Weber v. Department of Veterans Affairs
Filed January 15, 2008
Cite as 06-35522

Jurisdiction Issue on Employee’s Back Pay Claims Vacated and Remanded

Dr. William Weber was temporarily appointed staff radiologist at the Veterans Administration Medical and Regional Center (VAMC) in Fort Harrison, Montana. On December 7, 1997, the VAMC converted the position to a full-time staff level.

But according to law, Weber’s appointment was subject to a two-year probationary period and to board review, as mandated by 38 U.S.C. §7403(b)(1) and (2). The statutes provide that probationary employees are subject to periodic review and that, if the board does not find an employee to be qualified and satisfactory, he will be terminated.

A summary review board reviewed Weber’s appointment and found that Weber exhibited a pattern of behavior that warranted separation.

Following that, Weber sued the Department of Veterans Affairs and asked for a judicial review. He alleged the Department failed to follow pertinent regulations.

In ruling, the district court remanded to the department for further proceedings.

As a result, the department reinstated Weber but immediately placed him on administrative leave with pay. A new summary board was convened. The new board recommended Weber be separated and the VAMC discharged Weber.

As this developed, Weber filed another suit against the Department, claiming entitlement to back pay.

The district court granted a motion by the Department to dismiss the back pay claim. The court found that its decision in the prior suit was limited to a narrow procedural issue and did not relate to issues of back pay.

Weber filed an appeal.

On review, the Ninth Circuit court of appeals vacated the district court’s decision, holding that the lower court lacked jurisdiction to adjudicate the back pay claim.

Weber contended two issues:

• that the Administrative Procedure Act (APA) gave the district court jurisdiction, which the court of appeals found disagreeable.


• that the Back Pay Act provided the necessary waiver of sovereign immunity for the district court to hear his back pay claim. Again, the court was not persuaded.

Under the Back Pay Act, at 5 U.S.C. §5596(b)(1), the requirements to invoke jurisdiction under the BPA include: a finding of an unjustified or unwarranted personnel action by an “appropriate authority.”

In rejecting the Weber’s argument, the appeals court noted 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, which can done under the following instances:

• A person attempting to sue a federal agency or officer must demonstrate that the claim being asserted is covered by a specific statutory authorization to sue the United States.


• Under the APA, at 5 U.S.C. §702, federal sovereign immunity is waived for suits against the federal government in which the plaintiff is seeking relief other than money damages.

Thus, the court wrote, the APA did not vest the district court in this case with jurisdiction, based on the following grounds:

• First, back pay, as a claim for money damages, falls outside the scope of the APA.


• Second, the comprehensive statutory scheme for the Veterans Health Administration did not permit judicial review of Weber’s claims.

To illustrate the point, the appeals court referred to another back pay claim, in United States v. Fausto, 484 U.S. 439 (1988) in which the Supreme Court determined that the comprehensive statutory scheme set forth in the Civil Service Reform Act (CSRA) did not provide for judicial review for the actions taken against members of the excepted service, such as Fausto.

In the said case, the appeals court noted, the Supreme Court found that the provisions establishing administrative and judicial review for personnel action of the sort at issue in that case prevented Fausto from seeking review in the Federal Claims Court under the Back Pay Act.

Further, the appeals court also found that Title 38 of the United States Code is similar to the statutory scheme described in Fausto. Like the CSRA, Title 38 provides a comprehensive regulatory scheme for employees of the VA.

On the second issue under contention, the appeals court found that the district court was not such an “appropriate authority.” The determination by the summary review board in this case was only an interim step in a multi-level decision process. Thus, Weber’s only recourse was within his agency, not with the district court.

Finally, the court also rejected a contention that Weber had a liberty interest under the Due Process Clause in seeing that the summary review board complied with notice requirements. Weber failed to raise this claim before the district court, and no exceptional circumstances justified that failure.

The Ninth Circuit appeals court therefore found that district court did not err in concluding that:

• Administrative Procedure Act did not waive federal sovereign immunity and vest it with jurisdiction over Weber’s claim for back pay and benefits under Back Pay Act after the judgment of summary review board improperly separated him from employment without providing adequate notice


• That the back pay--as a claim for money damages--falls outside of scope of APA, and comprehensive statutory scheme for employees of the VHA in Title 38 of U.S. Code does not provide for judicial review of decisions of summary review boards for probationary employees. Thus, the Back Pay Act did not provide necessary waiver of sovereign immunity for district court to hear plaintiff’s back pay claim.

The Ninth Circuit court of appeals therefore vacated a district court judgment, remanding for further action.