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October 23, 1984

DONALD W. HEWITT, M.D., Plaintiff,
PETER GRABICKI, M.D., et al., Defendants

The opinion of the court was delivered by: QUACKENBUSH

 This matter came on regularly for hearing with oral argument in Spokane, Washington on Defendants' Motion To Dismiss. The Motion to Dismiss will be treated as a Motion for Summary Judgment due to the reference by plaintiff to various depositions and affidavits in his opposition to the Motion to Dismiss. Fed.R.Civ.P. 12(b)(6). Plaintiff was represented by Lawrence C. Smith; Assistant United States Attorney Carroll D. Gray appeared for defendants.

 Plaintiff Dr. Hewitt was hired in December 1967 as a staff urologist at the Spokane Veteran's Administration Hospital and remained in that position until his alleged involuntary retirement on December 28, 1980. Plaintiff contends he was orally informed at his hiring that he would be allowed to independently request consultation assistance from private medical practitioners.

 The bases of this action were the comments attached to plaintiff's Proficiency Reports for the years 1978 and 1979. Ct. Rec. 53 at Exhibits A and Q. Defendant Dr. Grabicki, Chief of Surgical Services at the Spokane facility, prepared the challenged Proficiency Reports which were reviewed by defendant Dr. Guilfoil, *fn1" Chief of Staff at the Spokane Veterans Administration Hospital. While defendants Guilfoil and Grabicki rated plaintiff's performance satisfactory in the 1978 Proficiency Report, defendant Guilfoil's comments on the 1979 report rated plaintiff's performance as unsatisfactory. Ct. Rec. 53 at Exhibit Q. Plaintiff complains that certain statements in the 1978 and 1979 Proficiency Reports were improper.

 Plaintiff unsuccessfully sought administrative relief to have the deleterious remarks removed from the 1978 Proficiency Report, however, his request was initially denied by Donald Drake, Personnel Officer at the Spokane Veterans Administration facility and ultimately by defendant Max Cleland, Administration of Veteran's Affairs. Ct. Rec. 53, Exhibits H & P. Subsequently, the instant action was filed seeking to have the quoted comments removed.

 Plaintiff's complaint also challenges the comments in the 1979 Proficiency Report, alleging they were untruthful, misleading, conclusionary and constitute misrepresentations of fact. The challenged 1979 comments state as follows:

Dr. Hewitt's numerical score has decreased in the past year, indicating deterioration in performance.
In response to direct questions, both the Chief, Surgical Services and Dr. Dodson, consultant in urology, have told me they would not allow Dr. Hewitt to operate on them.
Dr. Hewitt has been quite careless in completing VA SF 522, the Consent for Surgery form, so that it is not always evident that the patient realizes what operation or procedure he has consented to.
On one recent occasion Dr. Hewitt told the wife of a patient with inoperable carcinoma of the bladder that he could not help the patient because the Devil had taken over the patient's body.

 Ct. Rec. 3 at 6-7; Ct. Rec. 49 at Ex. 2, p. 6.

 Dr. Hewitt's affidavit admits he did not attempt to obtain administrative relief on the 1979 Proficiency Report. The alleged basis of this decision was the disposition of plaintiff's challenge to the 1978 Proficiency Report which plaintiff felt was completely similar. Ct. Rec. 53 at 5-6.

 Plaintiff's complaint contains numerous causes of action against defendants Grabicki and Guilfoil, as well as against codefendants Daniel Myhre (a former Medical Assistant at the Spokane Veterans Administration facility); then V.A. Administrator Max Cleland and the United States of America. Plaintiff has alleged diversity (28 U.S.C. § 1332), federal question (28 U.S.C. § 1331); 28 U.S.C. § 1343 and pendent jurisdiction as the bases for this court's subject matter jurisdiction.

 The substantive allegations are as follows:

 1. Defendants Grabicki, Guilfoil and Myhre conspired to deprive plaintiff of his civil rights and that although defendants were aware of the deprivation they failed to act.

 2. The Privacy Act, 5 U.S.C. § 552a is unconstitutional on its face and as applied as it constitutes a denial of procedural due process.

 3. Defendants Grabicki, Guilfoil, Myhre and Cleland acted in contravention of the Merit System Principle Act, 5 U.S.C. § 2301.

 4. Defendants Grabicki, Guilfoil and Myhre individually or in concert acted with intent to damage plaintiff's reputation, good name, integrity, credibility and economic relationships as well as to inflict mental suffering and emotional distress.

 5. Defendants Grabicki and Guilfoil breached an oral contract with plaintiff.

 6. Defendants Grabicki, Guilfoil and Myhre negligently misrepresented the ...

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