Dick v. Department of Veterans Affairs, 01-3102.

• Citation: 290 F.3d 1356
• Decision Date: 17 May 2002
• Docket Number: No. 01-3102.,01-3102.
• Parties: Earl P. DICK, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

290 F.3d 1356

Earl P. DICK, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.

No. 01-3102.

United States Court of Appeals, Federal Circuit.

May 17, 2002.

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Lynne K. Zusman, Lynne K. Zusman and Associates, of Washington, DC, argued for petitioner.

Virginia M. Lum, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director; and Harold Lester, Assistant Director.

Before CLEVENGER, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit Judge.

DYK, Circuit Judge.

Dr. Earl P. Dick ("appellant") seeks review of the final decision of the Merit Systems Protection Board ("Board") dismissing his appeal for "lack of jurisdiction." Because the Board had jurisdiction based on appellant's non-frivolous allegations, and because appellant did not waive a hearing on the merits, we vacate and remand.

I

Appellant served as Chief of Staff at the Department of Veterans Affairs Harry S. Truman Memorial Hospital ("hospital") in Columbia, Missouri, from January 1, 1989, to August 21, 1994. Appellant asserts that during his tenure as Chief of Staff, he made several protected disclosures under the Whistleblower Protection Act of 1989, Pub.L. No. 101 12, 103 Stat. 16 (1989) (codified in scattered sections of Title 5 of the United States Code) ("WPA"), to the Federal Bureau of Investigations ("FBI") and the Department of Veterans Affairs' ("DVA's" or "agency's") Office of Inspector General ("OIG") concerning a suspicious increase in the number of deaths occurring at the hospital. Appellant's disclosures allegedly enabled the FBI and OIG to better evaluate relevant statistical data purportedly showing that the deaths were criminal in nature. Appellant alleges that in retaliation for this whistleblowing activity, his supervisor Mr. Kurzejeski coerced him to accept a demotion from the Chief of Staff position.

In February 1994, Mr. Kurzejeski asked appellant "to relinquish his position as Chief of Staff." Appellant submitted a letter agreeing to the demotion, and began negotiating the terms of his demotion with Mr. Kurzejeski. The negotiations lasted several weeks. At some point during the negotiations, Mr. Kurzejeski informed appellant that if appellant did not conclude the negotiations and make a decision, he would request Regional Director Mr. Zamberlan's permission to detail appellant from his position as Chief of Staff. He further advised appellant that if appellant did not resign as Chief of Staff, he would request administrative review of his performance. On May 13, 1994, Mr. Kurzejeski sent a memorandum to Mr. Zamberlan seeking permission to detail appellant from his position. Appellant alleges that "[t]hen and only then" did he conclude that he had no alternative but to accept the demotion. Appellant chose the effective date of his demotion as August 21, 1994.

Appellant filed a request for corrective action with the Office of the Special Counsel ("OSC") concerning his demotion, alleging that the demotion constituted an "adverse personnel action" under 38 U.S.C. § 7463. DVA health care professionals are hired, paid, and disciplined under a system separate from the government-wide civil service system, 38 U.S.C. § 7401(1) (1994), and the Board normally lacks jurisdiction to review the removal or resignation of a section 7401(1) DVA physician. Khan v. United States, 201 F.3d 1375, 1380-81 (Fed.Cir.2000). Under 38 U.S.C. § 7425(b), a DVA physician has no right of appeal if such appeal would be "inconsistent" with the Disciplinary Appeals Board procedure, the separate grievance system set up for such employees under 38 U.S.C. § 7464. See Cochran v. Dep't of Veterans Affairs, 67 M.S.P.R. 167, 171 (1995). However, an appeal of a grievance arising from an adverse personnel action is not subject to the Disciplinary Appeals Boards if it "does not arise out of a question of professional conduct or competence." 38 U.S.C. § 7463(a)(2) (1994). Thus, a DVA physician may appeal an adverse action unrelated to "professional conduct or competence," such as an alleged violation of the WPA, after exhausting his administrative remedies through the OSC. That is the case here.

On April 24, 1996, the OSC advised appellant that it was terminating its investigation. Having exhausted his administrative remedies, appellant filed his Individual Right of Action ("IRA") appeal with the Board.

Appellant alleged that his demotion constituted an "adverse personnel action" under 38 U.S.C. § 7463(a)(2) and violated the WPA.¹ The agency contended that the Board lacked jurisdiction because the demotion was "voluntary."

On August 16, 1996, the administrative judge issued an "Order on Jurisdiction..." denying the agency's motion to dismiss for lack of jurisdiction,² but granting the agency's motion to postpone discovery "pending further jurisdictional pleading." Dick v. Dep't of Veterans Affairs, No. CH-1221-96-0786-W-1, slip op. at 1 (M.S.P.B. Aug.16, 1996) ("Order on Jurisdiction and Timeliness"). The administrative judge based this decision on her interpretation of Cochran, 67 M.S.P.R. 167. She understood Cochran to hold that the Board has jurisdiction over the IRA appeal of a DVA physician who is subject to an adverse action under 38 U.S.C. § 7463 only "if the adverse action appealed does not involve a question of professional conduct or competence" and if "appellant ... establish[es] that he was subject to disciplinary actions that were grievable under 38 U.S.C. § 7463." Order on Jurisdiction and Timeliness, at 1-2. The administrative judge noted that "[i]f the appellant makes a non-frivolous allegation that the personnel actions of which he complained are grievable, he is entitled to a hearing on the matter." Id. at 2 (emphasis added).

On November 22, 1996, the administrative judge issued a second "Order on Jurisdiction." Dick v. Dep't of Veterans Affairs, No. CH-1221-96-0786-W-1 (M.S.P.B. Nov.22, 1996) ("Order on Jurisdiction"). The administrative judge again noted that under Cochran,

for the Board to assume jurisdiction over this appeal, the appellant must establish that he was subject to a personnel action that was grievable under 38 U.S.C. § 7463. Cochran does not hold that the appellant must have actually grieved the personnel actions. I find, therefore, that should all other jurisdictional requirements be met, the Board has jurisdiction over ... the 1994 reassignment from the position of Chief of Staff.

Order on Jurisdiction, at 1-2. The administrative judge ordered that "[a] hearing will be set for February 1997." Id. at 2.

On November 25, 1996, the administrative judge issued an order scheduling "[t]he hearing in this appeal" for February 18-21, 1997. The order further instructed the parties to file a statement of the facts and issues, a list of agreed upon facts, and witness and exhibit lists.

On February 6, 1997, appellant withdrew his request for the hearing. The administrative judge issued an order canceling the hearing and setting deadlines for written submissions and written closing arguments.

On February 19, 1998, based on the written submissions filed in lieu of the hearing, the administrative judge dismissed the appeal for "lack of jurisdiction." Dick v. Dep't of Veterans Affairs, No. CH-1221-96-0786-W-1, slip op. at 2 (M.S.P.B. Feb.19, 1998). The administrative judge found that appellant's WPA claim did not arise out of a question of professional conduct or competence because it was unrelated to patient care or clinical work, and thus was not subject to the Disciplinary Boards Procedure. Id. at 5. Nonetheless, the administrative judge dismissed the appeal for "lack of jurisdiction" because she found that appellant failed to show by preponderant evidence that his appeal was grievable under 38 U.S.C. § 7463, in that he failed to establish by preponderant evidence that his demotion was not voluntary. Id. at 16-17. Specifically, the administrative judge found that appellant failed to prove that the agency imposed the terms of his demotion, that the circumstances permitted appellant no alternative but to accept those terms, and that the circumstances were caused by improper, coercive acts of the agency. Id. at 16. The administrative judge did not confine her review of the written submissions filed in lieu of the hearing to determining whether the Board had jurisdiction, and instead determined whether appellant could ultimately establish by preponderant evidence that his demotion was involuntary. She clearly weighed the evidence, discounting Dr. Dick's and accepting the agency's. Based on these findings, the administrative judge dismissed the appeal for "lack of jurisdiction." Appellant appealed to the full Board.

On September 10, 1999, the Board vacated the decision, holding that the grievability of a personnel action under 38 U.S.C. § 7463 did not preclude the Board from assuming jurisdiction over the appeal under the WPA. Dick v. Dep't of Veterans Affairs, 83 M.S.P.R. 464, (M.S.P.B. 1999). The Board clarified its decision in Cochran as holding that all appeals not subject to the Disciplinary Boards Procedure are appealable to the MSPB Board, regardless of "grievability" under 38 U.S.C. § 7463. Id. at 465-66. The Board remanded with instructions to determine whether appellant could establish the Board's jurisdiction under the WPA. Id. at 466.

On June 19, 2000, on remand, the administrative judge again dismissed the appeal for "lack of jurisdiction" because appellant failed to establish by "preponderant evidence" that he was subjected to a "personnel action" within the meaning of the WPA in that he failed to prove that his demotion was not voluntary. Dick v. Dep't of Veterans Affairs, No. CH-1221-96-0786-W-1, slip op. at 2 (M.S.P.B. June 19, 2000). Specifically, the administrative judge found that appellant failed to...