Case: 22-1441 Document: 39 Page: 1 Filed: 09/07/2022
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`DAVID M. BRANDT,
`Petitioner
`
`v.
`
`MERIT SYSTEMS PROTECTION BOARD,
`Respondent
`
`DEPARTMENT OF VETERANS AFFAIRS,
`Intervenor
`______________________
`
`2022-1441
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. SF-3330-22-0004-I-1.
`______________________
`
`Decided: September 7, 2022
`______________________
`
`DAVID BRANDT, Riverside, CA, pro se.
`
`
` ELIZABETH W. FLETCHER, Office of General Counsel,
`United States Merit Systems Protection Board, Washing-
`ton, DC, for respondent. Also represented by KATHERINE
`MICHELLE SMITH.
`
` ELIZABETH MARIE PULLIN, Commercial Litigation
`
`

`

`Case: 22-1441 Document: 39 Page: 2 Filed: 09/07/2022
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`2
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`BRANDT v. MSPB
`
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, for intervenor. Also represented by
`BRIAN M. BOYNTON, DEBORAH ANN BYNUM, PATRICIA M.
`MCCARTHY.
`
`______________________
`
`Before PROST, TARANTO, and STOLL, Circuit Judges.
`PER CURIAM.
`When appellant David M. Brandt applied to the Veter-
`ans Health Administration (VHA), a component of the
`United States Department of Veterans Affairs, for a posi-
`tion as a nurse practitioner, VHA decided not to appoint
`him to the position, selecting someone else instead. After
`unsuccessfully complaining that VHA had denied him cer-
`tain veterans-hiring rights protected by the Veterans Em-
`ployment Opportunities Act of 1998 (VEOA), 5 U.S.C.
`§ 3330a, Mr. Brandt appealed his non-selection for the
`VHA position to the Merit Systems Protection Board, in-
`voking the VEOA for the substance of his claim and for the
`Board’s jurisdiction, 5 U.S.C. § 3330a(a)(1)(A), (d)(1). The
`Board dismissed the appeal for lack of jurisdiction. Brandt
`v. Dep’t of Veterans Affairs, No. SF-3330-22-0004-I-1, 2021
`WL 5279319 (M.S.P.B. Nov. 9, 2021) (Board Op.). The
`Board followed this court’s decision in Scarnati v. Depart-
`ment of Veterans Affairs, 344 F.3d 1246 (Fed. Cir. 2003),
`which held that VHA appointments of specified healthcare
`personnel made under 38 U.S.C. §§ 7401(1) and 7403(a)(1)
`are not subject to VEOA hiring provisions. We agree that
`this case comes within that holding and therefore affirm.
`I
`Mr. Brandt, a disabled veteran of the United States Air
`Force, from which he was honorably discharged after more
`than three years of active service, is undisputedly a prefer-
`ence-eligible veteran with, as relevant here, certain statu-
`tory rights related to federal government hiring. See 5
`U.S.C. §§ 2108(3), 3304(f)(1), 3309–20. In 2021, he applied
`
`

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`Case: 22-1441 Document: 39 Page: 3 Filed: 09/07/2022
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`BRANDT v. MSPB
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`3
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`to VHA for a position as a nurse practitioner, a type of spe-
`cialized registered nurse. VHA tentatively found him eli-
`gible for the position, referred him to the hiring manager,
`but ultimately did not interview him.
`After VHA hired someone else for the position, Mr.
`Brandt filed a complaint with the U.S. Department of La-
`bor alleging that VHA, in not selecting him, had denied him
`the right to compete under 5 U.S.C. § 3304(f)(1) as well as
`certain rights given to preference-eligible veterans. The
`VEOA generally authorizes a preference-eligible veteran
`like Mr. Brandt to file a complaint with the Secretary of
`Labor to seek assistance in resolution of such allegations.
`5 U.S.C. § 3330a(a)(1)(A), (B). It then authorizes the com-
`plainant, in specified circumstances after seeking relief
`through the Secretary, to appeal to the Board for an adju-
`dication of the alleged agency violation. Id. § 3330a(d)(1);
`see 5 C.F.R. §§ 1201.3(b)(1), 1208.21–.26.
`In the present matter, the Department of Labor com-
`pleted its investigation and closed the case. Mr. Brandt
`then appealed VHA’s non-selection of him to the Board un-
`der the VEOA, 5 U.S.C. § 3330a(d)(1). Although he as-
`serted certain prohibited personnel practices in addition to
`the violations of the veteran-specific rights presented to the
`Department of Labor, Board Op. at 2,1 it is undisputed be-
`fore us that the Board’s jurisdiction in this case depends on
`the applicability of § 3330a(d)(1): No other, independent
`source of Board jurisdiction is asserted to apply here.
`The administrative judge assigned to the case ordered
`Mr. Brandt to address the Board’s jurisdiction. After Mr.
`Brandt submitted additional factual allegations, the
`agency (the Department of Veterans Affairs, of which VHA
`
`
`1 The Westlaw report of the opinion does not include
`page numbers. We give page numbers of the opinion as it
`appears in the petitioner’s Appendix in this court.
`
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`BRANDT v. MSPB
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`is a part) moved to dismiss Mr. Brandt’s appeal for lack of
`jurisdiction. The agency argued that the nurse-practi-
`tioner position at VHA is not subject to the hiring protec-
`tions invoked by Mr. Brandt under the VEOA, as
`established by this court’s decision in Scarnati, 344 F.3d at
`1248, interpreting statutory provisions that govern certain
`VHA hiring. Board Op. at 3, 7.
`The administrative judge granted the agency’s motion
`and dismissed Mr. Brandt’s appeal without a hearing. Id.
`at 10. To establish jurisdiction under the VEOA, Mr.
`Brandt had to establish that he exhausted his Department
`of Labor remedy and filed on time and to make nonfrivolous
`allegations that he is preference eligible for 5 U.S.C.
`§ 3330a(a)(1)(A) or a veteran with the required service for
`5 U.S.C. § 3330a(a)(1)(B) and—key here—that he pos-
`sessed, and the agency violated, the hiring-related rights
`he invoked under those provisions. See 5 C.F.R. § 1201.57;
`Lazaro v. Dep’t of Veterans Affairs, 666 F.3d 1316, 1319
`(Fed. Cir. 2012). The administrative judge explained that
`there was no dispute that Mr. Brandt was preference eligi-
`ble and a qualifying veteran, that he timely filed his claims,
`and that he exhausted his administrative remedies. Board
`Op. at 6. The sole legal issue, the administrative judge
`stated, was whether the hiring-related provisions invoked
`under the VEOA applied to VHA’s hiring to fill the nurse-
`practitioner position at issue. Id. The administrative
`judge agreed with the agency that, under our decision in
`Scarnati, dismissal for lack of jurisdiction was required be-
`cause the hiring for the nurse-practitioner position is ex-
`empt from the VEOA-specified protections invoked by Mr.
`Brandt. Id. at 7–9.
`The administrative judge’s decision became the final
`decision of the Board on December 14, 2021. Mr. Brandt
`timely appealed, within the allowed 60 days. 5 U.S.C.
`§ 7703(b)(1)(A). We have jurisdiction under 28 U.S.C.
`§ 1295(a)(9).
`
`

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`Case: 22-1441 Document: 39 Page: 5 Filed: 09/07/2022
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`BRANDT v. MSPB
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`II
`We must affirm the Board’s decision unless it is “(1) ar-
`bitrary, capricious, an abuse of discretion, or otherwise not
`in accordance with law; (2) obtained without procedures re-
`quired by law, rule, or regulation having been followed, or
`(3) unsupported by substantial evidence.” 5 U.S.C.
`§ 7703(c). We review a determination of the Board’s juris-
`diction de novo. See Stoyanov v. Dep’t of Navy, 474 F.3d
`1377, 1379 (Fed. Cir. 2007). The Board’s jurisdiction is lim-
`ited to actions made appealable to it by law, rule, or regu-
`lation. 5 U.S.C. § 7701(a).
`Here, the Board relied on a legal determination—that
`the Title 5 hiring rights invoked by Mr. Brandt under the
`VEOA, for preference-eligible veterans and veterans with
`qualifying service, do not apply to VHA’s hiring for the po-
`sition at issue. The Board drew that conclusion based on
`our interpretation in Scarnati of the relevant Title 38 stat-
`utes. We agree with the Board’s conclusion about the in-
`applicability of the legal rights claimed, and it follows, as
`Scarnati held, that the Board lacks jurisdiction under the
`VEOA.
`Since before the VEOA was enacted in 1998, Title 38
`has contained two provisions of importance to the issue
`presented, now in chapter 74 of Title 38, U.S. Code. Both
`concern appointments of specified medical professionals to
`staff VHA, which is headed by the Under Secretary of
`Health and is the component of the Department of Veter-
`ans Affairs whose “primary function” is “to provide a com-
`plete medical and hospital service for the medical care and
`treatment of veterans.” 38 U.S.C. § 7301(a), (b). Section
`7401 provides: “There may be appointed by the Secretary
`such personnel as the Secretary may find necessary for the
`health 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: (1) Physicians, dentists, podi-
`atrists, chiropractors, optometrists, registered nurses, . . .
`
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`Case: 22-1441 Document: 39 Page: 6 Filed: 09/07/2022
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`BRANDT v. MSPB
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`.” 38 U.S.C. § 7401. Section 7403(a) provides: “(1) Appoint-
`ments under this chapter of health-care professionals 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 re-
`gard to civil-service requirements. (2) This section applies
`to the following persons appointed under this chapter: (A)
`Physicians. (B) Dentists. (C) Podiatrists. (D) Optome-
`trists. (E) Nurses. . . . .” 38 U.S.C. § 7403(a) (emphasis
`added).
`In Scarnati, relying on those provisions, we held that
`the Board lacked jurisdiction under 5 U.S.C. § 3330a(d)
`over an appeal by a physician who alleged that he was not
`selected for a psychiatrist position in violation of his veter-
`ans-preference rights. 344 F.3d at 1247. We explained
`that, for VHA, “[a]ppointment of professional staff” identi-
`fied in sections 7401 and 7403—including physicians such
`as Dr. Scarnati—is a task for which “Congress has given
`the Secretary . . . broad discretion” and that “does not come
`under Title 5” in that Title 5 hiring provisions are inappli-
`cable. Id. at 1247–48. We quoted § 7401, then added: “Im-
`portantly, appointments of those health-care professionals
`listed in § 7401(1) ‘may be made only after qualifications
`have been satisfactorily established in accordance with reg-
`ulations prescribed by the Secretary, without regard to
`civil-service requirements.’” Id. at 1248 (quoting §
`7403(a)(1)). We concluded: “According to the plain lan-
`guage of the statute, provisions of Title 5 (the ‘civil-service
`requirements’) do not govern the process for appointing
`physicians and other health-care professionals under §
`7401(1).” Id.
`Those provisions were decisive, we ruled, because Con-
`gress had done nothing elsewhere to meet the high stand-
`ard for overriding them. Congress declared in 38 U.S.C.
`§ 7425(b) that, with exceptions not applicable in Scarnati
`(or here), “‘no provision of title 5 or any other law pertain-
`ing to the civil service system which is inconsistent with
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`Case: 22-1441 Document: 39 Page: 7 Filed: 09/07/2022
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`BRANDT v. MSPB
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`any provision of . . . this chapter [i.e., chapter 74 of Title
`38] shall be considered to supersede, override, or otherwise
`modify such provision of this chapter’” except to the extent
`it does so specifically. Scarnati, 344 F.3d at 1248 (quoting
`38 U.S.C. § 7425(b), ellipses and bracketed material added
`by this court in Scarnati). Applying Title 5 provisions that
`restrict the Secretary’s appointment discretion under sec-
`tions 7401 and 7403, we concluded, “would be by definition
`‘inconsistent’ with” that grant of discretion. Id. And with
`no specific override of those provisions to be found, we held,
`Congress had left unimpaired “the discretionary power
`given to the VHA to hire health care professionals under
`38 U.S.C. § 7401(1) outside the civil service appointment
`process, including the veterans’ preference requirements.”
`Id. Title 5 veterans’ preference provisions did not apply,
`we added, even though VHA, exercising its discretion, had
`adopted a related policy of its own. Id. (“VHA’s choice to
`implement a veterans’ preference policy for physicians does
`not mean that the civil service provisions relating to veter-
`ans’ preference . . . also apply to the hiring of physicians.”).
`We noted in Scarnati that our specific holding was only
`about “appointments,” not about all personnel matters ad-
`dressed in Title 5, id. at 1248–49, distinguishing this
`court’s decision in James v. Von Zemenszky, 284 F.3d 1310
`(Fed. Cir. 2002), which addressed reductions in force. Dr.
`Scarnati’s claim challenged his rejection for an appoint-
`ment to a position enumerated by 38 U.S.C. §§ 7401(1) and
`7403(a)(1). Lacking the rights he invoked under the
`VEOA, he failed to establish Board jurisdiction under the
`VEOA. Scarnati, 344 F.3d at 1249.
`Scarnati controls the present case. Section 7401(1) ex-
`pressly identifies “registered nurses” as one of the medical
`professionals covered by the provision, and section 7403(a)
`expressly identifies “[n]urses.” Mr. Brandt does not dis-
`pute on appeal the administrative judge’s finding that the
`contested nurse-practitioner position requires a person
`who is a registered nurse. As the contested position falls
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`Case: 22-1441 Document: 39 Page: 8 Filed: 09/07/2022
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`BRANDT v. MSPB
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`within the ambit of §§ 7401(1) and 7403(a)(1), Scarnati dic-
`tates that the Board lacks jurisdiction to hear Mr. Brandt’s
`appeal.
`Mr. Brandt contends that Scarnati was wrongly de-
`cided. But both the Board and this panel are bound by
`Scarnati. See Sacco v. Dep’t of Justice, 317 F.3d 1384, 1386
`(Fed. Cir. 2003). This is not a case of inconsistency of panel
`decisions. We have, in fact, relied on aspects of Scarnati’s
`analysis. See Cerwonka v. Dep’t of Veterans Affairs, 915
`F.3d 1351, 1357 (Fed. Cir. 2019); see also Mumme v. Merit
`Sys. Prot. Bd., 347 F. App’x 572 (Fed. Cir. 2009) (non-prec-
`edential); Vores v. Merit Sys. Prot. Bd., 324 F. App’x 883
`(Fed. Cir. 2009) (non-precedential). And although Mr.
`Brandt contends that Harding v. Dep’t of Veterans Affairs,
`448 F.3d 1373 (Fed. Cir. 2006), is counter to Scarnati, the
`two decisions do not conflict. Harding involved a removal,
`rather than an appointment, unlike the situation in Scar-
`nati; and for the removal context at issue, we held that
`Congress had specifically, and by express mention, in-
`cluded Department of Veterans Affairs employees hired
`under Title 38, chapters 73 and 74, within the Individual
`Right of Action triggering Board jurisdiction over the whis-
`tleblower claims at issue. 448 F.3d at 1375–77. That con-
`gressional action met the standard set in 38 U.S.C.
`§ 7425(b) for overriding covered Title 38 provisions, we
`held, whereas nothing similar was present in the VEOA
`appointment setting of Scarnati.
`Because Mr. Brandt did not have the Title 5 veterans’
`hiring rights he invokes to challenge his non-selection for
`the VHA nurse-practitioner position, Mr. Brandt did not
`make a nonfrivolous allegation that the agency violated his
`rights enforceable through the VEOA. We therefore affirm
`the Board’s dismissal for lack of jurisdiction.
`III
`For the foregoing reasons, we affirm the decision of the
`Board.
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`Case: 22-1441 Document: 39 Page: 9 Filed: 09/07/2022
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`BRANDT v. MSPB
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`9
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`The parties shall bear their own costs.
`AFFIRMED
`
`