UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MASOOD N. KHAN,
Plaintiff-Appellant,
v.
No. 00-2450
TOGO D. WEST, JR., Secretary of
Department of Veteran Affairs,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(CA-99-186-3-V)
Argued: April 5, 2001
Decided: May 7, 2001
Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and
Patrick M. DUFFY, United States District Judge for the
District of South Carolina, sitting by designation.
Reversed by unpublished per curiam opinion.
COUNSEL
ARGUED: Louis L. Lesesne, Jr., LESESNE & CONNETTE, Char-
lotte, North Carolina, for Appellant. James Michael Sullivan, Assis-
tant United States Attorney, Charlotte, North Carolina, for Appellee.
ON BRIEF: Mark T. Calloway, United States Attorney, Charlotte,
North Carolina, for Appellee.
2 KHAN v. WEST
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Plaintiff Masood Khan is a permanent employee of the United
States Department of Veterans Affairs ("VA"). In this case, Khan
sought a declaration that his previous service as a temporary VA
employee satisfied the two-year probationary period required of all
permanent VA employees under 38 U.S.C. § 7403. The district court
ruled against Khan on the grounds that such an interpretation of Sec-
tion 7403 would yield absurd results. See Khan v. West, 122 F. Supp.
2d 596 (W.D.N.C. 2000). Because a plain reading of the statutory text
indicates that Khan has already served his probationary period, we
must reverse the judgment.
I.
Beginning in 1983, Dr. Masood Khan was employed as a physician
by the United States Department of Veterans Affairs ("VA"). Khan
served at the VA Medical Center in Salisbury, North Carolina. Prior
to 1996, Khan was not a United States citizen. Therefore, his employ-
ment was on a full-time temporary (year-to-year) basis pursuant to 38
U.S.C. §§ 7405 and 7407. In 1994, the VA did not renew Khan’s
employment contract. In response, Khan initiated a claim of discrimi-
nation based on race, religion, and national origin under § 717 of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. Khan pre-
vailed in a subsequent administrative proceeding when the VA issued
a final agency decision holding that Kahn was the victim of illegal
discrimination. Pursuant to this decision, the VA notified Khan that
he was permanently assigned to work as a cardiologist in the VA
facility in Walla Walla, Washington. Khan had become an American
citizen in 1996, and he was therefore eligible for permanent employ-
ment. However, Khan initiated this lawsuit because he sought to
remain at a VA facility in North Carolina.
KHAN v. WEST 3
The parties resolved this dispute by entering into a Settlement
Agreement on February 9, 2000. Under the terms of the Agreement,
the VA was to appoint Khan to a full-time permanent position of Staff
Physician at the VA facility in Salisbury, North Carolina. This
appointment was effective as of February 13, 2000. Under the Settle-
ment Agreement, the VA also was to give Khan "credit for his tempo-
rary service as if his employment had never been interrupted from
July 31, 1983 through the effective date of his full-time appointment,
to wit: February 13, 2000."
Following his reinstatement, the VA notified Khan that he was sub-
ject to completion of a two-year probationary period, beginning Feb-
ruary 13, 2000. The VA informed Khan that this probationary period
was required of all permanent VA employees pursuant to 38 U.S.C.
§ 7403. Khan claimed, however, that his previous service as a tempo-
rary employee satisfied Section 7403’s probationary requirement.
Khan sought a declaration from the district court that the VA had vio-
lated the terms of the Settlement Agreement by subjecting him to
what was, in his view, an additional probationary period.
The district court agreed that the plain language of Section 7403
seemed to recognize Khan’s previous service for purposes of the pro-
bationary period. See Khan, 122 F. Supp. 2d at 598. However, the
court held that because such a reading of Section 7403 would yield
an absurd result, it would deny Khan’s motion. Id. Khan now appeals.
II.
Section 7403 creates a two-year probationary period for certain VA
employees. See 38 U.S.C. § 7403.1 Section 7403 states that the proba-
1
38 U.S.C. § 7403 states, in relevant part:
(a)(1) Appointments under this chapter of health-care profession-
als to whom this section applies may be made only after qualifi-
cations have been satisfactorily established in accordance with
regulations prescribed by the Secretary, without regard to civil-
service requirements.
(2) This section applies to the following persons appointed under
this chapter:
4 KHAN v. WEST
tionary period applies to physicians, among others, who are "ap-
pointed under this chapter." 38 U.S.C. § 7403(a)(2), (b)(1). The
"under this chapter" language in Section 7403(a)(2) refers to Chapter
74 of Title 38, of which Section 7403 is a part. Khan was appointed
under 38 U.S.C. §§ 7405 and 7407, both of which are also part of
Chapter 74. Therefore, a plain reading of the statute indicates that
Section 7403 and its accompanying probationary period applied to
Khan’s service as a temporary employee. Accordingly, Khan has long
ago concluded his probationary period as a result of his seventeen
years of temporary employment.
The VA contends that this reading of Section 7403 is incorrect. The
VA does not argue that its interpretation of Section 7403 is due defer-
ence under Chevron, U.S.A., Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U.S. 837 (1984). Rather, the VA presents a textual
argument that Section 7403 only applies to permanent employees.
Section 7403 itself in no way differentiates between permanent and
temporary employees. However, the VA contends that Section 7401,
which provides for the appointments of certain VA physicians,2 is
(A) Physicians.
(B) Dentists.
(C) Podiatrists.
(D) Optometrists.
(E) Nurses.
(F) Physician assistants.
(G) Expanded-function dental auxiliaries.
(b)(1) Appointments described in subsection (a) shall be for a
probationary period of two years.
38 U.S.C. § 7403.
2
38 U.S.C. § 7401 states, in relevant part:
There may be appointed by the Secretary such personnel as
the Secretary may find necessary for the medical care of veterans
(in addition to those in the Office of the Under Secretary for
Health appointed under section 7306 of this title), as follows:
KHAN v. WEST 5
limited to permanent employees. Even assuming this to be true, the
language of Section 7403 is not limited to employees appointed under
Section 7401. Rather, by its very terms, Section 7403 applies to all
physicians "appointed under this chapter." See 38 U.S.C.
§ 7403(a)(2). While Khan may have been appointed under Section
7405 rather than Section 7401, both sections fall under Chapter 74.
Therefore, Section 7403’s probationary period began to run when
Khan was first appointed under Section 7405.
Finally, while it may seem odd to require temporary employees to
serve a two-year probationary period, interpreting Section 7403 in this
way does not yield an absurd result. In fact, the statute might have
been designed to apply to situations exactly like this one — namely,
where a long-serving temporary employee is promoted to permanent-
employee status. In such cases, Congress may have concluded that an
additional two-year probationary period would be unnecessary since
the temporary employee would have already served for an extended
period under the VA’s supervision. In all events, we shall apply the
statute as Congress wrote it.
III.
For the foregoing reasons, the judgment of the district court is
REVERSED.
(1) Physicians, dentists, podiatrists, optometrists, registered
nurses, physician assistants, and expanded-function dental auxil-
iaries.
38 U.S.C. § 7401.