Weber v. Department of Veterans Affairs - Opposition

No. 08-281

In the Supreme Court of the United States

WILLIAM N. WEBER, PETITIONER

v.

DEPARTMENT OF VETERANS AFFAIRS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

GREGORY G. GARRE
Solicitor General
Counsel of Record
GREGORY G. KATSAS
Assistant Attorney General
MARLEIGH DOVER
ANISHA S. DASGUPTA
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the district court had authority to adjudi cate petitioner's claim under the Back Pay Act of 1966, 5 U.S.C. 5596.

In the Supreme Court of the United States

No. 08-281

WILLIAM N. WEBER, PETITIONER

v.

DEPARTMENT OF VETERANS AFFAIRS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The amended opinion of the court of appeals (Pet. App. 1a-24a) is reported at 521 F.3d 1061. The initial opinion of the court of appeals (Pet. App. 25a-45a) is reported at 512 F.3d 1178. The order of the district court (Pet. App. 46a-50a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on January 15, 2008. A petition for rehearing was denied on April 4, 2008 (Pet. App. 1a, 8a). The petition for a writ of certiorari was filed on July 3, 2008. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Congress has prescribed standards for the ap pointment, pay, discipline, and removal of Veterans Health Administration (VHA) employees. See 38 U.S.C. 7401 et seq. The availability and form of review that such an employee may obtain of adverse personnel ac tions varies depending on whether the employee is a permanent full-time employee, as well as the nature and basis for the adverse action.

a. VHA physicians who are "employed on a full-time basis under a permanent appointment" and who have been subjected to an "adverse personnel action" are en titled to pursue an administrative appeal under either 38 U.S.C. 7462 or 38 U.S.C. 7463. See Department of Veterans Affairs Labor Relations Improvement Act of 1991, 38 U.S.C. 7461(a) and (c)(1).

i. In situations where "a major adverse action was taken" and "the case involves or includes a question of professional conduct or competence," Congress has pro vided that the administrative appeal authorized by Sec tion 7461(a) shall be heard by a Disciplinary Appeals Board (Appeals Board), 38 U.S.C. 7461(b)(1), whose members are appointed by the Secretary of Veterans Affairs (Secretary), 38 U.S.C. 7464(a); see 38 U.S.C. 7461(c)(3)(A) and (B) (defining a question of professional conduct or competence as one involving "[d]irect patient care" or "[c]linical competence"). Such appeals are ad dressed in 38 U.S.C. 7462. Congress has further pro vided that the decisions of an Appeals Board are subject to review by the Secretary, see 38 U.S.C. 7462(d), and then to judicial review under a standard similar to that set forth in the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq. See 38 U.S.C. 7462(f).

ii. Administrative appeals by permanent, full-time employees that either do not involve a major adverse action or do not involve a question of professional con duct or competence are governed by 38 U.S.C. 7463. See 38 U.S.C. 7461(b)(2). Congress has provided that "Dis ciplinary Appeals Boards shall not have jurisdiction to review such matters." 38 U.S.C. 7463(a). Instead, in such cases, the matter is first considered by "an impar tial examiner," 38 U.S.C. 7463(d)(1), whose "findings and recommendations" are subject to "a prompt review * * * by an official of a higher level than the official who decided upon the action," 38 U.S.C. 7463(d)(3). Sec tion 7463 does not provide that the decisions of that higher-level official are subject to review by the Secre tary or to judicial review.

b. The procedures described above are applicable only to employees who are "employed on a full-time ba sis under a permanent appointment." 38 U.S.C. 7462(c). Accordingly, probationary VHA employees who seek to challenge an adverse personnel action possess only those remedies set forth in the agency rules and regula tions relating to their probationary employment.

2. In October 1997, petitioner was hired on a tempo rary basis to be a staff radiologist at the Veterans Ad ministration Medical and Regional Center in Fort Har rison, Montana. Pet. App. 8a. On December 7, 1997, petitioner's position was converted into a full-time staff position. Ibid. As required by 38 U.S.C. 7403(b)(1) and (2), petitioner's initial full-time appointment was "for a probationary period of two years" and was made subject to "review[] from time to time by a board" (summary review board) whose members are "appointed in accor dance with regulations of the Secretary." See Pet. App. 8a-9a. Section 7403(b)(2) further provides that if a sum mary review board "finds that [a probationary em ployee] is not fully qualified and satisfactory, such per son shall be separated from the service."

On August 2, 1999, a summary review board was con vened to review petitioner's appointment. Pet. App. 10a. Petitioner was notified 40 days in advance of the sum mary review board's meeting and was represented by counsel when the summary review board convened. Id. at 52a. On August 12, 1999, the summary review board issued a recommendation that petitioner be separated from the VHA. Id. at 10a. The summary review board concluded that "no single incident recounted to the Board or demonstrated by the evidence appears to war rant removal." Id. at 53a (citation omitted). But it found that, "taken as a whole[,] [petitioner's] pattern of behavior, attitude toward correction, and erosion of staff confidence lead the Board to conclude that his retention beyond the probationary period would prohibit the effec tive functioning of the Radiology Department." Ibid. (citation omitted). On September 13, 1999, the VHA terminated petitioner's employment. Ibid.

3. On March 8, 2000, petitioner filed suit against the Department of Veterans Affairs (VA) and two of its offi cials in federal district court, asserting that his termina tion had violated the APA. Pet. App. 51a, 53a, 55a.1 On June 2, 2004, the district court granted summary judg ment in favor of petitioner. Id. at 51a-59a. In its order, the district court concluded that the summary review board had "violated [VHA] regulations by considering charges against [petitioner] that had not been included in the notice of Summary Review." Id. at 55a. The court also determined that "[t]he significance and effect of the consideration of the undisclosed matters by the Sum mary Review Board [could not] be determined from the record," and it "REMANDED to the VA for further pro ceedings in accordance with applicable law and regula tions." Id. at 58a-59a. On June 3, 2004, the VHA rein stated petitioner's employment and immediately placed him on administrative leave with pay. Id. at 11a.2

4. a. On September 15, 2004, petitioner filed a new action against the VA and the Secretary seeking back pay for the period between his September 13, 1999, ter mination and his June 3, 2004, reinstatement. Pet. App. 11a-12a. Petitioner asserted that the district court had authority to grant such relief pursuant to the Back Pay Act of 1966 (Back Pay Act), 5 U.S.C. 5596. Pet App. 46a. The Back Pay Act provides that a qualifying "employee * * * who, on the basis of a timely appeal or an admin istrative determination * * * is found by an appropri ate authority * * * to have" suffered "the withdrawal or reduction of all or part of [his] pay, allowances, or differentials" as a result of "an unjustified or unwar ranted personnel action" may recover his lost pay as well as attorney's fees. 5 U.S.C. 5596(b)(1).

b. The district court granted respondents' motion to dismiss petitioner's complaint. Pet. App. 46a-50a. The court rejected petitioner's assertion that its June 2, 2004, decision had resolved "as a matter of law, all of" the requirements for obtaining relief under the Back Pay Act. Id. at 48a. The court explained that its earlier decision had been "limited to a narrow issue of regula tory procedure" and had not "consider[ed] or resolve[d], expressly or by implication, issues of 'withdrawal or re duction' of [petitioner's] pay or other benefits." Id. at 48a-49a (quoting 5 U.S.C. 5596(b)(1)).

The district court also expressed doubts about peti tioner's ability to satisfy two additional requirements for relief under the Back Pay Act. First, the court observed that the Back Pay Act "does not, by itself, clothe this Court with jurisdiction over the back pay claim," and it described "the premise that this Court is an 'appropriate authority' to make a decision on [Back Pay Act] issues to be extremely doubtful." Pet. App. 49a (quoting 5 U.S.C. 5596(b)(1)). Second, the district court described the record in the previous case as having been "overwhelm ing with evidence of justification for [petitioner's] sepa ration as a probationary employee." Ibid.; see 5 U.S.C. 5596(b)(1) (requiring a determination that employee had been subjected to "an unjustified or unwarranted per sonnel action").

5. The court of appeals remanded the case to the district court with instructions to dismiss petitioner's complaint based on lack of jurisdiction. Pet. App. 1a- 24a. Relying on this Court's decision in United States v. Fausto, 484 U.S. 439 (1988), the court of appeals first determined that "the APA does not provide a basis for petitioner to assert his [Back Pay Act] claim" in federal court. Pet. App. 20a. The court of appeals also rejected petitioner's alternative claim that the Back Pay Act it self "provides the necessary waiver of sovereign immu nity for the district court to hear his back pay claim." Ibid. The court stated that "[t]he requirements to in voke jurisdiction under the [Back Pay Act] are: (1) a finding of 'an unjustified or unwarranted personnel ac tion;' (2) by an appropriate authority.'" Ibid. (quoting 5 U.S.C. 5596(b)(1)). The court of appeals concluded that petitioner could not satisfy those requirements "because the district court * * * was not an 'appropri ate authority'" under that provision. Id. at 21a. The court explained that Congress has not authorized "pro bationary physicians such as [petitioner to] seek[] judi cial review of summary review board determinations under the" Back Pay Act. Id. at 22a. It further ob served that, under VA regulations, the summary review board report from which petitioner originally sought judicial review could have been the subject of further proceedings within the VHA. Ibid. The court of appeals "express[ed] no opinion on whether the district court properly asserted subject matter jurisdiction" over peti tioner's earlier action under the APA. Id. at 22a n.2.

ARGUMENT

Petitioner contends (Pet. ii, 5-12) that the court of appeals erred in concluding that the district court did not have jurisdiction to consider his claim under the Back Pay Act. The court of appeals' decision is correct and does not conflict with the decisions of this Court or of another court of appeals. Further review is not war ranted.

1. The court of appeals correctly held that the dis trict court was not "an appropriate authority" for pur poses of the Back Pay Act at the time it issued its June 2004 decision.

In United States v. Fausto, 484 U.S. 439, 447, 455 (1988), this Court held that an "excepted service" fed eral employee for whom the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (5 U.S.C. 7501 et seq.), did not provide a right of review before any court could not obtain judicial review of an adverse per sonnel action under the Back Pay Act. The Court con cluded that the exclusion of certain federal employees from the remedies set forth in the CSRA "display[ed] a clear congressional intent to deny the excluded employ ees the protections of Chapter 75-including judi- cial review-for personnel action covered by that chap ter." Fausto, 484 U.S. at 447. The Court also explained that "under the comprehensive and integrated review scheme of the CSRA," the only "appropriate autho rit[ies]" for purposes of the Back Pay Act would be "the agency itself," the Merit Systems Protection Board, or a court with "authority to review the agency's [underly ing] determination." Id. at 454; see also Pathak v. De partment of Veterans Affairs, 274 F.3d 28, 31 (1st Cir. 2001) (stating that "Fausto stands for the general prop osition that judicial review is unavailable to a federal employee who has suffered an adverse personnel action if [the CSRA] does not provide judicial review").

Like the respondent in Fausto, petitioner falls squarely with the category of federal employees that Congress has specifically excluded from the remedies set forth in the CSRA. Congress has provided that the subchapter of the CSRA that governs separation from service "does not apply to" certain categories of employ ees. 5 U.S.C. 7511(b). Among the enumerated catego ries are "an employee * * * who holds a position within the [VHA] which has been excluded from the competitive service by or under a provision of title 38, unless such employee was appointed to such position under section 7401(3) of such title." 5 U.S.C. 7504(b)(10); accord 5 U.S.C. 7511(a)(1)(C)(i) (defining "employee" for purposes of the same subchapter to in clude "an individual in the excepted services * * * who is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service") (emphasis added). Because Congress has provided that appointments of "health-care profession als" at the VHA shall be made "without regard to civil- service requirements," 38 U.S.C. 7403(a)(1), such posi tions are not part of the "competitive service," see 5 U.S.C. 2102(a)(1). In addition, appointment of "[p]hysicians" by the VHA is addressed in 38 U.S.C. 7401(1) (Supp. V 2005) rather than 38 U.S.C. 7401(3) (Supp. V 2005). Accordingly, it is clear that probation ary VHA physicians like petitioner are not entitled to seek relief from adverse personnel actions under the CSRA. See Pathak, 274 F.3d at 31.3

The provisions of Title 38 governing VHA employ ment further underscore that the district court did not have "authority to review" (Fausto, 484 U.S. at 454) the merits of the VHA's decision to terminate petitioner's employment during the two-year probationary period. Congress has expressly provided that "if [a summary review] board finds that [a probationary employee] is not fully qualified and satisfactory, such person shall be separated from the service." 38 U.S.C. 7403(b)(2) (em phasis added). In addition, Congress has expressly pro vided a non-CSRA mechanism by which certain non-pro bationary VHA employees may seek judicial review of certain kinds of major adverse employment actions, see 38 U.S.C. 7462; p. 2, supra, but it has not made that mechanism available to probationary VHA employees. Under this Court's holding in Fausto, petitioner was not entitled to circumvent those restrictions on the availabil ity of judicial review in Title 38 by seeking to recast his claim as one under the APA or the Back Pay Act. Ac cord Pathak, 274 F.3d at 32 (stating that "Congress's express provision of judicial review in [38 U.S.C. 7462], coupled with a complete omission of judicial review in * * * the provision governing Pathak * * * is persua sive evidence that Congress deliberately intended to foreclose further review of such claims") (internal quota tion marks and citation omitted).

Petitioner asserts that he is "entitled to back pay" because the VA "fail[ed] to follow its own rules" in ter minating his employment on September 19, 1999. Pet. 8; see Pet. 6-9. But, as this Court explained in Fausto, see 484 U.S. at 454, that argument begs the question of whether the district court was an "appropriate author ity" to determine whether petitioner suffered a loss of pay or other covered benefits as a result of "an unjus tified or unwarranted personnel action." 5 U.S.C. 5596(b)(1). And, as explained previously, the answer is no. "This does not mean that the statutory remedy pro vided in the Back Pay Act is eliminated, or even that the conditions for invoking it are in any way altered." Fausto, 484 U.S. at 454. It simply means that petitioner has not obtained an appropriate determination from an appropriate tribunal. Cf. Pet. App. 49a (district court describing the record in the previous case as having been "overwhelming with evidence of justification for [petitioner's] separation as a probationary employee").

2. Petitioner errs in contending that the court of ap peals' decision in this case creates "a direct conflict" (Pet. 5) with Ward v. Brown, 22 F.3d 516 (2d Cir. 1994) (see Pet. 5-6), Romero v. United States, 38 F.3d 1204 (Fed. Cir. 1994) (see Pet. 5, 7, 11), or Bosco v. United States, 931 F.2d 879 (Fed. Cir. 1991) (see Pet. 10-11).

In Ward, the Second Circuit stated that "the Back Pay Act * * * provides an explicit waiver of sovereign immunity in cases covered by that Act." 22 F.3d at 520 (emphasis added). Here, the court of appeals simply held that petitioner's case was not covered by the Back Pay Act because no "appropriate authority" had deter mined that he had been subject to "an unjustified or un warranted personnel action." 5 U.S.C. 5596(b)(1); see Pet. App. 21a-22a.

In Romero, the Federal Circuit interpreted this Court's holding in Fausto as being inapplicable to "a type of personnel action-withholding of pay for income tax purposes-that 'is not covered at all by the CSRA, for any employees.'" Romero, 38 F.3d at 1211 (quoting Bosco, 931 F.2d at 883); accord Bosco, 931 F.2d at 883 (viewing Fausto as holding that the CSRA is "the only means of review as to the types of adverse personnel action specifically covered by the CSRA" (first emphasis added)). But the "type of personnel action" at issue in this case-separation from service-is expressly ad dressed by the CSRA. See 5 U.S.C. 7512(1). Accord ingly, there is no conflict between the court of appeals' decision in this case and the Federal Circuit's decisions in Romero and Bosco.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE
Solicitor General
GREGORY G. KATSAS
Assistant Attorney General
MARLEIGH DOVER
ANISHA S. DASGUPTA
Attorneys

NOVEMBER 2008

1 On July 9, 2002, petitioner filed a second action in which he alleged that his termination violated various civil rights statutes. See Pet. App. 53a n.1. We have been advised that petitioner's appeal from the district court's November 2005 dismissal of that action is currently on appeal to the Ninth Circuit. Accord id. at 47a & n.1

2 After petitioner was reinstated, the VHA convened a new summary review board, which also recommended termination of petitioner's em ployment. Petitioner was ultimately discharged from his service with the VHA, effective December 6, 2005. Pet. App. 11a.

3 The fact that petitioner is not entitled to seek relief for adverse personnel actions does not mean that the CSRA "does not apply to" him (Pet. 10) or that he "is not covered at all by [it]" (Pet. 12). To the con trary, the CSRA's general definition of "employee" clearly includes physicians hired on a probationary basis by the VHA. See 5 U.S.C. 2105(f) (stating that "employees appointed under chapter 73 or 74 of title 38 shall be employees" for certain purposes); 38 U.S.C. 7403(b) (providing for appointment of probationary employees such as peti tioner). It is true that "[s]ince Fausto was decided, the CSRA has been amended to provide review for nonpreference eligible members of the excepted service." Bosco v. United States, 931 F.2d 879, 883 n.3 (Fed. Cir. 1991) (citing Civil Service Due Process Amendments, Pub. L. No. 101-376, 104 Stat. 461); see Pet. 10-11 (citing Bosco). But that point is irrelevant here because there is no question that probationary em ployees such as petitioner are still not eligible to pursue relief under the CSRA. See pp. 8-9, supra.