NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

VIDYARANI SUBBARAYA, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2010-3087 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. PH-0752-09-0439-I-1. 

______________________ 

Decided: July 9, 2010 

_______________________ 

VIDYARANI SUBBARAYA, of Hockessin, Delaware, pro 

se. 

SARA B. REARDEN, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, for respondent. With her on the brief were JAMES M.

EISENMANN, General Counsel, and KEISHA DAWN BELL, 

Deputy General Counsel. 

__________________________ 
SUBBARAYA v. MSPB 2

Before PROST, MAYER, and SCHALL, Circuit Judges. 

PER CURIAM. 

Vidyarani Subbaraya, M.D., seeks review of a final 

decision of the Merit Systems Protection Board dismissing 

her appeal for lack of jurisdiction. See Subbaraya v. Dep’t 

of Veterans Affairs, No. PH-0752-09-0439-I-1, 2009 MSPB 

LEXIS 4937 (M.S.P.B. Dec. 24, 2009). We affirm. 

Subbaraya accepted a temporary appointment as a 

primary care doctor at the Veterans Administration 

Medical Center in Wilmington, Delaware on November 1, 

2004. She subsequently acquired United States citizenship and, on May 14, 2006, she was converted to a permanent appointment as a primary care doctor pursuant to 38 

U.S.C. § 7401(1). The permanent appointment required 

Subbaraya to complete a probationary period of two years. 

On May 1, 2008, Subbaraya was notified by letter that 

she would be removed from her position with the agency 

due to unsatisfactory performance. On May 7, 2008, two 

days prior to the effective date of her proposed separation, 

she resigned from her position with the agency. 

On May 3, 2009, Subbaraya appealed to the board, 

arguing that her performance had been satisfactory and 

that the agency had retaliated against her for signing a 

petition recommending improvements at the Veterans 

Administration Medical Center. Shortly thereafter, an 

administrative judge dismissed her appeal, concluding 

that because she was appointed to her position at the 

Veterans Administration pursuant to 38 U.S.C. § 7401 

she had no right to appeal to the board. The administrative judge’s decision became the final decision of the board 

on December 24, 2009. See 5 C.F.R. § 1201.113. 

The board’s jurisdiction is not plenary, but is limited 

to those matters over which it has been granted jurisdic-
3 SUBBARAYA v. MSPB

tion by law, rule or regulation. See Johnston v. Merit Sys. 

Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). Subbaraya 

had the burden of proving, by a preponderance of the 

evidence, that the board had jurisdiction over her appeal. 

See 5 C.F.R. § 1201.56(a)(2)(i). 

Subbaraya alleges that her resignation from her position with the agency was involuntary. Even if she could 

establish that her resignation was involuntary, however, 

the board lacks jurisdiction to consider her appeal. “Congress has given the Secretary of Veterans Affairs broad 

discretion to appoint to positions in the [Veterans Health 

Administration] such personnel as the Secretary may find 

necessary for the medical care of veterans. One category 

of personnel that may be appointed to the [Veterans 

Health Administration] under § 7401 includes physicians, 

dentists, podiatrists, optometrists, registered nurses, 

physician assistants, and expanded-function dental 

auxiliaries.” Scarnati v. Dep’t of Veterans Affairs, 344 

F.3d 1246, 1248 (Fed. Cir. 2003) (citations and internal 

quotation marks omitted). Health care workers appointed 

pursuant to section 7401(1) generally have no right to 

appeal adverse personnel actions to the board. See 5 

U.S.C. § 7511(b)(10); Bonner v. Dep’t of Veterans Affairs, 

477 F.3d 1343, 1348 (Fed. Cir. 2007) (emphasizing that 

Veterans Health Administration “employees hired under 

38 U.S.C. § 7401(1) . . . have never had the right to appeal 

§ 7512-type adverse actions to the MSPB.”). Thus, regardless of whether Subbaraya was serving as a probationary employee at the time she resigned, she had no 

right to appeal to the board because she was appointed to 

her position pursuant to section 7401(1). See James v. 

Von Zemenszky, 284 F.3d 1310, 1319 (Fed. Cir. 2002) 

(“[C]hapter 74 of title 38 contains a number of provisions 

that treat [Veterans Health Administration] health-care 
SUBBARAYA v. MSPB 4

professionals differently from ordinary civil service employees.”). 

The board likewise correctly determined that it lacked 

jurisdiction to consider Subbaraya’s allegation that she 

suffered reprisal for disclosures protected under the 

Whistleblower Protection Act of 1989 (“WPA”). See 

5 U.S.C. § 2302(b)(8). The board can exercise jurisdiction 

over a WPA claim only when an employee has exhausted 

his administrative remedies before the Office of Special 

Counsel (“OSC”). See 5 U.S.C. § 1214(a)(3); Ward v. Merit 

Sys. Prot. Bd., 981 F.2d 521, 526 (Fed. Cir. 1992). Subbaraya, however, failed to establish that she filed a complaint with the OSC or that it terminated its investigation 

into her complaint. 

We have considered Subbaraya’s remaining arguments, but do not find them persuasive.