United States District Court, D. Massachusetts
John Breda, Plaintiff: Paul H. Merry, LEAD ATTORNEY, Attorney
at Law, Boston, MA; Andrea L. Haas, Law Offices of Paul H.
Merry, Boston, MA.
Robert A. McDonald, Defendant: Christine J. Wichers, LEAD
ATTORNEY, United States Attorney's Office MA, Boston, MA.
J. Casper, United States District Judge.
John Breda, M.D., (" Dr. Breda" ) has sued Robert
A. McDonald, Secretary of the U.S. Department of Veterans
Affairs (" VA" ), in his official capacity,
Wilfredo Curioso, M.D. (" Dr. Curioso" ), Sharon
Rounds, M.D. (" Dr. Rounds" ), and Satish Sharma,
M.D. (" Dr. Sharma" ) (collectively, "
Defendants" ), asserting claims relating to his
termination. D. 11. The VA has moved to dismiss certain
claims under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). D. 7. For
the reasons stated below, the Court ALLOWS the motion.
Standard of Review
motion to dismiss under Rule 12(b)(6), the Court must
determine if the facts alleged " plausibly narrate a
claim for relief." Schatz v. Republican State
Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012).
Reading the complaint " as a whole," the Court must
conduct a two-step, context-specific inquiry.
García-Catalán v. United
States, 734 F.3d 100, 103 (1st Cir. 2013). First, the
Court must distinguish the factual allegations from the
conclusory legal allegations. Id. Factual
allegations are accepted as true, while conclusory legal
allegations are not. Id. Second, the Court must
determine whether the factual allegations support " the
reasonable inference that the defendant is liable for the
conduct alleged." Id. (quoting Haley v.
City of Boston, 657 F.3d 39, 46 (1st Cir. 2011))
(internal quotation marks omitted). In deciding the motion,
the Court may consider " documents the authenticity of
which are not disputed by the parties," " official
public records" and " documents central to
plaintiffs' claim . . . or sufficiently referred to in
the complaint." Town of Barnstable v.
O'Connor, 786 F.3d 130, 141 n.12 (1st Cir. 2015)
(quoting Watterson v. Page, 987 F.2d 1, 3-4 (1st
Cir. 1993)) (internal quotation mark omitted).
12(b)(1) motion to dismiss for lack of subject matter
jurisdiction " is subject to the same standard of
review" as a motion to dismiss under Rule 12(b)(6).
Castino v. Town of Great Barrington, No.
13-cv-30057-KPN, 2013 WL 6383020, at *1 (D. Mass. Dec. 4,
2013). Courts, however, may consider materials outside the
pleadings to resolve jurisdiction. Gonzalez v. United
States, 284 F.3d 281, 288 (1st Cir. 2002).
summary of facts is based upon the allegations in the amended
complaint which the Court must accept as true for the purpose
of resolving the motion to dismiss. Dr. Breda is a
Massachusetts resident licensed to practice medicine in the
Commonwealth. D. 11 ¶ 4. From March 2010 until February 2015,
Dr. Breda worked as a part-time emergency room physician at
the VA's medical center (" Medical Center" ) in
Providence, Rhode Island. Id. ¶ 12. For the first
four years, Dr. Breda received annual evaluations that found
his performance to be satisfactory or better. Id. ¶
about May 2014, one or more nurses complained to the VA about
Dr. Breda's performance. Id. ¶ 23. Dr. Breda
alleges that the complaints were meritless and raised out of
personal hostility. Id. ¶ 24. In response to the
complaints, Dr. Curioso reviewed a few of Dr. Breda's
cases and found fifteen alleged instances of practice
shortcomings. Id. ¶¶ 29-30.
about November 2014, Dr. Breda met with Drs. Curioso and
Rounds and told them that the shortcomings were insubstantial
and that some had been corrected immediately. Id. ¶
37. In or about December 2014, Dr. Breda proposed that the
parties resolve the matter in an alternative dispute process.
Id. ¶ 38. He also told Defendants that unless they
amicably resolved the issues, he intended to resign.
Id. ¶ 42. Defendants initially agreed to an
alternative dispute process, but it never took place because
the VA moved to terminate Dr. Breda. Id. ¶¶ 43-44.
January 7, 2015, Dr. Rounds sent a memorandum to Dr.
MacKenzie recommending that the VA terminate Dr. Breda for
deficient patient care, medical knowledge and interpersonal
and communication skills. D. 13 ¶ 14, D. 13-5. Dr. MacKenzie
agreed with the recommendation and sent Dr. Breda a letter
dated February 3, 2015 stating that his employment would
terminate effective February 13, 2015. D. 11 ¶ 49, D. 15 ¶ 3,
D. 15-1. This letter was delivered on the morning of February
6, 2015. D. 15 ¶ 3, D. 15-1. One day later, Dr. Breda emailed
Dr. Sharma a resignation letter dated February 1, 2015. D. 15
¶ 4, D. 15-2. Dr. Breda stated that a signed copy of the
resignation letter had been mailed. D. 15 ¶ 4, D. 15-2.
February 9, 2015, the Medical Center's medical executive
committee decided that Dr. Breda demonstrated substandard
care, professional misconduct and professional incompetence
and voted to revoke his staff privileges. D. 13 ¶ 15. A day
later, a VA human resources employee told Dr. Breda that the
VA could not back date his resignation. D. 15 ¶ 5, D. 15-3.
The VA documented Dr. Breda's separation as a resignation
in lieu of involuntary action, effective February 7, 2015. D.
15 ¶ 6, D. 15-4. In late October 2015, the VA ...