The opinion of the court was delivered by: CALDWELL
Before the court is the motion of defendants for summary judgment in the above-captioned matter. The motion now applies only to the United States, the sole remaining defendant pursuant to a stipulation of the parties which was approved on December 13, 1984, and provided that all other defendants be voluntarily dismissed from this case pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii).
The summary judgment motion is opposed by plaintiff, and the parties have agreed to a set of facts that constitutes the evidence in this case. The parties acknowledge that we have before us all relevant materials needed to decide the summary judgment motion. For the reasons discussed hereinafter we have concluded that defendant's motion should be granted.
The plaintiff, Dr. Richard A. Scarnati, initiated this action under 28 U.S.C. §§ 1331 and 1346, contending that he was denied due process in the proceedings that led to his termination as a staff psychiatrist with the Veterans Administration. At the times relevant to the present complaint (September 26, 1982, to October 7, 1983), plaintiff was considered a probationary physician and was subject to the provisions of 38 U.S.C. § 4106. Section 4106(b) of the statute specifies that the probationary period is two years in duration and that the records of probationary physicians are subject to periodic board review. Moreover, if the board concludes that the doctor is "not fully qualified and satisfactory he shall be separated from the service." Id.
After his appointment to the VA Medical Center in Lebanon, Pennsylvania, plaintiff, a doctor of osteopathy and a psychiatrist, began working in a satellite outpatient clinic in Harrisburg. By January of 1983, complaints from patients and other individuals were being received by VA officials about plaintiff's ability to establish affirmative relationships with patients and about his treatment methods, particularly his refusal to prescribe medications that some patients had been using with apparent success over long periods of time.
The abrupt changes made by plaintiff in the medications received by his patients stemmed from his view that the use of certain drugs were dangerous except on a short term basis. Following discussions with his superiors about the complaints, plaintiff received a special proficiency report that gave him an unsatisfactory rating. He was also notified that a three-member Professional Standards Board (PSB) would be convened to determine whether plaintiff would have his employment continued or terminated.
At the initial PSB meeting on July 12, 1983, no deliberations occurred nor was testimony heard or exhibits received. On July 19, however, twelve written exhibits were submitted and testimony was received from the plaintiff and from three of his supervisors. Plaintiff addressed the two issues the PSB was considering: the propriety of his medication procedures and his relationship with patients. At plaintiff's request another session of the PSB was held on August 4, 1983, so that he could further present his case.
On that date, at the conclusion of the proceedings, the PSB recommended plaintiff's termination and concluded that Dr. Scarnati's clinical competence was unsatisfactory "due to his inability to establish and maintain productive doctor-patient relationships and his failure to follow the instructions of his supervisors." Upon further review by a central office board of the VA, the recommendation of the PSB was approved and Dr. Scarnati was notified that he would be terminated at the close of business on October 13, 1983.
III. The "Liberty Interest" Issue
Disposition of the current motion turns on the common issue characterizing similar cases where due process violations are alleged, i.e. whether a "property" or "liberty" interest in employment is involved. As numerous cases have held, absent such an interest, plaintiff cannot assert a due process claim under the constitution. See, e.g., Orloff v. Cleland, 708 F.2d 372 (9th Cir. 1983). The United States Supreme Court, in the landmark case of Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), concluded that an individual does not have a property interest in a governmental benefit, including employment, unless he has entitlement to the benefit. In the present case, it is undisputed that plaintiff was a probationary physician and therefore had no property interest in continued employment as a VA staff psychiatrist. Thus his due process claim is dependent upon whether his problems with the VA infringed a constitutionally protected liberty interest.
Formulating a precise definition of what constitutes a liberty interest is difficult. In Stretten v. Wadsworth Veterans Hospital, 537 F.2d ...