Durr v. Shinseki

• Decision Date: 19 April 2011
• Docket Number: No. 10–11490.,10–11490.
• Parties: Jacques A. DURR, M.D., Plaintiff–Appellant,v.Eric K. SHINSEKI, M.D., Secretary, Department of Veterans Affairs, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

638 F.3d 1342

22 Fla. L. Weekly Fed. C 1990

Jacques A. DURR, M.D., Plaintiff–Appellant,

v.Eric K. SHINSEKI, M.D., Secretary, Department of Veterans Affairs, Defendant–Appellee.

No. 10–11490.

United States Court of Appeals, Eleventh Circuit.

April 19, 2011.

Ward A. Meythaler, Merkle, Magri & Meythaler, P.A., Tampa, FL, for Durr.Peter J. Sholl, Michelle Thresher Taylor, Jennifer Waugh Corinis, Robert E. O'Neill, David Paul Rhodes, Tampa, FL, for Defendant–Appellee.Appeal from the United States District Court for the Middle District of Florida.Before TJOFLAT, CARNES and HILL, Circuit Judges.CARNES, Circuit Judge:

This appeal brings us an issue arising from the statutory regime that governs part of the employment system in the Department of Veterans Affairs. The issue is whether the two-year probationary period laid out at 38 U.S.C. § 7403 applies to a temporary, at-will VA physician appointed under 38 U.S.C. § 7405. The appellant, Dr. Jacques Durr, contends that it does, relying on the plain language in § 7403. Taken as literally as he would have us read it, however, that language would lead to an absurd result, and the law tries to avoid absurd results.

I.

We begin, as courts always should in matters involving statutory interpretation, with the statutory language.

A.

Appointments of physicians in the VA system are made under one of two statutory provisions. One of them, 38 U.S.C. § 7405(a)(1)(A), governs temporary appointments, whether they are full-time or part-time, and whether they are with or without compensation. The other provision, 38 U.S.C. § 7401(1), governs all permanent appointments of physicians,¹ which are subject to a two-year probationary period set out in 38 U.S.C. § 7403(b). During that two-year period, a board reviews the record of each probationary physician, and if it determines that the physician is not “fully qualified and satisfactory,” he or she is terminated. 38 U.S.C. § 7403(b)(2) (2007). ² A physician who receives a permanent appointment and has successfully completed the two-year probationary period has substantially more job protection than one who is still on probation. See VA Handbook 5021/5, Part V, Ch.1, ¶ 1.

B.

Dr. Jacques Durr, a native of Switzerland, is a physician and a board-certified specialist in nephrology and internal medicine. He first began working for the VA System in 1985 in Denver, Colorado. At that time his work was done under a general contract between the VA and the University of Colorado School of Medicine, where he was a professor. From 1989 to 1992, Dr. Durr was a part-time employee of the Denver VA Hospital, and in 1992 he was appointed to a full-time position with the Bay Pines VA Healthcare System in Bay Pines, Florida. Because he was not a citizen of the United States, Durr was ineligible for an appointment as a physician under 38 U.S.C. § 7401(1). See 38 U.S.C. § 7402(c). He received instead a temporary appointment as a full-time physician under 38 U.S.C. § 7405(a)(1)(A). Durr remained a temporary appointee between 1992 and November of 2006.

In June 2006 Dr. Durr became a United States citizen, making him eligible for a § 7401(1) appointment as a physician. That August, the Chief of Medicine at Bay Pines completed a “Request for Personnel Action” form, requesting that Durr's employment status be converted from a § 7405 temporary appointment to a permanent appointment under § 7401(1). That request led to a meeting on November 1, 2006, of the Bay Pines “Professional Standards Board,” which recommended converting Durr's employment status “to [a] full-time permanent appointment under 38 U.S.C. [§] 7401(1).” The Director of Bay Pines signed off on the recommendation the following day, November 2, 2006, and Human Resource officers in the VA formally approved the “Request for Personnel Action” form on November 13, 2006. That form contains a handwritten note that specifies: “Appointment is subject to two years probationary period beginning 11–12–06,” and it lists “11–12–06” as its “Effective Date.”³

In October 2008 Durr received his first “unsatisfactory” overall evaluation. That evaluation prompted the chief of staff and the chief of medicine at Bay Pines to initiate a “summary review” procedure, which is used to evaluate § 7401(1) appointees while they are completing the probationary period required under § 7403(b)(1). The review procedure ended unhappily for Durr—the VA formally terminated him effective November 7, 2008.

Dr. Durr appealed his termination to a VA Disciplinary Appeals Board. The Board concluded, however, that it lacked jurisdiction over the appeal, reasoning that because Durr was still a probationary employee when he was terminated, he had no right to appeal.⁴ The Board noted in its decision that Durr's probationary period had started on November 12, 2006, but that his termination was effective November 7, 2008, a few days shy of two years.

Dr. Durr then filed this action in district court, seeking judicial review of the Disciplinary Appeals Board's decision and a writ of mandamus ordering the VA to provide him with an appeal to, and a hearing before, the Board. He did not contest the Board's understanding that probationary appointees did not have any right of appeal to it, but he contended that the Board had erred in determining that he was still a probationary employee at the time of his discharge, and should instead have found that he had satisfied the probationary period of § 7403(b)(1) during his years of service as a temporary employee under § 7405(a)(1)(A). If he was right about that, the Disciplinary Appeals Board had wrongly determined that it lacked jurisdiction over his appeal. The district court rejected Durr's contention that he had completed his two-year probationary period, denied his motion for summary judgment, and instead granted summary judgment for the VA.

In his appeal to us Dr. Durr again contends that during his fourteen years of service as a temporary appointee under § 7405(a)(1)(A) he satisfied the two-year probationary period required by § 7403(b)(1). In the alternative, he argues that even if that probationary period did not begin to run until his 2006 appointment as a permanent physician under § 7401(1), that appointment occurred and the running of the probationary period began on November 2, 2006. That is the date when the Director of Bay Pines approved the recommendation of the Professional Standards Board to convert Durr's status to a § 7401(1) appointment. The VA disagrees, asserting that the permanent appointment did not become effective and the probationary period that accompanies it did not start running until November 12, 2006, which is the date specified on the VA's “Request for Personnel Action” form. If Durr is correct about the effective date of the appointment, his probationary period ended on November 2, 2008, five days before his termination became effective; if the VA is correct, it did not end before he was terminated on November 7, 2008.

II.

We review de novo the grant of summary judgment, Equity Inv. Partners, LP v. Lenz, 594 F.3d 1338, 1342 (11th Cir.2010), applying the same substantive law as the district court. Because Durr's complaint seeks judicial review of the decision of a VA Disciplinary Appeals Board, we, like the district court, are limited in our review by 38 U.S.C. § 7462(f). That subsection provides that a court may set aside the judgment of a Disciplinary Appeals Board only if it determines the judgment is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence.” 38 U.S.C. § 7462(f)(2)(A)-(C).

III.

A.

Dr. Durr's primary argument centers on the plain language of 38 U.S.C. § 7403, which sets out a two-year probationary period for physicians and other types of VA healthcare professionals. That statute provides in relevant part:

(a)(1) Appointments under this chapter of health-care professionals to whom this section applies may be made only after qualifications have been satisfactorily established in accordance with regulations prescribed by the Secretary, without regard to civil-service requirements.

(2) This section applies to the following persons appointed under this chapter:

(A) Physicians.

* * *

(b)(1) Appointments described in subsection (a) shall be for a probationary period of two years.38 U.S.C. § 7403 (2007). Durr lays particular stress on the phrase “under this chapter,” arguing that the phrase obviously refers to Title 38, Chapter 74, and he points out that both §§ 7401 and 7405 are part of Chapter 74. On that foundation rests Durr's argument that under the plain language of 38 U.S.C. § 7403, the probationary period applies to all appointments of physicians under Chapter 74, § 7405(a)(1)(A) temporary appointments as well as § 7401(1) permanent ones. It follows, Durr insists, that his 14 years of service between 1992 and 2006 as a temporary appointee satisfied § 7403's probationary period because he was subject to, and fully served out, the two-year probationary period during those years. So, the argument goes, when Durr became a United States citizen in 2006 and received his § 7401(1) permanent appointment that November, he was not subject to a new probationary period but automatically became a permanent employee; his two-year probationary period having ended twelve years before. If all of that is correct, then the VA's Disciplinary Appeals Board was wrong to conclude that it lacked jurisdiction over his appeal on the ground that he had not completed his probationary period at the time he was let go.

B.

The VA stresses that Dr. Durr's interpretation of § 7403 is inconsistent with its own longstanding administrative interpretation of the statutory regime governing its personnel system. The VA has a clear, established policy of not applying the probationary period set out in § 7403(b)(1) to temporary...