Michael J. Wolf v. Department of Veterans Affairs

PAULINE NEWMAN, Circuit Judge,

dissenting.

The majority opinion holds that Dr. Wolf was subject to a reduction in force (RIF) action, but that he cannot appeal from the RIF because he was not furloughed for more than thirty days, separated, or demoted. However, none of the requisite RIF procedures was taken; Dr. Wolf was simply separated from employment, by formal notice of separation, including grievance rights and severance pay. Dr. Wolf was then offered a similar position, at reduced hours, by letter dated one day after the date of the separation letter. Although both letters were written before either was delivered, the separation was not withdrawn, but was implemented; the ensuing offer made no mention of the terminated position. My colleagues hold that this sequence of separation and rehire avoids the employment contract, avoids RIF procedures and safeguards, and avoids appeal rights. I respectfully dissent.

A

Dr. Wolfs employment contract was for a six-year appointment, for sixty hours per pay period at a stated hourly rate. By letter dated June 10, 1997 entitled “Separation Notice,” hand delivered on June 12, 1997, he was notified that he would be separated as of July 13, 1997, his severance pay was calculated, and he was informed that he could file a grievance. The Separation Notice stated: “Unfortunately, there is no other available assignment for you at this Medical Center at this time.” Later in the day of June 12, 1997 Dr. Wolf was hand delivered a letter dated June 11, 1997, in which he was offered a position for fifty hours per pay period to begin July 14, 1997. He accepted this offer.

Dr. Wolf filed a formal grievance, and after a hearing the grievance examiner found that the employment contract had been breached and recommended reinstatement to the sixty-hour work schedule. The agency refused to comply. Dr. Wolf appealed to the MSPB. The administrative judge found that the agency had conducted a reduction-in-force, that the agency had a valid reason for conducting a RIF, and that the agency did not follow the requisite RIF procedures. See 5 U.S.C. §§ 3501-3504; 5 C.F.R. Part 351 (agencies must follow the Office of Personnel Management regulations when conducting reductions in force). The administrative judge held that the “agency’s failure to apply the RIF regulations to the restructuring that led to the elimination of the appellant’s position was an impermissible circumvention of the RIF regulations and a violation of the appellant’s substantive and procedural rights.” The administrative judge concluded that the action taken was improper, and ordered the agency to reinstate Dr. Wolf to the sixty-hour position.

On the agency’s appeal, the full Board held that although the agency had conduct*1399ed a RIF, there was no appealable action. Thus the Board did not review whether RIF procedures had been correctly applied. The Board recognized that the procedural safeguards of reductions in force are applicable to physicians employed by the Department of Veterans Affairs, see James v. Von Zemenszky, 284 F.3d 1310 (Fed.Cir.2002), but held that Dr. Wolf did not meet the conditions of 5 C.F.R. § 351.901, which limits RIF appeals to employees who are “furloughed for more than 30 days, separated, or demoted by the reduction in force action.” The Board held that the employment action with respect to Dr. Wolf was neither a separation nor a demotion, but an unappealable reduction in hours of work at the same hourly rate of pay.

The agency’s procedure was to separate Dr. Wolf, and then to hire him on different terms. The separation was never withdrawn, despite the majority’s contrary conclusion. The procedure whereby the offer of rehire was dated before the delivery of the separation notice, yet the notice of separation was issued and implemented, highlights the irregularity of this action.

If the action is nonetheless viewed simply as a reduction in force, the government nowhere asserts that RIF procedures were followed. RIF procedures apply to full time and part time positions:

5 C.F.R. § 351.403. Separate [competitive] levels shall be established for positions filled on a full time, part-time, intermittent, seasonal, or on-call basis. No distinction may be made among employees in the competitive level on the basis of the number of hours or weeks scheduled to be worked.

Dr. Wolf was entitled to the protection of RIF procedures, as the administrative judge had correctly ruled.

The government now argues that Dr. Wolf was a part-time employee appointed pursuant to 38 U.S.C. § 7405, and that such employees are appointed “without regard to civil service or classification laws, rules, or regulations,” 38 U.S.C. § 7405(a), and that they may be terminated at will, despite his six-year employment contract. This, the government contends, distinguishes Dr. Wolfs case from VA physicians such as Dr. Von Zemenszky, cited supra, who was a full time employee. Thus the government argues that Dr. Wolf therefore has no entitlement to RIF safeguards, contravening the panel majority’s view. Precedent, although sparse, is contrary to the government’s position. See Balderman v. Veterans Administration, 1984 WL 6584 (W.D.N.Y. June 29, 1984) and 666 F.Supp. 461, 466 (W.D.N.Y.1987) (sustaining a physician’s dismissal upon finding compliance with RIF procedures).

In summary, Dr. Wolf is entitled to appeal his separation or demotion, and has been improperly denied this right. From the court’s contrary ruling, I respectfully dissent.