Kenneth v. Schmoll, 72-1831.

• Decision Date: 07 August 1973
• Docket Number: No. 72-1831.,72-1831.
• Citation: 482 F.2d 90
• Parties: Margaret J. KENNETH, Plaintiff-Appellee, v. Paul SCHMOLL, Director, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

482 F.2d 90 (1973)

Margaret J. KENNETH, Plaintiff-Appellee, v. Paul SCHMOLL, Director, et al., Defendants-Appellants.

No. 72-1831.

United States Court of Appeals, Tenth Circuit.

August 7, 1973.

John P. Eastham, Albuquerque, N. M. (Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N. M., on the brief), for plaintiff-appellee.

Thomas G. Wilson, Atty., Dept. of Justice (Harlington Wood, Jr., Asst. Atty. Gen., Victor R. Ortega, U. S. Atty., and Walter H. Fleischer, Atty., Dept. of Justice, on the brief), for defendants-appellants.

Before SETH, HOLLOWAY and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Margaret J. Kenneth, a registered nurse, was hired in November 1970 as a nurse at the VA Hospital in Albuquerque, New Mexico. By statute, the initial hiring by the VA of a nurse, as well as a doctor or a dentist, as "additional personnel" under 38 U.S.C. §§ 4104 and 4106 is for a three-year probationary period. On July 24, 1972, the VA advised Kenneth that she would be "separated from the service for failure to qualify and satisfactorily perform the duties of her position, effective Saturday, July 29, 1972."

On August 2, 1972, Kenneth filed an action in the district court challenging the procedures that led to her discharge. Thereafter, on August 22, 1972, before answer, following a hearing on what was denominated as an order to show cause, the district court ordered that Kenneth be immediately reinstated to her position as a nurse, with restoration of all rights and privileges from the date of discharge, until she was given a full evidentiary hearing in accordance with the provisions of 38 U.S.C. § 4110. From that injunctive type order which granted Kenneth complete relief, the defendants now appeal. We reverse for the reason that in our view 38 U.S.C. § 4110 does not apply where the employment of a probationary employee under 38 U.S.C. §§ 4104 and 4106 is sought to be terminated. Before considering the statutes with which we are here concerned, we shall first review the chronology out of which the controversy arose.

As indicated, Kenneth was hired as a nurse by the VA in November 1970. On May 11, 1972, well within the three-year probationary period, Kenneth was notified that the Professional Standards Board would conduct a summary review to determine whether she would be retained in her employment as a VA nurse.¹ On May 18, 1972, Kenneth appeared before the Professional Standards Board and read a prepared statement, which responded to the reasons for possible termination as set out in the aforesaid notice. Out of the presence of Kenneth, the Board heard from other persons concerning Kenneth's performance as a VA nurse, with Kenneth not being afforded the opportunity to confront these persons or to cross-examine them. Kenneth was also denied the opportunity to be represented by counsel at this hearing. Thereafter, on July 24, 1972, Kenneth was advised that her employment would be terminated on July 29, 1972. It was in this setting that Kenneth instituted the present proceeding against Paul Schmoll, director of the VA Hospital in Albuquerque, Charles Still, personnel officer at the hospital, and Helen Brunner, chairwoman of the Professional Standards Board. Jurisdiction is based on 28 U.S.C. § 1361 and the action is said to be a declaratory judgment proceeding under 28 U.S.C. § 2201.

Section 4104, 38 U.S.C., authorizes the Administrator to appoint such additional personnel, including doctors, dentists and nurses, as he finds necessary for the medical care of veterans.²

Section 4106, 38 U.S.C., provides, in essence, that such appointments may be made without reference to civil service requirements after qualifications have been established in accordance with regulations of the Administrator, with the further provision that such probationary appointee shall be separated from the service if the Board should find him or her "not fully qualified and satisfactory."³

The regulations promulgated by the Administrator pursuant to § 4106 provide for a so-called summary review wherein, though the probationary appointee is given notice that his services are unsatisfactory, and the reasons therefor, and may appear personally before the Board or submit a written statement in his behalf, he nonetheless is not permitted to confront adverse witnesses, let alone cross-examine them, nor is he permitted legal representation.

Section 4110, 38 U.S.C., provides, in essence, that a disciplinary board shall be appointed by the Chief Medical Director under regulations prescribed by the Administrator to determine upon notice and "fair hearing" charges of inaptitude, inefficiency or misconduct of any person employed under the provisions of 38 U.S.C., § 4104(1).⁴ Regulations promulgated by the Administrator under this particular statute permit an employee to appear personally at the hearing, be represented by counsel, and generally participate in the hearing by cross-examining and presenting evidence in his own behalf.

Counsel for Kenneth reasons as follows:

1. Kenneth was employed pursuant to 38 U.S.C. § 4104;

2. The hearing provided for in 38 U. S.C. § 4110 applies to any person employed under 38 U.S.C. § 4104;

3. Therefore Kenneth is entitled to the fair hearing provided for in § 4110.

The foregoing syllogism, though perhaps appealing in its simplicity, is in reality untenable, mainly because in our view it ignores § 4106. To thus construe the statute under consideration would violate a cardinal rule of statutory construction, namely, that effect should be given to every provision of a statute. Additionally, such construction would be contrary to the legislative history and intent of the statute and contrary to the construction given by the administrative agency charged with carrying out the mandates contained therein. It is on this general basis that we reverse.

Section 4106(b) declares that the appointment of additional personnel "shall be for a probationary period of three years," during which period of time the record of a person thus serving shall be reviewed by a board appointed in accord with regulations promulgated by the Administrator and that if such board shall determine that a probationary employee is not "fully qualified and satisfactory," then the probationary employee shall be "separated from the service." In this connection, the VA views the probationary period as being an extension of the appointment process, which provides the final test of actual performance on the job and which is designed to protect the VA against the retention of individuals who are found in actual practice to be unsuited for permanent employment. In any event, there is most certainly no language in § 4106(b) which suggests to us that a probationary employee is entitled to a full-blown, trial-like hearing, with the right to counsel, right to confront adverse witnesses and cross-examine, before he be "separated from the service." On the contrary, we believe the exact opposite is indicated.

In line with the provisions of § 4106(b), the regulations promulgated by the Administrator to effectuate this particular legislative intent sets up a review board known as the Professional Standards Board, which is authorized, among other things, to conduct a so-called summary review "when summary separation from the service may be justified." Under these regulations, notice is required, which notice is to be "brief, but in sufficient detail so that the employee will clearly understand why his services are considered deficient and/or the nature of the incident involved," with the subject of the hearing permitted to thereafter appear before the Professional Standards Board and make an oral or written statement in his own behalf, though not being permitted to confront and cross-examine witnesses or be represented by counsel.

Certainly, then, these regulations carry out the legislative intent, as we see it, contained in § 4106(b). But all this is changed, says counsel, by the language contained in § 4110. With this suggestion we are not in accord.

Section 4110 provides for the appointment by the Chief Medical Director of a disciplinary board to determine upon notice and "fair hearing" charges of "inaptitude, inefficiency, or misconduct" of any appointed personnel serving in a position provided for in § 4104(1). Pursuant to this particular section of the statute, there has been created by administrative regulation a disciplinary board which, after notice of charges, conducts a "fair hearing," which includes the right to counsel, right to confront adverse witnesses, to cross-examine, and the like. And, again, in our view these regulations carry into effect the legislative intent behind § 4110.

It is quite true that § 4110 declares that its provisions shall apply to "any person employed in a position provided in paragraph (1) of section 4104"; but, in our view, it does not follow that probationary employees are also entitled to that particular type of hearing. To so hold would virtually excise § 4106 from the statute. As indicated, a cardinal rule of statutory construction is that effect should, if possible, be given to every provision of a statute. Parker v. United States, 448 F.2d 793 (10th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455 (1972). When effect is given to both §§ 4106(b) and 4110, it is clear to us that it was the intent of Congress by the words of the statute itself that a probationary employee about to be separated from the service need only be given the summary hearing contemplated by § 4106(b) and as provided by appropriate regulation promulgated pursuant thereto; whereas, an employee with over three years service is to be afforded the "fair hearing" required by § 4110 and provided by appropriate regulation carrying into effect such legislative mandate. Such construction gives effect to § 4106(b), as well as § 4110.

The foregoing squares with legislative intent and the broad...