Brandt v. MSPB ( 2022 )

Case: 22-1441 Document: 39 Page: 1 Filed: 09/07/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID M. BRANDT,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF VETERANS AFFAIRS,
Intervenor
______________________
2022-1441
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-3330-22-0004-I-1.
______________________
Decided: September 7, 2022
______________________
DAVID BRANDT, Riverside, CA, pro se.
ELIZABETH W. FLETCHER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by KATHERINE
MICHELLE SMITH.
ELIZABETH MARIE PULLIN, Commercial Litigation
Case: 22-1441 Document: 39 Page: 2 Filed: 09/07/2022
2 BRANDT v. MSPB
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for intervenor. Also represented by
BRIAN M. BOYNTON, DEBORAH ANN BYNUM, PATRICIA M.
MCCARTHY.
______________________
Before PROST, TARANTO, and STOLL, Circuit Judges.
PER CURIAM.
When appellant David M. Brandt applied to the Veter-
ans Health Administration (VHA), a component of the
United States Department of Veterans Affairs, for a posi-
tion as a nurse practitioner, VHA decided not to appoint
him to the position, selecting someone else instead. After
unsuccessfully complaining that VHA had denied him cer-
tain veterans-hiring rights protected by the Veterans Em-
ployment Opportunities Act of 1998 (VEOA), 5 U.S.C.
§ 3330a, Mr. Brandt appealed his non-selection for the
VHA position to the Merit Systems Protection Board, in-
voking the VEOA for the substance of his claim and for the
Board’s jurisdiction, 5 U.S.C. § 3330a(a)(1)(A), (d)(1). The
Board dismissed the appeal for lack of jurisdiction. Brandt
v. Dep’t of Veterans Affairs, No. SF-3330-22-0004-I-1, 2021
WL 5279319 (M.S.P.B. Nov. 9, 2021) (Board Op.). The
Board followed this court’s decision in Scarnati v. Depart-
ment of Veterans Affairs, 344 F.3d 1246 (Fed. Cir. 2003),
which held that VHA appointments of specified healthcare
personnel made under 38 U.S.C. §§ 7401(1) and 7403(a)(1)
are not subject to VEOA hiring provisions. We agree that
this case comes within that holding and therefore affirm.
I
Mr. Brandt, a disabled veteran of the United States Air
Force, from which he was honorably discharged after more
than three years of active service, is undisputedly a prefer-
ence-eligible veteran with, as relevant here, certain statu-
tory rights related to federal government hiring. See 5
U.S.C. §§ 2108(3), 3304(f)(1), 3309–20. In 2021, he applied
Case: 22-1441 Document: 39 Page: 3 Filed: 09/07/2022
BRANDT v. MSPB 3
to VHA for a position as a nurse practitioner, a type of spe-
cialized registered nurse. VHA tentatively found him eli-
gible for the position, referred him to the hiring manager,
but ultimately did not interview him.
After VHA hired someone else for the position, Mr.
Brandt filed a complaint with the U.S. Department of La-
bor alleging that VHA, in not selecting him, had denied him
the right to compete under 5 U.S.C. § 3304(f)(1) as well as
certain rights given to preference-eligible veterans. The
VEOA generally authorizes a preference-eligible veteran
like Mr. Brandt to file a complaint with the Secretary of
Labor to seek assistance in resolution of such allegations.
5 U.S.C. § 3330a(a)(1)(A), (B). It then authorizes the com-
plainant, in specified circumstances after seeking relief
through the Secretary, to appeal to the Board for an adju-
dication of the alleged agency violation. Id. § 3330a(d)(1);
see 5 C.F.R. §§ 1201.3(b)(1), 1208.21–.26.
In the present matter, the Department of Labor com-
pleted its investigation and closed the case. Mr. Brandt
then appealed VHA’s non-selection of him to the Board un-
der the VEOA, 5 U.S.C. § 3330a(d)(1). Although he as-
serted certain prohibited personnel practices in addition to
the violations of the veteran-specific rights presented to the
Department of Labor, Board Op. at 2, 1 it is undisputed be-
fore us that the Board’s jurisdiction in this case depends on
the applicability of § 3330a(d)(1): No other, independent
source of Board jurisdiction is asserted to apply here.
The administrative judge assigned to the case ordered
Mr. Brandt to address the Board’s jurisdiction. After Mr.
Brandt submitted additional factual allegations, the
agency (the Department of Veterans Affairs, of which VHA
1 The Westlaw report of the opinion does not include
page numbers. We give page numbers of the opinion as it
appears in the petitioner’s Appendix in this court.
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4 BRANDT v. MSPB
is a part) moved to dismiss Mr. Brandt’s appeal for lack of
jurisdiction. The agency argued that the nurse-practi-
tioner position at VHA is not subject to the hiring protec-
tions invoked by Mr. Brandt under the VEOA, as
established by this court’s decision in Scarnati, 344 F.3d at
1248, interpreting statutory provisions that govern certain
VHA hiring. Board Op. at 3, 7.
The administrative judge granted the agency’s motion
and dismissed Mr. Brandt’s appeal without a hearing. Id.
at 10. To establish jurisdiction under the VEOA, Mr.
Brandt had to establish that he exhausted his Department
of Labor remedy and filed on time and to make nonfrivolous
allegations that he is preference eligible for 5 U.S.C.
§ 3330a(a)(1)(A) or a veteran with the required service for
5 U.S.C. § 3330a(a)(1)(B) and—key here—that he pos-
sessed, and the agency violated, the hiring-related rights
he invoked under those provisions. See 5 C.F.R. § 1201.57;
Lazaro v. Dep’t of Veterans Affairs, 666 F.3d 1316, 1319
(Fed. Cir. 2012). The administrative judge explained that
there was no dispute that Mr. Brandt was preference eligi-
ble and a qualifying veteran, that he timely filed his claims,
and that he exhausted his administrative remedies. Board
Op. at 6. The sole legal issue, the administrative judge
stated, was whether the hiring-related provisions invoked
under the VEOA applied to VHA’s hiring to fill the nurse-
practitioner position at issue. Id. The administrative
judge agreed with the agency that, under our decision in
Scarnati, dismissal for lack of jurisdiction was required be-
cause the hiring for the nurse-practitioner position is ex-
empt from the VEOA-specified protections invoked by Mr.
Brandt. Id. at 7–9.
The administrative judge’s decision became the final
decision of the Board on December 14, 2021. Mr. Brandt
timely appealed, within the allowed 60 days. 5 U.S.C.
§ 7703(b)(1)(A). We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
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BRANDT v. MSPB 5
II
We must affirm the Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed, or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). We review a determination of the Board’s juris-
diction de novo. See Stoyanov v. Dep’t of Navy, 474 F.3d
1377, 1379 (Fed. Cir. 2007). The Board’s jurisdiction is lim-
ited to actions made appealable to it by law, rule, or regu-
lation. 5 U.S.C. § 7701(a).
Here, the Board relied on a legal determination—that
the Title 5 hiring rights invoked by Mr. Brandt under the
VEOA, for preference-eligible veterans and veterans with
qualifying service, do not apply to VHA’s hiring for the po-
sition at issue. The Board drew that conclusion based on
our interpretation in Scarnati of the relevant Title 38 stat-
utes. We agree with the Board’s conclusion about the in-
applicability of the legal rights claimed, and it follows, as
Scarnati held, that the Board lacks jurisdiction under the
VEOA.
Since before the VEOA was enacted in 1998, Title 38
has contained two provisions of importance to the issue
presented, now in chapter 74 of Title 38, U.S. Code. Both
concern appointments of specified medical professionals to
staff VHA, which is headed by the Under Secretary of
Health and is the component of the Department of Veter-
ans Affairs whose “primary function” is “to provide a com-
plete medical and hospital service for the medical care and
treatment of veterans.” 38 U.S.C. § 7301(a), (b). Section
7401 provides: “There may be appointed by the Secretary
such personnel as the Secretary may find necessary for the
health care of veterans (in addition to those in the Office of
the Under Secretary for Health appointed under section
7306 of this title), as follows: (1) Physicians, dentists, podi-
atrists, chiropractors, optometrists, registered nurses, . . .
Case: 22-1441 Document: 39 Page: 6 Filed: 09/07/2022
6 BRANDT v. MSPB
.” 38 U.S.C. § 7401. Section 7403(a) provides: “(1) Appoint-
ments under this chapter of health-care professionals to
whom this section applies may be made only after qualifi-
cations have been satisfactorily established in accordance
with regulations prescribed by the Secretary, without re-
gard to civil-service requirements. (2) This section applies
to the following persons appointed under this chapter: (A)
Physicians. (B) Dentists. (C) Podiatrists. (D) Optome-
trists. (E) Nurses. . . . .” 38 U.S.C. § 7403(a) (emphasis
added).
In Scarnati, relying on those provisions, we held that
the Board lacked jurisdiction under 5 U.S.C. § 3330a(d)
over an appeal by a physician who alleged that he was not
selected for a psychiatrist position in violation of his veter-
ans-preference rights. 344 F.3d at 1247. We explained
that, for VHA, “[a]ppointment of professional staff” identi-
fied in sections 7401 and 7403—including physicians such
as Dr. Scarnati—is a task for which “Congress has given
the Secretary . . . broad discretion” and that “does not come
under Title 5” in that Title 5 hiring provisions are inappli-
cable. Id. at 1247–48. We quoted § 7401, then added: “Im-
portantly, appointments of those health-care professionals
listed in § 7401(1) ‘may be made only after qualifications
have been satisfactorily established in accordance with reg-
ulations prescribed by the Secretary, without regard to
civil-service requirements.’” Id. at 1248 (quoting §
7403(a)(1)). We concluded: “According to the plain lan-
guage of the statute, provisions of Title 5 (the ‘civil-service
requirements’) do not govern the process for appointing
physicians and other health-care professionals under §
7401(1).” Id.
Those provisions were decisive, we ruled, because Con-
gress had done nothing elsewhere to meet the high stand-
ard for overriding them. Congress declared in 38 U.S.C.
§ 7425(b) that, with exceptions not applicable in Scarnati
(or here), “‘no provision of title 5 or any other law pertain-
ing to the civil service system which is inconsistent with
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BRANDT v. MSPB 7
any provision of . . . this chapter [i.e., chapter 74 of Title
38] shall be considered to supersede, override, or otherwise
modify such provision of this chapter’” except to the extent
it does so specifically. Scarnati, 344 F.3d at 1248 (quoting
38 U.S.C. § 7425(b), ellipses and bracketed material added
by this court in Scarnati). Applying Title 5 provisions that
restrict the Secretary’s appointment discretion under sec-
tions 7401 and 7403, we concluded, “would be by definition
‘inconsistent’ with” that grant of discretion. Id. And with
no specific override of those provisions to be found, we held,
Congress had left unimpaired “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.”
Id. Title 5 veterans’ preference provisions did not apply,
we added, even though VHA, exercising its discretion, had
adopted a related policy of its own. Id. (“VHA’s choice to
implement a veterans’ preference policy for physicians does
not mean that the civil service provisions relating to veter-
ans’ preference . . . also apply to the hiring of physicians.”).
We noted in Scarnati that our specific holding was only
about “appointments,” not about all personnel matters ad-
dressed in Title 5, id. at 1248–49, distinguishing this
court’s decision in James v. Von Zemenszky, 284 F.3d 1310(Fed. Cir. 2002), which addressed reductions in force. Dr.
Scarnati’s claim challenged his rejection for an appoint-
ment to a position enumerated by 38 U.S.C. §§ 7401(1) and
7403(a)(1). Lacking the rights he invoked under the
VEOA, he failed to establish Board jurisdiction under the
VEOA. Scarnati, 344 F.3d at 1249.
Scarnati controls the present case. Section 7401(1) ex-
pressly identifies “registered nurses” as one of the medical
professionals covered by the provision, and section 7403(a)
expressly identifies “[n]urses.” Mr. Brandt does not dis-
pute on appeal the administrative judge’s finding that the
contested nurse-practitioner position requires a person
who is a registered nurse. As the contested position falls
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8 BRANDT v. MSPB
within the ambit of §§ 7401(1) and 7403(a)(1), Scarnati dic-
tates that the Board lacks jurisdiction to hear Mr. Brandt’s
appeal.
Mr. Brandt contends that Scarnati was wrongly de-
cided. But both the Board and this panel are bound by
Scarnati. See Sacco v. Dep’t of Justice, 317 F.3d 1384, 1386
(Fed. Cir. 2003). This is not a case of inconsistency of panel
decisions. We have, in fact, relied on aspects of Scarnati’s
analysis. See Cerwonka v. Dep’t of Veterans Affairs, 915
F.3d 1351, 1357 (Fed. Cir. 2019); see also Mumme v. Merit
Sys. Prot. Bd., 347 F. App’x 572 (Fed. Cir. 2009) (non-prec-
edential); Vores v. Merit Sys. Prot. Bd., 324 F. App’x 883
(Fed. Cir. 2009) (non-precedential). And although Mr.
Brandt contends that Harding v. Dep’t of Veterans Affairs,
448 F.3d 1373 (Fed. Cir. 2006), is counter to Scarnati, the
two decisions do not conflict. Harding involved a removal,
rather than an appointment, unlike the situation in Scar-
nati; and for the removal context at issue, we held that
Congress had specifically, and by express mention, in-
cluded Department of Veterans Affairs employees hired
under Title 38, chapters 73 and 74, within the Individual
Right of Action triggering Board jurisdiction over the whis-
tleblower claims at issue. 448 F.3d at 1375–77. That con-
gressional action met the standard set in 38 U.S.C.
§ 7425(b) for overriding covered Title 38 provisions, we
held, whereas nothing similar was present in the VEOA
appointment setting of Scarnati.
Because Mr. Brandt did not have the Title 5 veterans’
hiring rights he invokes to challenge his non-selection for
the VHA nurse-practitioner position, Mr. Brandt did not
make a nonfrivolous allegation that the agency violated his
rights enforceable through the VEOA. We therefore affirm
the Board’s dismissal for lack of jurisdiction.
III
For the foregoing reasons, we affirm the decision of the
Board.
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BRANDT v. MSPB 9
The parties shall bear their own costs.
AFFIRMED