Hoover v. McDonough

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 24, 2024
• Docket: 23-6191
• Status: Unpublished

Opinion

Appellate Case: 23-6191 Document: 010111084214 Date Filed: 07/24/2024 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS July 24, 2024 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court DR. TAMARA J. HOOVER,

Plaintiff - Appellant,

v. No. 23-6191 (D.C. No. 5:23-CV-00525-J) DENIS MCDONOUGH, (W.D. Okla.) Secretary of Veterans Affairs,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, EID, and FEDERICO, Circuit Judges. _________________________________

Dr. Tamara Hoover appeals the district court’s dismissal, pursuant to

Fed. R. Civ. P. 12(b)(1), of her action against her former employer, the

United States Department of Veterans Affairs (VA), alleging unlawful

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-6191 Document: 010111084214 Date Filed: 07/24/2024 Page: 2

termination without due process. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

BACKGROUND

Dr. Hoover worked as a physician at the Oklahoma City VA. She

began working there on June 21, 2020. On September 13, 2020, the VA

“converted” Dr. Hoover’s employment “to an Executive Appointment

pursuant to 38 U.S.C. § 7401(1).” Aplt. App. at 8, ¶ 6. On September 9,

2022, the VA “purported to terminate” her employment “without a due

process hearing[,] asserting that [she] was a probationary employee.” Id. ¶

7. Dr. Hoover sued the VA, requesting “declaratory relief be entered in her

favor determining that as of June 21, 2022, [she] was a full time, permanent

employee of [the Oklahoma City VA], that [she] was unlawfully removed

from her position without statutory due process, and that [she] should be

reinstated to her position with such other relief as may be appropriate.” Id.

at 8–9.

The VA moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of

subject matter jurisdiction, contending it enjoyed sovereign immunity from

suit. Dr. Hoover asserted the VA waived its sovereign immunity under the

Administrative Procedures Act, 5 U.S.C. § 702. Aplt. App. at 11, ¶ 11. The

district court granted the motion to dismiss, concluding the waiver in § 702

did not apply because it did not “confer authority to grant relief if any other

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statute that grants consent to suit expressly or impliedly forbids the relief

which is sought,” Kansas ex rel. Kan. Dep’t for Child. & Fams. v.

SourceAmerica, 874 F.3d 1226, 1240 (10th Cir. 2017) (internal quotation

marks and brackets omitted), and the statutory grievance procedure in the

Veterans’ Benefits Act (VBA), see 38 U.S.C. §§ 7461–64, displaced APA

review. This timely appeal followed.

DISCUSSION

“We review the district court’s order dismissing the case for lack of

subject matter jurisdiction de novo.” Lindstrom v. United States,

510 F.3d 1191, 1193 (10th Cir. 2007). Where, as here, a party challenges

subject matter jurisdiction by mounting a facial attack on the sufficiency of

a complaint’s factual allegations, we must accept those allegations as true.

See Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4

(10th Cir. 2015).

In Tompkins v. U.S. Dep’t of Veterans Affs., 16 F.4th 733, 742

(10th Cir. 2021), this court held that district courts lack subject-matter

jurisdiction under the APA to review challenges to disciplinary decisions

made under 38 U.S.C. § 7463 because the VBA’s disciplinary scheme

“intentionally precludes judicial review of” those decisions. Relying on

Tompkins, the district court concluded it lacked jurisdiction because Dr.

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Hoover’s complaint asserted an APA-based challenge to the VA’s

termination of her employment.

On appeal, Dr. Hoover argues her claim presented a question not

addressed in Tompkins—whether, at the time of her termination, she was

a “probationary” or “non-probationary” employee of the VA under the VBA’s

appointment provisions. Aplt. Opening Br. at 6. She argues further “that

the VBA either does not apply at all to a request to construe 38

U.S.C. §§ 7401–7406, or, that the probationary employee issue is so

collateral to the purposes of the VBA that this issue is not swept within

VBA exclusivity.” Id. at 6 (emphasis omitted). But regardless of whether

she was a probationary employee when the VA terminated her, she was a

physician appointed under § 7401(1) of the VBA. Accordingly, the VBA’s

comprehensive statutory scheme for reviewing claims challenging the

termination of such physicians eliminates jurisdiction under the APA. The

district court therefore correctly dismissed Dr. Hoover’s amended

complaint, which relied on the APA for its jurisdictional basis.

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CONCLUSION

We affirm the judgment of the district court.

Entered for the Court

Richard E.N. Federico Circuit Judge