision on Dr.
Hakki’s failure to return to work on July 1, 2009. Dr. Hakki is simply wrong.
Hetrick referenced the arbitration settlement proposal and the July 1, 2009 date
only in response to Dr. Hakki’s assertion that the “purported settlement agreement
[established] that Dr. Hakky did not have to return to Bay Pines until July 1, 2009
(as opposed to January 2, 2009 as charged in the proposed discharge) and that he
would be considered AWOL during that six month period. While Dr. Hakky did
not return on July 1, 2009, the proposed discharge is not based on that.”
Responding to that assertion, Hetrick wrote:
However, a careful review of the settlement agreement reveals that in
order for you to be designated as “Absent without Leave,” you were
required to report to duty by July 1, 2009. By your own admission, you
failed to return to duty by the established deadline. This
aforementioned failure therefore, supports the charge as set forth in the
Notice of Proposed Removal.
It is clear from Hetrick’s November 13, 2009 letter that—contrary to Dr. Hakki’s
argument on appeal—Hetrick, in sustaining the proposed discharge, did not rely on
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the failure to return on July 1, 2009. As noted above, Hetrick commented on the
July 1, 2009 date only in response to an assertion by Dr. Hakki. And, as noted in
the above quotation, he relied on it only because it “supports the charge as set forth
in the Notice of Proposed Removal.” That is, Dr. Hakki’s failure to report even on
the later, July 1, 2009 date supports the proposed reason to discharge Dr. Hakki—
his failure to report on the actual return date of January 2, 2009. The failure to
report even on the later, July 1, 2009 date, supports the willfulness of Dr. Hakki’s
failure to report on January 2, 2009. Hetrick also found willfulness. Moreover,
considering Hetrick’s November 13, 2009 letter as a whole, it is clear that his
reference to the July 1, 2009 date was a mere response to one of Dr. Hakki’s
assertions (all of such responses appear in paragraph 1 of Hetrick’s letter). By
contrast, paragraph 2 of Hetrick’s letter is introduced, “In making the decision to
remove you from employment,” and then lists Hetrick’s reasons for his decision,
foremost among them being: “Careful consideration was also given to the
frequency of your conduct. Specifically, since January 2, 2009, you have been
charged Absence without Leave (AWOL) for twenty-six (26) weeks.” Thus, Dr.
Hakki is simply wrong in thinking that Hetrick relied on his failure to return on
July 1, 2009, to the exclusion of the failure to return on January 2, 2009, and his
AWOL status thereafter.
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In any event, with respect to notice and opportunity to be heard, it is
absolutely clear that Dr. Hakki had notice that the VA’s reasons for discharging
him were based upon his failure to appear for work and his AWOL status, which
obviously included the failure to appear on January 2, 2009, as well as his
continued failure to appear any time thereafter, including on July 1, 2009.
After this decision by Hetrick, and after Dr. Hakki’s grievance of his
discharge had been denied, the Hakki I court remanded the grievance of Dr.
Hakki’s discharge back to the VA. At that point, Dr. Hakki had still another
opportunity, with the appropriate notice, to present his arguments regarding the
relevant conduct to Mayo-Smith, who would recommend a decision to Young as
final decisionmaker. Despite claiming ignorance in his appellate briefing, Dr.
Hakki acknowledged in his brief filed with Mayo-Smith in November 2018 “that
the proposed discharge was based upon a purported alleged failure to return to Bay
Pines on January 2, 2009 and being AWOL thereafter through June 2009.” Thus,
as of the second set of procedures—i.e., the ones that led to the decision on appeal
in this case now—it is overwhelmingly clear that Dr. Hakki had notice of the
issues related to his January 2, 2009 return date and the denial of his December
2008 request to extend that date, and notice of the significance of his AWOL
status.
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And of course, Young’s final decision ruled against Dr. Hakki on the basis
of this issue of which Dr. Hakki had such overwhelming notice and opportunity to
be heard—i.e., his failure to return on January 2, 2009, his AWOL status
thereafter, and the continuing uncertainty as to when Dr. Hakki would return.
Young’s final decision to reject Dr. Hakki’s grievance regarding his discharge
stated that the recommendations of Mayo-Smith must be rejected and thus the
grievance denied as well. Young specifically explained that the “VA articulated its
reasons for the denial of LWOP on December 23, 2008,” and that “was based upon
the lack of certainty as to Dr. Hakki’s return and the LWOP request did not
establish how the grant would serve the interests of the Agency.” Young
continued, “Because the underlying basis for [Mayo-Smith’s] recommendations
are contrary to applicable VA policy, the recommendations must be rejected. As
such, the grievance must be denied.” Thus, the final decision issued by Young
concluded that the December 2008 LWOP denial was proper. And the denial of
the December 2008 LWOP request, of course, meant that Dr. Hakki was required
to report on January 2, 2009, and resulted in his being AWOL thereafter.
A common-sense view of this issue also requires acknowledging, at each
step of the way, that the denial of LWOP is inherently and inextricably intertwined
with the basis for the immediate precursor to Dr. Hakki’s proposed discharge, i.e.,
his AWOL status, and thus is a reason for his discharge. Because he had been
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denied an LWOP extension in December 2008, Dr. Hakki was required to return to
work on January 2, 2009—as he had repeatedly been told—and he did not do so,
so he was AWOL for some time, leading to his proposed discharge. Dr. Hakki was
repeatedly, ad nauseam, notified of the import of the December 2008 LWOP
request and denial and the fact that it necessarily meant that January 2, 2009,
would be the date for Dr. Hakki to return to work or be considered AWOL. It is
illogical to separate these issues out.
There is absolutely no merit to the argument that Dr. Hakki had been
deprived of notice that he would be discharged for failing to return to duty on
January 2, 2009, and his failure to obtain extended LWOP in December 2008, and
his resulting AWOL status. Thus, no colorable due process claim arises for which
the district court could exercise jurisdiction.
b. Dr. Hakki’s claim that he was not notified that his discharge would be
based on a particular VA Handbook provision regarding the certainty
of his return date fails to support a colorable due process claim.
Dr. Hakki’s second theory is as meritless as his first. He argues that his due
process rights were violated because Young’s final decision relied upon a
provision of the VA handbook of which Dr. Hakki had no notice or opportunity to
defend against. The provision relied upon by Young related to Title 38 employees,
while the provision relied upon by Mayo-Smith related to Title 5 employees. Dr.
Hakki’s argument suggests that the substance of the requirement in the Handbook
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requires only that there be an expectation of a return to work, without any
requirement of a definitive time to return to work. This argument is a substantive
argument, and not a due process argument, and therefore any such substantive
argument is one with respect to which the district court has no jurisdiction. See
supra Section III.A. In other words, the proper interpretation of the Handbook—
whether it required some certainty with respect to an employee’s return-to-duty
date or whether it merely required an indefinite intent to return as Dr. Hakki
urges—is a substantive issue over which the district court has no jurisdiction.15
The only possible due process argument (i.e., a theory that could possibly
support jurisdiction) to gather from Dr. Hakki’s averments is that without knowing
the precise provision of the VA Handbook that he was being accused of violating,
he had no opportunity to be heard with respect to a violation thereof. To the extent
this is Dr. Hakki’s argument, it is wholly without merit. It was apparent all
through the proceedings that the VA’s position was that Dr. Hakki’s December
2008 LWOP request was denied in large part because he was unable or unwilling
to provide a date certain that he could return to work. The VA gave Dr. Hakki
ample notice and opportunity to challenge that position.
15
Incidentally, Dr. Hakki acknowledges on appeal that Young, not Mayo-Smith, identified
the appropriate provision of the Handbook.
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There is overwhelming evidence of this notice. That overwhelming
evidence includes the December 23 denial of the December 2008 LWOP request
by Hopkins, the Bay Pines Hospital Director, who expressly explained that one
reason for the denial was that VA Handbook 5011 required “certainty” with
respect to a return date and Dr. Hakki had failed to provide certainty. In addition,
Hopkins denied Dr. Hakki’s union grievance on January 28, 2009, again noting
“there is no way to definitively determine the actual date his personal affairs will
be resolved.” Finally, Hetrick’s decision to reject the grievance to the proposed
discharge on November 13, 2009, noted that Dr. Hakki was still “uncertain when
he could return to the duties and responsibilities of [his] position,” and thus any
alternative form of discipline could not compel Dr. Hakki’s regular attendance.
Acknowledging this notice, Dr. Hakki wrote in his brief to Mayo-Smith that
VA witnesses at his hearing repeated a “mantra” that “the Agency did not have a
definitive date they could rely upon for Dr. Hakki’s return.” This demonstrates
both that Dr. Hakki was on notice of the VA’s reliance on the lack of certainty in
Dr. Hakki’s return as a basis for his discharge and that Dr. Hakki’s position on this
issue was heard by Mayo-Smith.
In the face of this overwhelming evidence, Dr. Hakki attempts to simply
frame the issue in terms of “a citation error,” but such a framing misses the point
entirely. Dr. Hakki knew that the certainty of his return date would be a reason for
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his discharge. Whether the proper standard was applied, or the proper citation
included, in any decision is a substantive question that, of course, is not a
procedural due process issue and not within the jurisdiction of the district court.
Indeed, it seems Dr. Hakki disagrees about whether or not his letters to the VA
included a “certain” date; again, such a disagreement is a substantive matter—not a
procedural due process issue—that the district court properly avoided deciding.
Therefore, Dr. Hakki has not presented even a colorable due process claim,
and the district court correctly determined that it was without federal subject-
matter jurisdiction over any such claim.
C. There Is No Basis for Mandamus Jurisdiction Because Dr. Hakki Has Not
Established a Clear Right to Any Relief or a Clear Duty of the VA
The last basis for subject-matter jurisdiction asserted by Dr. Hakki is
mandamus jurisdiction. The Mandamus Act provides as follows: “The district
courts shall have original jurisdiction of any action in the nature of mandamus to
compel an officer or employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. “[M]andamus is an
extraordinary remedy which should be utilized only in the clearest and most
compelling of cases.” Cash v. Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003)
(quoting Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969)). “[T]he test for
mandamus jurisdiction is ‘whether mandamus would be an appropriate means of
relief.’” United States v. Salmona, 810 F.3d 806, 811 (11th Cir. 2016) (quoting
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Cash, 327 F.3d at 1258). Mandamus jurisdiction may be exercised “only if (1) the
plaintiff has a clear right to the relief requested; (2) the defendant has a clear duty
to act; and (3) no other adequate remedy is available.” Serrano v. U.S. Att’y Gen.,
655 F.3d 1260, 1263 (11th Cir. 2011) (citing Cash, 327 F.3d at 1258). “The party
seeking mandamus has the burden of demonstrating that his right to the writ is
clear and indisputable.” Id. at 1260, 1263–64 (11th Cir. 2011) (citing In re
BellSouth Corp., 334 F.3d 941, 953 (11th Cir. 2003)). “Put another way, a writ of
mandamus ‘is intended to provide a remedy for a plaintiff only if he has exhausted
all other avenues of relief and only if the defendant owes him a clear
nondiscretionary duty.’” Cash, 327 F.3d at 1258 (quoting Heckler v. Ringer, 466
U.S. 602, 616, 104 S. Ct. 2013, 80 L. Ed. 2d 622 (1984)).
Dr. Hakki has not established the requirements for mandamus jurisdiction.
He has wholly failed to establish a clear right to any relief or a clear duty on the
part of the VA. To the extent that he reiterates his procedural due process
arguments, we have already held that those are wholly without merit. See supra
Section III.B. He also mentions in conclusory fashion that the VA failed to follow
its own rules and regulations and that he was entitled to have someone other than a
former Deputy Network Director from VISN 8—i.e., someone other than Young—
as the final decisionmaker for his case. However, to the extent that he intends to
present some rule violation separate from and independent of his meritless due
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process arguments, Dr. Hakki fails to identify any rule that was allegedly violated
that might entitle him to mandamus relief; therefore, any such argument fails.
And while he mentions that he is owed a right to have someone other than
Young be the final decisionmaker for his case, Dr. Hakki has presented no theory
whatsoever for why he has such a right. In fact, Dr. Hakki presents no argument to
challenge the district court’s conclusion that no due process violation arose from
any of Dr. Hakki’s allegations of bias as a result of Young’s past association with
VISN 8. Nor does he challenge the district court’s conclusion that the record
shows that only some individuals were recused from VISN 8, not the entire
network and not Young. Therefore, Dr. Hakki has waived any argument in this
regard. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.
2014) (“We have long held that an appellant abandons a claim when he either
makes only passing references to it or raises it in a perfunctory manner without
supporting arguments and authority.”).16
16
On a related note, Dr. Hakki vaguely refers (in a two-sentence paragraph in his
“Statement of the Case” section) to “ex parte communications concerning the matter between
Bay Pines or VISN 8” and states they are prohibited by the VA Handbook with a citation to the
Handbook and a case regarding due process. Opening Br. at 6. Dr. Hakki makes no argument at
all regarding this assertion and therefore it is deemed abandoned. See Kelliher v. Veneman, 313
F.3d 1270, 1274 (11th Cir. 2002) (“Kelliher only mentioned his EEOC retaliation claim in the
summary of the argument in his initial brief. Because Kelliher made no arguments on the merits
as to this issue, the issue is deemed waived.”).
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Having failed to establish any clear right to any relief or a clear duty to act
on behalf of the VA, Dr. Hakki has not established mandamus jurisdiction.17
IV. CONCLUSION
For the reasons stated above, the district court was without subject-matter
jurisdiction to hear any of Dr. Hakki’s claims. Because there was no jurisdiction,
however, the district court should have dismissed Dr. Hakki’s claims instead of
entering judgment on them. Accordingly, we affirm the decision of the district
court, but we remand solely so that the district court can amend its judgment to
reflect that it is a dismissal without prejudice for lack of jurisdiction. Kennedy,
998 F.3d at 1237.
17
Dr. Hakki’s makes additional arguments, including that it is undisputed that he has
exhausted all avenues of relief, that he has no alternative avenue of relief for his arbitrary-and-
capricious and due process arguments, and that the VBA does not expressly limit mandamus
relief. For this last argument, he analogizes to the relief available in certain benefits cases,
arguing that 42 U.S.C. § 405(h) has not been read to preclude mandamus relief and therefore
neither should 38 U.S.C. § 7463. See In re Bayou Shores SNF, LLC, 828 F.3d 1297, 1313 (11th
Cir. 2016) (declining to answer the question of whether § 405(h)—which refers only to the
jurisdictional bases in 28 U.S.C. §§ 1331 and 1346 for judicial review—bars mandamus relief
pursuant to § 1361, while recognizing that “the great weight of authority from other circuits has
almost uniformly found that § 405(h) does not necessarily deprive district courts of mandamus
jurisdiction over Medicare claims”). Dr. Hakki’s arguments in this regard pose the question of
whether § 7463, which precludes judicial review of VA disciplinary decisions made pursuant
thereto, also precludes district courts from issuing mandamus relief. Stated in terms of the
adequacy of alternative remedies, the question is whether the procedures pursuant to § 7463 are
“adequate” for the purposes of mandamus jurisdiction, despite their preclusion of judicial review.
We have held that the CSRA, as a comprehensive statutory scheme providing for limited judicial
review in the circumstances required by the statute, is an adequate remedy such that mandamus
jurisdiction is unavailable. Stephens, 901 F.2d at 1576. We need not answer the question of
whether § 7463, too, always bars mandamus relief or is an adequate alternative remedy such that
mandamus cannot lie simply on that basis because we hold Dr. Hakki has established neither a
clear right to relief owed to him nor a clear duty to act owed by the VA, and thus there is no
mandamus jurisdiction.
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AFFIRMED AND REMANDED.
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JORDAN, Circuit Judge, concurring.
I join Judge Anderson’s comprehensive opinion for the Court except as to Part
III.B.2.a, which addresses Dr. Hakki’s first procedural due process claim, and the
portion of the conclusion related to Part III.B.2.a. As to Part III.B.2.a, I would reject
that procedural due process claim on the merits rather than dismiss it for lack of
subject-matter jurisdiction.
A “nonfrivolous allegation of jurisdiction generally suffices to establish
jurisdiction upon initiation of a case.” Perry v. Merit Systems Protection Bd., 137
S. Ct. 1975, 1984 (2017). As the Supreme Court told us long ago, “[j]urisdiction . .
. is not defeated . . . by the possibility that the averments might fail to state a cause
of action on which [a plaintiff] cold actually recover.” Bell v. Hood, 327 U.S. 678,
682 (1946). A “suit may sometimes be dismissed for want of jurisdiction where the
alleged claim under the Constitution or federal statutes clearly appears to be
immaterial and made solely for the purpose of obtaining jurisdiction or where such
a claim is wholly insubstantial and frivolous.” Id. at 682–83. But the standard for
such a dismissal is a rigorous one: “Constitutional insubstantiality . . . has been
equated with such concepts as ‘essentially fictitious,’ ‘wholly insubstantial,’
‘obviously frivolous,’ and ‘obviously without merit.’ And the adverbs [are] no mere
throwaways; [t]he limiting words ‘wholly’ and ‘obviously’ have cogent legal
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significance.” Shapiro v. McManus, 577 U.S. 39, 45–46 (2015) (internal citations
and quotation marks omitted).
The line between a frivolous constitutional claim and a weak constitutional
claim is, admittedly, sometimes difficult to draw. And the Court’s opinion lays out
a reasonable theory as to why Dr. Hakki’s first procedural due process claim is so
insubstantial as to not confer subject-matter jurisdiction. Nevertheless, I do not
believe we should dismiss that claim on jurisdictional grounds.
The claim is not legally frivolous, as we have not addressed whether an
equitable constitutional claim is available to federal employees like Dr. Hakki. And
though a detailed examination of the record demonstrates that Dr. Hakki was not
denied procedural due process, his claim is not in my view “obviously frivolous” or
“essentially fictitious” or “wholly insubstantial” for purposes of subject-matter
jurisdiction. See Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981) (“Judicial
economy is best promoted when the existence of a federal right is directly reached
and, where no claim is found to exist, the case is dismissed on the merits.”).
In sum, I agree that the claim fails for the reasons given by the Court, but
conclude that it fails on the merits. I would assume without deciding that an
employee like Dr. Hakki can assert an equitable constitutional claim, and hold that
he has failed to make out any procedural due process claim. Cf. Herrera v. Collins,
506 U.S. 390, 417 (1993) (assuming, without deciding, that “in a capital case a truly
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persuasive demonstration of ‘actual innocence’ made after trial would render the
execution of a defendant unconstitutional,” but holding that the showing made by
the defendant on actual innocence was insufficient).
55