Bonner v. Dept. of Veterans Affairs Pittsburgh, 05-3349.

• Citation: 477 F.3d 1343
• Decision Date: 16 February 2007
• Docket Number: No. 05-3349.,05-3349.
• Parties: Robert BONNER, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS PITTSBURGH HEALTHCARE SYSTEM, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

477 F.3d 1343

Robert BONNER, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS PITTSBURGH HEALTHCARE SYSTEM, Respondent.

No. 05-3349.

United States Court of Appeals, Federal Circuit.

February 16, 2007.

Martin R. Cohen, American Federation of Government Employees, of Bala Cynwyd, PA, argued for petitioner.

Domenique Kirchner, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington DC, argued for respondent. With her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Donald E. Kinner, Assistant Director.

Before LOURIE, Circuit Judge, PLAGER, Senior Circuit Judge, and RADER, Circuit Judge.

PLAGER, Senior Circuit Judge.

Robert Bonner was removed from his position as a registered nurse with the Department of Veterans Affairs Pittsburgh Healthcare System. The American Federation of Government Employees filed a grievance on his behalf pursuant to the negotiated grievance procedure contained in its collective bargaining agreement with the Department. The case proceeded to arbitration, and the arbitrator who heard the matter converted the agency's removal to a 30-day suspension. Bonner petitions for review of the arbitrator's decision. We dismiss the petition for lack of jurisdiction.

BACKGROUND

Mr. Bonner is a registered nurse with the Veterans Health Administration ("VHA"), employed by the Department of Veterans Affairs ("DVA" or "Department") Pittsburgh Healthcare System. He was appointed under the authority of what is now 38 U.S.C. § 7401(1), which provides the Secretary of Veterans Affairs with broad discretion to appoint certain health-care professionals outside the civil service appointment procedures of title 5 of the United States Code.¹ Mr. Bonner also is, and was at all times pertinent to this case, President of Local 2028 of the American Federation of Government Employees ("the union"), which includes as members employees hired under the civil service provisions of title 5 as well as employees appointed by the Secretary under title 38.

In December 2004, the agency removed Mr. Bonner based on one charge of willfully using or authorizing the use of a Government passenger motor vehicle for other than official purposes and two charges involving falsification before an Administrative Board of Investigation. Pursuant to a collective bargaining agreement between the union and the DVA, the union filed a grievance on Mr. Bonner's behalf alleging that his termination was not in conformity with the labor management agreement. After the agency denied the grievance, the union referred the grievance to arbitration.

The arbitrator who heard the matter found that the agency "did not meet its burden of proof and demonstrate just cause for removal" of Mr. Bonner for the three charges and ordered that Mr. Bonner be reinstated. Nevertheless, the arbitrator stated that Mr. Bonner "had a duty as President of Local 2028 to know the procedures that apply to the use of a government vehicle and to take action to carry them out." For that reason, the arbitrator converted the termination to a 30-day disciplinary suspension. Mr. Bonner petitions for review of the arbitrator's decision.

DISCUSSION

A.

The statutory provision governing judicial review of an arbitrator's decision is 5 U.S.C. § 7121(f), which reads:

In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the [Merit Systems Protection] Board. In matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel systems and which an aggrieved employee has raised under the negotiated grievance procedure, judicial review of an arbitrator's award may be obtained in the same manner and on the same basis as could be obtained of a final decision in such matters raised under applicable appellate procedures.

That statute is "our sole jurisdictional grant for review of an arbitrator's award." Burke v. U.S. Postal Serv., 888 F.2d 833, 834 (Fed.Cir.1989). Therefore, we have jurisdiction to review the arbitrator's decision in Mr. Bonner's case only if either the first or second sentence of § 7121(f) provides for review by this court.

To aid our analysis, we begin with an overview of the relevant statutory framework. Employment of VHA health-care professionals appointed under 38 U.S.C. § 7401(1) is governed in large part by chapter 74 of title 38. See Scarnati v. Dep't of Veterans Affairs, 344 F.3d 1246, 1247-48 (Fed.Cir.2003); James v. Von Zemenszky, 284 F.3d 1310, 1314, 1319-20 (Fed.Cir.2002). That chapter contains a number of provisions that treat VHA health-care professionals differently from ordinary civil service employees, who are covered exclusively by title 5.² Of particular relevance here are 38 U.S.C. §§ 7461 through 7464, which relate to disciplinary and grievance procedures generally and to disciplinary and grievance procedures for employees covered by a collective bargaining agreement.

Under 38 U.S.C. § 7461, a § 7401(1) employee has the right to appeal an adverse action resulting from a charge based on conduct or performance. The specific procedure available depends on the type of adverse action and the basis for the charges against the employee. If the case involves a question of professional conduct or competence,³ and a major adverse action⁴ is taken, the employee has an appeal to a Disciplinary Appeals Board appointed by the Secretary in accordance with 38 U.S.C. § 7464. 38 U.S.C. § 7461(b)(1). Procedures for Disciplinary Appeals Board appeals are set out in § 7462, which also provides for judicial review of Board final decisions.

On the other hand, if the adverse action is not a major adverse action or does not arise out of a question of professional conduct or competence, the employee may appeal under the Department grievance procedures described in § 7463. 38 U.S.C. § 7461(b)(2)(A). That section provides for review by an impartial Department examiner as set forth in regulations prescribed by the Secretary. 38 U.S.C. § 7463(a), (d). Significantly, under the Department grievance procedures of § 7463, an employee cannot obtain review by a Disciplinary Appeals Board (with an exception not relevant here), nor can he obtain judicial review of the Department's final decision.

There is an alternative procedure available under § 7463 for a § 7401(1) employee who is a member of a collective bargaining unit under chapter 71 of title 5. That chapter provides collective bargaining rights for civil service employees, 5 U.S.C. §§ 7101-35; 38 U.S.C. § 7422 extends those rights, with some exceptions, to VHA health-care professionals.⁵ Under § 7463, a § 7401(1) employee who is a member of a collective bargaining unit may elect to appeal an adverse action not involving professional conduct or competence either through negotiated grievance procedures provided in a collective bargaining agreement or through the Department grievance procedures, but not both. 38 U.S.C. §§ 7461(b)(2)(B), 7463(b). As with a final decision obtained through Department grievance procedures, the statute does not provide for judicial review of a decision resulting from collective bargaining grievance procedures.

B.

We now return to 5 U.S.C. § 7121, which generally sets forth the requirements for collective bargaining grievance procedures that are negotiated as part of collective bargaining agreements between employees and agencies. It also contains the judicial review provision we must address. Because the section is part of chapter 71 of title 5, it governs the negotiated grievance procedures between VHA health-care professionals and the DVA where applicable. See 38 U.S.C. § 7422.

In certain situations, § 7121 provides an aggrieved employee who belongs to a collective bargaining unit with the choice of filing a grievance pursuant to a negotiated grievance procedure or raising the matter under an applicable statutory procedure. For example, matters covered under 5 U.S.C. § 4303 (reductions in grade and removals due to unacceptable performance) and 5 U.S.C. § 7512 (adverse actions such as removals or suspensions of more than fourteen days) and which are also covered by a negotiated grievance procedure either may be appealed to the Merit Systems Protection Board ("MSPB") under 5 U.S.C. § 7701, or may be raised under the negotiated grievance procedure, but not both. 5 U.S.C. § 7121(e). Likewise, matters "similar" to those covered by sections 4303 and 7512 that arise under other personnel systems may be raised under applicable appellate procedures or a negotiated grievance procedure, but not both. Id.

This brings us back to subsection (f) of 5 U.S.C. § 7121, the judicial review provision at issue in this case. If an employee who is a member of a collective bargaining unit elects to raise one of the enumerated personnel matters under a negotiated grievance procedure, and that process results in arbitration, § 7121(f) provides for judicial review of the arbitrator's award. According to the first sentence, which applies to matters covered under sections 4303 and 7512, this court may review the award in accordance with 5 U.S.C. § 7703 in the same manner and under the same conditions as we review MSPB decisions. Under the second sentence, however, for matters "similar" to those "covered under" sections 4303 and 7512 that arise under "other personnel systems," judicial review is available only "in the same manner and on the same basis" as could be obtained if the employee had raised the matter under "applicable appellate procedures."

Mr. Bonner argues that we have jurisdiction under the first sentence of § 7121(f) to review the arbitrator's decision in his case. Mr....