Peter B. Broida, Attorney at Law

Peter B. Broida
Attorney at Law

—BACK—

MERIT SYSTEMS PROTECTION BOARD

Michael B. Graves,

Appellant,

Department of Veterans Affairs,

Agency.

SF-3330-09-0725-I-1

SF-300A-10-0045-I-1

SF-3330-09-0570-I-1

BRIEF OF AMICUS CURIAE PETER BROIDA

The brief that follows is submitted in response to the Board’s Federal Register notice of June 3, 2011, 76 FR 32236, seeking amicus submissions concerning VEOA coverage of Title 38 hybrid employees. The Board is requested to serve copies of this submission on all parties, since the addresses of the parties and their counsel are not listed in the Federal Register notice.

The author of this brief has no relationship to any party to the appeal. He is an attorney in private practice who writes a book on MSPB practice and teaches civil service law to attorneys and personnel specialists.

A. INTRODUCTION

5 USC 7401(1) and 5 USC 7403(a)(2) provide the DVA and the VHA appointment authority for medical professionals hired outside the constraints of Title 5. The employment conditions of these medical professionals (usually medical doctors, registered nurses, and dentists) differ from their Title V counterparts in terms of compensation (which is based on geographically determined probability determinations relative to private sector counterparts); the duration of probation; the means for discipline and removal and associated review mechanisms (disciplinary appeals boards for issues of clinical competence and patient care; VA grievance processes for other types of discipline; the professional standards Board for issues of professional certification and credentialing).

5 USC 7401(3) and 5 USC 7403(f) provide authority to the DVA and VHA for another subset of medical employees: audiologists, speech pathologists, respiratory therapists, dietitians, licensed practical nurses, instrument technicians, records administrators, dental hygienists, social workers, and other professionals whose service is essential to veterans’ health care but who are not placed into the same personnel system as doctors and registered nurses. For these individuals who support the primary care practitioners, 5 USC 7403(f)(3) provides civil service protections akin to Title 5 employees. These medical support personnel have become known as “hybrids.”

The principal question before the Board is whether the VA is required to provide veterans preference in the appointment process for hybrids.

The law is stated in 5 USC 7403, providing, in pertinent part:

(f)(1) Upon the recommendation of the Under Secretary for Health, the Secretary may—

(A) use the authority in subsection (a) to establish the qualifications for and (subject to paragraph (2)) to appoint individuals to positions listed in section 7401(3) of this title; and

. . .

(2) In using such authority to appoint individuals to such positions, the Secretary shall apply the principles of preference for the hiring of veterans and other persons established in subchapter I of chapter 33 of title 5.

In Graves v. VA, 114 MSPR 245 (2010), the Board concluded that:

We find that the agency's use of veterans' preference status as a "tie-breaker" in its selection process is inadequate and that the agency must comply with the competitive service veterans' preference requirements set forth in Title 5 of the United States Code in filling positions under 38 U.S.C. § 7401(3).

The Board now seeks, through Federal Register notice, amicus briefs addressing the question of the adequacy of the VA’s “tie-breaker” approach. To that question, the brief that follows suggests that the Board’s analysis is correct.

B. THE QUESTION OF WHETHER THE STATUTORY REQUIREMENT FOR ADHERENCE TO PRINCIPLES OF VETERANS PREFERENCE IS RENDERED MEANINGLESS BY THE STATUTORY AUTHORITY TO HIRE WITHOUT REGARD TO PROVISIONS OF TITLE 5.

5 USC 7403(a)(1) allows DVA to hire health care professionals “to whom this section applies” without regard to civil service requirements.

The referenced “section” is, of course, 5 USC 7403, of which subsection (a)(2) states the application to be to health care professionals: physicians; dentist; podiatrists; optometrists; nurses; physician assistants; expanded-function dental auxiliaries, and chiropractors. This is the same group referenced in 5 USC 7401(1) [with the difference being in the reference to “nurses” in § 7401 and to “registered nurses” in § 7403, likely a drafting oversight]. To that group, civil service requirements are inapplicable.

Civil service requirements are not, however, inapplicable to the medical support personnel, who are provided civil service protections under § 7403(f). Since the statute stating the existence of those protections, § 7403, is the same statute that requires application of principles of veterans preference under 5 USC Chapter 33, the exemption language of § 7403(a)(1) is inapplicable.

C. THE DEFERENCE DUE VA’S INTERPRETATION OF §7403 AND ITS INTERPRETATION OF “PRINCIPLES OF PREFERENCE”

Title 38 incorporates a provision of Title 5. VA applies Title 38; OPM generally has responsibility for government–wide regulations interpreting provisions of Title 5 involving personnel policy. Neither OPM nor VA have gone through APA rulemaking to identify the nature of the requirement imposed by Title 5 and incorporated into Title 38 relative to veterans preference for hybrid employees.

The rules of statutory interpretation are so many and so inconsistent that support can be found for almost any proposition. That being said, a few principles illustrate the fundamental requirement that statutes be construed to meet the legislative intent.

“The meaning of statutory language, plain or not, depends on context; the words of a statute must be read as a whole and in a way which best harmonizes with the setting in which they are used and promotes the policy and objectives of the legislature.” Sawyer v. OPM, 72 MSPR 496, 503 (1996) (relying upon King v. St. Vincent’s Hospital, 502 U.S. 215, 221 & n.10 (1991). Veterans preference was around long before VHA. The policy advanced by the veterans preference expressed in VHA appointment authority is the policy advanced by Congress in preexisting Title 5 veterans preference provisions.

In determining the meaning of a statute that references a prior law, one looks to the prior enactment. According to Benedetto v. OPM, 32 MSPR 530, 534 (1987):

…When Congress adopts a new law incorporating sections of a prior law, it normally can be presumed to have knowledge of the judicial or administrative interpretation given to the incorporated law, at least insofar as it affects the new statute. Lorillard v. Pons, 434 U.S. 575, 581, 98 S. Ct. 866, 870, 55 L. Ed.2d 40 (1978). . . .

To that end, one looks to the interpretation imbedded in the statute that is most harmonious with the statutory scheme and the general purposes that Congress manifested. Jones v. Dept. of Transp., 295 F.3d 1298, 1304 (Fed. Cir. 2002) (citing NLRB v. Lion Oil Co., 352 U.S. 282, 297 (1957)). The prior enactment, involving veterans preference, is what Congress meant to protect and enhance when it designed the multi–tier Title 38 VHA hiring authorities.

The focus of the provision of Title 38 incorporating veterans preference from Title 5 is on the employment preferences of veterans, not a matter within the expertise of VA, as opposed to a matter relating to the medical treatment of veterans, a matter that is within the VA’s expertise. Since VA is not expert in matters of veterans employment preference, its policies or views on the matter are entitled to no more deference than any other reasoned analysis.

The lack of deference to the determination of VA relative to the meaning of a Title 5 statute is underscored by a situation that occurs with some frequency in the federal sector—interpretation in the context of negotiability disputes by the Federal Labor Relations Authority of statutes governing the operations of agencies operating under statutory authority.

Deference need not be given to the FLRA when it interprets an act administered by another agency, e.g., the Technicians Act (a statute within the expertise of the Department of Defense and National Guard Bureau). California Nat’l Guard v. FLRA, 697 F.2d 874, 879 (9th Cir. 1983); see ACT, Texas Lone Star Chapter 100 v. FLRA, 250 F.3d 778, 782 (D.C. Cir. 2001) (Technicians Act); GSA v. FLRA, 86 F.3d 1185, 1188 (D.C. Cir. 1996) (deference to the FLRA was not appropriate when the statute being construed placed deference in a GSA Administrator relative to the carriage of firearms by federal protective officers). When the FLRA resolves an arguable conflict between another statute and its own, the court conducts a wholly independent analysis of that issue. Defense Criminal Investigative Serv. v. FLRA, 855 F.2d 93, 97–98 (3d Cir. 1988) (collecting cases; an independent analysis of the Inspector General Act in the context of a ULP case). NTEU v. FLRA, 418 F.3d 1068, 1071 n. 5 (9th Cir. 2005), noted:

[W]hen the FLRA interprets a statute or regulation that it does not administer, as is the case here, we review de novo the FLRA’s decision. See Dep’t of the Interior v. FLRA, 279 F.3d 762, 765 (9th Cir. 2002); see also Dep’t of the Air Force, 952 F.2d at 450 (“Deference to the FLRA is especially inappropriate here because Congress specifically delegated to the OPM the authority ‘to administer’ the FLSA’s provisions on payment of overtime for postshift activity. The Authority’s interpretation of [5 C.F.R.] § 551.412(b) is…subject to de novo review.” (internal citations omitted)).

The bottom line is that in this case the Board, not the VA, is the interpreter of the statutes calling for principles of veterans preference to be applied to appointments of Title 38 hybrid employees.

D. THE IMPACT OF INFORMAL GUIDANCE FROM EITHER VA OR OPM

There are many publicly available issuances concerning veterans preference. Some purport to restate the law, some state policy, and some restate existing practice. What value are these publications in the interpretation of statutory veterans preference rights?

On the matter of civil service employment, informal guidance is of little value in determining the propriety of implementation of the statutory design.

5 USC 3301 states that the President may prescribe regulations for admission of individuals into the civil service. 5 USC 3302 speaks of rules prescribed by the President, governing the extent of the excepted service, and OPM has addressed that statute through regulations in 5 CFR defining the extent of the excepted service. 5 USC 3304 similarly calls for rules governing competitive and noncompetitive examination, and the same statutes requires OPM to issue regulations governing crediting of excepted service or other experience for purposes of competitive service appointments.

Where Congress decides that “guidance” from OPM (or another agency) will be the vehicle for statutory implementation, it says as much, as for example, in 5 USC 5384, relating to SES performance awards:

(d) The Office of Personnel Management may issue guidance to agencies concerning the proportion of Senior Executive Service salary expenses that may be appropriately applied to payment of performance awards and the distribution of awards.

[emphasis supplied]

To the extent that a statute calls for the exercise of rulemaking authority, the Board’s contrary suggestion in Brandt v. Dept. of Air Force, 103 MSPR 671, 678-79 ¶¶ 14–15, 2006 MSPB 316 (2006), is incorrect. The appropriate approach, and the limitations of informal agency guidance, is suggested by Eldredge v. Dept. of Interior, 451 F.3d 1337, 1341–43 (Fed. Cir. 2006):

Because we are concerned with statutory interpretation, the issue is whether Chevron deference is owed to the OPM advisory opinion or the Handbook. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). We conclude that the advisory opinion does not attract Chevrondeference. Here, as in Christensen v. Harris County, 529 U.S. 576 (2000), “we [are] confront[ed with] an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking.” Id. at 587. The Supreme Court has made clear that “[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference.” Id.

The Supreme Court in United States v. Mead Corp., 533 U.S. 218 (2001), clarified the factors to be considered in determining whether a non-regulatory agency interpretation attracts Chevron deference. The question in Mead was whether tariff classification rulings interpreting the Harmonized Tariff Schedule of the United States, 19 U.S.C. § 1202 (2000), issued by the United States Customs Service, warranted Chevron deference. The Court observed that: (1) the statute did not contemplate that the rulings would have the force of law; (2) the rulings did not result from notice-and-comment rulemaking; (3) Customs did not regard a ruling as binding on anyone but the importer to whom it was issued; and (4) “46 different Customs offices issue 10,000 to 15,000 [classification rulings] each year.” See id. at 231-34. On the basis of these factors, taken together, the Court held that the rulings did not warrant Chevron deference because they were not issued in the exercise of Customs’s “delegated authority…to make rules carrying the force of law.” Id. at 226-27. Rather, the Court concluded that the rulings were “best treated like ‘interpretations contained in policy statements, agency manuals, and enforcement guidelines[,]’…[which] are beyond the Chevron pale.” Id. at 234 (quoting Christensen, 529 U.S. at 587).

The result is that the MSPB interprets the requirements of Title 5 as they are superimposed on Title 38 hybrid employees without deference to informal guidance issued by other agencies. When congress desires to allow administrative authority to rule through guidance, as in the SES statute, it says so. When, as in Title 5 requirements dealing with appointments, it wants matters addressed by regulation or rule, is says so. Congress having addressed the requisite level of formality expected of matters affecting veterans preference, the Board is obliged to follow the legislative dictate.

E. LAW OF THE CASE

The law of the case doctrine is designed to prevent reexamination of issues settled by a court. The Board is not a court, and it retains authority under its regulations to reopen a case at any time. 5 CFR 1201.118. But if the Board were to apply the “law of the case” doctrine in the manner applied by the courts, it would recognize that the law of the case doctrine applies, as applied to a particular court (and not to a subordinate court), references a final judgment or opinion of the court as to which the doctrine is to be invoked. Here the “law of the case” is inapplicable—the Board has not issued a final decision; it considers a this case following a remand. United States v. Smelting Co., 339 US 186, 198–99 (1950), pointed out:

The rule of the law of the case is a rule of practice, based upon sound policy that, when an issue is once litigated and decided, that should be the end of the matter. Messinger v. Anderson, 225 U. S. 436, 225 U. S. 444; Insurance Group Committee v. Denver & R.G.W. R. Co., 329 U. S. 607, 329 U. S. 612. It is not applicable here because when the case was first remanded, nothing was finally decided. The whole proceeding thereafter was in fieri. The Commission had a right on reconsideration to make a new record. Ford Motor Co. v. Labor Board, 305 U. S. 364, 305 U. S. 374-375. When finally decided, all questions were still open and could be presented. The fact that an appeal could have been taken from the first order of the District Court was not because it was a final adjudication, but because a temporary injunction had been granted in order to maintain the status quo. This was an interlocutory order that was appealable because Congress, notwithstanding its interlocutory character, had made it appealable. 28 U.S.C. § 1253. The appellants might have appealed, but they were not bound to. We think that it requires a final judgment to sustain the application of the rule of the law of the case, just as it does for the kindred rule of res judicata. Compare United States v. Wallace & Tiernan Co., 336 U. S. 793, 336 U. S. 800-801. And although the latter is a uniform rule, the "law of the case" is only a discretionary rule of practice. It is not controlling here. See Southern R. Co. v. Clift, 260 U. S. 316, 260 U. S. 319.

F. JURISDICTION OVER HYBRID EMPLOYEES VEOA APPEALS

VEOA coverage seems clear. Under 5 USC 3330a, a preference eligible may complain to DOL, then appeal to MSPB, as to a violation of any statute or regulation relating to veterans preference.

The law at issue here certainly relates to veterans preference. 5 USC 7403, providing, in pertinent part:

(f)(1) Upon the recommendation of the Under Secretary for Health, the Secretary may—

(A) use the authority in subsection (a) to establish the qualifications for and (subject to paragraph (2)) to appoint individuals to positions listed in section 7401(3) of this title; and

. . .

The alleged violation is within the jurisdiction of DOL and, absent resolution, is within the jurisdiction of an appeal to MSPB under 5 USC 3330a(d)(1), unless there is an exemption from statutory coverage.

Scarnati v. VA, 344 F.3d 1246, 1247–48 (Fed. Cir. 2003), confirms exclusion from VEOA of Title 38 medical professionals, based on VHAs statutory appointment authority:

Importantly, appointments of those health–care professionals listed in § 7401(1) “may be made only after qualifications have been satisfactorily established in accordance with regulations prescribed by the Secretary, without regard to civil service requirements.” Id. § 7403(a)(1) (emphasis added). According to the plain language 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). Thus, though § 3330a may appear on its face to cover any allegation by a preference eligible that veterans’ preference rights have been violated, by the terms of the statute governing VHA appointments, Congress has specifically exempted such appointments from the VEOA process. See Khan v. United States, 201 F.3d 1375, 1380–81 (Fed. Cir. 2000) (holding that VHA physician appointments under Title 38 are outside the Title 5 competitive service appointment process).

But matters stand differently as to hybrids. For that group, appointments are made explicitly subject to veterans preference requirements. For hybrids, under 38 USC 7403(f):

(f) (1) Upon the recommendation of the Under Secretary for Health, the Secretary may—

(A) use the authority in subsection (a) to establish the qualifications for and (subject to paragraph (2)) to appoint individuals to positions listed in section 7401(3) of this title; and

. . .

(3) Notwithstanding any other provision of this title or other law, all matters relating to adverse actions, reductions-in-force, the applicability of the principles of preference referred to in paragraph (2), rights of part-time employees, disciplinary actions, and grievance procedures involving individuals appointed to such positions, whether appointed under this section or section 7405 (a)(1)(B) of this title (including similar actions and procedures involving an employee in a probationary status), shall be resolved under the provisions of title 5 as though such individuals had been appointed under that title.

[emphasis supplied]

G. THE PROPER APPLICATION OF VETERANS PREFERENCE TO HYBRIDS

The foregoing statute resolve the issue. As to hybrids, under 5 USC 7403(f)

principles of preference. . . . shall be resolved under the provisions of title 5 as though such individuals had been appointed under that title.

It would take the most compelling legislative history to warrant a deviation from the statutory mandate. The principles of preference are to be dealt with as though hybrids are Title 5 appointees. The result reached in Graves is correct.

Respectfully submitted,

____________________________

Peter B. Broida

Suite 705

2009 N. 14^th St.

Arlington, VA 22201

703-841-1112

703-841-1006 (facsimile)

Amicus Curiae

June 22, 2011