Bennett v. Merit Sys. Prot. Bd.

• Decision Date: 30 March 2011
• Docket Number: No. 2010–3084.,2010–3084.
• Citation: 635 F.3d 1215
• Parties: Sarah BENNETT, Petitioner,v.MERIT SYSTEMS PROTECTION BOARD, Respondent,andDepartment of Veterans Affairs, Intervenor.
• Court: U.S. Court of Appeals — Federal Circuit

635 F.3d 1215

Sarah BENNETT, Petitioner,

v.MERIT SYSTEMS PROTECTION BOARD, Respondent,andDepartment of Veterans Affairs, Intervenor.

No. 2010–3084.

United States Court of Appeals, Federal Circuit.

March 30, 2011.

Phillip R. Kete, Attorney at Law, of Washington, DC, argued for petitioner.Sara B. Rearden, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, argued for respondent. With her on the brief were James M. Eisenmann, General Counsel, and Keisha Dawn Bell, Deputy General Counsel.J. Hunter Bennett, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for intervenor. On the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director.Before GAJARSA, PROST, and MOORE, Circuit Judges.GAJARSA, Circuit Judge.

This case arises from a decision of the Merit Systems Protection Board (“MSPB”), dismissing Sarah Bennett's (“Bennett”) appeal of her removal from her position as a sales clerk in the Veterans Canteen Services (“VCS”). The MSPB dismissed the appeal for lack of jurisdiction. The issue before us is whether an individual hired by the VCS pursuant to 38 U.S.C. § 7802 has appeal rights under chapters 75 and 77 of title 5. For the reasons discussed below, we hold that such an employee does not, and we affirm the MSPB's decision.

Background

Bennett's employment with the VCS began in August 2004 when she was hired as a part-time sales clerk. The VCS extended this temporary appointment on December 11, 2004, and subsequently her appointment was converted to permanent status in the excepted ¹ service on May 1, 2005 pursuant to 38 U.S.C. § 7802. Chapter 78 of title 38 provides for the creation and regulation of the VCS. Specifically, section 7802(e) governs the appointment of VCS personnel. That subsection states that:

The Secretary shall employ such persons as are necessary for the establishment, maintenance, and operation of the Service, and pay the salaries, wages, and expenses of all such employees from the funds of the Service. Personnel necessary for the transaction of the business of the Service at canteens, warehouses, and storage depots shall be appointed, compensated from funds of the Service, and removed by the Secretary without regard to the provisions of title 5 governing appointments in the competitive service and chapter 51 and subchapter III of chapter 53 of title 5. Those employees are subject to the provisions of title 5 relating to a preference eligible described in section 2108(3) of title 5, subchapter I of chapter 81 of title 5, and subchapter III of chapter 83 of title 5.38 U.S.C. § 7802(e). Both parties agree that Bennett was not a preference eligible employee.² During her employment, Bennett was thus a non-preference eligible employee in the excepted service.

On September 17, 2008, Bennett was notified of her proposed removal from employment for misconduct and given fourteen days to reply. Her alleged misconduct included failing to render proper payment for VCS merchandise, failing to register proper cash register transactions, and violating the VCS employee purchase policy. Bennett appealed the removal decision to the MSPB on September 25, 2009 pursuant to 5 U.S.C. § 7513(d). Chapters 75 and 77 of title 5 relate to adverse actions taken against certain government employees and the rights those employees have to contest such actions. Section 7513(d) gives an employee, as defined by sections 7511(a)(1) and (b), the right to appeal an adverse action to the MSPB.

Although several jurisdictional issues relating to Bennett's appeal were raised,³ only one is relevant here. The Department of Veterans Affairs (“DVA”) asserted in a motion for a stay that the MSPB lacked jurisdiction because Bennett was appointed under 38 U.S.C. § 7802(e), which excluded her from the protections of 5 U.S.C. § 7513(d). The administrative judge (“AJ”) granted the stay and issued an order on October 15, 2009, stating that Bennett was “entitled to the hearing she requested only if she makes a nonfrivolous allegation of jurisdiction.” Bennett v. Dep't of Veterans Affairs, Docket No. PH–0752–09–0673–I–1, slip op. at 2 (M.S.P.B. Oct. 15, 2009). In her response, Bennett argued that the MSPB had jurisdiction because her appeal was filed under chapters 75 and 77 of title 5 and she met the statutory definition of “employee” under section 7511(a)(1)(C). The DVA response maintained that Bennett's termination was within the exclusive authority of the Secretary of Veterans Affairs (“Secretary”) under 38 U.S.C. § 7802(e) and the provisions of title 5 were inapplicable. Bennett replied that because the VCS was not explicitly excluded from chapter 75, she had appeal rights from an adverse employment action.

In his initial decision of December 7, 2009, the AJ found that Bennett's appointment was made pursuant to 38 U.S.C. § 7802(e) and dismissed her appeal. The AJ adopted the reasoning in Chavez v. Dep't of Veterans Affairs, 65 M.S.P.R. 590 (1994), which held that certain non-preference eligible employees in the excepted services—like Bennett—were excluded from the appointing provisions of chapter 75 of title 5. Neither party petitioned the MSPB to review the AJ's decision, and, pursuant to 5 C.F.R. § 1201.113, the AJ's initial decision became the final decision of the MSPB on January 11, 2010. Bennett then timely filed her appeal with this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 38 U.S.C. § 4324(d).

Standard of Review

Our review of MSPB decisions is limited under 5 U.S.C. § 7703(c). The MSPB's holding must be affirmed unless it is found to be: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); Barrett v. Soc. Sec. Admin., 309 F.3d 781, 785 (Fed.Cir.2002). The MSPB's determination that it lacked jurisdiction is a question of law that the court reviews de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.Cir.1995).

Discussion

The MSPB's jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule or regulation. Maddox v. Merit Sys. Prot. Bd., 759 F.2d 9, 10 (Fed.Cir.1985). As the petitioner, Bennett bears the burden of proving the MSPB's jurisdiction over her appeal by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2)(i); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed.Cir.1998). The question we address is whether the MSPB has jurisdiction over an appeal of removal by an employee, such as Bennett, who was appointed by the VCS pursuant to 38 U.S.C. § 7802. The resolution of this question depends on (1) whether 38 U.S.C. § 7802(e) excludes VCS employees from the right to appeal under 5 U.S.C. § 7513(d); and (2) whether the amendments to 5 U.S.C. §§ 7511(a)(1), (b) remove any limitations on the right to appeal imposed by 38 U.S.C. § 7802(e).

I.

It is a basic rule of statutory construction that “[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant....” Corley v. United States, ––– U.S. ––––, 129 S.Ct. 1558, 1566, 173 L.Ed.2d 443 (2009) (citation omitted) (internal quotation marks omitted). “[T]he starting point in every case involving construction of a statute is the language itself.” Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977) (quotation marks omitted). “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (citations omitted) (internal quotation marks omitted). If a statute requires interpretation beyond the terms of the language, we can use its legislative history to inform the statutory interpretation—analysis of legislative history is also a “traditional tool of statutory construction.” Zuni Public Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 106, 127 S.Ct. 1534, 167 L.Ed.2d 449 (2007) (Stevens, J. concurring).

“If, however, the court determines Congress has not directly addressed the precise question at issue,” the court then turns to the agency interpretation of a statute. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Then, the court must determine “whether the agency's answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778; see also Fed. Express Corp.v. Holowecki, 552 U.S. 389, 395, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008) (“[W]hen an agency invokes its authority to issue regulations, which then interpret ambiguous statutory terms, the courts defer to its reasonable interpretations.”) These principles guide the analysis below.

A.

We begin with the plain language of 38 U.S.C. § 7802(e), which states that “[VCS p]ersonnel shall be ... removed by the Secretary without regard to the provisions of title 5 governing appointments in the competitive service....” Id. (emphases added). Bennett contends that 38 U.S.C. § 7802(e) only permits the Secretary to ignore the provisions of title 5 governing competitive service appointments, rather than all of title 5. When analyzing the plain language of the statute in the context of the VCS's legislative history, as the MSPB did in Chavez, the true meaning of this language—to exclude non-preference eligible employees in the excepted service from appeal rights under title 5—is clear.

When Congress adopted the VCS Act in 1946, section 2(e), which would eventually be codified as section 7802(e), stated that “[p]ersonnel ... shall be ... removed by the...