Durr v. Shinseki

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-11490 APR 19, 2011
JOHN LEY
________________________ CLERK

D.C. Docket No. 8:09-cv-00663-RAL-MAP

JACQUES A. DURR,
M.D.

lllllllllllllllllllll Plaintiff - Appellant,

versus

ERIC K. SHINSEKI,
M.D., Secretary, Department of Veterans Affairs,

lllllllllllllllllllll Defendant - Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(April 19, 2011)

Before TJOFLAT, CARNES and HILL, Circuit Judges.

CARNES, Circuit Judge:
 This appeal brings us an issue arising from the statutory regime that governs

part of the employment system in the Department of Veterans Affairs. The issue is

whether the two-year probationary period laid out at 38 U.S.C. § 7403 applies to a

temporary, at-will VA physician appointed under 38 U.S.C. § 7405. The

appellant, Dr. Jacques Durr, contends that it does, relying on the plain language in

§ 7403. Taken as literally as he would have us read it, however, that language

would lead to an absurd result, and the law tries to avoid absurd results.

I.

We begin, as courts always should in matters involving statutory

interpretation, with the statutory language.

A.

Appointments of physicians in the VA system are made under one of two

statutory provisions. One of them, 38 U.S.C. § 7405(a)(1)(A), governs temporary

appointments, whether they are full-time or part-time, and whether they are with or

without compensation. The other provision, 38 U.S.C. § 7401(1), governs all

permanent appointments of physicians,1 which are subject to a two-year

1
We use the term “permanent” to describe appointments under § 7401(1) although we
recognize that during the first two years of employment, a § 7401(1) appointee is not truly
permanent because he or she is still subject to the probationary period. Nevertheless, the term is
useful for distinguishing between appointments under § 7401(1), which may become permanent
if the probationary period is successfully completed, and those under § 7405, which are only
temporary.

2
probationary period set out in 38 U.S.C. § 7403(b). During that two-year period, a

board reviews the record of each probationary physician, and if it determines that

the physician is not “fully qualified and satisfactory,” he or she is terminated. 38

U.S.C. § 7403(b)(2) (2007).2 A physician who receives a permanent appointment

and has successfully completed the two-year probationary period has substantially

more job protection than one who is still on probation. See VA Handbook 5021/5,

Part V, Ch.1, ¶ 1.

B.

Dr. Jacques Durr, a native of Switzerland, is a physician and a board-

certified specialist in nephrology and internal medicine. He first began working

for the VA System in 1985 in Denver, Colorado. At that time his work was done

under a general contract between the VA and the University of Colorado School

of Medicine, where he was a professor. From 1989 to 1992, Dr. Durr was a part-

time employee of the Denver VA Hospital, and in 1992 he was appointed to a full-

2
Congress has recently amended 38 U.S.C. §§ 7403 & 7405, in part to provide for a new
category involving part-time nurses. See Caregivers and Veterans Omnibus Health Services Act
of 2010, Pub. L. No. 111-163, § 601, 124 Stat. 1130, 1167–69 (2010). Those amendments are
irrelevant to the issue before us, except that they have caused certain statutory provisions we are
discussing to be reworded in immaterial ways or renumbered. For example, 38 U.S.C. §
7403(b)(2) (2007) has been renumbered § 7403(b)(4), although its content has not changed.
Because the law as it stood in 2007 is applicable to this case, where necessary we include a
parenthetical to 2007 to indicate that we are considering the older wording and/or numbering of
§§ 7403 and 7405.

3
time position with the Bay Pines VA Healthcare System in Bay Pines, Florida.

Because he was not a citizen of the United States, Durr was ineligible for an

appointment as a physician under 38 U.S.C. § 7401(1). See 38 U.S.C. § 7402(c).

He received instead a temporary appointment as a full-time physician under 38

U.S.C. § 7405(a)(1)(A). Durr remained a temporary appointee between 1992 and

November of 2006.

In June 2006 Dr. Durr became a United States citizen, making him eligible

for a § 7401(1) appointment as a physician. That August, the Chief of Medicine at

Bay Pines completed a “Request for Personnel Action” form, requesting that

Durr’s employment status be converted from a § 7405 temporary appointment to a

permanent appointment under § 7401(1). That request led to a meeting on

November 1, 2006, of the Bay Pines “Professional Standards Board,” which

recommended converting Durr’s employment status “to [a] full-time permanent

appointment under 38 U.S.C. [§] 7401(1).” The Director of Bay Pines signed off

on the recommendation the following day, November 2, 2006, and Human

Resource officers in the VA formally approved the “Request for Personnel

Action” form on November 13, 2006. That form contains a handwritten note that

4
specifies: “Appointment is subject to two years probationary period beginning 11-

12-06,” and it lists “11-12-06” as its “Effective Date.”3

In October 2008 Durr received his first “unsatisfactory” overall evaluation.

That evaluation prompted the chief of staff and the chief of medicine at Bay Pines

to initiate a “summary review” procedure, which is used to evaluate §7401(1)

appointees while they are completing the probationary period required under §

7403(b)(1). The review procedure ended unhappily for Durr — the VA formally

terminated him effective November 7, 2008.

Dr. Durr appealed his termination to a VA Disciplinary Appeals Board.

The Board concluded, however, that it lacked jurisdiction over the appeal,

reasoning that because Durr was still a probationary employee when he was

terminated, he had no right to appeal.4 The Board noted in its decision that Durr’s

probationary period had started on November 12, 2006, but that his termination

was effective November 7, 2008, a few days shy of two years.

3
The parties dispute at precisely which stage in this chain of bureaucratic procedure and
paperwork Durr’s § 7401(1) appointment became effective. We discuss that issue in Part IV
below.
4
The relevant chapter of VA rules governing Disciplinary Appeals Boards and the internal
appeals process states: “This chapter applies to Department of Veterans Affairs (VA) employees
holding a full-time, permanent appointment under 38 U.S.C. 7401(1) who have satisfactorily
completed the probationary period required by 38 U.S.C. 7403(b).” VA Handbook 5021/5, Part
V, Ch.1, ¶ 1.

5
 Dr. Durr then filed this action in district court, seeking judicial review of the

Disciplinary Appeals Board’s decision and a writ of mandamus ordering the VA to

provide him with an appeal to, and a hearing before, the Board. He did not contest

the Board’s understanding that probationary appointees did not have any right of

appeal to it, but he contended that the Board had erred in determining that he was

still a probationary employee at the time of his discharge, and should instead have

found that he had satisfied the probationary period of §7403(b)(1) during his years

of service as a temporary employee under § 7405(a)(1)(A). If he was right about

that, the Disciplinary Appeals Board had wrongly determined that it lacked

jurisdiction over his appeal. The district court rejected Durr’s contention that he

had completed his two-year probationary period, denied his motion for summary

judgment, and instead granted summary judgment for the VA.

In his appeal to us Dr. Durr again contends that during his fourteen years of

service as a temporary appointee under § 7405(a)(1)(A) he satisfied the two-year

probationary period required by § 7403(b)(1). In the alternative, he argues that

even if that probationary period did not begin to run until his 2006 appointment as

a permanent physician under § 7401(1), that appointment occurred and the running

of the probationary period began on November 2, 2006. That is the date when the

Director of Bay Pines approved the recommendation of the Professional Standards

6
Board to convert Durr’s status to a § 7401(1) appointment. The VA disagrees,

asserting that the permanent appointment did not become effective and the

probationary period that accompanies it did not start running until November 12,

2006, which is the date specified on the VA’s “Request for Personnel Action”

form. If Durr is correct about the effective date of the appointment, his

probationary period ended on November 2, 2008, five days before his termination

became effective; if the VA is correct, it did not end before he was terminated on

November 7, 2008.

II.

We review de novo the grant of summary judgment, Equity Inv. Partners,

LP v. Lenz, 594 F.3d 1338, 1342 (11th Cir. 2010), applying the same substantive

law as the district court. Because Durr’s complaint seeks judicial review of the

decision of a VA Disciplinary Appeals Board, we, like the district court, are

limited in our review by 38 U.S.C. § 7462(f). That subsection provides that a

court may set aside the judgment of a Disciplinary Appeals Board only if it

determines the judgment is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; obtained without procedures required by

law, rule, or regulation having been followed; or unsupported by substantial

evidence.” 38 U.S.C. § 7462(f)(2)(A)–(C).

7
 III.

A.

Dr. Durr’s primary argument centers on the plain language of 38 U.S.C. §

7403, which sets out a two-year probationary period for physicians and other types

of VA healthcare professionals. That statute provides in relevant part:

(a)(1) Appointments under this chapter of health-care professionals to
whom this section applies may be made only after qualifications 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:
(A) Physicians.
***
(b)(1) Appointments described in subsection (a) shall be for a
probationary period of two years.

38 U.S.C. § 7403 (2007). Durr lays particular stress on the phrase “under this

chapter,” arguing that the phrase obviously refers to Title 38, Chapter 74, and he

points out that both §§ 7401 and 7405 are part of Chapter 74. On that foundation

rests Durr’s argument that under the plain language of 38 U.S.C. § 7403, the

probationary period applies to all appointments of physicians under Chapter 74, §

7405(a)(1)(A) temporary appointments as well as §7401(1) permanent ones. It

follows, Durr insists, that his 14 years of service between 1992 and 2006 as a

temporary appointee satisfied § 7403’s probationary period because he was subject

8
to, and fully served out, the two-year probationary period during those years. So,

the argument goes, when Durr became a United States citizen in 2006 and

received his §7401(1) permanent appointment that November, he was not subject

to a new probationary period but automatically became a permanent employee; his

two-year probationary period having ended twelve years before. If all of that is

correct, then the VA’s Disciplinary Appeals Board was wrong to conclude that it

lacked jurisdiction over his appeal on the ground that he had not completed his

probationary period at the time he was let go.

B.

The VA stresses that Dr. Durr’s interpretation of § 7403 is inconsistent with

its own longstanding administrative interpretation of the statutory regime

governing its personnel system. The VA has a clear, established policy of not

applying the probationary period set out in § 7403(b)(1) to temporary

appointments under § 7405, and for that reason does not credit temporary service

under § 7405 toward the two-year probationary period required of an employee

who is given a permanent appointment under § 7401(1).

That VA policy is not, however, laid out in formal regulations. It is,

instead, reflected in various personnel handbooks. For example, while the chapter

of VA Handbook 5021/6 titled “Title 38 Probationary Employees” states that the

9
category of “probationary employees” includes “employees appointed under 38

U.S.C. [§] 7401(1), i.e., physicians,” it also makes clear that “[t]his chapter does

not apply to employees appointed under . . . 38 U.S.C. [§] 7405.” VA Handbook

5021/6, Part III, Ch. 1, ¶ 1. Likewise, when VA Handbook 5005/7 describes the

service that can be credited toward completion of the probationary period, it

includes “[c]ontinuous service in an appointment under 38 U.S.C. [§§] 7401(1) or

7306,” but it does not include service in an appointment under § 7405. See VA

Handbook 5005/7, Part II, Ch. 3, § F, ¶ 3(d).

The VA argues that its interpretation of the statutory framework, as

reflected in those handbooks, is entitled to deference under Chevron, U.S.A., Inc.

v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 843–44, 104 S.Ct.

2778, 2782 (1984). Alternatively, it argues that if we find Chevron deference does

not apply, its interpretation is still entitled to “respect” under Skidmore v. Swift,

323 U.S. 134, 140, 65 S.Ct. 161, 164 (1944) (“We consider that the rulings,

interpretations and opinions of the Administrator under this Act, while not

controlling upon the courts by reason of their authority, do constitute a body of

experience and informed judgment to which courts and litigants may properly

resort for guidance.”)

10
 In Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1665, 1662

(2000), the Supreme Court stated that ordinarily “policy statements, agency

manuals, and enforcement guidelines, all of which lack the force of law [] do not

warrant Chevron-style deference.” Christensen, however, was based in part on the

fact that the agency opinion letter in that case was not the result of “a formal

adjudication or notice-and-comment rulemaking.” Id., 120 S.Ct. at 1662. Relying

on both that decision and United States v. Mead Corp., 533 U.S. 218, 229–30, 121

S.Ct. 2164, 2172–73 (2001), this Circuit has applied Chevron level deference to an

agency handbook when Congress has authorized an agency to “issue regulations

that have the force of law” and the agency’s handbook has been subject to notice-

and-comment rulemaking, Miccosukee Tribe of Indians of Fla. v. United States,

566 F.3d 1257, 1273 (2009).

Congress has authorized the VA to issue regulations prescribing “the hours

and conditions of employment” of its healthcare employees, including physicians.

38 U.S.C. § 7421. And the parts of Handbook 5021/6 that we have quoted,

including the statement that the chapter describing probationary employees “does

not apply to employees appointed under . . . 38 U.S.C. [§] 7405,” was published in

the Federal Register. See VA Directive and Handbook 5021, 71 Fed. Reg. 2615,

2616 (Jan. 17, 2006). That publication, however, was in the context of seeking

11
notice and comment on proposed revisions to the Handbook that resulted from the

inclusion of chiropractors as permanent full-time employees under 38 U.S.C. §

7401(1). We also note that one of our sister circuits has concluded that only

Skidmore deference was owed to another of the VA’s personnel handbooks,

Handbook 5111. In James v. Von Zemenszky, 284 F.3d 1310 (Fed. Cir. 2002), the

Court observed:

[The VA] has not issued a comprehensive set of regulations
implementing the VHA personnel provisions in title 38. Instead, [the
VA] has set forth its interpretation of the title 38 personnel provisions
in the form of manuals, directives, and handbooks such as Directive
5111 and Handbook 5111. Because Directive 5111 and Handbook
5111 are akin to interpretations contained in policy statements,
agency manuals, and enforcement guidelines, they are not entitled to
Chevron deference. Instead, they are accorded a lesser degree of
deference proportional to [their] power to persuade.

Id. at 1318–19 (last alteration in original) (citations and quotation marks omitted).

We need not decide whether the parts of the VA’s personnel handbooks that

we are considering are entitled to full Chevron deference or simply to Skidmore

deference because the difference between those two measures of deference makes

no difference to the outcome in this case. For that reason, we will assume that

only Skidmore deference is due. Under that assumption, while the specific

handbook provisions we are considering here are “not controlling . . . by reason of

their authority,” they “do constitute a body of experience and informed judgment

12
to which courts and litigants may properly resort for guidance.” Skidmore, 323

U.S. at 140, 65 S.Ct. at 164.

C.

In making his argument about the plain language of 38 U.S.C. § 7403, Dr.

Durr relies chiefly on the many decisions from this Court where we have begun

and ended our statutory construction with just that, the plain language. For

example, in CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217 (11th Cir.

2001), we summarized:

This Court has repeatedly stated that “[w]e begin our construction of
[a statutory provision] where courts should always begin the process
of legislative interpretation, and where they often should end it as
well, which is with the words of the statutory provision.” We have
also said just as frequently that “[w]hen the import of words Congress
has used is clear . . . we need not resort to legislative history, and we
certainly should not do so to undermine the plain meaning of the
statutory language.” In other words, “[w]hen the words of a statute
are unambiguous, then, this first canon [of statutory construction] is
also the last: judicial inquiry is complete.” The rule is that “we must
presume that Congress said what it meant and meant what it said.”

Id. at 1222 (alterations in original) (citations omitted).

We fully stand by that decision, but in it we also made clear that “courts

may reach results inconsistent with the plain meaning of a statute ‘if giving the

words of a statute their plain and ordinary meaning produces a result that is not

just unwise but is clearly absurd.’” Id. at 1228 (quoting Merritt v. Dillard Paper

13
Co., 120 F.3d 1181, 1188 (11th Cir. 1997)). The rationale for that exception is

this: “Because the legislature is presumed to act with sensible and reasonable

purpose, a statute should, if at all possible, be read so as to avoid an unjust or

absurd conclusion.” In re Graupner, 537 F.3d 1295, 1302 (11th Cir. 2008)

(quotation marks omitted); see also Miedema v. Maytag Corp., 450 F.3d 1322,

1326 (11th Cir. 2006) (applying the “venerable” principle that “statutory language

should not be applied literally if doing so would produce an absurd result”

(quotation marks omitted)).

Moreover, in construing a statute, “[w]e do not look at one word or term in

isolation, but instead we look to the entire statutory context.” United States v.

DBB, Inc., 180 F.3d 1277, 1281 (11th Cir. 1999) (citing United States v.

McLemore, 28 F.3d 1160, 1162 (11th Cir. 1994); see also In re Int’l Admin. Servs.

Inc., 408 F.3d 689, 707 n.7 (11th Cir. 2005) (“It is a fundamental canon of

statutory construction that the words of a statute must be read in their context and

with a view to their place in the overall statutory scheme.” (quotation marks

omitted)). Not only that, but “[i]n expounding a statute, we must not be guided by

a single sentence or member of a sentence, but look to the provisions of the whole

law, and to its policy.” Colortex v. Richardson, 19 F.3d 1371, 1375 (11th Cir.

1994) (quotation marks omitted).

14
 We are convinced that this case presents one of the rare situations where the

plain language of a statute, at least where read in isolation, yields a result that is

both absurd and completely at odds with the entire statutory context in which the

language is found. “[U]nder this chapter,” as that phrase is used in 38 U.S.C. §

7403(a)(1) and (a)(2), cannot possibly refer to appointments under 38 U.S.C. §

7405, even though § 7405 is part of the same chapter.

Under the statute, a permanent employee who is still within the probationary

period may be let go only if a summary review board finds that the person “is not

fully qualified and satisfactory.” 38 U.S.C. § 7403(b)(2) (2007). By contrast, a

temporary, at-will employee does not have even that much statutory protection and

may be let go without so much as a summary proceeding and even if he is “fully

qualified and satisfactory.” See VA Handbook 5021/3, Part VI, ¶ 15. Insofar as

the VA statutes are concerned, because a temporary employee serves at will, he

may be let go for a good reason, a bad reason, or no reason at all.5 It would be

oxymoronic and absurd to conclude that a temporary, at-will employee has the

5
We say “insofar as the VA statutes are concerned” because other statutes provide that no
employee may be discriminated against because of race, ethnicity, sex, age, protected activity,
and so on. See Age Discrimination in Employment Act, 29 U.S.C. § 623; Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 2000e-3. We do not, however, have any of those
types of claims before us in this proceeding.

15
same protections against discharge during his term of employment as a permanent

employee who is not serving at will but is instead on probation.

Not only that, but § 7405 contemplates that most temporary full-time

appointments will be for a period of 90 days or less, unless the “Under Secretary

for Health finds that circumstances render it impracticable to obtain the necessary

services” by way of § 7401 appointments. 38 U.S.C. § 7405(c)(1). Under Dr.

Durr’s construction of the statute, however, in which the probationary period

would apply to all employees, the vast majority of temporary employees would

leave before completing any but a small fraction of the probationary period.

His interpretation would yield other anomalous results. Section 7405

applies not only to temporary full-time appointments but also to part-time and

without-compensation appointments. See 38 U.S.C. § 7405(a)(1). In Durr’s view,

a physician who came in without pay for one hour a week for two years and then

received an appointment under § 7401(1) to a full-time position would

automatically have completed the necessary probationary period. Yet, the whole

point of a probationary period is to test out whether a person is suitable for a

permanent position. The VA would have little opportunity and less motivation to

determine whether a temporary, part-time person (who might or might not be

compensated) was suitable for a full-time, permanent position.

16
 We conclude, consistent with the VA’s longstanding interpretive framework

to which we are according Skidmore deference, that the probationary period

required by 38 U.S.C. § 7403(b)(1) applies only to permanent appointments made

under § 7401(1).

IV.

Dr. Durr’s alternative argument has to do with when he was appointed to the

permanent position, which determines when the probationary period attached to

that appointment began to run. He argues that he was appointed to the permanent

position and the probationary period for it began to run on November 2, 2006,

instead of on November 12, 2006. That would make all the difference, because it

would mean that he had completed the two-year probationary period on November

2, 2008, five days before his termination became effective on November 7, 2008.

As a result, the VA’s Disciplinary Appeals Board would have jurisdiction to

consider his appeal of the termination decision because he was no longer a

probationary employee at the time he was terminated.

To support this argument Dr. Durr relies on the fact that on November 2,

2006, the Director of Bay Pines approved the Professional Standards Board’s

recommendation that his employment status be converted to a full-time permanent

appointment under 38 U.S.C. § 7401(1). In opposition, the VA points to two

17
exhibits in the record. One is the actual record of the Bay Pines Professional

Standards Board’s meeting on November 1, 2006. The other document is a form

entitled “Request for Personnel Action,” which evidently was used to approve or

effect the approval of the conversion of Durr’s employment status to a §7401(1)

appointment. That form is signed by three different VA human resource officers,

who dated their signatures “11-13-06.” It also contains a handwritten note in the

“Remarks” section that states: “Appointment is subject to two years probationary

period beginning 11-12-06.” Finally, the form lists “11-12-06” as its “Effective

Date.”6

Based on those two documents, the district court concluded that “the VA

had not completed conversion of [Dr. Durr’s] status from temporary to permanent

until November 12, 2006, as noted on the VA’s form.” Durr contends that the

district court was wrong about that. He also argues for the first time that he did

6
The VA points out that the difference between the date of the signatures and the date that
Durr’s probationary period began is consistent with its own internal regulations. November 13,
2006, was a Monday, but VA Handbook 5005/12 states: “When an appointee is to enter on duty
on Monday, the appointment will be effective on the preceding Sunday provided the employee is
available for duty on that day.” VA Handbook 5005/12, Part II, Ch. 3, § A, ¶ 3(n)(1).

Moreover, the VA argues that its own regulations specify that appointments are made
effective only after approval by “appointing officers,” who are “Responsible Human Resource
Management Officer[s].” Id. at Part II, Ch. 3, § A, ¶ 2(a). In other words, under the VA’s
regulations, the mere fact that the Director of Bay Pines approved the Professional Standards
Board’s recommendation on November 2, 2006, did not effect the conversion of Dr. Durr’s
employment status from a § 7405(a)(1)(A) appointment to a § 7401(1) appointment. See id.

18
not have a chance either to review or conduct discovery about the Personnel

Action form, which lists its effective date as “11-12-06” and contains the

handwritten note specifying that Durr’s probationary period is to run from

November 12, 2006. He also raises several arguments about that form’s

authenticity. But these objections and arguments come too late.

After the VA submitted the Request for Personnel Action form as an exhibit

in support of its opposition to Dr. Durr’s motion for summary judgment, he did not

ask the district court for an opportunity to conduct discovery as to authenticity or

anything else. Nor did he argue that form should not be considered until it was

authenticated. Nor did he ask the district court to stay its ruling on summary

judgment until he could discover and submit evidence that might suggest the form

was not authentic. As a result, Durr has not preserved any factual dispute as to

that form’s authenticity. The district court did not abuse its discretion in

considering the form, and given the form and the other exhibit, the court correctly

rejected Durr’s alternative theory.

AFFIRMED.

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