Subbaraya v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
VIDYARANI SUBBARAYA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2010-3087
__________________________
Petition for review of the Merit Systems Protection
Board in case no. PH-0752-09-0439-I-1.
______________________
Decided: July 9, 2010
_______________________
VIDYARANI SUBBARAYA, of Hockessin, Delaware, pro
se.
SARA B. REARDEN, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
SUBBARAYA v. MSPB 2
Before PROST, MAYER, and SCHALL, Circuit Judges.
PER CURIAM.
Vidyarani Subbaraya, M.D., seeks review of a final
decision of the Merit Systems Protection Board dismissing
her appeal for lack of jurisdiction. See Subbaraya v. Dep’t
of Veterans Affairs, No. PH-0752-09-0439-I-1, 2009 MSPB
LEXIS 4937 (M.S.P.B. Dec. 24, 2009). We affirm.
Subbaraya accepted a temporary appointment as a
primary care doctor at the Veterans Administration
Medical Center in Wilmington, Delaware on November 1,
2004. She subsequently acquired United States citizen-
ship and, on May 14, 2006, she was converted to a perma-
nent appointment as a primary care doctor pursuant to 38
U.S.C. § 7401(1). The permanent appointment required
Subbaraya to complete a probationary period of two years.
On May 1, 2008, Subbaraya was notified by letter that
she would be removed from her position with the agency
due to unsatisfactory performance. On May 7, 2008, two
days prior to the effective date of her proposed separation,
she resigned from her position with the agency.
On May 3, 2009, Subbaraya appealed to the board,
arguing that her performance had been satisfactory and
that the agency had retaliated against her for signing a
petition recommending improvements at the Veterans
Administration Medical Center. Shortly thereafter, an
administrative judge dismissed her appeal, concluding
that because she was appointed to her position at the
Veterans Administration pursuant to 38 U.S.C. § 7401
she had no right to appeal to the board. The administra-
tive judge’s decision became the final decision of the board
on December 24, 2009. See 5 C.F.R. § 1201.113.
The board’s jurisdiction is not plenary, but is limited
to those matters over which it has been granted jurisdic-
3 SUBBARAYA v. MSPB
tion by law, rule or regulation. See Johnston v. Merit Sys.
Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). Subbaraya
had the burden of proving, by a preponderance of the
evidence, that the board had jurisdiction over her appeal.
See 5 C.F.R. § 1201.56(a)(2)(i).
Subbaraya alleges that her resignation from her posi-
tion with the agency was involuntary. Even if she could
establish that her resignation was involuntary, however,
the board lacks jurisdiction to consider her appeal. “Con-
gress has given the Secretary of Veterans Affairs broad
discretion to appoint to positions in the [Veterans Health
Administration] such personnel as the Secretary may find
necessary for the medical care of veterans. One category
of personnel that may be appointed to the [Veterans
Health Administration] under § 7401 includes physicians,
dentists, podiatrists, optometrists, registered nurses,
physician assistants, and expanded-function dental
auxiliaries.” Scarnati v. Dep’t of Veterans Affairs, 344
F.3d 1246, 1248 (Fed. Cir. 2003) (citations and internal
quotation marks omitted). Health care workers appointed
pursuant to section 7401(1) generally have no right to
appeal adverse personnel actions to the board. See 5
U.S.C. § 7511(b)(10); Bonner v. Dep’t of Veterans Affairs,
477 F.3d 1343, 1348 (Fed. Cir. 2007) (emphasizing that
Veterans Health Administration “employees hired under
38 U.S.C. § 7401(1) . . . have never had the right to appeal
§ 7512-type adverse actions to the MSPB.”). Thus, re-
gardless of whether Subbaraya was serving as a proba-
tionary employee at the time she resigned, she had no
right to appeal to the board because she was appointed to
her position pursuant to section 7401(1). See James v.
Von Zemenszky, 284 F.3d 1310, 1319 (Fed. Cir. 2002)
(“[C]hapter 74 of title 38 contains a number of provisions
that treat [Veterans Health Administration] health-care
SUBBARAYA v. MSPB 4
professionals differently from ordinary civil service em-
ployees.”).
The board likewise correctly determined that it lacked
jurisdiction to consider Subbaraya’s allegation that she
suffered reprisal for disclosures protected under the
Whistleblower Protection Act of 1989 (“WPA”). See
5 U.S.C. § 2302(b)(8). The board can exercise jurisdiction
over a WPA claim only when an employee has exhausted
his administrative remedies before the Office of Special
Counsel (“OSC”). See 5 U.S.C. § 1214(a)(3); Ward v. Merit
Sys. Prot. Bd., 981 F.2d 521, 526 (Fed. Cir. 1992). Sub-
baraya, however, failed to establish that she filed a com-
plaint with the OSC or that it terminated its investigation
into her complaint.
We have considered Subbaraya’s remaining argu-
ments, but do not find them persuasive.