October 25, 2021 Christopher M. Wolpert Clerk of Court PUBLISH UNITED STATES COURT… v. United States Department of Veterans Affairs

FILED
United States Court of Appeals
Tenth Circuit
October 25, 2021
Christopher M. Wolpert
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JOHN TOMPKINS, M.D.,
Plaintiff - Appellant,
v. No. 20-6060
UNITED STATES DEPARTMENT
OF VETERANS AFFAIRS; DENIS
McDONOUGH,* in his official
capacity; RALPH T. GIGLIOTTI, in
his official capacity; KRISTOPHER
WADE VLOSICH, in his official
capacity,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:18-CV-01251-J)
Danny K, Shadid, of Counsel with Riggs Abney Neal Turpen Orbison & Lewis
Law Firm, Oklahoma City, Oklahoma, for Plaintiff-Appellant.
Rebecca A. Frazier, Assistant United States Attorney (Timothy J. Downing,
United States Attorney, and Tom Majors, Assistant United States Attorney, with
her on the brief), Oklahoma City, Oklahoma, for Defendants-Appellees.
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
*In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure Denis McDonough is substituted for Robert Wilkes as Secretary of The
Department of Veterans Affairs, Defendant-Appellee in this action.
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MURPHY, Circuit Judge.
I. INTRODUCTION
For thirty years, John Tompkins worked as a physician at the United States
Department of Veterans Affairs (“VA”) in Oklahoma City, Oklahoma. From 2012
through 2016, he served as Chief of Surgery. In 2017, he was terminated from his
position as a physician based on administrative deficiencies during his tenure as
Chief of Surgery. After exhausting the VA’s administrative remedies, Tompkins
brought this action in district court. He asserted entitlement to (1) review under
the Administrative Procedures Act (“APA”) and (2) relief under the Fifth
Amendment’s Due Process Clause. Tompkins appeals from an order of the
district court dismissing his complaint without prejudice based on his failure to
identify an applicable waiver of the government’s sovereign immunity.
The district court correctly dismissed Tompkins’s complaint. This court
joins all other circuit courts of appeals in holding that Subchapter 5 of Chapter 74
of the Veterans’ Benefits Act (“VBA”), 38 U.S.C. §§ 7461 to 7464, is a
comprehensive statutory scheme governing the discipline of VA physicians and
is, therefore, the exclusive remedy for review of Tompkins’s termination.
Accordingly, Tompkins is not entitled to judicial review under the provisions of
the APA. Nor did the district court err in dismissing for lack of jurisdiction over
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Tompkins’s due process claims. This court made clear in Lombardi v. Small
Business Administration, 889 F.2d 959, 961-62 (10th Cir. 1989), that Supreme
Court precedents “virtually prohibit intrusion by the Courts into the statutory
[employment] scheme[s] established by Congress. This judicial intervention is
disfavored whether it is accomplished by the creation of a damages remedy or
injunctive relief.” Because Tompkins completely failed to address how his claim
for injunctive relief falls outside the ambit of the rule set out in Lombardi, the
district court correctly concluded Tompkins could not evade the VBA’s
limitations on judicial review by means of a due-process based claim for
injunctive relief. Thus, exercising jurisdiction pursuant to 28 U.S.C. § 1291, this
court affirms the order of the district court dismissing Tompkins’s complaint for
lack of jurisdiction.1
1In his opening brief, Tompkins sets out a list of ten issues “presented for
review.” For example, he asserts the existence of a property interest in his
position as a VA physician flowing from the length of his tenure in that position
and/or from the fact the grievance process’s impartial examiner concluded
termination was not appropriate. He also raises, inter alia, facial and as-applied
attacks on the grievance provisions of the VBA and claims under the Fifth and
Fourteenth Amendments’ Equal Protection Clauses. No aspect of these ten issues
was presented to the district court in either Tompkins’s amended complaint or his
briefing in response to the motion to dismiss. Nor has Tompkins argued that the
district court plainly erred in failing to raise such issues sua sponte. Thus all
issues set out in Tompkins’s opening brief, with the specific exceptions of his
APA and due process claims identified above, are waived. Richison v. Ernest
Group, Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011) (“If a newly raised legal
theory is entitled to appellate review at all—if [not] waived before the district
court—it may form a basis for reversal only if the appellant can satisfy the
elements of the plain error standard of review. In civil cases this often proves to
(continued...)
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II. BACKGROUND
A. Legal Background—The VBA
The VA is empowered to employ physicians as “necessary for the health
care of veterans.” 38 U.S.C. § 7401(a)(1). Those physicians are appointed
“without regard to civil-service requirements.” Id. § 7403(a)(1). They are not,
therefore, covered by the provisions of the Civil Service Reform Act. 5 U.S.C.
§ 7511(b)(10); see also id. §§ 2102(a)(1)(A), 2103. Instead, the VBA sets out its
own grievance process for § 7401(a)(1) physicians. See 38 U.S.C. §§ 7461 to
7464. That grievance process is split into two different tracks.
If a physician is the subject of a “major adverse action” arising out of a
question of “professional conduct or competence,” see id. § 7461(c)(2), (3), an
enhanced grievance procedure is set out in § 7462. These physicians are entitled
to detailed, advance written notice of a potential charge; an opportunity to
1(...continued)
be an extraordinary, nearly insurmountable burden. Before us, however, [the
appellant has not] even attempted to show how his new legal theory satisfies the
plain error standard. And the failure to do so—the failure to argue for plain error
and its application on appeal—surely marks the end of the road for an argument
for reversal not first presented to the district court.” (quotation and citation
omitted)). This rule holds true even as to arguments in favor of subject matter
jurisdiction a plaintiff-appellant failed to raise below. That is, “[o]ur duty to
consider unargued obstacles to subject matter jurisdiction does not affect our
discretion to decline to consider waived arguments that might have supported
such jurisdiction.” United States ex rel. Ramseyer v. Century Healthcare Corp.,
90 F.3d 1514, 1515 n.2 (10th Cir. 1996), superseded by statute on other grounds
as recognized in, United States ex rel. Reed v. KeyPoint Gov’t Sols., 923 F.3d
729, 764-65 (10th Cir. 2019).
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respond, both orally and in writing, with affidavits and other evidence; and a
decision by a “deciding official,” an individual “who shall be an official higher in
rank than the charging official.” Id. § 7462(b). A physician aggrieved by the
resolution reached by the “deciding official” can appeal to the Disciplinary
Appeals Board (“DAB”). Id. §§ 7462(c), 7464. The DAB is entitled to affirm,
reverse, or modify the resolution reached by the “deciding official.” Id.
§ 7462(c)(2). The VA Secretary is tasked with “execut[ing]” the DAB’s decision.
Id. § 7462(d)(1). The Secretary can reverse the decision of the DAB, or remand
the matter to the DAB for further proceedings, only upon a finding that the DAB
decision is “clearly contrary to the evidence or unlawful.” Id. § 7462(d)(2). The
Secretary does, however, have discretion to “mitigate the adverse action
imposed,” upon a determination that the DAB’s decision is not “justified by the
nature of the charges.” Id. § 7462(d)(3). The Secretary’s decision counts as “the
final administrative action in the case.” Id. § 7462(d)(4). The DAB’s decision,
as modified by the Secretary, is subject to judicial review. Id. § 7462(f)(1). A
court conducting review under § 7462(f)
shall review the record and hold unlawful and set aside any agency
action, finding, or conclusion found to be—
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) obtained without procedures required by law, rule,
or regulation having been followed; or
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(C) unsupported by substantial evidence.
Id. § 7462(f)(2).
All other types of adverse employment actions are controlled by the
grievance provisions set out in § 7463. Section 7463 provides a significantly
limited number of grievance procedures compared to those set out in § 7462.
Section 7463(a) obligates the Secretary to “prescribe by regulation procedures for
the consideration of grievances of section 7401(1) employees arising from
adverse personnel actions in which each action taken either . . . is not a major
adverse action[] or . . . does not arise out of a question of professional conduct or
competence.” Id. § 7463(a). Notably, with an exception not relevant here, the
DAB “shall not have jurisdiction to review such matters.” Id.2 “[A]n employee
who is a member of a collective bargaining unit” is entitled to “seek review of an
adverse action described in [§ 7463(a)] either under the grievance procedures
provided through regulations prescribed under [§ 7463(a)] or through grievance
procedures determined through collective bargaining, but not under both.” Id.
§ 7463(b). Physicians subject to charges that may potentially result in a major
adverse action, even if the charges do not involve professional conduct or
competence, are entitled to elevated rights to notice and an opportunity to be
2Exclusive DAB jurisdiction exists over “mixed case[s].” 38 U.S.C.
§§ 7462(a)(3), 7463(a). “[A] mixed case is a case that includes both a major
adverse action arising out of a question of professional conduct or competence
and an adverse action which is not a major adverse action or which does not arise
out of a question of professional conduct or competence.” Id. § 7462(a)(3).
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heard. Id. § 7463(c)(1). Such physicians are “entitled to notice and an
opportunity to answer with respect to those charges in accordance with
subparagraphs (A) and(B) of section 7462(b)(1).” Id. That is, physicians subject
to a potential major adverse action not involving a question of professional
conduct or competence are entitled to the same notice and opportunity-to-respond
rights as those physicians subject to a major adverse action for a charge relating
to professional conduct or competence. “In any other case,” diminished notice
and opportunity-to-respond rights are provided. Id. § 7463(c)(2). Finally,
§ 7463(d) sets the following minimum requirements for grievance procedures
prescribed by the Secretary:
(1) A right to formal review by an impartial examiner within
the Department of Veterans Affairs, who, in the case of an adverse
action arising from a question of professional conduct or
competence, shall be selected from the [DAB].
(2) A right to a prompt report of the findings and
recommendations by the impartial examiner.
(3) A right to a prompt review of the examiner’s findings and
recommendations by an official of a higher level than the official
who decided upon the action. That official may accept, modify, or
reject the examiner’s recommendations.
Id. § 7463(d). “[T]he employee is entitled to be represented by an attorney or
other representative . . . at all stages of the case.” Id. § 7463(e).
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B. Factual Background
Tompkins worked as an orthopedic surgeon at the VA in Oklahoma City for
thirty years.3 He served as Interim Chief of Surgery starting September 2010, and
as Chief of Surgery from January 2012, through mid-October 2016. Tompkins
voluntarily resigned as Chief of Surgery,4 but remained at the VA as a full-time
orthopedic surgeon.
Kristopher Vlosich was named the System Director of the Oklahoma City
VA facility in May 2016. Vlosich, relying on the recommendation of Chief of
Staff Susan Bray-Hall, tried to fire Tompkins for medical deficiencies in July of
2017. That effort failed when an outside review by three separate VA orthopedic
surgeons concluded Tompkins’s medical practice was “extremely good and well
within the accepted standard of care.”
3The government raised a facial attack as to the district court’s jurisdiction
over Tompkins’s complaint. As was true before the district court, the
government’s facial attack on federal court jurisdiction requires this court to
accept as true the well-pleaded factual allegations in the complaint. Paper,
Allied-Indus., Chem. & Energy Workers Int’l Union v. Cont’l Carbon Co., 428
F.3d 1285, 1292 (10th Cir. 2005). Thus, this factual background is drawn from
Tompkins’s amended complaint.
4Although not fully explained in Tompkins’s complaint, it is clear that
during this time frame the VA’s Office of Inspector General (“OIG”) was
conducting an investigation of the VA hospital in Oklahoma City. Furthermore, it
is clear Tompkins’s actions as Chief of Surgery were somehow implicated in that
OIG investigation. Indeed, as set out more fully below, that OIG investigation
underpins Tompkins’s claims that certain grievance decision-makers were biased
against him.
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Shortly thereafter, Vlosich and Bray-Hall formulated a different reason to
terminate Tompkins. On October 30, 2017, Bray-Hall issued to Tompkins a letter
of “Proposed Separation & Revocation of Clinical Privileges” based on alleged
administrative deficiencies occurring in 2015-2016 while Tompkins was Chief of
Surgery.5 Tompkins, represented by counsel, submitted to Vlosich both formal
and personal responses to his proposed termination. Separate from his
substantive responses, Tompkins requested that Vlosich recuse himself as a
decision-maker. Tompkins asserted Vlosich demonstrated a predisposition to find
he should be terminated due to a prior statement that Vlosich had reviewed the
draft OIG report and agreed with the findings of that report. Vlosich refused to
recuse himself.
On November 21, 2017, Vlosich issued to Tompkins a formal discharge
letter. The letter advised Tompkins he could appeal the action under the VA’s
grievance procedure by submitting a grievance to Ralph Gigliotti. Tompkins,
through counsel, submitted a formal grievance and demand for an evidentiary
hearing. As part of that formal grievance, Tompkins requested that neither
Gigliotti nor his subordinates participate in any aspect of the grievance process.
In so requesting, Tompkins noted that, just like Vlosich, Gigliotti had previously
5Tompkins’s complaint alleges Vlosich and/or his subordinates had
identified and engaged a replacement for Tompkins several weeks before Bray-
Hall issued this letter. Furthermore, sometime in August 2017, Vlosich told
another Oklahoma City VA doctor that he intended to fire Tompkins.
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reviewed and approved the OIG report. Gigliotti did not respond to the request
for recusal.
The matter was set for an evidentiary hearing after Gigliotti designated
Roger Tatum to serve as grievance examiner. Tatum heard extensive evidence
over a three-day period, including from Vlosich, who served as a witness on
behalf of the VA. Thereafter, Tatum issued a detailed Report of Findings and
Recommendations (the “Report”). The Report walked through each of the three
allegations of misconduct offered by the VA in support of Tompkins’s
termination and evaluated the aggravating factors alleged by the VA. After
concluding it was not possible to substantiate the alleged aggravating factors, the
Report found as follows:
Based upon the extensive review detailed above, it is concluded there
were indeed several areas in which Dr. Tompkins should have
provided closer oversight over administration of the Surgery Service
Line during his time as Chief of Surgery at the Oklahoma City VA
Health Care System. Such concerns could be used to justify
requiring a Chief of Service to relinquish that position, although
without giving the individual the opportunity to improve based upon
feedback, it is unlikely that this would be applied in similar
circumstances within every VA facility. However, as noted above,
Dr. Tompkins voluntarily stepped down as the Chief of Surgery in
October of 2016, and had not served in that role for a full year at the
time of his proposed removal from federal service. Terminating his
employment as a staff physician for the causes specified in the
removal letter is not appropriate and is highly inconsistent with any
connection to his duties at the time of his termination.
In accord with these findings, the Report recommended that Tompkins be restored
to his position as a VA physician and that all time between his removal and
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reinstatement be considered as time in-service for purposes of benefits and
retirement.
Shortly thereafter, on August 17, 2018, Gigliotti issued a decision denying
Tompkins’s grievance. In so doing, Gigliotti decided as follows:
The Network Director [i.e., Gigliotti] reviewed the Grievance
Examiner [Tatum’s] Report, along with the evidence file supporting
the discharge. He found the offense was serious enough in nature, to
rise to the level of discharge given Dr. Tompkins’ assignment as
Chief of Surgery. In this role, all administrative and clinical
functions of the service were ultimately Dr. Tompkins’
responsibility. The findings from the investigation conducted by
OIG, indicated the severe impact Dr. Tompkins’ lack of oversight
had on Surgery Service as well as the facility. It is noted that the
leadership at the facility took administrative action, once they
received the required clearance from OIG officials.
Gigliotti’s denial of Tompkins’s grievance marked the end of the administrative
remedies available to Tompkins.
C. Procedural Background
After Gigliotti refused to reinstate him as a VA physician, Tompkins filed
the instant action in district court. As defendants, Tompkins named the VA, VA
Secretary Denis McDonough,6 Gigliotti, and Vlosich. McDonough, Gigliotti, and
Vlosich were named exclusively in their official capacities. Tompkins’s
complaint sought relief on two bases. First it asserted an entitlement to judicial
review of Gigliotti’s denial of Tompkins’s request for reinstatement. Second, it
6As noted above, Denis McDonough is the current VA Secretary. See
supra, n.*. He has been substituted as a party for Robert Wilkie, the VA
Secretary when Tompkins filed this action.
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asserted Tompkins’s termination did not comply with either the procedural or
substantive provisions of the Due Process Clause.7 In support of these
propositions, the complaint alleged (1) Vlosich and Gigliotti were biased
decision-makers; and (2) Gigliotti’s terse rejection of the Report was inconsistent
7As to his due process claims, Tompkins’s complaint asserts as follows: “At
all pertinent times, Dr. Tompkins possessed and had a reasonable expectation of
continued employment as an Orthopedic surgeon working for the VA.” As noted
above, see supra n.3, at this stage of the proceedings we must accept as true all
well-pleaded factual allegations in Tompkins’s complaint. The existence of a
property interest is, however, a question of law, not one of fact. Tarabishi v.
McAlester Reg’l Hosp., 827 F.2d 648, 652 (10th Cir. 1987). Even in the face of
the government’s motion to dismiss asserting Tompkins’s complaint did not state
a colorable constitutional claim, Tompkins’s district court filings—or, for that
matter, his appellate filings—never identified a basis for the existence of a
property interest in his job as a VA physician. Cf. Arbaugh v. Y & H Corp., 546
U.S. 500, 513 & n.10 (2006) (holding that to properly invoke federal question
jurisdiction, a complaint must allege a colorable claim arising under the
Constitution or laws of the United States). In particular, Tompkins has not cited
any precedent indicating that § 7401(a)(1) physicians, especially given their
exclusion from civil service protections, have a property interest in continued
employment. And, “[p]roperty interests are not created by the constitution but
rather are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law.”
Tarabishi, 827 F.2d at 653 (quotation omitted). Furthermore, although
Tompkins’s complaint references VA Handbook 5021/21 and its procedures
relating to the grievance process, he never explains how or whether those
handbook provisions create a property interest in continued employment.
Tompkins’s failure to plausibly allege the existence of a property interest impacts
the colorability of both his procedural and substantive due process claims. See
Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir. 1998); Brenna v. S.
Colo. State Coll., 589 F.2d 475, 476 (10th Cir. 1978). All of these failures leave
serious doubt as to whether the due-process claim set out in Tompkins’s
complaint is sufficiently colorable to invoke federal question jurisdiction.
Ultimately, it is unnecessary to resolve this question because, as set out below,
Tompkins failed to identify an applicable waiver of the government’s sovereign
immunity.
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with VA Handbook 5021/21, Part IV, Chapter 3, Paragraph 13.8 In support of the
existence of jurisdiction, Tompkins’s complaint cited federal question
jurisdiction, 28 U.S.C. § 1331, and the judicial review provisions of the APA,
5 U.S.C. §§ 702-06.
In response to Tompkins’s complaint, the government filed a motion to
dismiss. The government began by noting that a valid waiver of the United
States’ sovereign immunity is a necessary aspect of federal court subject matter
jurisdiction. See United States v. Mitchell, 445 U.S. 535, 538 (1980); Dahl v.
United States, 319 F.3d 1226, 1228 (10th Cir. 2003). The government recognized
that the APA, the only source for a potential waiver identified in Tompkins’s
8The relevant portions of Paragraph 13 provide as follows:
Upon receipt of the grievance examiner’s report of findings
and recommendations, the decision official will accept, modify, or
reject the examiner’s recommendation(s) and issue a written decision
to the employee . . . .
(1) if the decision official modifies or rejects the
examiner’s recommendation(s), the written decision will
include a specific statement of the reason(s) for the
modification or rejection. Modification or rejection of
recommendations of the grievance examiner will be
limited to the following grounds:
(a) The recommendation(s) are
contrary to law, regulation, or published
Department policy; and /or
(2) The recommendation(s) are not
supported by the preponderance of the
evidence.
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complaint, does contain a waiver of the United States’ sovereign immunity. See 5
U.S.C. § 702 (“An action in a court of the United States seeking relief other than
money damages and stating a claim that an agency or an officer or employee
thereof acted or failed to act in an official capacity or under color of legal
authority shall not be dismissed nor relief therein be denied on the ground that it
is against the United States or that the United States is an indispensable party.”).
That waiver, however, does not apply when “any other statute that grants consent
to suit expressly or impliedly forbids the relief which is sought.” Id. § 702(2);
see also Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961 (10th Cir.
2004). Relying on the Supreme Court’s decision in United States v. Fausto, 484
U.S. 439, 443-45 (1988), the government argued that the VBA’s detailed
grievance scheme precludes APA review. In addition, the government asserted
Tompkins failed to plead plausible due process claims. See generally supra n.7.
The district court granted the government’s motion to dismiss. In so doing,
the district court began by acknowledging the VBA sets out a comprehensive
scheme for dealing with the appointment and employment of VA physicians.
Furthermore, the district court recognized the VBA’s comprehensive scheme,
while specifically providing for judicial review of certain employment actions,
provided no such review for terminations unrelated to questions of professional
competence. Applying the Supreme Court’s analysis in Fausto, the district court
ruled that allowing Tompkins to obtain judicial review under the APA, when such
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review is specifically excluded from the VBA’s grievance scheme, would amount
to a circumvention of congressional intent. Accordingly, the district court
determined that “the APA’s sovereign immunity waiver does not apply and it
therefore lacks subject matter jurisdiction over [Tompkins’s] constitutional and
policy-related due process claims.”9
III. ANALYSIS
A. Standard of Review
This court reviews de novo a district court’s grant of a motion to dismiss
for lack of subject matter jurisdiction. Devon Energy Prod. Co. v. Mosaic Potash
Carlsbad, Inc., 693 F.3d 1195, 1201 (10th Cir. 2012). For the most part, the
resolution of this appeal turns on matters of statutory construction. That question
is also subject to de novo review. United States v. Fillman, 162 F.3d 1055, 1056
(10th Cir. 1998).
9In his brief on appeal, Tompkins asserts the district court “did not even
address [his] constitutional claims.” As the above quoted passage makes clear,
however, Tompkins’s assertion is not accurate. The district court specifically
ruled that the exception to the waiver of sovereign immunity set out in § 702(2)
applied, leaving it without a jurisdictional basis to reach any of Tompkins’s
claims. As set out more fully below, given both this court’s decision in Lombardi
v. Small Business Administration, 889 F.2d 959, 961-62 (10th Cir. 1989), and
Tompkins’s complete failure, either before the district court or on appeal, to argue
his due process claims fall outside the rule set out in Lombardi, the district
court’s decision in this regard is undoubtedly correct.
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B. Discussion
The district court ruled it did not have jurisdiction over the claims set out
in Tompkins’s complaint because, under the required Fausto analysis, the VBA’s
comprehensive grievance scheme precludes judicial review. We agree that Fausto
controls the resolution of this appeal. Thus, the proper starting point is Fausto.
In Fausto, an excepted service employee of the United States Fish and
Wildlife Service (the “Service”) was suspended from his job. 484 U.S. at 440.
The employee sought back pay in federal court alleging his suspension violated
the Service’s regulations. Id. The Supreme Court held that the CSRA, which did
not afford the employee the right to judicial review of the Service’s decision,
precluded such a suit. Id. at 455. Fausto explained that the comprehensive
statutory scheme of the CSRA, and Congress’s deliberate exclusion of individuals
in the employee’s category from the provisions establishing administrative and
judicial review, prevented the employee from seeking review in federal court. Id.
Thus, Fausto rejected the notion that an exclusion of a federal employee from the
CSRA meant the employee was “free to pursue whatever judicial remedies he
would have had before enactment of the CSRA.” Id. at 447. Rather, such an
exclusion “displays a clear congressional intent to deny the excluded employees
. . . judicial review . . . .” Id.; see also id. at 449 (holding that excepted federal
employees are not “free to pursue other avenues of review”).
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The principles recognized in Fausto have been extended to include virtually
every type of suit by a federal employee seeking to challenge administrative
discipline, including suits under the APA. Steele v. United States, 19 F.3d 531,
532-33 (10th Cir. 1994) (holding that CSRA’s comprehensive scheme foreclosed
jurisdiction over claims under the Federal Tort Claims Act (“FTCA”)); Petrini v.
Howard, 918 F.2d 1482, 1483-85 (10th Cir. 1990) (per curiam) (same as to Bivens
and state law claims); Lombardi, 889 F.2d at 961-62 (same as to Bivens-based
constitutional claims, without regard to whether the claims were for money
damages or injunctive relief); see also Franken v. Bernhardt, 763 F. App’x 678,
680-81 (10th Cir. 2019) (unpublished disposition cited exclusively for its
persuasive value) (same as to First Amendment and equal protection claims);
Arron v. United States, Nos. 96-2086, -2288, 1997 WL 265103 at *6 (10th Cir.
May 20, 1997) (unpublished disposition cited exclusively for its persuasive value)
(holding, based on Fausto, that the plaintiff’s “FTCA, APA, and constitutional
claims are preempted by the CSRA”).10 Fausto makes clear that if the purpose,
10Other circuits have also read Fausto in a similarly broad fashion. See,
e.g., Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990) (en banc) (holding the
CSRA preempts suit for overtime pay brought under the Fair Labor Standards
Act); Gergick v. Austin, 997 F.2d 1237 (8th Cir. 1993) (holding the CSRA barred
an FTCA claim for intentional infliction of emotional distress caused by
workplace harassment); Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991)
(holding the CSRA barred an employee’s Bivens claims and preempted his state
law tort claims); United States Dept. of Health & Human Servs. v. Fed. Labor
Rels. Auth., 858 F.2d 1278 (7th Cir. 1988) (holding nonpreference excepted
service employees were not entitled to challenge adverse employment action
(continued...)
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text, and structure of a comprehensive federal employment scheme indicates an
intent to cabin judicial review to the particular procedures of that scheme, an
employee cannot avoid those limited procedures by bringing suit under other
provisions of state or federal law.
In analyzing whether the VBA’s disciplinary scheme set out in §§ 7461 to
7464 forecloses judicial review of a disciplinary decision made pursuant to
§ 7463, this court does not write on a clean slate. Three other circuits have
resolved this exact question; all three have concluded the VBA is a
comprehensive scheme that intentionally precludes judicial review of disciplinary
decisions made pursuant to § 7463. Hakki v. Sec’y, Dep’t of Veterans Affs., 7
F.4th 1012, 1027 (11th Cir. 2021) (“[A] district court does not have
subject-matter jurisdiction over an APA claim to review a § 7463 decision.”);
Fligiel v. Samson, 440 F.3d 747, 752 (6th Cir. 2006) (holding physician was
“precluded from invoking the protections of the APA to obtain the judicial review
of her adverse employment action” because, “[l]ike the CSRA, Title 38 provides a
comprehensive regulatory scheme for employees of the VA,” and “§ 7463 outlines
the procedures Congress intended to provide for review of adverse actions of the
type [the physician] encountered”); Pathak v. Dep’t of Veterans Affs., 274 F.3d
10(...continued)
before an arbitrator when there was no right to appeal to the Merits Systems
Protection Board).
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28, 32 (1st Cir. 2001) (“Congress’s express provision of judicial review in
§ 7462, coupled with a complete omission of judicial review in § 7463—the
provision governing [the physician]—is persuasive evidence that Congress
deliberately intended to foreclose further review of such claims.” (quotation
omitted)). We conclude the analyses set out in these decisions are persuasive and
hereby adopt them as our own.
Of note, the failure of the VBA to provide for judicial review in § 7463
does not stand in isolation. Instead, it is coupled with a detailed judicial-review
scheme for employment decisions made under § 7462. The difference in the
treatment of these two classes of employment decisions makes absolutely clear
Congress did not intend to allow judicial review of employment decisions not
relating to professional conduct or competence. Hakki, 7 F.4th at 1027-28; see
also Kansas ex rel. Schmidt v. Zinke, 861 F.3d 1024, 1034 (10th Cir. 2017)
(holding the strong presumption of judicial review of administrative decisions can
be overcome by specific congressional intent to preclude such review); Fligiel,
440 F.3d at 751, 751-54 (recognizing courts should interpret the APA to preclude
judicial review only upon a clear and convincing showing that Congress intended
such a result, but concluding the structure and text of the VBA satisfied that
exacting standard). Furthermore, the grounds upon which a competence-based
employment decision can be set aside under § 7602 are similar to the bases upon
which administrative action can be set aside under the APA. Compare 38 U.S.C.
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§ 7462(f)(2) with 5 U.S.C. § 706(2). “It does not make any common sense that an
employee disciplined pursuant to § 7463—who cannot seek the judicial review
granted pursuant to § 7462 and thus cannot have his discipline set aside for the
reasons outlined in § 7462(f)(2)—can proceed using the APA instead. The bases
for APA review overlap with § 7462. Allowing for APA review for § 7463
discipline would ‘turn’ the VBA’s disciplinary structure of review ‘upside
down.’” Hakki, 7 F.4th at 1028 (quoting Fausto, 484 U.S. at 449).
For those reasons set out above, this court concludes Tompkins cannot
utilize the APA to obtain the very review he is denied by the comprehensive
scheme set out in the VBA. Thus, the district court did not err in dismissing
Tompkins’s APA claim without prejudice for lack of subject matter jurisdiction.
We reach the same conclusion as to Tompkins’s due process claims. In
Lombardi, this court concluded that Fausto, among other Supreme Court
decisions, precluded judicial review of agency employment decisions even if the
employee’s complaint raised constitutional claims and merely sought injunctive
relief. 889 F.2d at 961-62.11 Tompkins has made no meaningful effort on appeal
11This court recognizes that the various circuit courts of appeals have
reached divergent decisions on this particular question. See, e.g., Am. Fed’n of
Gov’t Emps. Local 1 v. Stone, 502 F.3d 1027, 1037-39 (9th Cir. 2007). In
particular, some courts of appeals have concluded jurisdiction exists for federal
courts to fashion equitable remedies for constitutional violations, even if those
constitutional violations occurred only as a result of the federal employment
relationship. Id. at 1038-39. Of course, this court is bound by the rule set out in
Lombardi absent en banc review or superseding Supreme Court authority. In re
(continued...)
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to show that his claim for injunctive relief falls outside of the ambit of the rule set
out in Lombardi. Instead, he merely asserts the case is irrelevant because it
involved the CSRA, not the VBA. For those reasons set out above, however, we
have already concluded that the VBA, like the CSRA, is a comprehensive federal
employment scheme intended to displace judicial remedies. Given that, it is not
enough for Tompkins to simply claim Lombardi is irrelevant because it only
involves the CSRA. Even under de novo review, Tompkins’s scanty appellate
arguments are not enough to demonstrate the district court erred in dismissing his
due process claims for lack of jurisdiction. See, e.g., Marcus v. Kan. Dep’t of
Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999) (noting there exists a presumption
against federal court jurisdiction and the proponent of such jurisdiction bears the
burden of demonstrating its existence).
IV. CONCLUSION
The order of the district court dismissing Tompkins’s complaint for lack of
subject matter jurisdiction is hereby AFFIRMED.
11(...continued)
Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam).
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