Petition for Writ of Certiorari — Weber v. Department of Veterans Affairs Affairs (No. 08-281)

Supreme VOUN, v.o-

1LED

oO ;

JUL 03 2008

98-281

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

WILLIAM N. WEBER, M.D.,

Petitioner

V.

DEPARTMENT OF VETERANS AFFAIRS

AND ANTHONY J. PRINCIPI, SECRETARY OF

VETERANS AFFAIRS,

Respondents

On Petition for Writ Of Certiorari

To The United States Court of

Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

BRUCE M. SPENCER

Counsel of Record

SMITH LAW FIRM, P.C.

P.O. Box 1691

26 W. SIXTH AVENUE

Helena, MT 59624

(406)442-2980

Questions Presented for Review

Petitioner, Dr. William N. Weber, was

discharged from his position as a physician with the

Department of Veterans Affairs on September 13,

1999, based on a recommendation of a summary

review board. Dr. Weber filed an action for judicial

review of his discharge in district court.

On June 3, 2004, the district court vacated the

decision of the summary review board and remanded

for further action. The district court ruled "the VA's

termination to be “arbitrary, capricious, and not in

accordance with law." (Appendix 4) The VA did not

appeal this decision.

The VA reinstated Dr. Weber effective June 3,

2004. Dr. Weber was without pay from the time of his

discharge September 13, 1999 to the reinstatement on

June 3, 2004.

Dr. Weber filed a new lawsuit seeking his back

pay under the Back Pay Act. The district court

dismissed his action under the Back Pay Act and the

Administrative Procedures Act and the9 “™ Circuit

Court of Appeals affirmed. It is from the 9 “ Circuit

decision that Dr. Weber petitions for certiorari.

1. Whether the district court has jurisdiction to

hear a claim under the Back Pay Act, 5 U.S.C. § 5596,

from a discharged Tile 38 appointed employee of the

Veterans Administration.

Table of Contents

Questions Presented for Review ...............

EE Oe ee ore ae

i a oe dae ds ado wee anes

Statement of Jurisdiction ....................

Constitutional Provisions;

Statutes and Regulations ...............

EE LO CCS POC OTE rae

Table of Authorities

Cases

Alaniz v. Office of Personnel Management,

728 F.2d 1460, 1470 (Fed.Cir.1984) ...

Bosco v. US,

931 F2d 879, 883, fn 3 (Fed Cir. 1991),

affd, 976 F.2d 710, 714 (Fed.Cir.1992)

Bur v. United States,

621 F.2d 415, 416 (1980)............

Gratehouse v. United States,

206 Ct.Cl. 288, 296, 512 F.2d 1104,

1108 (1975), cert. denied, 434 U.S. 955,

98 S.Ct. 480, 54 L.Ed. 2d 313 (1977) ..

Harrison v. Veterans Admin.,

M.S.P.B.1990, 44 M.S.P.R. 594.

Merit Systems Protection 524. .......

Kerr v. National Endowment for the Arts,

726 F.2d 730, 733 (Fed.Cir.1984) .....

Romero v. United States,

38 F.3d 1204, 1211 (Fed.Cir.1994) ....

Ryder v. United States,

585 F.2d 482, 487-88 (Ct.Cl.1978) ....

Shaposka v. United States,

215 Ct.Cl. 34, 43, 563 F.2d

i, ok wc ok ce cw ees

Summers v. United States,

227 Ct. Cl 353, 648 F2d 1324, 1327

kf eee eee

iV

aletates 10

United States v. Fausia,

484 U.S. 439, 108 S.Ct. 668, 98

i ig 10

Ward v. Brown,

22 F.3d 516, 519, 520 (2nd Cir. 1994). .... 4,5,6

Weber v. Department of Veterans Affairs,

521 F.3d 1061, 1067 (9 Cir. 2008) ...... 5, 6, 7

Wells v. F.A.A.,

755 F.2d 804 (11 Cir.1985) ............... 7

Rules

i i ae 2 4, 5, 6, 8, 10

SI hg Nn flea are ea Se ae 4

Title 38 of the United States Code ........... 5,6

Citations to Reports

Weber v. Department of Veterans Affairs,

521 F.3d 1061, 08 Cal. Daily Op. Serv. 3987, 2008

Daily Journal D.A.R. 4875, C.A.9 (Mont.), April 04,

2008 (NO. 06-35522)

Weber v. Department of Veterans Affairs,

512 F.3d 1178, 13 Wage & Hour Cas.2d (BNA) 371, 08

Cal. Daily Op. Serv. 493, 2008 Daily Journal D.A.R.

607, C.A.9 (Mont.), January 15, 2008 (NO. 06-35522)

Weber v. Department of Veterans Affairs and Anthony

J. Principi, CV 04-46-H-SEH, United States District

Court, District of Montana, Order of Dismissal, Docket

No. 34.

Statement of Jurisdiction

The Amended Judgment of the Ninth Circuit

was entered on April 4, 2008. The United States

Supreme Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1)

Constitutional Provisions; Statutes and Regulations

5 U.S.C. § 701-706

5 U.S.C. § 5596

38 U.S.C. § 7401

38 U.S.C. § 7403(b)(1)

38 U.S.C. § 7405(a)(1)(A)

38 U.S.C.§ 7461 (c) (3)

38 U.S.C. § 7462 (f) (1)

VHA Supp, MP-5, Part II, Chapter 4 § 4.09(h)(1)

VHA Supplement, MP-5, Part II, Rule 4.06

VA Handbook 5005, Part II, Chapter 3, Subsection

F(3)(d)

VH Handbook 5021, Part III, Chapter 1(1), (3)

VA Handbook 5021, Part V, Chapter 1, paragraph 8

VA Handbock 5021, Appendix A(5)

Statement of the Case

The facts have been set out above in the

questions presented for review. The district court had

jurisdiction over this matter, pursuant to the Back

Pay Act, 5 U.S.C. § 5596. "The district courts shall

have original jurisdiction of all civil actions arising

under the Constitution, laws, or treaties of the United

States." 28 USC § 1331. A federal district court has

jurisdiction over a judicial review and back pay case

under the federal question statute, 28 USC § 1331.

Ward v. Brown, 22 F.3d 516, 519 (2nd Cir. 1994).

Argument

The Ninth Circuit in denying jurisdiction under

the Back Pay Act has created a direct conflict between

circuits regarding jurisdiction for determination of

claims under The Back Pay Act, 5 U.S.C. § 5596. See,

Weber v. Department of Veterans Affairs, 521 F.3d

1061, 1067 (9"" Cir. 2008, Appendix 1) and Ward v.

Brown, 22 F.3d 516, 520 (2d Cir. 1994, Appendix 5)

and Romero v. United States, 38 F.3d 1204, 1211

(Fed.Cir.1994).

The Ninth Circuit holds that a Physician

appointed under Title 38 of the United States Code

cannot seek damages or review of summary review

board decisions under the Back Pay Act. The Ninth

Circuit also holds that the district court is not an

“appropriate authority” to determine whether a VA

employee was subjected to an unjustified personnel

action. Weber, supra.

The Second Circuit holds that the Back Pay Act

provides an “explicit waiver of sovereign immunity”

for a nurse appointed under Title 38 of the United

States Code. Ward, supra at 520.

The Federal Circuit holds that a district court

is an "appropriate authority" under the Back Pay Act

to review an agency determination regarding matters

not covered by the Civil Service Relief Act. Romero,

supra, at 1211.

Dr. Weber was appointed under Title 38 and

“

was discharged based on a recommendation of a

summary review board. After receiving a favorable

decision from the district court holding that the

discharge was not in accord with law Dr. Weber filed

a Back Pay Act claim. Weber, 521 F3d at 1064-1065.

The Ninth Circuit held that the district court did not

have jurisdiction under the Back Pay Act.

Mr. Ward was a nurse with the VA, appointed

under Title 38, who was discharged after a review

board recommend his discharge. He sued under the

Back Pay Act for damages. The Second Circuit held

that the Back Pay Act affords the district court

jurisdiction over the claim. Ward, supra.

"The Back Pay Act is the means by which

appointed employees subject to unjustified personnel

action are given a cause of action against the United

States." Ward, at 520. The Back Pay Act provides an

explicit waiver of sovereign immunity. Jd. The Act

provides a federal government employee is entitled to

back pay if "found by appropriate authority under

applicable law, rule, regulation, 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." 5 U.S.C. §

5596(b)(1) and Ward, at 520.

Dr. Weber's claim for back pay falls within the

terms of the Back Pay Act. The district court found

that a federal government agency, the VA, subjected

Dr. Weber to an unwarranted personne! action that

6

resulted in the withdrawal of pay. According to the

Federal Circuit, but not the Ninth Circuit, the district

court is an “appropriate authority" to make Back Pay

Act rulings. Romero v. United States, 38 F.3d 1204,

1211 (Fed.Cir.1994), (holding that a district court is an

“appropriate authority" under the Back Pay Act to

review an agency determination regarding matters not

covered by the Civil Service Relief Act.); Weber, at,

1067.

The Back Pay Act provides Dr. Weber the

necessary waver of sovereign immunity to have his

case heard in federal district court, and as such, the

district court had jurisdiction to hear this case. The

split between the circuits should be resolved.

The purpose of Back Pay Act is to put an

employee who was the victim of an unjustified or

unwarranted personne! action in the same position as

he would have been had the erroneous action not

occurred. Wells v. F.A.A. 755 F.2d 804 (11 Cir.1985)

The Act provides:

An employee of an agency who, on the

basis of a timely appeal or an

administrative determination (including

a decision relating to an unfair labor

practice or a grievance) is found by

appropriate authority under applicable

law, rule, regulation, or collective

bargaining agreement, to have been

affected by an _ unjustified or

unwarranted personnel action which has

7

resulted in the withdrawal or reduction

of all or part of the pay, allowances, or

differentials of the employee—

(i) is entitled, on correction of the

personnel action, to receive for the period

for which the personnel action was in

effect--

(ii) an amount equal to all or any

part of the pay, allowances, or

differentials, as applicable which the

employee normally would have earned or

received during .the period if the

personnel action had not occurred, less

any amounts earned by the employee

through other employment during that

period; and

(ii) reasonable attorney fees

related to the personne! action.

5 U.S.C. § 5596(b)(1). Dr. Weber seeks all

compensation permitted under the Back Pay Act.

The VA's failure to follow its own rules is an

"unwarranted personnel action" and Dr. Weber is

entitled to back pay. The district court ruled that the

VA violated its own rules when it discharged Dr.

Weber in September, 1999, and ruled the agency

action arbitrary, capricious, and not in accordance

with law. (See order and judgment in CV

00-10-H-SEH). An “unwarranted personnel action"

under the Back Pay Act, 5, U.S.C. § 5596 may result

from errors of procedure, not simply those of

substance. Alaniz v. Office of Personnel Management,

8

728 F.2d 1460, 1470 (Fed.Cir. 1984).

In general, where adverse actions are taken by

agencies without providing adverse action procedures,

the action constitutes an “unjustified or unwarranted

personnel action" within the meaning of the Back Pay

Act, and entitles the employee to back pay. Summers

vu. United States, 227 Ct. Cl 353, 648 F2d 1324, 1327

(Ct. Cl. 1981); Bur v. United States, 621 F.2d 415, 416

(1980); Shaposka v. United States, 215 Ct.Cl. 34, 43,

563 F.2d 1013, 1018 (1977); Gratehouse v. United

States, 206 Ct.Cl. 288, 296, 512 F.2d 1104, 1108

(1975), cert. denied, 434 U.S. 955, 98 S.Ct. 480, 54

L.Ed.2d 313 (1977). This is so because of the harmful

procedural error and follows whether or not the

grounds for the adverse action would be sustained on

the merits. Summers, supra, at 1327; Shaposka uv.

United States, supra, 215 Ct.Cl. at 43, 563 F.2d at

1018; Gratehouse v. United States, supra, 206 Ct.Cl. at

296 n.3, 512 F.2d at 1108 n.3.

Where there has been a serious procedural

defect in the prescribed events leading to the

discharge of a Government employee, the employee

may be entitled to the continued benefits of his

employment until he has been terminated in proper

fashion. Ryder v. United States, 585 F.2d 482, 487-88

(Ct.Cl.1978); Shaposka v. United States, 563 F.2d

1013, 1018 (Ct.Cl1.1977). Dr. Weber is entitled to a

decision granting him back pay based on the district

court's judicial review decision that the VA did not

discharge him pursuant to their own rules.

When the district court vacated the summary

review board decision, Dr. Weber was reinstated in

the same capacity he held as of September 13, 1999.

Upon cancellation of unwarranted personnel action an

agency is required to restore employee as nearly as

possible to status quo ante; thus, employee is entitled

to receive whatever rights and/or benefits he would

have had if agency's action had not occurred. Harrison

v. Veterans Admin., M.S.P.B.1990, 44 M.S.P.R. 594.

Merit Systems Protection 524; 5 U.S.C. § 5596, see

also, Kerr v. National Endowment for the Arts, 726

F.2d 730, 733 (Fed.Cir.1984).

United States v. Fausto, 484 U.S. 439, 108 S.Ct.

668, 98 L.Ed.2d 830 (1988), does not preclude Dr.

Weber's Back Pay Act claim for the unwarranted

personnel actions of the VA. Cases cited by Dr. Weber

holding that an agencies failure to follow its own rules

subjects an agency to back pay act claims due to

unwarranted personne! actions, are not abrogated by

Fausto. The holding in Fausto did not state that a

failure to follow agency rules was not an unwarranted

personnel action. Rather, Fausto held that those

employees governed by the Civil Service Reform Act

were limited in their avenues of appeal to the Court of

Claims for the underlying personnel decision. Fausto,

supra, at 4 U.S. 454.

Despite the ruling of the Ninth Circuit, nothing

in Fausto bars Dr. Weber's request for relief in this

case. Dr. Weber is not seeking relief from the Court of

Claims and the Civil Service Reform Act does not

apply to Dr. Weber. In addition, the Civil Service

10

Reform Act in question in Fausto has been amended

to permit review for nonpreference eligible members

of the excepted service. See, Bosco v. US, 931 F2d

879, 883, fn 3 (Fed Cir. 1991), aff'd, 976 F.2d 710, 714

(Fed.Cir.1992).

The court in Bosco, in holding that the Court of

Claims did have jurisdiction to review an employment

decision and award back pay pursuant to the Back

Pay Act stated:

“The Supreme Court did not rule that the CSRA

provided the only means of judicial review of any

actions affecting federal employees, but rather that it

was the only means of review as to the types of

adverse personnel action specifically covered by the

CSRA.”

Id. See Romero v. United States, 38 F.3d 1204, 1211

(Fed.Cir.1994), holding that a district court is an

“appropriate authority" under the Back Pay Act to

review an agency determination regarding matters not

covered by the Civil Service Relief Act.

1]

Just as in Bosco and Romero, Dr. Weber is not

covered at all by the Civil Service Relief Act. Fausto

does not bar Dr. Weber’s Back Pay Act Claim and the

district court is an "appropriate authority” under the

Back Pay Act. The United States Supreme Court

should address the dichotomy between Weber, Ward

and Romero and clarify this area of law.

DATED this 3™ day of July, 2008.

SMITH LAW FIRM, P.C.

By: _s/ Bruce M. Spencer

Bruce M. Spencer

Attorney at Law

12