                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1911
                            Filed February 11, 2015

RAVI SOOD, M.D.,
      Plaintiff-Appellee/Cross-Appellant,

vs.

MICHAEL M. GRAHAM,
Ph.D., M.D., Director of Nuclear
Medicine for the University of
Iowa Carver College of Medicine
and Individually,
       Defendant-Appellant/Cross-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Johnson County, Carl Baker,

Judge.



      A state employee appeals from a judgment that he violated the due

process rights of another employee. The prevailing employee appeals from the

order granting attorney’s fees and costs. REVERSED AND REMANDED AS TO

APPEAL; CROSS-APPEAL DISMISSED.



      Thomas J. Miller, Attorney General, and George A. Carroll and Jordan G.

Esbrook, Assistant Attorneys General, for appellant.

      Chad A. Swanson and Laura J. Folkerts of Dutton, Braun, Staack &

Hellman, P.L.C., Waterloo, for appellee.



      Heard by Mullins, P.J., and Bower and McDonald, JJ.
                                          2



MULLINS, P.J.

       Michael Graham, Director of Nuclear Medicine for the University of Iowa

Carver College of Medicine, appeals from a district court ruling that he violated

the due process rights of Ravi Sood when he revoked Sood’s clinical privileges at

the University of Iowa Hospitals and Clinics. Graham contends that Sood’s due

process claim fails as a matter of law; that Graham was entitled to qualified

immunity; and that the district court awarded fees that are not statutorily

compensable.      Sood cross-appeals contending the district court erred in its

award of attorney fees. We reverse the ruling of the district court, vacate the

fees award, and remand for further proceedings.

I.     BACKGROUND FACTS AND PROCEEDINGS.

       This court previously heard this case on appeal from a grant of partial

summary judgment in the case of Sood v. University of Iowa, No. 13-0870, 2014

WL 1234210 (Iowa Ct. App. March 26, 2014). In deciding that appeal, we made

the following findings of fact:

                In a letter dated July 14, 2008, the department of radiology
       of the University of Iowa Carver College of Medicine offered Ravi
       Sood a “full-time non tenure-track appointment as a Visiting
       Associate for the period of one year beginning July 14, 2008” with
       an annual salary of $100,000. The letter also stated, “You will have
       full clinical privileges in Nuclear Medicine,” and “your appointment
       may be renewed for one additional year.” Sood accepted the offer
       on July 17, 2008.
                On June 28, 2008, Sood applied for “initial” clinical privileges
       for University of Iowa Hospitals and Clinics’ (UIHC) radiology
       department. He began working at the University as a visiting
       associate in July 2008. On October 1, 2008, the University Hospital
       Advisory Committee granted Sood full clinical privileges “subject to
       the conditions specified in the Bylaws, Rules and Regulations of the
       University of Iowa Hospitals and Clinics and its Clinical Staff.”
       According to the Bylaws, “[a]ll initial clinical privileges shall be
                                           3



       provisional for the first three months”; and “[i]f . . . termination[ ] of
       clinical privileges is recommended, the recommendation shall be
       handled as provided in Section 6.”
                On October 28, 2008, Sood was informed by a letter
       authored by Michael M. Graham, Ph.D., M.D. (Director of Nuclear
       Medicine for the Carver College of Medicine at the University of
       Iowa) that Graham “propose[d] that we reduce your status to that of
       fellow without clinical privileges, although you will retain the title of
       ‘clinical fellow’ and current salary.” The letter noted, “[W]e will not
       be renewing your appointment after June 30, 2009.”
                Also on October 28, Dr. Graham told Nancy Harney of
       human resources that he no longer wanted Sood to have clinical
       privileges. Harney emailed Graham’s request to Deb Strabala in
       the clinical staff office, July Harland in [the] business office, and
       Tyler Artz, the director of the radiology department, that they
       “need[ed] to make a change in the status of Ravi Sood, M.D.,
       effective immediately.”
                In a letter dated November 3, Sood was informed that his
       “appointment in the Department of Radiology ended on October 31,
       2008. In accord with the ‘Bylaws of the [UIHC] and its Clinical
       Staff,’ your clinical staff membership and privileges at the [UIHC]
       also end on the same date.”
                On November 26, 2008, Sood again applied for “initial”
       clinical privileges for the UIHC radiology department, which were
       granted by the University Hospital Advisory Committee on January
       7, 2009. Sood’s employment with the University ended June 30,
       2009. Sometime in June 2009, Sood learned that an application he
       had submitted for employment elsewhere was no longer being
       processed due to a “gap” in his privileges.
                On January 22, 2010, Sood filed a petition against the
       University of Iowa, the Board of Regents, and Dr. Graham, alleging
       . . . breach of contract [and] violation of procedural due process.[1]

       The UIHC Bylaws, Rules, and Regulations Article IV, sections 4-6 govern

clinical privileges including application for, reduction of, and corrective action in

relation to such privileges.    The Bylaws outline the procedure for corrective

action, which includes provisions for notice, a hearing, and appellate review.




1
  A third claim for violation of Iowa Code section 91A.6 (2009), a provision of the Iowa
Wage Payment Collection Law, was dismissed prior to the motion for summary
judgment.
                                        4



Both Graham and Sood were aware of the Bylaws and their obligation to abide

by them.

      The University Operations Manual Chapter 29 provides a grievance

procedure for faculty members wishing to challenge the legitimacy of university

action.2 Chapter 31 of the operations manual provides for review of any final

decision of an adjudicative or rule-making body at the university by the board of

regents. This chapter also provides that, following a decision by the board of

regents, the employee may seek judicial review.

      The University of Iowa, the board of regents, and Graham filed a motion

for partial summary judgment on Sood’s claims arguing, among other things, that

they were entitled to qualified immunity against the procedural due process

claim. The district court granted the motion, finding the university and the board

were entitled to qualified immunity, and Graham was entitled to qualified

immunity in his official capacity. However, it denied partial summary judgment on

the question of whether Graham was entitled to qualified immunity in his

individual capacity. It found there were genuine issues of material fact remaining

as to whether Graham intended to have Sood’s clinical privileges terminated.

      On a second motion for summary judgment, the court dismissed the

breach-of-contract claim against all parties due to Sood’s failure to exhaust

available administrative remedies. In the previous appeal before us, we affirmed

the district court’s grant of summary judgment on Sood’s breach-of-contract

claim. Sood, 2014 WL 1234210 at *7.


2
  We note that the UIHC Bylaws specifically exclude actions concerning clinical
privileges from the procedures under the Chapter 29 of the Operations Manual.
                                           5



         Sood’s due process claim against Graham in his individual capacity

proceeded to trial. At the close of evidence, Graham moved for directed verdict

on multiple grounds, including that Sood failed to pursue available administrative

remedies. The court denied this motion. The court submitted special verdict

questions to the jury, and the jury concluded Graham had violated Sood’s

constitutional due process rights and awarded Sood $37,000 in damages. The

court entered judgment accordingly. Graham next filed a combined motion for

judgment notwithstanding the verdict (pursuant to Iowa Rule of Civil Procedure

1.1003(2)) and new trial (pursuant to Iowa Rule of Civil Procedure 1.1004(8)).

This motion raised numerous issues, including again that Sood failed to pursue

available administrative remedies. The district court denied this motion. Graham

appeals from this ruling.

         Following the judgment in his favor, Sood submitted a motion for attorney

fees, including itemized bills and affidavits in support of the claim.           Sood

requested the court enter judgment against Graham for $242,648.25 in attorney

fees and $35,828.92 in costs and expenses. The court awarded Sood $120,000

in attorney fees and $25,283.03 in expenses.          Sood cross-appeals from this

award.

         Following entry of all post-trial rulings, this court filed its opinion in the

appeal taken from denial of the motion for partial summary judgment. Sood,

2014 WL 1234210. With respect to the breach-of-contract claim, we found that

Sood failed to exhaust the administrative remedies available to him and denied

the appeal. Sood, 2014 WL 1234210 at *7.
                                          6



II.    ANALYSIS.

       A.      Procedural Due Process Claim.

       Graham contends Sood’s procedural due process claim fails as a matter

of law.     He asserts Sood waived his due process claim by failing to seek

administrative remedies. He suggests Sood could have used the administrative

procedures set out in Iowa Code chapter 17A (2007), or the internal University

procedures set out in the bylaws and the university operations manual.

       We review the denial of a motion for new trial based on the grounds

asserted in the motion. Roling v. Daily, 596 N.W.2d 72, 76 (Iowa 1999). If the

motion is based on a discretionary ground, we review it for an abuse of

discretion.   Id.   If the motion is based on a legal ground, our review is for

correction of errors at law. Id. Graham contends Sood’s claim failed as a matter

of law, therefore, we review for correction of errors at law.

       Generally, “a litigant asserting a deprivation of procedural due process

must exhaust state remedies before such an allegation states such a claim under

§ 1983.” Wax n’ Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th Cir. 2000).

In Christiansen v. West Branch Community School District, 674 F.3d 927, 935

(8th Cir. 2012), the Eighth Circuit Court of Appeals explained that “a government

employee who chooses not to pursue available post-termination remedies cannot

later claim, via a § 1983 suit in federal district court, that he was denied post-

termination due process.” However, “it is not necessary for the litigant to have

exhausted available postdeprivation remedies when the litigant contends that he

was entitled to predeprivation process.” Christiansen, 674 F.3d at 936 (internal
                                          7



quotation omitted). Sood claims he was denied predeprivation process when

Graham ordered the termination of his clinical privileges without notice or a

hearing.     As such, he asserts he was not required to exhaust administrative

remedies prior to bringing the section-1983 action.

       Sood insists that although he received the letter from Graham on October

28 informing him of the corrective action that would take place, he did not know

his clinical privileges had been terminated on October 31 until he was informed in

writing on November 3.      Sood understood or should have understood, upon

receipt of the October 28th letter, that a termination of his privileges was being

proposed.      The UIHC bylaws govern corrective actions related to clinical

privileges and provide for notice, a hearing, and review.         He had time and

opportunity between October 28 and the termination on October 31 to invoke—or

at least attempt to invoke—the administrative procedures provided in the

university’s bylaws.    We find there was adequate pre-deprivation process

available of which Sood did not avail himself.

       Even if we were to determine Sood did not have access to pre-deprivation

process, “[d]ue process does not require elaborate pre-termination procedures,

especially     where   meaningful     post-termination    process     is   available.”

Christiansen, 674 F.3d at 934. The record before us discloses that there was

extensive post-termination process available to Sood including the procedure

regarding clinical privileges outlined in the UIHC bylaws, article IV, sections 4-6.

Sood then had the right to grieve under the university operations manual chapter

31. He had the right to appeal to the board of regents and still later to petition for
                                         8



judicial review.    Sood never invoked any post-deprivation administrative

procedures.

       Sood insists the predeprivation procedures were inadequate because they

do not provide a remedy for a gap in clinical privileges. In our earlier case, we

affirmed a district court ruling that Sood’s breach-of-contract claim failed because

he had not exhausted administrative remedies. With regard to the gap issue, we

explained:

       [Sood] contends for example, that there is no remedy to the
       reporting gap of his privileges. His attempt is to no avail. Any
       alleged breach of the contract must be measured by all of the facts.
       If Sood had administratively challenged the University’s revocation
       of his clinical privileges, and if successful in that challenge, we
       know of no reason why his work history would reflect a gap in his
       privileges or the full salary not paid.

Sood, 2014 WL 1234210 at *7 (emphasis added).

       We are constrained by our ruling in the breach-of-contract case. The

remedy sought in the due process claim is for damages arising out of the gap in

privileges.   That is the same gap we already determined was subject to

remediation through an administrative appeal.       Accordingly, the due process

claim must be dismissed for failure to exhaust administrative remedies.

Therefore, we need not address any of the remaining issues on appeal barring

the fees and expenses award.

       B.     Attorney Fees and Expenses Award.

       Because we find Sood’s due process claim is dismissed, we need not

address the parties’ arguments regarding the attorney fees and expenses award.

We vacate the order awarding fees and expenses and dismiss the cross appeal.
                                       9



III.   CONCLUSION.

       We conclude, consistent with our prior opinion in this case, that Sood’s

claim is dismissed for failure to exhaust both predeprivation and postdeprivation

administrative remedies. Consequently, we do not address the parties’ other

arguments. We vacate the order awarding fees and expenses and dismiss the

cross-appeal. We remand to the district court.

       REVERSED AND REMANDED AS TO APPEAL; CROSS-APPEAL

DISMISSED.
