Weber v. Department of Veterans Affairs ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM N. WEBER, M.D., 
Plaintiff-Appellant,
No. 06-35522
v.
DEPARTMENT OF VETERANS  D.C. No.
CV 04-046-H-SEH
AFFAIRS AND ANTHONY J. PRINCIPI,
OPINION
SECRETARY OF VETERANS AFFAIRS,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
October 19, 2007—Seattle, Washington
Filed January 15, 2008
Before: Ronald M. Gould and Richard A. Paez,
Circuit Judges, and Lyle E. Strom,* District Judge.
Opinion by Judge Strom
*The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
519
WEBER v. DEPARTMENT OF VETERANS AFFAIRS 521
COUNSEL
Bruce M. Spencer, Smith Law Firm, P.C., Helena, Montana,
for plaintiff-appellant William N. Weber, M.D.
522 WEBER v. DEPARTMENT OF VETERANS AFFAIRS
William W. Mercer, Assistant United States Attorney, Great
Falls, Montana, for defendants-appellees Department of Vet-
erans Affairs and Anthony J. Principi, Secretary of Veterans
Affairs.
OPINION
STROM, District Judge:
Appellant Dr. William Weber (“Dr. Weber”) appeals from
the February 23, 2006, order of the United States District
Court for the District of Montana denying his motion for sum-
mary judgment on his claim for back pay under the Back Pay
Act, 5 U.S.C. § 5596, and granting appellees’ motion to dis-
miss Dr. Weber’s claim.
I. BACKGROUND
On October 1, 1997, Dr. Weber was appointed to the posi-
tion of staff radiologist at the Veterans Administration Medi-
cal and Regional Center (“VAMC”) in Fort Harrison,
Montana, pursuant to 38 U.S.C. § 7401(1). Dr. Weber’s
appointment was initially temporary, but the VAMC con-
verted the position to a full-time staff position on December
7, 1997. As mandated by 38 U.S.C. §§ 7403(b)(1) and (2), Dr.
Weber’s appointment was subject to a two-year probationary
period and to board review. Section 7403(b)(2) states, in per-
tinent part:
The record of each person serving under such an
appointment in the [m]edical . . . [s]ervices shall be
reviewed from time to time by a board, appointed in
accordance with regulations of the Secretary. If such
a board finds that such person is not fully qualified
and satisfactory, such person shall be separated from
the service.
WEBER v. DEPARTMENT OF VETERANS AFFAIRS 523
A summary review board convened to review Dr. Weber’s
appointment on August 2, 1999. On August 12, 1999, the
board issued findings and a recommendation that Dr. Weber
be separated from his employment effective September 13,
1999. The board found that no single incident warranted sepa-
ration, but when considered in its entirety, Dr. Weber’s pat-
tern of behavior warranted separation.
On March 8, 2000, Dr. Weber filed a complaint in the
United States District Court for the District of Montana, seek-
ing judicial review of the board’s recommendation to separate
him. He claimed that his separation should be set aside
because the board failed to follow VA regulations. Specifi-
cally, Dr. Weber alleged that matters were presented to the
summary review board that were not included in the notice of
summary review sent to Dr. Weber. Without reaching a deci-
sion on the merits of the summary review board decision, the
district court agreed that the board failed to comply fully with
the notice requirements. On June 2, 2004, the court vacated
the report and recommendation of the summary review board
and remanded the matter to the VA for further proceedings in
accordance with the applicable laws and regulations. See
Weber v. VA, No. CV-00-10-H-SEH (D. Mont. filed June 3,
2004) (“Weber I”).
On June 3, 2004, the VA reinstated Dr. Weber, but then
immediately placed him on administrative leave with pay.
The VAMC convened a new summary review board, which
again recommended that Dr. Weber be separated from his
employment. Accordingly, the VAMC discharged Dr. Weber
effective December 6, 2005.
In the meantime, on September 15, 2004, Dr. Weber filed
a complaint in the United States District Court for the District
of Montana against the VA and Anthony J. Principi, the Sec-
retary of Veterans Affairs (collectively, “VA”), claiming he
was entitled to back pay and benefits under the Back Pay Act
(“BPA”), 5 U.S.C. § 5596, for the period between September
524 WEBER v. DEPARTMENT OF VETERANS AFFAIRS
13, 1999, and June 3, 2004. Section 5596(b)(1) provides that
back pay is warranted when an employee of an agency “is
found by appropriate authority under applicable law, rule, reg-
ulation, or collective bargaining agreement, to have been
affected by an unjustified or unwarranted personnel action
which has resulted in the withdrawal or reduction of all or
part of the pay” of the employee. Dr. Weber moved for sum-
mary judgment claiming he was entitled to back pay under the
BPA by virtue of the district court’s prior decision in Weber
I. Conversely, the VA moved to dismiss Dr. Weber’s com-
plaint under Fed. R. Civ. P. 12(b)(6), challenging the district
court’s jurisdiction and arguing that the district court’s order
in Weber I did not provide a basis for asserting a BPA claim.
On February 23, 2006, the district court denied Dr. Weber’s
summary judgment motion and granted the VA’s motion to
dismiss Dr. Weber’s BPA claim. The court determined that its
prior decision in Weber I was limited to a narrow procedural
issue and that questions relating to Dr. Weber’s pay or other
benefits were not before the court. Thus, the court found that
its decision in Weber I afforded no basis for a BPA claim. The
court further stated that its review of the record revealed over-
whelming evidence that the summary review board was justi-
fied in separating Dr. Weber.
Dr. Weber filed a timely appeal of the district court’s order
on April 18, 2006. He claims that the district court erred in its
determination that the court’s prior decision in Weber I
afforded no basis for Dr. Weber to assert a BPA claim.
II. STANDARD OF REVIEW
We review de novo dismissals pursuant to Fed. R. Civ. P.
12(b)(6). Burgert v. Lokelani Bernice Pauahi Bishop Trust,
200 F.3d 661, 663 (9th Cir. 2000). To avoid a Rule 12(b)(6)
dismissal, a complaint need not contain detailed factual alle-
gations; rather, it must plead “enough facts to state a claim to
WEBER v. DEPARTMENT OF VETERANS AFFAIRS 525
relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 127 S. Ct. 1955, 1974 (2007).
We also review de novo a district court’s decision to grant
or deny summary judgment. Prison Legal News v. Lehman,
397 F.3d 692, 698 (9th Cir. 2005). Using the familiar stan-
dard, we view the evidence in the light most favorable to the
nonmoving party to determine whether there are any genuine
issues of material fact and whether the district court correctly
applied the relevant substantive law. Id.
III. DISCUSSION
[1] In order for a plaintiff to bring a viable suit against the
federal government or its agencies, the government must have
waived its sovereign immunity. “Consequently, a person
attempting to sue a federal agency or officer must demon-
strate that the claim being asserted is covered by a specific
statutory authorization to sue the United States . . . .” 14
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3655 (3d ed. 1998). Dr.
Weber claims the Administrative Procedure Act (“APA”), 5
U.S.C. § 701-706, and the BPA, 5 U.S.C. § 5596(b)(1), gave
the district court jurisdiction over his back pay claim. The VA
challenges this assertion, arguing the district court lacked
jurisdiction under either act. We agree.
[2] Under the APA, federal sovereign immunity is waived
for suits against the federal government in which the plaintiff
is “seeking relief other than money damages.” 5 U.S.C. § 702
(emphasis added). Section 702 further states, in pertinent part:
Nothing herein . . . (2) confers authority to grant
relief if any other statute that grants consent to suit
expressly or impliedly forbids the relief which is
sought.
Id. The APA did not vest the district court with jurisdiction
for two reasons. First, “back pay, as a claim for money dam-
526 WEBER v. DEPARTMENT OF VETERANS AFFAIRS
ages, falls outside the scope of the APA.” Ward v. Brown, 22
F.3d 516, 520 (2d Cir. 1994). Second, the comprehensive stat-
utory scheme for the Veterans Health Administration
(“VHA”) does not permit judicial review of Dr. Weber’s
claims.
The Supreme Court’s reasoning in United States v. Fausto,
484 U.S. 439 (1988), controls our analysis. In Fausto, the
Supreme Court considered whether an administrative officer
in the Department of the Interior Fish and Wildlife Service
(“FWS”) had the right to bring an action in the Federal Court
of Claims challenging his removal and seeking back pay
under the Civil Service Reform Act (“CSRA”) (codified in
Title 5 of the United States Code). The FWS had dismissed
Fausto from his FWS position in 1981, citing various reasons,
including the unauthorized use of a government vehicle. Id. at
441. Subsequently, the FWS determined that Fausto’s dis-
missal was unwarranted but imposed a thirty-day suspension
for his unauthorized use of the government vehicle. Id. The
FWS offered Fausto back pay for a limited time period, which
did not include his thirty-day suspension. Fausto rejected this
offer and filed an appeal with the Department of Interior,
arguing that: (1) the suspension was unwarranted and that he
was entitled to back pay for the thirty-day suspension period;
and (2) he was entitled to additional back pay from the date
he was terminated through the date the FWS determined his
initial dismissal was unwarranted. The Secretary of the Inte-
rior rejected his arguments and upheld the FWS’s decision.
Id. Fausto then filed an action with the Federal Court of
Claims pursuant to the BPA. Id. at 443. The Claims Court dis-
missed the action and held that the CSRA provided Fausto’s
exclusive remedies. Fausto appealed to the United States Cir-
cuit Court of Appeals for the Federal Circuit, which reversed
and awarded back pay for the suspension period. Id. The
Supreme Court granted certiorari.
[3] The Court determined that the comprehensive statutory
scheme set forth in the CSRA did not provide for judicial
WEBER v. DEPARTMENT OF VETERANS AFFAIRS 527
review for the actions taken against members of the excepted
service, such as Fausto.1 The Court stated:
The CSRA established a comprehensive system for
reviewing personnel action taken against federal
employees. Its deliberate exclusion of employees in
respondent’s service category from the provisions
establishing administrative and judicial review for
personnel action of the sort at issue here prevents
respondent from seeking review in the Claims Court
under the Back Pay Act.
Id. at 453.
[4] Like the statutory scheme analyzed in Fausto, Title 38
of the United States Code governs the appointment and
employment terms of VA physicians. Dr. Weber was
appointed as a VA radiologist under 38 U.S.C. § 7401(1);
therefore, his employment was governed by the VHA person-
nel system. We agree with the Sixth Circuit that “[l]ike the
CSRA, Title 38 provides a comprehensive regulatory scheme
for employees of the VA.” Fligiel v. Samson, 440 F.3d 747,
752 (6th Cir. 2006). This statutory scheme does not provide
for judicial review of the decisions of summary review boards
for probationary employees. See 38 U.S.C. §§ 7403(b)(2),
(f)(3). “Under Fausto, where a comprehensive remedial
scheme exists to address agency adverse actions, and Con-
1
The CSRA classifies workers into three categories: (1) senior executive
service; (2) competitive service; and (3) excepted service. “ ‘Senior Exec-
utive Service’ employees are those who occupy high-level positions in the
Executive Department, but for whom appointment by the President and
confirmation by the Senate is not required. 5 U.S.C. § 3132(a)(2). ‘Com-
petitive service’ employees are all other employees for whom nomination
by the President and confirmation by the Senate is not required, and who
are not specifically excepted from the competitive service by statute or by
statutorily authorized regulation. § 2102. ‘Excepted service’ personnel are
the remainder — those who are in neither the competitive service nor the
Senior Executive Service. § 2103.” Fausto, 484 U.S. at 441 n.1.
528 WEBER v. DEPARTMENT OF VETERANS AFFAIRS
gress has clearly indicated that no judicial review is available,
an individual may not choose other federal statutory avenues
to obtain review.” Fligiel, 440 F.3d at 752 n.2 (citing Fausto,
484 U.S. at 455). Therefore, the APA does not provide a basis
for Dr. Weber to assert his BPA claim.
[5] In the alternative, Dr. Weber also claims the BPA pro-
vides the necessary waiver of sovereign immunity for the dis-
trict court to hear his back pay claim. “ ‘The Back Pay Act is
the means by which appointed employees subjected to unjus-
tified personnel action are given a cause of action against the
United States.’ ” Ward, 22 F.3d at 520 (quoting United States
v. Hopkins, 427 U.S. 123, 128 (1976)). The BPA provides a
waiver of sovereign immunity when:
An employee of an agency who, on the basis of a
timely appeal or an administrative determination . . .
is found by appropriate authority under applicable
law, rule, regulation, or collective bargaining agree-
ment, to have been affected by an unjustified or
unwarranted personnel action . . . .
5 U.S.C. § 5596(b)(1). The requirements to invoke jurisdic-
tion under the BPA are: (1) a finding of “an unjustified or
unwarranted personnel action;” (2) by an “appropriate author-
ity.” Id.
[6] Dr. Weber claims these requirements were satisfied by
the district court’s decision in Weber I, which vacated the first
report and recommendation of the summary review board and
remanded the matter to the VA for further proceedings. This
argument is unavailing because the district court, like the
Claims Court in Fausto, was not an “appropriate authority”
when it made its determination. Just as the “comprehensive
and integrated review scheme of the CSRA” prevented Fausto
from satisfying the threshold requirements to invoke the BPA,
id., Title 38 prevents probationary physicians such as Dr.
Weber from seeking judicial review of summary review board
WEBER v. DEPARTMENT OF VETERANS AFFAIRS 529
determinations under the BPA. According to VA regulations,
after a summary review board makes findings, the Chief of
Staff can comment on those findings, and the facility director
“may approve, disapprove or modify the [b]oard’s recommen-
dation.” VHA Supplement, MP-5, Pt. II § 4.09(h)(1)(b).
Because the board’s determination was but an interim step in
a multi-level decision process, Dr. Weber’s only recourse was
within his agency, not with the district court.2
As a final alternative, Dr. Weber claims he had a liberty
interest under the Due Process Clause in seeing that the sum-
mary review board complied with notice requirements. He
argues a district court can invoke jurisdiction when a violation
of due process rises to the level of a colorable constitutional
claim. Because Dr. Weber failed to raise this claim before the
district court, and no exceptional circumstances justify this
failure, we decline to address this claim. See Monetary II Ltd.
P’ship v. Comm’r, 47 F.3d 342, 347 (9th Cir. 1995) (internal
quotation marks omitted) (stating “[a]s a general rule, an
appellate court will not consider arguments which were not
first raised before the district court, absent a showing of
exceptional circumstances”).
[7] For the foregoing reasons, we conclude the district court
lacked jurisdiction to adjudicate Dr. Weber’s claim for back
pay. Accordingly, this case is remanded to the district court
with instructions to dismiss Dr. Weber’s complaint for lack of
jurisdiction.
VACATED and REMANDED.
2
We express no opinion on whether the district court properly asserted
subject matter jurisdiction in Weber I.