Harding v. Department of Veterans Affairs

• Decision Date: 30 May 2006
• Docket Number: No. 05-3182.,05-3182.
• Citation: 448 F.3d 1373
• Parties: Dr. R. Michael HARDING, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

448 F.3d 1373

Dr. R. Michael HARDING, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.

No. 05-3182.

United States Court of Appeals, Federal Circuit.

May 30, 2006.

R. Michael Harding, pro se.

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

Before NEWMAN, SCHALL, and GAJARSA, Circuit Judges.

Opinion for the Court filed by Circuit Judge GAJARSA.

Dissenting opinion filed by Circuit Judge SCHALL.

DECISION

GAJARSA, Circuit Judge.

Dr. R. Michael Harding ("Dr.Harding") appeals from a final decision of the Merit Systems Protection Board (the "Board") dismissing for lack of jurisdiction his claim for retaliatory termination under the Whistleblower Protection Act (the "WPA"). Harding v. Dep't of Veterans Affairs, 98 M.S.P.R. 296 (2005) ("Final Decision"). Because we conclude that the Board's decision was not in accordance with law, we hereby reverse and remand the case for further proceedings in accordance with this opinion.

BACKGROUND

Dr. Harding was appointed as a Staff Physician by the Department of Veterans Affairs ("DVA") pursuant to 38 U.S.C. § 7401(1). On November 8, 2002, the DVA removed Dr. Harding from his position on charges of persistent failure to maintain certain patient records. The DVA's discharge notice indicated that Dr. Harding's removal "involve[d] a question of professional conduct or competence," entitling him to appeal the decision to a Disciplinary Appeals Board under 38 U.S.C. § 7462(a). Dr. Harding then pursued two simultaneous avenues to challenge his removal. He filed an appeal with the Disciplinary Appeals Board, which ultimately led to the removal penalty being mitigated to a fourteen-day suspension. He also pursued a claim, initially filed prior to his discharge, with the United States Office of Special Counsel, in which he alleged that he was improperly discharged in retaliation for whistleblower activities. The Office of Special Counsel, after conducting a preliminary investigation, advised Dr. Harding that it was "unable to make a determination in his favor" and terminated its investigation. It then notified him, in writing, that because he had alleged that he was a victim of "reprisal for whistleblowing," he had "a right to seek corrective action from the Merit Systems Protection Board" pursuant to an individual right of action. See 5 U.S.C. § 1221(a).

Dr. Harding then appealed to the Board. In his initial decision, the administrative law judge dismissed Dr. Harding's petition for failure to state a claim upon which relief could be granted, concluding that Dr. Harding had "failed to make a nonfrivolous allegation that he made a disclosure protected under the whistleblower statute." Harding v. Dep't of Veterans Affairs, No. SE-1221-03-0216-W-1 (M.S.P.B. July 10, 2003) ("Initial Decision").

Dr. Harding filed a petition for review by the full Board, which, in a decision rendered on March 14, 2005, denied the petition, reopened the appeal sua sponte, vacated the Initial Decision, and dismissed the reopened appeal for lack of jurisdiction. Final Decision, 98 M.S.P.R. at 297. The Board, in a two-to-one decision, determined that it lacked jurisdiction over Dr. Harding's claim because of the exclusivity provision of 38 U.S.C. § 7462, which provides that DVA Disciplinary Appeals Boards "shall have exclusive jurisdiction to review any case . . . which arises out of . . . a question of professional conduct or competence of a section 7401(1) employee." Because Dr. Harding was a DVA physician appointed pursuant to § 7401(1), and because the DVA's discharge notice specified that Dr. Harding was removed for conduct involving his "professional conduct or competence," the Board concluded that the Disciplinary Appeals Boards had exclusive jurisdiction over his claim.

Dr. Harding timely filed an appeal with this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

STANDARD OF REVIEW

We must affirm the decision of the Board unless the decision was: "(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) (2005); accord Kievenaar v. Office of Pers. Mgmt., 421 F.3d 1359, 1362 (Fed.Cir.2005). Whether the Board has jurisdiction is a question of law, which this court reviews de novo. Hayes v. United States Postal Serv., 390 F.3d 1373, 1376 (Fed.Cir.2004). The petitioner has the burden of establishing the Board's jurisdiction by a preponderance of the evidence. 5 C.F.R. 1201.56(a)(2)(i); accord Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569, 1573 (Fed. Cir.1996).

DISCUSSION

On appeal, Dr. Harding argues that the Board's decision was not in accordance with law because it failed to properly consider an amendment to the WPA that, he asserts, expressly provides for Board review of whistleblower claims by DVA medical personnel. Like Board member Sapin in her dissenting opinion below, he argues that 5 U.S.C. § 2105(f) represents express authorization by Congress for the inclusion of DVA medical personnel in the class of "employees" protected by 5 U.S.C. § 1221.¹

The Board considered this argument and rejected it, relying primarily on the "notwithstanding" clause of 38 U.S.C. § 7425(b), which states:

Notwithstanding any other provision of law, no provision of title 5 . . . which is inconsistent with . . . this chapter [38 U.S.C. §§ 7401 et seq.] shall be considered to supersede, override, or otherwise modify such provision of that section or this chapter except to the extent that such provision of title 5 or of such other law specifically provides, by specific reference to a provision of this chapter, [f]or such provision to be superseded, overridden, or otherwise modified.

(emphasis added).

The critical question is whether the language of 5 U.S.C. § 2105(f) is sufficient to constitute it as "a provision of title 5 . . . [that] specifically provides, by specific reference to a provision of [chapter 74 of title 38], [f]or such provision to be superseded, overridden, or otherwise modified." The Board concluded that it was not, stating that "[t]he sweeping language of section 7425(b) . . . signals the drafter's intention that the provisions of the `notwithstanding' clause trump all other laws," and that "the relevant portion of [5 U.S.C. § 2105(f)] . . . did not set out a `specific' reference to any provision of Title 38 that was to be `superseded, overridden, or otherwise modified.'" Final Decision, 98 M.S.P.R. at 300.

We disagree. Section 2105(f) of Title 5 expresses Congress' intent to supersede, not a "specific provision" of chapter 74, but all the provisions of chapters 73 and 74 that might operate to preclude "employees" appointed under those chapters from pursuing remedies under enumerated provisions of Title 5. The only question is whether this broad—but explicit—Congressional command should be defeated by its very breadth. We conclude that it should not. Section 2105(f), by stating Congress' intent to supersede all relevant provisions of chapters 73 and 74 for particular purposes, effectively overrides the specificity requirements of § 7425(b) and, consequently, the exclusivity provision of § 7462. To conclude that Congress' decision to supersede all relevant provisions of chapter 74 is somehow ineffective to supersede one particular provision of that chapter is to elevate form over substance and vitiate Congress' clear intent.

The cases relied upon by the dissent are entirely consistent with the result we reach today. The only Federal Circuit decision to address the application of § 2105(f) to Veterans Health Administration health-care personnel concluded that "Congress has expressly provided [DVA medical personnel] with coverage by Title 5 provisions relating to whistleblower protection." James v. Von Zemenszky, 284 F.3d 1310, 1320 (Fed.Cir.2002) (citing § 2105(f)). The Board has drawn the same conclusion. See, e.g., Yunus v. Dep't of Veterans Affairs, 84 M.S.P.R. 78, 84 n. * (1999) (stating that "as a Department of Veterans Affairs . . . physician appointed under 38 U.S.C. § 7401(1), the appellant cannot appeal his removal directly to the Board . . . [but] can bring this appeal, in which the only issue is whether the removal was retaliatory . . . because in 1994 Congress extended the WPA's coverage to DVA physicians"), aff'd, 242 F.3d 1367 (Fed.Cir.2001). The United States Office of Special Counsel sent a letter specifically advising Dr. Harding of his right to appeal his removal to the Board, stating that he could "seek corrective action from the MSPB under the provisions of 5 U.S.C. §§ 1214(a)(3) and 1221," even instructing him to include the letter in his Board appeal.

Although it is true, as the dissent states, that several other circuits have held "that under the predecessor of 7425(b), Title 5 yields to Title 38 in the case of a conflict, unless the conflicting provision of Title 5 expressly supersedes the Title 38 provision," those cases address the simpler circumstance in which an arguably inconsistent Title 5 provision makes no reference to any Congressional intent to supersede any part of Title 38. See, e.g., Am. Fed. of Gov't Employees, AFL-CIO v. Fed. Labor Relations Auth., 850 F.2d 782, 784 (D.C.Cir.1988); Am. Fed. of Gov't Employees, Local 3306 v. Fed. Labor Relations Auth., 2 F.3d 6, 10 (2d Cir.1993) ("American Federation II"); Veterans Admin. Med. Ctr. v. Fed. Labor Relations Auth., 705 F.2d 953, 958 (8th Cir.1983). The most recent of the regional circuit cases cited by the dissent noted that under § 7425(b), "provisions of title 5 . . . cannot implicitly modify title 38." American Federation II, 2 F.3d at 10 (...