Weber v. Department of Veterans Affairs

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM N. WEBER, M.D.,  No. 06-35522

Plaintiff-Appellant, D.C. No.

v. CV 04-046-H-SEH

DEPARTMENT OF VETERANS  ORDER

AFFAIRS AND ANTHONY J. PRINCIPI, AMENDING

SECRETARY OF VETERANS AFFAIRS, OPINION AND

Defendants-Appellees. AMENDED

 OPINION

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

October 19, 2007—Seattle, Washington

Filed January 15, 2008

Amended April 4, 2008

Before: Ronald M. Gould and Richard A. Paez,

Circuit Judges, and Lyle E. Strom,* District Judge.

Opinion by Judge Strom

*The Honorable Lyle E. Strom, Senior United States District Judge for

the District of Nebraska, sitting by designation.

3569

WEBER v. DEPARTMENT OF VETERANS AFFAIRS 3571

COUNSEL

Bruce M. Spencer, Smith Law Firm, P.C., Helena, Montana,

for plaintiff-appellant William N. Weber, M.D.

3572 WEBER v. DEPARTMENT OF VETERANS AFFAIRS

William W. Mercer, Assistant United States Attorney, Great

Falls, Montana, for defendants-appellees Department of Vet-

erans Affairs and Anthony J. Principi, Secretary of Veterans

Affairs.

ORDER

The opinion filed on January 15, 2008, is hereby amended

as follows:

At slip op., p. 529, 512 F.3d 1178, 1183-84, delete the follow-

ing:

Because Dr. Weber failed to raise this claim before

the district court, and no exceptional circumstances

justify this failure, we decline to address this claim.

See Monetary II Ltd. P’ship v. Comm’r, 47 F.3d 342,

347 (9th Cir. 1995) (internal quotation marks omit-

ted) (stating “[a]s a general rule, an appellate court

will not consider arguments which were not first

raised before the district court, absent a showing of

exceptional circumstances”).

Replace with the following sentence:

Because Dr. Weber did not properly raise this claim

before the district court, and no exceptional circum-

stances justify this failure, we decline to address this

claim. See Rains v. Flinn (In re Rains), 428 F.3d

893, 902 (9th Cir. 2005) (finding the plaintiff’s due

process claim waived on appeal because he first

raised the claim before the district court in his reply

brief); see also Silvas v. E*Trade Mortgage Corp.,

514 F.3d 1001, 1007 (9th Cir. 2008) (stating that “it

is well-established that an appellate court will not

consider issues that were not properly raised before

WEBER v. DEPARTMENT OF VETERANS AFFAIRS 3573

the district court”) (alterations and internal quotation

marks omitted).

With this amendment, appellant’s petition for rehearing is

DENIED. Further petitions for rehearing and petitions for

rehearing en banc may not be filed.

OPINION

STROM, District Judge:

Appellant Dr. William Weber (“Dr. Weber”) appeals from

the February 23, 2006, order of the United States District

Court for the District of Montana denying his motion for sum-

mary judgment on his claim for back pay under the Back Pay

Act, 5 U.S.C. § 5596, and granting appellees’ motion to dis-

miss Dr. Weber’s claim.

I. BACKGROUND

On October 1, 1997, Dr. Weber was appointed to the posi-

tion of staff radiologist at the Veterans Administration Medi-

cal and Regional Center (“VAMC”) in Fort Harrison,

Montana, pursuant to 38 U.S.C. § 7401(1). Dr. Weber’s

appointment was initially temporary, but the VAMC con-

verted the position to a full-time staff position on December

7, 1997. As mandated by 38 U.S.C. §§ 7403(b)(1) and (2), Dr.

Weber’s appointment was subject to a two-year probationary

period and to board review. Section 7403(b)(2) states, in per-

tinent part:

The record of each person serving under such an

appointment in the [m]edical . . . [s]ervices shall be

reviewed from time to time by a board, appointed in

accordance with regulations of the Secretary. If such

a board finds that such person is not fully qualified

3574 WEBER v. DEPARTMENT OF VETERANS AFFAIRS

and satisfactory, such person shall be separated from

the service.

A summary review board convened to review Dr. Weber’s

appointment on August 2, 1999. On August 12, 1999, the

board issued findings and a recommendation that Dr. Weber

be separated from his employment effective September 13,

1999. The board found that no single incident warranted sepa-

ration, but when considered in its entirety, Dr. Weber’s pat-

tern of behavior warranted separation.

On March 8, 2000, Dr. Weber filed a complaint in the

United States District Court for the District of Montana, seek-

ing judicial review of the board’s recommendation to separate

him. He claimed that his separation should be set aside

because the board failed to follow VA regulations. Specifi-

cally, Dr. Weber alleged that matters were presented to the

summary review board that were not included in the notice of

summary review sent to Dr. Weber. Without reaching a deci-

sion on the merits of the summary review board decision, the

district court agreed that the board failed to comply fully with

the notice requirements. On June 2, 2004, the court vacated

the report and recommendation of the summary review board

and remanded the matter to the VA for further proceedings in

accordance with the applicable laws and regulations. See

Weber v. VA, No. CV-00-10-H-SEH (D. Mont. filed June 3,

2004) (“Weber I”).

On June 3, 2004, the VA reinstated Dr. Weber, but then

immediately placed him on administrative leave with pay.

The VAMC convened a new summary review board, which

again recommended that Dr. Weber be separated from his

employment. Accordingly, the VAMC discharged Dr. Weber

effective December 6, 2005.

In the meantime, on September 15, 2004, Dr. Weber filed

a complaint in the United States District Court for the District

of Montana against the VA and Anthony J. Principi, the Sec-

WEBER v. DEPARTMENT OF VETERANS AFFAIRS 3575

retary of Veterans Affairs (collectively, “VA”), claiming he

was entitled to back pay and benefits under the Back Pay Act

(“BPA”), 5 U.S.C. § 5596, for the period between September

13, 1999, and June 3, 2004. Section 5596(b)(1) provides that

back pay is warranted when an employee of an agency “is

found by appropriate authority under applicable law, rule, reg-

ulation, or collective bargaining agreement, to have been

affected by an unjustified or unwarranted personnel action

which has resulted in the withdrawal or reduction of all or

part of the pay” of the employee. Dr. Weber moved for sum-

mary judgment claiming he was entitled to back pay under the

BPA by virtue of the district court’s prior decision in Weber

I. Conversely, the VA moved to dismiss Dr. Weber’s com-

plaint under Fed. R. Civ. P. 12(b)(6), challenging the district

court’s jurisdiction and arguing that the district court’s order

in Weber I did not provide a basis for asserting a BPA claim.

On February 23, 2006, the district court denied Dr. Weber’s

summary judgment motion and granted the VA’s motion to

dismiss Dr. Weber’s BPA claim. The court determined that its

prior decision in Weber I was limited to a narrow procedural

issue and that questions relating to Dr. Weber’s pay or other

benefits were not before the court. Thus, the court found that

its decision in Weber I afforded no basis for a BPA claim. The

court further stated that its review of the record revealed over-

whelming evidence that the summary review board was justi-

fied in separating Dr. Weber.

Dr. Weber filed a timely appeal of the district court’s order

on April 18, 2006. He claims that the district court erred in its

determination that the court’s prior decision in Weber I

afforded no basis for Dr. Weber to assert a BPA claim.

II. STANDARD OF REVIEW

We review de novo dismissals pursuant to Fed. R. Civ. P.

12(b)(6). Burgert v. Lokelani Bernice Pauahi Bishop Trust,

200 F.3d 661, 663 (9th Cir. 2000). To avoid a Rule 12(b)(6)

3576 WEBER v. DEPARTMENT OF VETERANS AFFAIRS

dismissal, a complaint need not contain detailed factual alle-

gations; rather, it must plead “enough facts to state a claim to

relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 127 S. Ct. 1955, 1974 (2007).

We also review de novo a district court’s decision to grant

or deny summary judgment. Prison Legal News v. Lehman,

397 F.3d 692, 698 (9th Cir. 2005). Using the familiar stan-

dard, we view the evidence in the light most favorable to the

nonmoving party to determine whether there are any genuine

issues of material fact and whether the district court correctly

applied the relevant substantive law. Id.

III. DISCUSSION

[1] In order for a plaintiff to bring a viable suit against the

federal government or its agencies, the government must have

waived its sovereign immunity. “Consequently, a person

attempting to sue a federal agency or officer must demon-

strate that the claim being asserted is covered by a specific

statutory authorization to sue the United States . . . .” 14

Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure § 3655 (3d ed. 1998). Dr.

Weber claims the Administrative Procedure Act (“APA”), 5

U.S.C. § 701-706, and the BPA, 5 U.S.C. § 5596(b)(1), gave

the district court jurisdiction over his back pay claim. The VA

challenges this assertion, arguing the district court lacked

jurisdiction under either act. We agree.

[2] Under the APA, federal sovereign immunity is waived

for suits against the federal government in which the plaintiff

is “seeking relief other than money damages.” 5 U.S.C. § 702

(emphasis added). Section 702 further states, in pertinent part:

Nothing herein . . . (2) confers authority to grant

relief if any other statute that grants consent to suit

expressly or impliedly forbids the relief which is

sought.

WEBER v. DEPARTMENT OF VETERANS AFFAIRS 3577

Id. The APA did not vest the district court with jurisdiction

for two reasons. First, “back pay, as a claim for money dam-

ages, falls outside the scope of the APA.” Ward v. Brown, 22

F.3d 516, 520 (2d Cir. 1994). Second, the comprehensive stat-

utory scheme for the Veterans Health Administration

(“VHA”) does not permit judicial review of Dr. Weber’s

claims.

The Supreme Court’s reasoning in United States v. Fausto,

484 U.S. 439 (1988), controls our analysis. In Fausto, the

Supreme Court considered whether an administrative officer

in the Department of the Interior Fish and Wildlife Service

(“FWS”) had the right to bring an action in the Federal Court

of Claims challenging his removal and seeking back pay

under the Civil Service Reform Act (“CSRA”) (codified in

Title 5 of the United States Code). The FWS had dismissed

Fausto from his FWS position in 1981, citing various reasons,

including the unauthorized use of a government vehicle. Id. at

441. Subsequently, the FWS determined that Fausto’s dis-

missal was unwarranted but imposed a thirty-day suspension

for his unauthorized use of the government vehicle. Id. The

FWS offered Fausto back pay for a limited time period, which

did not include his thirty-day suspension. Fausto rejected this

offer and filed an appeal with the Department of Interior,

arguing that: (1) the suspension was unwarranted and that he

was entitled to back pay for the thirty-day suspension period;

and (2) he was entitled to additional back pay from the date

he was terminated through the date the FWS determined his

initial dismissal was unwarranted. The Secretary of the Inte-

rior rejected his arguments and upheld the FWS’s decision.

Id. Fausto then filed an action with the Federal Court of

Claims pursuant to the BPA. Id. at 443. The Claims Court dis-

missed the action and held that the CSRA provided Fausto’s

exclusive remedies. Fausto appealed to the United States Cir-

cuit Court of Appeals for the Federal Circuit, which reversed

and awarded back pay for the suspension period. Id. The

Supreme Court granted certiorari.

3578 WEBER v. DEPARTMENT OF VETERANS AFFAIRS

[3] The Court determined that the comprehensive statutory

scheme set forth in the CSRA did not provide for judicial

review for the actions taken against members of the excepted

service, such as Fausto.1 The Court stated:

The CSRA established a comprehensive system for

reviewing personnel action taken against federal

employees. Its deliberate exclusion of employees in

respondent’s service category from the provisions

establishing administrative and judicial review for

personnel action of the sort at issue here prevents

respondent from seeking review in the Claims Court

under the Back Pay Act.

Id. at 453.

[4] Like the statutory scheme analyzed in Fausto, Title 38

of the United States Code governs the appointment and

employment terms of VA physicians. Dr. Weber was

appointed as a VA radiologist under 38 U.S.C. § 7401(1);

therefore, his employment was governed by the VHA person-

nel system. We agree with the Sixth Circuit that “[l]ike the

CSRA, Title 38 provides a comprehensive regulatory scheme

for employees of the VA.” Fligiel v. Samson, 440 F.3d 747,

752 (6th Cir. 2006). This statutory scheme does not provide

for judicial review of the decisions of summary review boards

for probationary employees. See 38 U.S.C. §§ 7403(b)(2),

1

The CSRA classifies workers into three categories: (1) senior executive

service; (2) competitive service; and (3) excepted service. “ ‘Senior Exec-

utive Service’ employees are those who occupy high-level positions in the

Executive Department, but for whom appointment by the President and

confirmation by the Senate is not required. 5 U.S.C. § 3132(a)(2). ‘Com-

petitive service’ employees are all other employees for whom nomination

by the President and confirmation by the Senate is not required, and who

are not specifically excepted from the competitive service by statute or by

statutorily authorized regulation. § 2102. ‘Excepted service’ personnel are

the remainder — those who are in neither the competitive service nor the

Senior Executive Service. § 2103.” Fausto, 484 U.S. at 441 n.1.

WEBER v. DEPARTMENT OF VETERANS AFFAIRS 3579

(f)(3). “Under Fausto, where a comprehensive remedial

scheme exists to address agency adverse actions, and Con-

gress has clearly indicated that no judicial review is available,

an individual may not choose other federal statutory avenues

to obtain review.” Fligiel, 440 F.3d at 752 n.2 (citing Fausto,

484 U.S. at 455). Therefore, the APA does not provide a basis

for Dr. Weber to assert his BPA claim.

[5] In the alternative, Dr. Weber also claims the BPA pro-

vides the necessary waiver of sovereign immunity for the dis-

trict court to hear his back pay claim. “ ‘The Back Pay Act is

the means by which appointed employees subjected to unjus-

tified personnel action are given a cause of action against the

United States.’ ” Ward, 22 F.3d at 520 (quoting United States

v. Hopkins, 427 U.S. 123, 128 (1976)). The BPA provides a

waiver of sovereign immunity when:

An employee of an agency who, on the basis of a

timely appeal or an administrative determination . . .

is found by appropriate authority under applicable

law, rule, regulation, or collective bargaining agree-

ment, to have been affected by an unjustified or

unwarranted personnel action . . . .

5 U.S.C. § 5596(b)(1). The requirements to invoke jurisdic-

tion under the BPA are: (1) a finding of “an unjustified or

unwarranted personnel action;” (2) by an “appropriate author-

ity.” Id.

[6] Dr. Weber claims these requirements were satisfied by

the district court’s decision in Weber I, which vacated the first

report and recommendation of the summary review board and

remanded the matter to the VA for further proceedings. This

argument is unavailing because the district court, like the

Claims Court in Fausto, was not an “appropriate authority”

when it made its determination. Just as the “comprehensive

and integrated review scheme of the CSRA” prevented Fausto

from satisfying the threshold requirements to invoke the BPA,

3580 WEBER v. DEPARTMENT OF VETERANS AFFAIRS

id., Title 38 prevents probationary physicians such as Dr.

Weber from seeking judicial review of summary review board

determinations under the BPA. According to VA regulations,

after a summary review board makes findings, the Chief of

Staff can comment on those findings, and the facility director

“may approve, disapprove or modify the [b]oard’s recommen-

dation.” VHA Supplement, MP-5, Pt. II § 4.09(h)(1)(b).

Because the board’s determination was but an interim step in

a multi-level decision process, Dr. Weber’s only recourse was

within his agency, not with the district court.2

As a final alternative, Dr. Weber claims he had a liberty

interest under the Due Process Clause in seeing that the sum-

mary review board complied with notice requirements. He

argues a district court can invoke jurisdiction when a violation

of due process rises to the level of a colorable constitutional

claim. Because Dr. Weber did not properly raise this claim

before the district court, and no exceptional circumstances

justify this failure, we decline to address this claim. See Rains

v. Flinn (In re Rains), 428 F.3d 893, 902 (9th Cir. 2005)

(finding the plaintiff’s due process claim waived on appeal

because he first raised the claim before the district court in his

reply brief); see also Silvas v. E*Trade Mortgage Corp., 514

F.3d 1001, 1007 (9th Cir. 2008) (stating that “it is well-

established that an appellate court will not consider issues that

were not properly raised before the district court”) (alterations

and internal quotation marks omitted).

[7] For the foregoing reasons, we conclude the district court

lacked jurisdiction to adjudicate Dr. Weber’s claim for back

pay. Accordingly, this case is remanded to the district court

with instructions to dismiss Dr. Weber’s complaint for lack of

2

We express no opinion on whether the district court properly asserted

subject matter jurisdiction in Weber I.

WEBER v. DEPARTMENT OF VETERANS AFFAIRS 3581

jurisdiction.

VACATED and REMANDED.