UNITED STATES COURT OF APPEALS
Filed 9/19/96
FOR THE TENTH CIRCUIT
TERRY W. BATES,
Plaintiff-Appellant,
v. No. 95-5183
(D.C. No. 94-C-902-B)
MARVIN T. RUNYON, Postmaster (N.D. Okla.)
General,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, ** District
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
Honorable G. Thomas Van Bebber, Chief Judge, United States District
Court for the District of Kansas, sitting by designation.
Plaintiff Terry Bates filed this suit against the United States Postal Service
(USPS), alleging discrimination based on disability under the Rehabilitation Act,
29 U.S.C. § 791, and violation of the “preference eligible” provision of the
Veterans’ Preference Act, 5 U.S.C. § 3310. The district court granted summary
judgment to the USPS on the discrimination claim, and dismissed Mr. Bates’
Veterans' Preference Act claims under Fed. R. Civ. P. 12(b)(6) for failure to state
a claim upon which relief could be granted. Mr. Bates does not challenge the
grant of summary judgment on the discrimination claim, and therefore, the only
issue before this court on appeal is the district court’s Rule 12(b)(6) dismissal of
Mr. Bates’ Veterans’ Preference Act claim.
The “preference eligible” provision of the Veterans’ Preference Act, 5
U.S.C. § 3310, states that “[i]n examinations for positions of guards, elevator
operators, messengers, and custodians in the competitive service, competition is
restricted to preference eligibles as long as preference eligibles are available.”
Mr. Bates, a rural carrier associate with the USPS, applied for the position of
custodian. He was not selected, and the position was filled by a current,
nonveteran employee. As a veteran and a preference eligible, Mr. Bates alleged
that reassigning current, nonveteran employees to three custodian positions that
were vacant at the time he applied for the position was in violation of § 3310.
The USPS sought dismissal on the grounds that § 3310 applies only to
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“competition in examination” for the positions, and does not restrict the employer
from reassigning current employees, who are not preference eligibles, to the
positions.
The district court agreed, citing 5 C.F.R. § 330.403 which provides for
appointment of nonpreference eligible persons to restricted positions in particular
types of cases as determined by the Office of Personnel Management and
published in the Federal Personnel Manual. As represented by the USPS in its
motion to dismiss, the Federal Personnel Manual, paragraph 4-3 states in relevant
part:
The restriction in 5 U.S.C. 3310 applies only to competition in
examinations for entrance into the service, that is, to competitive
examinations. . . .
An agency may fill a restricted position with a nonveteran in one of
the following ways without reference to the availability of preference
eligibles.
(1) By position change (demotion, promotion, or
reassignment) to a position in the organizational entity
in which the nonveteran is employed or to a position
anywhere which is covered by the same generic title as
the one in which he is serving.
See Appellant’s App. at 15-16 (footnotes omitted).
The district court found that the regulation clearly established that § 3310
applied only to competition in examination, and that the USPS could fill the
custodian positions by reassignment of nonpreference eligible persons. The court
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concluded that Mr. Bates had failed to state a claim under the Veterans’
Preference Act upon which relief could be granted and dismissed his claim with
prejudice.
“We review the dismissal of a complaint for failure to state a claim de
novo.” Riddle v. Mondragon, 83 F.3d 1197, 1201 (10th Cir. 1996). A complaint
should not be dismissed for failure to state a claim unless it is clear that the
plaintiff could prove no set of facts which would support his claim. Id. “‘A court
reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the
plaintiff.’” Id. at 1202 (quoting Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
1991)).
On appeal, Mr. Bates contends that § 3310 was intended to restrict all
appointments to the positions of guards, elevator operators, messengers, and
custodians exclusively to preference eligibles as long as preference eligibles are
available. He argues that the legislative history of the Veterans’ Preference Act
supports his contention, and that, insofar as the “federal regulations provide
otherwise, they are a nullity.” Appellant’s Br. at 7.
The USPS argues that § 3310 applies only to competition in examinations,
and does not restrict the named positions to preference eligibles exclusively. In
support, it asserts that this interpretation is borne out by the USPS Handbook
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EL-311, April 1990, section 262.1, Filling Reserved Positions, which states that
the restrictions to preference eligibles under the Veterans’ Preference Act applies
“only to competition in examinations for entrance into the Postal Service.”
Appellees’ Br. at 5.
The Veterans’ Preference Act was enacted in 1944 in order to give wartime
and disabled veterans preferential consideration for certain jobs and for retention
in the event of a reduction in force. See generally Mitchell v. Cohen, 333 U.S.
411, 418-21 (1948). Our interpretation of a statute begins with the plain meaning
of the words. See United States v. McCullah, 76 F.3d 1087, 1108 (10th Cir.
1996). “[I]f the words of the statute are unambiguous, our inquiry ends.” Id.
Here, Mr. Bates attempts to read more into the statute than its plain meaning
imparts.
Contrary to Mr. Bates’ assertion, the legislative history of the Veterans’
Preference Act does not reveal a congressional intent which is different from the
statute’s plain meaning. Moreover, judicial interpretation clearly establishes that
veterans’ preference does not apply to an employee’s transfer or other intra-
agency movement. See Glenn v. United States Postal Serv., 939 F.2d 1516, 1521-
22 (11th Cir. 1991)(holding that veterans’ preference does not apply to transfers);
Qualls v. United States, 678 F.2d 190, 196-97 (Ct. Cl. 1982)(holding that
veterans’ preference is only applicable “in connection with an initial appointment
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to the federal service or in connection with a reduction-in-force”); Stephens v.
Coleman, 712 F. Supp. 1571, 1581-82 (N.D. Ga. 1989)(holding veterans’
preference does not apply to internal agency promotions), aff’d, 901 F.2d 1571
(11th Cir. 1990).
Because Mr. Bates was a current USPS employee who was denied
preference for an internal agency reassignment, nothing in the statute gives him a
federal cause of action. Therefore, the court was correct to dismiss his action as
failing to state a redressable claim, and the judgment of the United States District
Court for the Northern District of Oklahoma is AFFIRMED.
Entered for the Court
G. Thomas Van Bebber
District Judge
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