James v. Von Zemenszky
| Citation | 284 F.3d 1310 |
| Decision Date | 01 April 2002 |
| Docket Number | No. 00-3418.,00-3418. |
| Parties | Kay Coles JAMES Director of the Office of Personnel Management, Petitioner, v. Elisabeth VON ZEMENSZKY, Respondent, and Merit Systems Protection Board, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
Lisa B. Donis, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for petitioner. With her on the brief were David M. Cohen, Director; and Todd M. Hughes, Assistant Director. Of counsel was Thomas McKeever, Jr., Attorney, Department of Veterans Affairs, of Washington, DC.
Adam H. Feinstein, of Philadelphia, PA, argued for respondent Elizabeth Von Zemenszky.
Calvin M. Morrow, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent Merit Systems Protection Board. Of counsel was Lynn A. Jennings, Attorney.
Mary Dryovage, Law Offices of Mary Dryovage, of San Francisco, CA, for amicus curiae National Employment Lawyers Association. Of counsel on the brief was Paula A. Brantner, Senior Staff Attorney, National Employment Lawyers Association, of San Francisco, CA.
Paul F. Sowa, Law Offices of Paul Sowa, of Los Angeles, CA, for amicus curiae Marian V. Sowa, M.D.
Bradley B. Falkof, Barnes & Thornburg, of Chicago, IL, for amicus curiae John C. Long.
Before NEWMAN, SCHALL, and BRYSON, Circuit Judges.
The issue in this case is whether the Department of Veterans Affairs may separate a physician from her position in the agency without complying with the reduction-in-force statutes and regulations that apply to civil service employees generally. We hold that the reduction-in-force statutes and regulations are applicable to such an employee and that the Merit Systems Protection Board therefore had jurisdiction over the appeal from her separation.
On August 28, 1988, Dr. Elisabeth Von Zemenszky received an appointment as a physician in the Veterans Health Administration ("VHA"), an agency within the Department of Veterans Affairs ("DVA"). Following her appointment, she was employed at a DVA medical center in Coatesville, Pennsylvania. On June 30, 1997, the Director of the Coatesville Medical Center issued Dr. Von Zemenszky a "Specific Advance Notice of Staff Adjustment." The notice informed her that because of "a reduction in the projected level of resources available to support the ... Coatesville Center activities" her position had "been determined to be in excess of local needs" and that she would be separated effective September 2, 1997. Following Dr. Von Zemenszky's unsuccessful grievance, DVA separated her from her position.
Dr. Von Zemenszky filed an appeal with the Merit Systems Protection Board asserting that she had been unlawfully separated as the result of a reduction in force ("RIF"). Because Dr. Von Zemenszky held an appointment under a special provision, 38 U.S.C. § 7401(1), the administrative judge concluded that there was a question regarding the Board's jurisdiction and therefore issued an order directing her to show that the Board had jurisdiction over her appeal.
After receiving responses from both Dr. Von Zemenszky and DVA, the administrative judge concluded that the Board had jurisdiction over Dr. Von Zemenszky's appeal. The administrative judge found that the "staff adjustment" that resulted in Dr. Von Zemenszky's separation constituted a RIF over which the Board had jurisdiction. The administrative judge found nothing in chapter 74 of title 38, under which Dr. Von Zemenszky was appointed, that authorized DVA to disregard the provisions of 5 U.S.C. §§ 3501-3504 pertaining to the retention preference of employees during a RIF. On DVA's motion, the administrative judge certified his jurisdictional determination to the full Board for immediate review.
The Board affirmed the administrative judge's order and ruled that it had jurisdiction over Dr. Von Zemenszky's appeal. Von Zemenszky v. Dep't of Veterans Affairs, 80 M.S.P.R. 663 (1999) ("Von Zemenszky I"). Relying on title 5 RIF statutes and RIF regulations promulgated by the Office of Personnel Management ("OPM"), the Board found that Dr. Von Zemenszky was subject to the title 5 RIF provisions and had the right to appeal her separation to the Board. The Board also found that the title 38 provisions governing VHA health-care professionals did not foreclose the Board from exercising jurisdiction over Dr. Von Zemenszky's separation. Accordingly, the Board returned the case to the administrative judge to consider the merits of Dr. Von Zemenszky's appeal. Before the administrative judge, the parties stipulated that DVA did not apply OPM's RIF procedures when it separated Dr. Von Zemenszky from employment, and that she would not have been separated had DVA followed those procedures. The administrative judge then reversed Dr. Von Zemenszky's separation.
DVA filed a petition for review to the full Board and OPM intervened, challenging the Board's jurisdiction. On review, the Board — which consisted of only two members at the time of the decision — could not agree upon the disposition of the petition and issued a divided decision. Von Zemenszky v. Dep't of Veterans Affairs, 85 M.S.P.R. 655 (2000) ("Von Zemenszky II"). Because the Board was equally divided, the decision of the administrative judge became the final decision of the Board under the authority of 5 C.F.R. § 1200.3(b). Pursuant to 5 U.S.C. § 7703(d), the director of OPM then filed a petition for judicial review of the Board's decision with this court, and we granted the petition.
Dr. Von Zemenszky argues at the outset that OPM failed to meet its burden of establishing that the Board's decision in Von Zemenszky II will have a substantial impact on civil service law and that this court should therefore reverse its earlier action granting the petition for review.
OPM may seek review of a Board decision when the Director of OPM concludes that the Board has erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on civil service law. 5 U.S.C. § 7703(d). This court must independently determine whether an exercise of our jurisdiction is warranted. Devine v. Sutermeister, 724 F.2d 1558, 1562 (Fed. Cir.1983). It is particularly appropriate to grant OPM's petition for review when the interpretation of a statutory or regulatory provision is at issue. See, e.g., Brook v. Corrado, 999 F.2d 523 (Fed.Cir.1993); Horner v. Schuck, 843 F.2d 1368 (Fed.Cir. 1988).
We conclude that the potential effect of the Board's ruling on employment practices within DVA is sufficient to meet the "substantial impact" requirement. A decision by this court is necessary to clarify what procedures DVA must follow in implementing "staff adjustments" resulting in the separation of VHA health-care professionals and whether such employees have a right to appeal their separations to the Board, questions of general concern that could affect a significant number of civil service employees. Accordingly, we find it appropriate to exercise our discretionary jurisdiction to examine the merits of OPM's petition, and we decline to reconsider this court's previous decision granting the petition.
There are two categories of VHA health-care professionals. "Non-hybrid" employees are employees whose employment is governed in significant part by chapter 74 of title 38. Those occupations include physicians, dentists, podiatrists, optometrists, registered nurses, physician assistants, and expanded-function dental auxiliaries, 38 U.S.C. § 7401(1), as well as certain psychologists, dieticians, and other scientific and professional personnel, 38 U.S.C. § 7401(2). "Hybrid" employees, appointed under 38 U.S.C. § 7401(3), are also subject to chapter 74, title 38 provisions, except that "all matters relating to adverse actions, disciplinary actions, and grievance procedures" are governed by provisions of title 5. 38 U.S.C. § 7403(f)(3). The issue presented by this case is whether title 5 RIF statutes and regulations, which include a right of appeal to the Board, apply to a "non-hybrid" VHA health-care professional appointed under 38 U.S.C. § 7401(1) who has been separated by a RIF.
A RIF is an administrative procedure by which agencies eliminate jobs and reassign or separate employees who occupied the abolished positions. Huber v. Merit Sys. Prot. Bd., 793 F.2d 284, 286 (Fed.Cir.1986). A RIF is not an adverse action against a particular employee, but is directed solely at a position within an agency. Id.
In the Veterans' Preference Act of 1944, Pub.L. No. 359, ch. 287, § 12, 58 Stat. 390, Congress mandated that "in any reduction in personnel in any civilian service of any Federal agency, competing employees shall be released in accordance with Civil Service Commission regulations which shall give due effect to tenure of employment, military preference, length of service, and efficiency ratings." That portion of the Veterans' Preference Act of 1944 has remained unchanged in substance since its enactment. See 5 U.S.C. § 3502(a); Grier v. Dep't of Health & Human Servs., 750 F.2d 944, 946 (Fed.Cir. 1984). The current version of the Veterans' Preference Act of 1944 that pertains to RIFs is codified at 5 U.S.C. §§ 3501-3504.
The title 5 statutes governing RIFs apply "to each employee in or under an Executive agency." 5 U.S.C. § 3501(b). The Department of Veterans Affairs is expressly named by statute as an "Executive agency." 5 U.S.C. §§ 101, 105. The only express exclusions from the RIF statutes are for individuals whose appointment is subject to Senate confirmation, members of the Senior Executive Service, and members of the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service. 5 U.S.C. § 3501(b). Section 7701(a) of title 5 provides, in relevant part, that "[a]n employee... may submit...
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