Jeremy H. Conklin v. Merit Systems Protection Board

United States Court of Appeals
for the Federal Circuit
______________________
JEREMY H. CONKLIN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF VETERANS AFFAIRS,
Intervenor
______________________
2025-1613
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-3330-23-0499-I-1.
______________________
Decided: January 22, 2026
______________________
J EREMY H. CONKLIN, Seattle, WA, pro se.
CONSTANCE E. T RAVANTY , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by
K ATHERINE M ICHELLE SMITH .
ALEXANDER BREWER , Commercial Litigation Branch,
Civil Division, United States Department of Justice,
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CONKLIN v. MSPB 2
Washington, DC, for intervenor. Also represented by
ALBERT S. I AROSSI, P ATRICIA M. MCCARTHY , BRETT
SHUMATE.
______________________
Before L OURIE, T ARANTO, and CHEN, Circuit Judges.
P ER CURIAM .
Dr. Jeremy Conklin, a physician and preference-eligi-
ble veteran, applied to be the Chief of Staff of a Veterans
Health Administration (VHA) regional system, but was not
selected. After unsuccessfully seeking relief from the De-
partment of Labor, Dr. Conklin appealed his non-selection
to the Merit Systems Protection Board under the Veterans
Employment Opportunities Act of 1998 (VEOA), 5 U.S.C.
§ 3330a(a), (d). He alleged that the Department of Veter-
ans Affairs (agency), of which VHA is a part, violated his
veterans’ preference rights in evaluating his application for
the Chief of Staff position—which was open only to physi-
cians. The Board, relying on our decision in Scarnati v. De-
partment of Veterans Affairs, 344 F.3d 1246 (Fed. Cir.
2003), dismissed Dr. Conklin’s appeal for lack of jurisdic-
tion because, under 38 U.S.C. §§ 7401 and 7403, VHA ap-
pointments of physicians are not subject to the
requirements of the VEOA. Conklin v. Department of Vet-
erans Affairs, No. SF-3330-23-0499-I-1, 2025 WL 326321,
at *1–2 (M.S.P.B. Jan. 28, 2025) (Final Decision); Board
Supplemental Appendix (S. Appx.) 1–3. We affirm.
I
A
Dr. Conklin served intermittently in the United States
Army and Air Force in the 1990s and 2000s for a total of
about four years, ending in 2009. Following his service, the
agency awarded him veterans’ benefits, effective in 2017,
for a 60-percent disability based on a service-connected
condition or conditions. See S. Appx. 58–61.
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CONKLIN v. MSPB 3
In November 2022, Dr. Conklin applied to fill an adver-
tised opening for a “Physician – Chief of Staff” job at VHA’s
Puget Sound Health Care System, an excepted-service po-
sition announced by the agency the previous month. The
position encompassed “direct patient care responsibilities”
and therefore required a license to practice medicine. S.
Appx. 66–68. Dr. Conklin was not interviewed, and in May
2023 VHA told him that he had not been selected. S. Appx.
84–87.
On June 12, 2023, after asking VHA whether in the
hiring process it had given him a preference based on his
veteran status and receiving a noncommittal response, S.
Appx. 84–87, Dr. Conklin filed a complaint with the De-
partment of Labor alleging that the agency had violated
various veterans’ preference regulations, see S. Appx. 88–
89. The Department of Labor investigated the allegations
and, the next month, notified Dr. Conklin that it had de-
termined that his rights were not violated because “[p]hy-
sicians are exempt from veterans’ preference under [38
U.S.C. § ]7401,” a statute governing VHA appointments. S.
Appx. 90. Accordingly, it closed his case, notifying him of
his right to appeal to the Board. Id.
B
Dr. Conklin (who is also a licensed attorney) appealed
to the Board on July 20, 2023, proceeding pro se and alleg-
ing that “[v]eteran’s [p]reference [was] not used” in evalu-
ating his Chief of Staff application. S. Appx. 102; see S.
Appx. 104. The administrative judge (AJ) assigned to the
case understood Dr. Conklin to be invoking the Board’s
VEOA jurisdiction and ordered briefing on whether the
Board had such jurisdiction over his appeal. S. Appx. 91–
92. To establish VEOA jurisdiction, Dr. Conklin had to
plead either that the agency denied him the opportunity to
compete, see 5 U.S.C. § 3330a(a)(1)(B), or that it “violated
[his] rights under any statute or regulation relating to vet-
erans’ preference,” see id. § 3330a(a)(1)(A). Id. § 3330a(d).
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CONKLIN v. MSPB 4
For the latter ground of jurisdiction, which is at issue here,
Dr. Conklin was required to (1) demonstrate his exhaus-
tion of his Department of Labor remedy and (2) nonfrivo-
lously allege (i) his preference eligibility under the VEOA,
(ii) his possession of statutory or regulatory veterans’ pref-
erence rights purportedly violated by the agency, and
(iii) his right to appeal such a violation to the Board. See
S. Appx. 92–93; 5 U.S.C. § 3330a(d), (a)(1)(A).
In response to the AJ’s order, Dr. Conklin identified the
VEOA (and no other source) as providing the Board juris-
diction over his appeal. See S. Appx. 48. In particular, he
alleged that the agency had violated his hiring-preference
rights by noncompliance with 5 C.F.R. Part 302, which re-
quires that veterans be preferred in various ways in ap-
pointments for certain excepted-service positions. See S.
Appx. 48–50. The agency moved to dismiss the Board ap-
peal, arguing that “physician positions in the VHA are ex-
empt from the enforcement mechanism in VEOA.” Conklin
v. Department of Veterans Affairs, No. SF-3330-23-0499-I-
1, 2023 WL 9777240, at 2 (M.S.P.B. Nov. 14, 2023) (Initial
Decision); S. Appx. 11.1 Dr. Conklin countered that 38
U.S.C. § 7403 “mandates that the Secretary of [Veterans
Affairs] . . . use the veteran preference principles set forth
in Title 5, Chapter 33, subchapter I, when hiring veterans
for physician jobs.” S. Appx. 35.
The AJ dismissed Dr. Conklin’s appeal for lack of
Board jurisdiction on November 14, 2023. Initial Decision,
at 1. Regarding the hiring-preference jurisdictional basis
of § 3330a(d), (a)(1)(A), the AJ determined, and it is undis-
puted here, that Dr. Conklin had satisfactorily demon-
strated his preference eligibility and exhaustion of his
Department of Labor remedy. Id. at 7. The AJ ruled, how-
ever, based on our decision in Scarnati v. Department of
1 For the Initial Decision, we use the native page
numbers on the decision found at S. Appx. 10–25.
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CONKLIN v. MSPB 5
Veterans Affairs, 344 F.3d 1246, 1247–48 (Fed. Cir. 2003),
that appointments to physician positions in VHA are “not
covered by the veterans’ preference redress mechanism
provided by VEOA,” so Dr. Conklin had not alleged a viola-
tion within the Board’s jurisdiction. Initial Decision, at 7.
Dr. Conklin petitioned for full Board review. The
Board, reiterating the holding of Scarnati that “Congress
has specifically exempted [VHA’s appointments of physi-
cians] from the VEOA process,” affirmed the initial deci-
sion on January 28, 2025. Final Decision, at *1–2 (citing
344 F.3d at 1248).
Dr. Conklin timely sought review in this court, naming
the agency as respondent. The agency moved to intervene
and to have the case recaptioned to designate the Board as
respondent, and we granted the motion. ECF Nos. 16, 18.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
II
We must “hold unlawful and set aside” any finding or
conclusion of the Board’s that is “(1) arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule,
or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). Whether the
Board has jurisdiction over an appeal is a question of law
that we decide without deference. Johnston v. Merit Sys-
tems Protection Board, 518 F.3d 905, 909 (Fed. Cir. 2008).
A
Dr. Conklin argues that the Board misinterpreted 38
U.S.C. § 7403 in ruling that the VEOA process at issue is
not available to VHA appointments of physicians. The
Board held that this conclusion was compelled by our deci-
sion in Scarnati. See Final Decision, at *1–2; Initial Deci-
sion, at 7–8. We agree with the Board.
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CONKLIN v. MSPB 6
In Scarnati, decided not long after the enactment of the
VEOA, we analyzed the VEOA’s interaction with 38 U.S.C.
§§ 7401 and 7403, which apply to VHA. See 344 F.3d at
1247–49. Section 7401 says that VHA may appoint a vari-
ety of specifically identified health-care-related profession-
als, and it places them in four categories. As relevant here,
paragraph (1) lists precisely eight profession occupations,
including “[p]hysicians,” § 7401(1), while paragraph (3)
lists several dozen, such as “audiologists” and “dental as-
sistants,” and allows the Secretary of Veterans Affairs to
add to the list, § 7401(3). Section 7403(a) says that
“[a]ppointments under this chapter of health-care profes-
sionals to whom this section applies may be made . . . with-
out regard to civil-service requirements.” § 7403(a)(1)
(emphases added). Section 7403(a) then immediately adds
that “[t]his section applies to the following persons ap-
pointed under this chapter [§ 7401 et seq.]: (A) Physicians.
. . .” (with the remaining (B)–(H) items on the list matching
the other occupations recited in § 7401(1)). § 7403(a)(2).
Thus, VHA may appoint physicians (and the other person-
nel identified in §§ 7401(1) and 7403(a)(2)) “without regard
to civil-service requirements.” § 7403(a)(1).
This court in Scarnati interpreted the phrase “civil-ser-
vice requirements” in § 7403(a) to reach all “provisions of
Title 5,” including the VEOA provisions codified at 5 U.S.C.
§ 3330a. 344 F.3d at 1248. We relied in part on 38 U.S.C.
§ 7425(b), which states (with exceptions not relevant in
Scarnati or here) that “no provision of title 5 or any other
law pertaining to the civil service system which is incon-
sistent with any provision of . . . [chapter 74 of title 38]
shall be considered to supersede, override, or otherwise
modify such provision.” See Scarnati, 344 F.3d at 1248. We
concluded that, in § 7403, “Congress has specifically ex-
empted [§ 7401(1)-covered] appointments from the VEOA
process” such that “[a]n appeal to the Board under 5 U.S.C.
§ 3330a(d)(1) for an alleged violation of veterans’
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CONKLIN v. MSPB 7
preference rights is not available to those applying for
§ 7401(1) positions.” Scarnati, 344 F.3d at 1248–49.
Dr. Conklin’s argument here runs headlong into that
binding precedent. Dr. Conklin does not dispute that the
Chief of Staff job was a “physician” position within the
meaning of §§ 7401(1) and 7403(a)(2). See Conklin Infor-
mal Br. at 6–8. Dr. Conklin says, rather, that “veterans’
preference is not a civil service requirement” from which
VHA physician appointments are exempt. Id. at 7 (empha-
sis removed). But in Scarnati we held precisely the oppo-
site, as just recounted. See 344 F.3d at 1248. That
precedent directly applies to the situation here.
B
Dr. Conklin nevertheless argues that 38 U.S.C.
§ 7403(f), which was not expressly addressed by Scarnati,
mandates that the agency apply the veterans’ preference
provisions of Title 5 when hiring physicians. See Conklin
Informal Br. at 8–11. Subsection (f) was a part of section
7403 when we decided Scarnati, and it had materially the
same form as today, so there has been no intervening
change of law. See Veterans’ Medical Programs Amend-
ments of 1992, Pub. L. No. 102-405, 106 Stat. 1972, 1984.
But we need not decide whether we could properly depart
from Scarnati here, solely because an argument has been
made that was not discussed in Scarnati, if Dr. Conklin
were right about the meaning of § 7403(f). We conclude
that he is wrong about § 7403(f).
Section 7403(f) states in relevant part:
(1) Upon the recommendation of the Under Secre-
tary for Health, the Secretary may—
(A) use the authority in [§ 7403(a)] to establish
the qualifications for and (subject to paragraph
(2)) to appoint individuals to positions listed in
section 7401(3) of this title[.]
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CONKLIN v. MSPB 8
. . .
(2) In using such authority to appoint individuals
to such positions, the Secretary shall apply the
principles of preference for the hiring of veterans
and other persons established in subchapter I of
chapter 33 of title 5.
(3) Notwithstanding any other provision of this ti-
tle or other law, . . . the applicability of the princi-
ples of preference referred to in paragraph (2) . . .
involving individuals appointed to such positions,
. . . shall be resolved under the provisions of title 5
as though such individuals had been appointed un-
der that title.
38 U.S.C. § 7403(f) (emphases added).
Dr. Conklin’s first argument about § 7403(f) is, essen-
tially, that because § 7403(a)(2) says that “this section”
(i.e., all of § 7403) applies to “[p]hysicians,” and § 7403(f)
(which is part of § 7403) requires the Secretary to apply the
“principles” of veterans’ preference, the Secretary therefore
must prefer veterans when hiring physicians into VHA.
Conklin Informal Br. at 8–9. But § 7403(f)(1), by its plain
language, states an authority to make appointments to po-
sitions “listed in section 7401(3)” only, § 7403(f)(1); and
§ 7403(f)(2)’s statement about the principles of veterans’
preference is expressly limited to the just stated author-
ity—to “using such authority to appoint individuals to such
positions,” § 7403(f)(2) (emphases added). Physicians are
listed in § 7401(1), not § 7401(3), so § 7403(f)’s reference to
veterans’ preference does not impose veterans’ preference
requirements on VHA’s appointments of physicians. Thus,
§ 7403(f) confirms that the statute draws an intentional
distinction between physician positions and the non-physi-
cian positions of § 7401(3) with respect to veterans’ prefer-
ence, just as we held in Scarnati.
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CONKLIN v. MSPB 9
Dr. Conklin also argues that a contrary interpretation
of § 7403(f) would run afoul of the Fifth Amendment’s
Equal Protection Clause. Conklin Informal Br. at 13–16.
That argument is similarly unavailing.
The category of physicians is not a suspect or quasi-
suspect classification, so laws that treat physicians differ-
ently from others need only “rationally further a legitimate
state interest” to comply with the constitutional guarantee
of equal protection. See Nordlinger v. Hahn, 505 U.S. 1, 10
(1992). That standard is met if there is “any reasonably
conceivable state of facts that could provide a rational basis
for the classification,” so it is a challenger’s burden to “neg-
ative every conceivable basis which might support” the
classification. Armour v. City of Indianapolis, 566 U.S.
673, 681 (2012) (citations omitted). Dr. Conklin comes no-
where near showing that Congress lacked a rational basis
for permitting VHA to treat physicians differently from cer-
tain other individuals when making appointments. It is
certainly conceivable, for example, that Congress ration-
ally believed that exempting VHA physician appointments
from civil-service requirements would further a legitimate
interest in keeping VHA fully staffed—a prospect that Dr.
Conklin does not rebut. And there is not the slightest basis
for thinking that Congress was motivated by a “bare desire
to harm” physicians, a concept mentioned in City of
Cleburne v. Cleburne Living Center, 473 U.S. 432, 446–47
(1985) (cleaned up) (citation omitted). Thus, Dr. Conklin’s
§ 7403(f)-based arguments do not justify reaching a result
here different from the result we reached in Scarnati.
III
We have considered Dr. Conklin’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the decision of the Board.
The parties shall bear their own costs.
AFFIRMED
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