Dr. R. Michael HARDING, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent, 448 F.3d 1373

Opinion for the Court filed by Circuit Judge GAJARSA. Dissenting opinion filed by Circuit Judge SCHALL. DECISION GAJARSA, Circuit Judge. Dr. R. Michael Harding (“Dr.Harding”) appeals from a final decision of the Merit Systems Protection Board (the “Board”) dismissing for lack of jurisdiction his claim for retaliatory termination under the Whistleblower Protection Act (the “WPA”). Harding v. Dep’t of Veterans Affairs, 98 M.S.P.R. 296 (2005) (“Final Decision ”).

Because we conclude that the Board’s decision was not in accordance with law, we hereby reverse and remand the case for further proceedings in accordance with this opinion. BACKGROUND Dr. Harding was appointed as a Staff Physician by the Department of Veterans Affairs (“DVA”) pursuant to 38 U.S.C. § 7401(1). On November 8, 2002, the DVA removed Dr. Harding from his position on charges of persistent failure to maintain certain patient records. The DVA’s discharge notice indicated that Dr.

Harding’s removal “involve[d] a question of professional conduct or competence,” entitling him to appeal the decision to a Disciplinary Appeals Board under 38 U.S.C. § 7462(a). Dr. Harding then pursued two simultaneous avenues to challenge his removal. He filed an appeal with the Disciplinary Appeals Board, which ultimately led to the removal penalty being mitigated to a fourteen-day suspension. He also pursued a claim, initially filed prior to his discharge, with the United States Office of Special Counsel, in which he alleged that he was improperly discharged in retaliation for whistleblower activities.

The Office of Special Counsel, after conducting a preliminary investigation, advised Dr. Harding that it was “unable to make a determination in his favor” and terminated its investigation. It then notified him, in writing, that because he had alleged that he was a victim of “reprisal for whistleblowing,” he had “a right to seek corrective action from the Merit Systems Protection Board” pursuant to ah individual right of action. See 5 U.S.C. § 1221(a). Dr. Harding then appealed to the Board. In his initial decision, the administrative law judge dismissed Dr.

Harding’s petition for failure to state a claim upon which relief could be granted, concluding that Dr. Harding had “failed to make a nonfrivolous allegation that he made a disclosure protected under the whistleblower statute.” Harding v. Dep’t of Veterans Affairs, No. SE-1221-03-0216-W-1 (M.S.P.B. July 10, 2003) (“Initial Decision ”). Dr. Harding filed a petition for review by the full Board, which, in a decision rendered on March 14, 2005, denied the petition, reopened the appeal sua sponte, vacated the Initial Decision, and dismissed the reopened appeal for lack of jurisdiction.

Final Decision, 98 M.S.P.R. at 297. The Board, in a two-to-one decision, determined that it lacked jurisdiction over Dr. Harding’s claim because of the exclusivity provision of 38 U.S.C. § 7462, which provides that DVA Disciplinary Appeals Boards “shall have exclusive jurisdiction to review any case ... which arises out of ... a question of professional conduct or competence of a section 7401(1) employee.” Because Dr. Harding was a DVA physician appointed pursuant to § 7401(1), and because the DVA’s discharge notice specified that Dr.

Harding was removed for conduct involving his “professional conduct or competence,” the Board concluded that the Disciplinary Appeals Boards had exclusive jurisdiction over his claim. Dr. Harding timely filed an appeal with this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

STANDARD OF REVIEW We must affirm the decision of the Board unless the decision was: “(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) (2005); accord Kievenaar v. Office of Pers. Mgmt., 421 F.3d 1359, 1362 (Fed.Cir.2005). Whether the Board has jurisdiction is a question of law, which this court reviews de novo. Hayes v. United States Postal Serv., 390 F.3d 1373, 1376 (Fed.Cir.2004).

The petitioner has the burden of establishing the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R. 1201.56(a)(2)(i); accord Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569, 1573 (Fed. Cir.1996). DISCUSSION On appeal, Dr. Harding argues that the Board’s decision was not in accordance with law because it failed to properly consider an amendment to the WPA that, he asserts, expressly provides for Board review of whistleblower claims by DVA medical personnel. Like Board member Sapin in her dissenting opinion below, he argues that 5 U.S.C. § 2105(

f) represents express authorization by Congress for the inclusion of DVA medical personnel in the class of “employees” protected by 5 U.S.C. § 1221. The Board considered this argument and rejected it, relying primarily on the “notwithstanding” clause of 38 U.S.C. § 7425(b), which states: Notwithstanding any other provision of law, no provision of title 5 ... which is inconsistent with ... this

chapter [38 U.S.C. §§ 7401 et seq.] shall be considered to supersede, override, or otherwise modify such provision of that

section or this

chapter except to the extent that such provision of title 5 or of such other law specifically provides, by specific reference to a. provision of this chapter, [f|or such provision to be superseded, overridden, or otherwise modified, (emphasis added). The critical question is whether the language of 5 U.S.C. § 2105(

f) is sufficient to constitute it as “a provision of title 5 ... [that] specifically provides, by specific reference to a provision of [chapter 74 of title 38], [f]or such provision to be superseded, overridden, or otherwise modified.” The Board concluded that it was not, stating that “[t]he sweeping language of

section 7425(b) ... signals the drafter’s intention that the provisions of the ‘notwithstanding’ clause trump all other laws,” and that “the relevant portion of [5 U.S.C. § 2105(f) ] ... did not set out a ‘specific’ reference to any provision of Title 38 that was to be ‘superseded, overridden, or otherwise modified.’” Final Decision, 98 M.S.P.R. at 300. We disagree.

Section 2105(

f) of Title 5 expresses Congress’ intent to supersede, not a “specific provision” of

chapter 74, but all the provisions of chapters 73 and 74 that might operate to preclude “employees” appointed under those chapters from pursuing remedies under enumerated provisions of Title 5. The only question is whether this broad — but explicit — Congressional command should be defeated by its very breadth. We conclude that it should not.

Section 2105(f), by stating Congress’ intent to supersede all relevant provisions of chapters 73 and 74 for particular purposes, effectively overrides the specificity requirements of § 7425(

b) and, consequently, the exclusivity provision of § 7462. To conclude that Congress’ decision to supersede all relevant provisions of

chapter 74 is somehow ineffective to supersede one particular provision of that

chapter is to elevate form over substance and vitiate Congress’ clear intent. The cases relied upon by the dissent are entirely consistent with the result we reach today. The only Federal Circuit decision to address the application of § 2105(

f) to Veterans Health Administration health-care personnel concluded that “Congress has expressly provided [DVA medical personnel] with coverage by Title 5 provisions relating to whistleblower protection.” James v. Von Zemenszky, 284 F.3d 1310, 1320 (Fed.Cir.2002) (citing § 2105(f)). The Board has drawn the same conclusion. See, e.g., Yunus v.

Dep’t of Veterans Affairs, 84 M.S.P.R. 78, 84 n. * (1999) (stating that “as a Department of Veterans Affairs ... physician appointed under 38 U.S.C. § 7401(1), the appellant cannot appeal his removal directly to the Board ... [but] can bring this appeal, in which the only issue is whether the removal was retaliatory ... because in 1994 Congress extended the WPA’s coverage to DVA physicians”), aff'd, 242 F.3d 1367 (Fed.Cir.2001). The United States Office of Special Counsel sent a letter specifically advising Dr.

Harding of his right to appeal his removal to the Board, stating that he could “seek corrective action from the MSPB under the provisions of 5 U.S.C. §§ 1214(a)(3) and 1221,” even instructing him to include the letter in his Board appeal.

Although it is true, as the dissent states, that several other circuits have held “that under the predecessor of 7425(b), Title 5 yields to Title 38 in the case of a conflict, unless the conflicting provision of Title 5 expressly supersedes the Title 38 provision,” those cases address the simpler circumstance in which an arguably inconsistent Title 5 provision makes no reference to any Congressional intent to supersede any part of Title 38. See, e.g., Am. Fed. of Gov’t Employees, AFL-CIO v. Fed. Labor Relations Auth., 850 F.2d 782, 784 (D.C.Cir.1988); Am. Fed. of Gov’t Employees, Local 3306 v. Fed.

Labor Relations Auth., 2 F.3d 6, 10 (2d Cir.1993) (“American Federation II ”); Veterans Admin. Med. Ctr. v. Fed. Labor Relations Auth., 705 F.2d 953, 958 (8th Cir.1983). The most recent of the regional circuit cases cited by the dissent noted that under § 7425(b), “provisions of title 5 ... cannot implicitly modify title 38.” American Federation II, 2 F.3d at 10 (emphasis added). We agree with the dissent that, in the absence of any evidence of Congressional intent to override or modify a provision of Title 38,

section 7425(

b) must preclude any such modification. Where, however, Congress has expressly stated its intention to override multiple provisions of Title 38 for a particular purpose, sound principles of statutory construction not only permit, but require, this court to give effect to Congress’ clear intent. This is especially true where, as here, the modifying provision substantially post-dates the provision that ostensibly precludes modification. Finally, the legislative history of § 2105(

f) supports the view that Congress intended to provide the protections of the WPA to all Title 38 health care employees. In the floor debates discussing proposed legislation that became § 2105(f), Senator Conrad expressed concern that “[DVA] employees have reported that

section 7425(

b) of Title 38 supersedes Title 5 and exempts DVA health care workers from the provisions of the [WPA].” 139 Cong. Rec., pt. 4, 5822 (1993). Senator Conrad, citing a report by the House Committee on Government Operations on the deficiencies of the DVA medical quality assurance program, indicated that “DVA employees who report fraud, abuse and other inappropriate medical care at DVA medical facilities have been subject to harassment, intimidation, and other deplorable treatment by DVA management and supervisory personnel.” Id.

He was “very concerned that health care personnel in the [DVA] are not adequately protected under the provisions of the [WPA].” Id. In response to this concern, Senator Conrad “introduced legislation ... to clarify that the provisions of the [WPA] (title 5) apply to title 38 health care employees of the [DVA].” Id. In 1994, Congress adopted § 2105(f).

Contrary to the assertions made by the dissent and the Board, there is no indication in the legislative history that Congress intended to limit its extension of Board jurisdiction to DVA medical personnel to those whose claim is not based on a question of “professional conduct or competence.” Cf. Final Decision, 98 M.S.P.R. af 301. Similarly, the 1980 Explanatory Statement cited by the dissent does little but restate, the statutory language of what is now § 7425(b). It provides no insight into whether Congress might subsequently decide to supersede entire chapters of Title 38 instead of individual provisions.

We acknowledge the interpretive difficulties of this case. We conclude, however, that by enacting § 2105(

f) Congress expressed its intention to supersede all inconsistent provisions of chapters 73 and 74 of Title 38 and thereby extend Board jurisdiction to claims like Dr. Harding’s. We therefore reverse the Board’s decision and remand this case for consideration of the merits. REVERSED and REMANDED .

Section 2105(

f) provides that for purposes of several provisions of Title V, including

section 1221, "employees appointed under

chapter 73 or 74 of Title 38 shall be employees.” .

Section 2105(

f) was enacted in 1994. See Pub.L. No. 103-424, 108 Stat.

Section 4119 of title 38 was enacted in 1980, and was simply redesignated without modification as § 7425(

b) in 1991. See Pub.L. No. 102-40, 105 Stat. 187. To the extent that § 7425(

b) and § 2105(

f) can be said to conflict, this is an appropriate circumstance for the application of the ancient canon of construction lex posterior derogate legi priori: where two statutory provisions appear to conflict, the later in time prevails. . Although we acknowledge that, in interpreting statutes, courts should be “wary of testimony before committee hearings and debates on the floor of Congress save for precise anal-yses of statutory phrases by the sponsors of the proposed laws,” S & E Contractors, Inc. v.

United States, 406 U.S. 1, 13 n. 9, 92 S.Ct. 1411, 31 L.Ed.2d 658 (1972), that sensible caution does not prevent us from relying upon the remarks of the sponsor of legislation describing his purpose in introducing that legislation as an indicator of Congressional intent, at least in the absence of contradictory evidence in the legislative history. See, e.g., New Mexico v. United States, 831 F.2d 265, 269 (Fed.Cir.1987). . We express no opinion as to the proper resolution of the merits of Dr. Flarding’s claim.