Durr v. Shinseki
2011 U.S. App. LEXIS 7973
11th Cir.2011Background
- Durr, a nephrology/internal medicine physician, served as a VA employee from 1992 as a temporary § 7405(a)(1)(A) appointee and remained in that status until 2006.
- In 2006 Durr became a U.S. citizen, rendering him eligible for a § 7401(1) permanent appointment, which was sought by Bay Pines leadership.
- November 2006 Bay Pines approved conversion to a § 7401(1) permanent appointment, with an accompanying two-year probationary term noted as beginning 11-12-06.
- Durr received an unsatisfactory overall evaluation in October 2008 and was terminated effective November 7, 2008, during the probationary period.
- Disciplinary Appeals Board dismissed his appeal on jurisdiction grounds, because he was still a probationary employee at termination.
- Durr sought judicial review in district court, arguing the two-year § 7403 probationary period applied to his prior § 7405 service or, alternatively, that the probation began on 11-12-06 but could be triggered earlier.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 7403 probation apply to § 7405 temporary appointments? | Durr: probation runs across § 7405 service; converts to permanent when eligible. | VA: § 7403 probation applies only to § 7401(1) permanent appointments. | Probation applies only to permanent § 7401(1) appointments. |
| Are VA handbooks entitled to Chevron or Skidmore deference in interpreting probation? | Durr: handbooks reflect plain-language history and should bind interpretation as part of § 7403/§ 7405 regime. | VA: handbooks receive Chevron or Skidmore deference as guidance, just not controlling law. | Skidmore deference applied; handbooks guide but do not control the outcome. |
| When did the § 7401(1) permanent appointment and its probation begin for Durr? | Beginning 11-02-2006 or 11-12-2006; either would end probation before termination. | Effective date for probation beginning as 11-12-2006 per Personnel Action form. | Probation began 11-12-2006; termination occurred during probation, thus no jurisdiction for appeal. |
Key Cases Cited
- CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217 (11th Cir.2001) (begin with plain statutory language, may depart for absurd results)
- Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) (deference to agency interpretations of statutes when regulations have force of law)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (non-binding deference based on persuasiveness of agency guidance)
- Christensen v. Harris County, 529 U.S. 576 (2000) (policy statements may lack Chevron deference; depend on context)
- United States v. Mead Corp., 533 U.S. 218 (2001) (relevance of agency guidance and rulemaking to deference analysis)
- James v. Von Zemenszky, 284 F.3d 1310 (Fed. Cir.2002) (handbooks are persuasive but not controlling authority)
- Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir.1997) (statutory language should be read in context; avoid absurd results)
- In re Graupner, 537 F.3d 1295 (11th Cir.2008) (absurdity doctrine guides interpretation to avoid irrational results)
- In re Int'l Admin. Servs. Inc., 408 F.3d 689 (11th Cir.2005) (read statute in context with policy and overall scheme)
- United States v. DBB, Inc., 180 F.3d 1277 (11th Cir.1999) (statutory interpretation requires contextual analysis)