Weber v Department of Veterans Order Affairs
Filed January 15, 2008,
Amended April 4, 2008

Jurisdiction Issue on Back Pay Judgment Vacated and Remanded

On October 1, 1997, Dr. William Weber was appointed staff radiologist at the Veterans Administration Medical and Regional Center (VAMC) in Fort Harrison, Montana, pursuant to 38U.S.C. section 7401(1). His appointment was later converted to a full-time staff position on December 7, 1997 as mandated by 38U.S.C. sections 7403(b) (1) and (2).

Dr. Weber's appointment was subject to a two-year probationary period and to board review. According to section 7403(b) (2), if the board finds that the appointee is “not fully qualified and satisfactory, the person shall be separated from the service”.

On August 2, 1999, the summary review board convened to review Dr. Weber's appointment. Ten days later, the board issued findings and a recommendation that Dr. Weber be separated from his employment effective September 13, 1999. Although, no single incident warranted separation, the board decided that in entirety, Dr. Weber's pattern of behavior warranted separation.

As a result, Dr. Weber filed a complaint in the district court for the District of Montana, seeking judicial review of the board's recommendation to separate him. Dr. Weber complained about the following:

• that his separation should be set aside because the board failed to follow VA regulations


• that some matters presented to the summary review board were not included in the notice of summary review sent to him.

However, without reaching a decision on the merits of the review board decision, the district court agreed that the board failed to comply fully with the notice requirements. The court also 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.

On June 3, 2004, the VA reinstated Dr. Weber but immediately placed him on administrative leave with pay.

The VAMC also convened a new summary review board, which again recommended that Dr. Weber be separated from his employment. On December 6, 2005, Dr. Weber was again discharged by the VAMC.

Dr. Weber filed a complaint in the district court for the District of Montana against the VA and Anthony J. Principi, the Secretary of Veterans Affairs (collectively, VA), claiming he was entitled to back pay and benefits under the Back Pay Act (BPA), 5U.S.C. § 5596, for the period between September 13, 1999, and June 3, 2004.

He also moved for summary judgment claiming that 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 complaint 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.

The district court denied Dr. Weber's summary judgment motion and granted the VA's motion to dismiss Dr. Weber's BPA claim. According to the court, 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.

The court therefore found that its decision in Weber I has no basis for a BPA claim. The court further stated that its review of the record revealed overwhelming evidence that the summary review board was justified in separating Dr. Weber.

Dr. Weber filed an appeal, claiming 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.

In review, the Ninth Circuit court of appeal asserted that 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. (14 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure section 3655 ( third edition 1998).

Dr. Weber however argued that the Administrative Procedure Act (APA), 5U.S.C. § 701-706, and the BPA, 5U.S.C. section 5596(b)(1), gave the district court jurisdiction over his back pay claim.

The VA challenged the assertion, arguing the district court lacked jurisdiction under either act, which the appeals court sustained.

According to the court, 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." 5U.S.C. section 702 (emphasis added).

Further, the court said the APA did not allow the district court with jurisdiction on the issue based on the following reasons:

• back pay, as a claim for money damages, falls outside the scope of the APA. (Ward v. Brown, 22 F.3d 516, 520 (2d Cir. 1994)


• the comprehensive statutory scheme for the Veterans Health Administration (VHA) does not permit judicial review of Dr. Weber's claims.

Further, the court held that the APA does not provide a basis for Dr. Weber to assert his BPA claim, like the statutory scheme analyzed in Fausto, Title 38 of the United States Code, which governs the appointment and employment terms of VA physicians.

Further, the appeals court ruled that the district court, like the Claims Court in Fausto, was not an "appropriate authority" when it made its determination.

The Ninth District court of appeals therefore concluded that 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 resolve whether the district court properly asserted subject matter jurisdiction in Weber I.