Vores v. Department of Veterans Affairs , 113 F. App'x 916 ( 2004 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3268
TIMOTHY L. VORES,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS
Respondent.
___________________________
DECIDED: November 5, 2004
___________________________
Before RADER, DYK, and PROST, Circuit Judges.
PER CURIAM.
Respondent Department of Veterans Affairs (“DVA”) declined to accept petitioner
Timothy L. Vores (“Vores”) into a medical residency program. Vores seeks review of
the decision of the Merit Systems Protection Board (“MSPB” or “Board”) dismissing his
appeal for lack of jurisdiction. Vores v. DVA, No. PH-3443-02-0318-I-1 (MSPB Nov. 22,
2003) (“Initial Decision”).1 The Board held that it did not have jurisdiction over Vores’
case because, under 38 U.S.C. §§ 7406 and 7425, appointments of residents in the
Veterans Health Administration (“VHA”) are not subject to the provisions of the Veterans
Employment Act of 1998 (“VEOA”). We affirm.
1
This decision became final when the full board denied Vores’ petition for
review. Vores v. DVA, No. PH-3443-02-0318-I-1 (MSPB Mar. 5, 2004).
BACKGROUND
Vores is a veteran of the Vietnam War who served in the United States Army
from June 1969 until February 1971. He completed his medical training in Italy in 1994.
On October 27, 2001, he applied for a residency at the VA Medical Center/Veterans
Health Administration (“VHA”) in Wilkes-Barre, Pennsylvania. On December 21, 2001,
he was interviewed by members of the Clinical Competency Evaluation Committee, who
concluded that he was not qualified to work at the Medical Center. He was informed by
the DVA on January 22, 2002, that he had not been selected for the Internal Medicine
Residency Program for the following academic year.
Vores filed a complaint with the Department of Labor (“DOL”) on March 21, 2002,
alleging that his non-selection for the residency program violated the Veterans
Employment Act of 1998 (“VEOA”), 5 U.S.C. §§ 3330a-3330c (2000). The DOL notified
him by post on July 1, 2002, that it was terminating its investigation, but that he had the
right to appeal his claim to the MSPB.
In his appeal to the Board, Vores argued that his veterans’ preference rights had
been violated. Specifically, he argued that the DVA improperly considered the
residency positions to be professional in status; to be subject to the discretionary hiring
provisions 38 U.S.C. §§ 7401(1) and 7402(b)(1); and to be exempt from the VEOA.
Vores argued that the residencies should instead be considered as supervised training
positions that were governed by contractual agreement with the Accreditation Council
for Graduate Medical Education.
The Board, in its Initial Decision, rejected Vores’ arguments. Specifically, the
administrative judge found that 38 U.S.C. § 7406 provided the VHA with the authority to
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“establish residencies and internships and appoint qualified persons to such positions
without regard to civil service or classification laws, rules, or regulations” and that these
VHA regulations governed the residency in question. (Initial Decision at 4). He then
found that “the VEOA does not apply to non-selections for appointments made by the
agency pursuant to 38 U.S.C. § 7406.” (Id. at 4-5). Noting that Board jurisdiction does
not extend over all actions alleged to be incorrect, but rather is limited to those areas
specifically granted by some law, rule or regulation, (Id. at 1-2, citing 5 U.S.C. § 7701(a)
(2000); Todd v. MSPB, 55 F.3d 1574, 1576 (Fed. Cir. 1995)) and finding that Vores had
failed to establish that any statute or regulations afforded a right to appeal to the Board,
the administrative judge dismissed the appeal for lack of jurisdiction. (Id. at 1)
On January 6, 2003, Vores petitioned the full Board for review of the Initial
Decision. On March 5, 2004, the Board denied Vores’ petition for review.
Vores sought review in this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
We must sustain the Board’s decision unless it is “found to be (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) (2000).
Section 1330a of Title 5 of the United States Code provides redress to the MSPB
for preference eligible individuals who believe that their rights have been violated under
any statute or regulation relating to veterans’ preference for employment. Title 38 of the
United States Code, chapter 74, subchapter I, governs appointments of professional
04-5010 3
staff to the VHA. The question is whether the latter statute limits the former. We hold
that it does.
Our decision in Scarnati v. DVA, 344 F.3d 1246 (Fed. Cir. 2003), examined this
precise question. In Scarnati, a physician complained that his VEOA rights had been
violated when the VHA failed to select him for a position. Id. at 1247. The agency
argued that the VEOA was inapplicable because VHA hiring was exempted. The
pertinent provisions governing appointment of physicians to the VHA are 38 U.S.C. §§
7401(1) and 7403. Section 7403(a)(1) specifically provides that such appointments
“may be made only after qualifications have been satisfactorily established in
accordance with the regulations prescribed by the Secretary, without regard to civil-
service requirements.” (emphasis supplied.) Section 7425(b) further provides that:
Notwithstanding any other provision of law, no provision of title 5 or any
other law pertaining to the civil service system which is inconsistent with
any provision of . . . this chapter shall be considered to supersede,
override, or otherwise modify such provision of 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.
With respect to the MSPB appeal rights of physicians not selected for the VHA,
we found that “[t]he statutes appear clear that, pursuant to 38 U.S.C. § 7425(b), [the
VEOA] cannot override the discretionary power given to the VHA to hire health care
professionals under 38 U.S.C. § 7401(1) outside the civil service appointment process,
including the veterans’ preference requirements.” Scarnati, 344 F.3d at 1248.
Vores’ attempts to distinguish his case from Scarnati are to no avail. Section
7406(a)(1) of Title 38 governs the selection of VHA residents and is applicable here. It
provides that the DVA “may appoint qualified persons to such positions without regard
to civil service or classification laws, rules, or regulations” (emphasis supplied). This
04-5010 4
language is identical in substance to the language of § 7403(a)(1) at issue in Scarnati.
Like section 7403(a)(1), involved in Scarnati, section 7406(a)(1) also precludes appeal
rights, and those rights are not saved by 5 U.S.C. § 3330a. Thus, we find that 5 U.S.C.
§ 3330a cannot override the discretionary power given to the VHA to select residents
under 38 U.S.C. § 7406 outside the civil service appointment process, including the
veterans’ preference requirements.
The petitioner finally argues that Scarnati was incorrectly decided, but as a panel
we are bound to follow it. See, e.g., Sacco v. Dept. of Justice, 317 F.3d 1384, 1386
(Fed. Cir. 2003). The other provision that Vores contends provides Board jurisdiction
over his case, 5 U.S.C. § 2105(f) is inapposite. Therefore, Vores does not have a right
to appeal his non-selection, and the Board properly dismissed his appeal for lack of
jurisdiction.
We have considered Vores’ other arguments and find them to be unpersuasive.
CONCLUSION
For the foregoing reasons, the decision of the Board is affirmed.
COSTS
No costs.
04-5010 5