Opinion

Jeremy Conklin v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jan 28, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JEREMY H. CONKLIN, DOCKET NUMBER

Appellant, SF-3330-23-0499-I-1

DEPARTMENT OF VETERANS DATE: January 28, 2025

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jeremy H. Conklin , Seattle, Washington, pro se.

Scott Ayers , Seattle, Washington, for the agency.

BEFORE

Cathy A. Harris, Chairman*

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

*The Board members voted on this decision before January 20, 2025.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal

for lack of jurisdiction. Generally, we grant petitions such as this one only in the

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

On review, the appellant argues, among other things, that VEOA applies to

physicians under 38 U.S.C. § 7403(f) and (g). Petition for Review (PFR) File,

Tab 1 at 7-11. He also argues that Scarnati v. Department of Veterans Affairs,

344 F.3d 1246 (Fed. Cir. 2003), upon which the administrative judge relied, is not

applicable to this case because the court did not interpret or mention 38 U.S.C.

§ 7403 in its holding. PFR File, Tab 1 at 10. The Board is bound to follow

precedential decisions of the Federal Circuit unless they are overruled by the

court sitting en banc. See Conner v. Office of Personnel Management,

120 M.S.P.R. 670, ¶ 6 (2014), aff’d, 620 F. App’x 892 (Fed. Cir. 2015); Coley v.

Department of Transportation, 112 M.S.P.R. 645, ¶ 6 (2009). The court’s

decision in Scarnati has not been overruled and constitutes controlling authority

for the Board.

The administrative judge correctly found that, because the appellant had

applied and not been selected for the Physician–Chief of Staff position with the

Veterans Health Administration (VHA), which falls under 38 U.S.C. § 7401(1),

the appellant did not have the right to file an appeal under VEOA. Initial Appeal

File, Tab 10, Initial Decision at 7-8; see Scarnati, 344 F.3d at 1247-49. The civil

service requirements of Title 5 do not apply to the appointment of physicians or

other health care professionals listed in 38 U.S.C. § 7401(1). See 38 U.S.C.

§§ 7403(a)(1) and (2)(A), 7425(b); see also Scarnati, 344 F.3d at 1248. Though

VEOA 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. Scarnati, 344 F.3d at 1248.

We are not persuaded that VEOA applies to physicians under 38 U.S.C.

§ 7403(f)(2) and (f)(3). 38 U.S.C. § 7403(f)(2) states that, in appointing

individuals to positions listed in 38 U.S.C. § 7401(3), 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.” 38 U.S.C. § 7403(f)(3) states

that “the applicability of the principles of preference referred to in

paragraph (2) . . . shall be resolved under the provisions of title 5 as though such

individuals had been appointed under that title.” In other words, Title 5

competitive service veterans’ preference requirements apply to appointments

made for 38 U.S.C. § 7401(3) positions. Graves v. Department of Veterans

Affairs, 114 M.S.P.R. 245, ¶ 12 (2010). Physicians, however, are listed in

section 7401(1), not section 7401(3). Moreover, the plain language of 38 U.S.C.

§ 7403(g) makes clear that it applies only to appointments to the competitive

service. Appointments made pursuant to 38 U.S.C. § 7401 are in the excepted

service, not the competitive service. Graves, 114 M.S.P.R. 245, ¶ 11. Thus,

38 U.S.C. § 7403(f) and (g) do not support jurisdiction in this appeal. We

therefore affirm the initial decision, which dismissed the appeal for lack of

jurisdiction.

NOTICE OF APPEAL RIGHTS 2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 3 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following