Elizabeth Schacht, M.d. v. Steven L. Lieberman

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 22, 2024 Decided June 4, 2024
No. 22-5221
ELIZABETH SCHACHT, M.D.,
APPELLANT
v.
STEVEN L. LIEBERMAN, IN HIS OFFICIAL CAPACITY AS ACTING
PRINCIPAL UNDER SECRETARY FOR HEALTH, DEPARTMENT OF
VETERAN AFFAIRS, VETERANS HEALTH ADMINISTRATION, ET
AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-02148)
Brandon L. Arnold argued the cause for appellant. With
him on the briefs was Mark H. Russell.
Simon C. Brewer, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney General,
and Abby C. Wright, Attorney. R. Craig Lawrence and Jeremy
S. Simon, Assistant U.S. Attorneys, entered appearances.

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Before: WILKINS and RAO, Circuit Judges, and RANDOLPH,
Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: In 2018, the Director of
a Department of Veterans Affairs hospital complex in Colorado
fired Dr. Elizabeth Schacht, a staff anesthesiologist and critical
care physician. Dr. Schacht appealed to a VA Disciplinary
Appeals Board. See 38 U.S.C. §§ 7461(b)(1),
(c)(2)(E), 7462(b), 7464. After a four-day evidentiary hearing,
the Board upheld her discharge. See id. § 7462(c). Dr. Schacht
then brought an action in federal district court contesting the
Board’s decision. See id. § 7462(f)(1).
In this appeal from the district court’s order granting the
VA’s motions for summary judgment, Dr. Schacht claims that
the Board acted arbitrarily in refusing to admit some of her
proposed evidence. See id. § 7462(f)(2). She also argues that
the Board’s decision was arbitrary and capricious because the
Board did not sufficiently consider whether a penalty short of
firing her would have been appropriate.
I.
Dr. Schacht began working at the VA hospital complex in
2015. By fall 2017, Dr. Schacht’s colleagues had reported
consistent and serious problems with her patient care,
professionalism, and communication. Based on those reports,
the hospital Director determined that Dr. Schacht’s performance
“potentially constitute[d] an imminent threat to patient welfare.”
In February 2018, the Director summarily suspended her clinical
privileges pending further review.

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Several months later, the hospital’s Chief of Staff sent a
letter to Dr. Schacht specifying her unprofessional conduct and
proposing to revoke her clinical privileges and remove her from
federal service. The Director affirmed the unprofessional
conduct charge and discharged Dr. Schacht in August 2018.
Dr. Schacht appealed to a VA Disciplinary Appeals Board.
The Board consisted of three agency physicians, including a
Chief of Anesthesiology. See 38 U.S.C. § 7464(a). In June
2019 the Chairman of the Board scheduled a hearing on Dr.
Schacht’s appeal for December 2, 2019, a Monday, and required
the parties to submit “any pre-hearing motions or other requests”
by October 7.
On Friday, November 29, the last business day before the
hearing, Dr. Schacht’s counsel “request[ed]” that the Board
accept into evidence 280 pages of additional documentary
exhibits. VA counsel objected. At the start of the hearing, the
Board denied Dr. Schacht’s request. In response, Dr. Schacht’s1
counsel argued that the exclusion would prevent her “from
presenting evidence in her own defense,” but did not ask the
Board to clarify its ground for rejecting the request.
After four days of testimony from nineteen witnesses, the
Board issued a written decision sustaining the unprofessional
conduct charge. To determine the appropriate penalty, the
Board applied a test based on the twelve factors established in
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305–06
(M.S.P.B. 1981). See Dep’t of Veterans Affairs, VA Handbook
5021, at II-A-1 to -1b (Dec. 28, 2017). The Board
recommended that the agency uphold Dr. Schacht’s firing.
The Board also denied a late motion from VA counsel to submit 1
additional evidence.

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Acting through a delegate, the Secretary of Veterans Affairs
executed the Board’s decision.
Dr. Schacht sought review of the Board’s order in district
court, alleging that the Board violated her statutory and
constitutional rights. See 38 U.S.C. § 7462(f)(1). She asked the
court to hold unlawful and set aside various Board actions that
she characterized as arbitrary and capricious. See
id. § 7462(f)(2).
The district court granted in part and denied in part both
parties’ motions for summary judgment. The court rejected
most of Dr. Schacht’s procedural claims except, as relevant here,
her contention that the Board’s failure to explain why it had
excluded her additional evidence “cross[ed] the line from the
tolerably terse to the intolerably mute.” See Greater Bos.
Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970).
Without vacating the VA’s order, the district court remanded for
the Board to provide either an explanation for its evidentiary
ruling or a revised decision.
Upon remand, the Board explained that it had rejected Dr.
Schacht’s submission for two reasons. One, the evidence was
offered “late”—after the October 7 deadline for motions and
other requests and “just before the hearing was set to begin.”
Two, the Board concluded that “many of the documents were
related to a discrimination-related case” that Dr. Schacht had
brought against the VA and were therefore “not relevant to the
case and charges” before the Board.
Over Dr. Schacht’s objection, the district court determined
that it could and would consider the Board’s explanation on
remand. The court credited the Board’s reasoning that Dr.
Schacht’s submission was untimely. (It was unconvinced by the
Board’s additional explanation that her exhibits were

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categorically irrelevant.) The district court also held that Dr.
Schacht’s proposed exhibits were largely redundant with
evidence already in the administrative record, so their exclusion
was at most a harmless error. Rejecting Dr. Schacht’s remaining
claims, the court granted summary judgment to the agency.
II.
Dr. Schacht contends that the district court should not have
considered the Board’s explanation on remand for refusing to
admit her exhibits. In evaluating her argument we shall assume,
without deciding, that the district court properly remanded the
matter.2
Dr. Schacht invokes the oft-repeated administrative law
principle that rejects “post hoc rationalizations” by the agency
or its counsel. See, e.g., SEC v. Chenery Corp., 318 U.S. 80, 87
(1943); Burlington Truck Lines, Inc. v. United States, 371 U.S.
156, 168–69 (1962); Dep’t of Homeland Sec. v. Regents of the
Univ. of Cal., 591 U.S. 1, 20–21 (2020). In other words, “a
court may uphold agency action only on the grounds that the
The Administrative Procedure Act does not require an agency 2
to explain its denial of a written request if “the denial is self-
explanatory.” 5 U.S.C. § 555(e). When the Board Chairman
announced at the beginning of the hearing that Dr. Schacht’s request
was denied, her attorney did not ask for an explanation. As the district
court pointed out, trial judges “are not expected to provide detailed
explanations for each of their evidentiary rulings.” United States v.
Russo, 104 F.3d 431, 434 (D.C. Cir. 1997). In federal court
proceedings, “when the party offering evidence does not request that
the court clarify its decision to exclude . . . evidence, a reviewing court
will sustain the exclusion on any ground that the district court could
have invoked.” United States v. Ashton, 555 F.3d 1015, 1019 (D.C.
Cir. 2009) (citing 1 MCCORMICK ON EVIDENCE 260 (6th ed. 2006)).

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agency invoked when it took the action.” Michigan v. EPA, 576
U.S. 743, 758 (2015). Dr. Schacht takes this to mean that if the
agency fails to explain its initial ruling it is barred from
explaining on remand why it acted as it did. That is not an
accurate statement of the law.
In the leading case of Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 420 (1971), the Supreme Court held
that an agency that failed to give a reason for its action must do
so on remand even though “[s]uch an explanation will, to some
extent, be a ‘post hoc rationalization’ and thus must be viewed
critically.” Camp v. Pitts, 411 U.S. 138, 142–43 (1973) (per
curiam), citing Overton Park, held the same. It follows that
when an agency “states no reasons at all, the usual remedy is a
remand to the agency for additional investigation or
explanation.” Olivares v. TSA, 819 F.3d 454, 463 (D.C. Cir.
2016) (quoting Tourus Recs., Inc. v. DEA, 259 F.3d 731, 737
(D.C. Cir. 2001)) (internal quotation marks omitted). “[I]t is3
entirely proper for an agency to provide an explanation if
directed to do so on remand,” even though that explanation will
be after the fact. Muwekma Ohlone Tribe v. Salazar, 708 F.3d
209, 217 (D.C. Cir. 2013); see also Alpharma, Inc. v. Leavitt,
460 F.3d 1, 6 (D.C. Cir. 2006).
Because Dr. Schacht made her request to supplement the
record nearly two months after the deadline for “pre-hearing
motions or other requests,” it was reasonable for the Board to
reject her submission for being too late. By its terms, the
deadline applied to Dr. Schacht’s additional exhibits—and to the
VA’s late evidentiary filing, which the Board also excluded.
The Board’s application of the deadline was not arbitrary.
We repeat (see note 2 supra) that we are not deciding that a 3
remand was necessary.

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III.
Dr. Schacht also claims that the Board’s decision to uphold
her firing was arbitrary and capricious because the Board failed
to consider whether a lesser penalty would deter her misconduct.
The Board stated that it “believe[d] the offense was serious
enough to warrant removal from the VA.” Dr. Schacht claims
that this “conclusory” statement tainted the Board’s ultimate
penalty decision.
The Board was not required to expressly list or discuss
other potential penalties. Cf. United Airlines, Inc. v. TSA, 20
F.4th 57, 62 (D.C. Cir. 2021). All the Board had to do was
explain “why it chose to do what it did.” Tourus Recs., 259 F.3d
at 737 (quoting Henry J. Friendly, Chenery Revisited:
Reflections on Reversal and Remand of Administrative Orders,
1969 DUKE L.J. 199, 222).
Taking the Board’s order as a whole, the Board adequately
explained why it believed no alternative penalty would redress
Dr. Schacht’s unprofessional conduct. See Robinson v. Dep’t of
Veterans Affs., 923 F.3d 1004, 1018 (Fed. Cir. 2019). The
Board noted that “the environment [Dr. Schacht] created is not
conducive of successful future relationship[s] with her
colleagues” and that “[t]he agency was correct in removing her
to remedy this very toxic environment.” Several witnesses had
expressed to the Board that “their faith in the VA[’s] ability to
hold [its] employees accountable will be undermined if [Dr.
Schacht] w[ere] to return to duty.” And the Board concluded
that because Dr. Schacht “did not show any acceptance of
responsibility,” “her return, attempt to rehab and integrate
w[ould] be very difficult.”

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The Board adequately considered the relevant penalty
factors. Its decision to uphold Dr. Schacht’s firing was not
arbitrary or capricious.
* * *
Accordingly, the judgment of the district court is affirmed.
So ordered.

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