United States Court of Appeals 

for the Federal Circuit 

__________________________ 

SARAH BENNETT, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent, 

and 

DEPARTMENT OF VETERANS AFFAIRS 

Intervenor. 

__________________________ 

2010-3084 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. PH0752090673-I-1. 

__________________________ 

Decided: March 30, 2011 

__________________________ 

PHILLIP R. KETE, Attorney at Law, of Washington, DC, 

argued for petitioner. 

SARA B. REARDEN, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, argued for respondent. With her on the brief were 

JAMES M. EISENMANN, General Counsel, and KEISHA 

DAWN BELL, Deputy General Counsel. 
BENNETT v. MSPB 2

J. HUNTER BENNETT, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, argued for intervenor. On 

the brief were TONY WEST, Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY,

JR., Assistant Director. 

__________________________ 

Before GAJARSA, PROST, and MOORE, Circuit Judges. 

GAJARSA, Circuit Judge. 

This case arises from a decision of the Merit Systems 

Protection Board (“MSPB”), dismissing Sarah Bennett’s 

(“Bennett”) appeal of her removal from her position as a 

sales clerk in the Veterans Canteen Services (“VCS”). The 

MSPB dismissed the appeal for lack of jurisdiction. The 

issue before us is whether an individual hired by the VCS 

pursuant to 38 U.S.C. § 7802 has appeal rights under 

chapters 75 and 77 of title 5. For the reasons discussed 

below, we hold that such an employee does not, and we 

affirm the MSPB’s decision. 

BACKGROUND

Bennett’s employment with the VCS began in August 

2004 when she was hired as a part-time sales clerk. The 

VCS extended this temporary appointment on December 

11, 2004, and subsequently her appointment was converted to permanent status in the excepted1 service on 

May 1, 2005 pursuant to 38 U.S.C. § 7802. Chapter 78 of 

title 38 provides for the creation and regulation of the 

 1 Under the Civil Services Reform Act of 1978, individuals in the “excepted service” are those who are neither in the competitive service nor the Senior Executive 

Service. 5 U.S.C. § 2103. Section 7802(e) of title 38 

explains that VCS employees are in the excepted service. 
3 BENNETT v. MSPB

VCS. Specifically, section 7802(e) governs the appointment of VCS personnel. That subsection states that: 

The Secretary shall employ such persons as are 

necessary for the establishment, maintenance, 

and operation of the Service, and pay the salaries, 

wages, and expenses of all such employees from 

the funds of the Service. Personnel necessary for 

the transaction of the business of the Service at 

canteens, warehouses, and storage depots shall be 

appointed, compensated from funds of the Service, 

and removed by the Secretary without regard to 

the provisions of title 5 governing appointments in 

the competitive service and chapter 51 and subchapter III of chapter 53 of title 5. Those employees are subject to the provisions of title 5 relating 

to a preference eligible described in section 

2108(3) of title 5, subchapter I of chapter 81 of title 5, and subchapter III of chapter 83 of title 5. 

38 U.S.C. § 7802(e). Both parties agree that Bennett was 

not a preference eligible employee.2 During her employment, Bennett was thus a non-preference eligible employee in the excepted service. 

On September 17, 2008, Bennett was notified of her 

proposed removal from employment for misconduct and 

given fourteen days to reply. Her alleged misconduct 

included failing to render proper payment for VCS merchandise, failing to register proper cash register transactions, and violating the VCS employee purchase policy. 

Bennett appealed the removal decision to the MSPB on 

September 25, 2009 pursuant to 5 U.S.C. § 7513(d). 

 2 The individuals who qualify as “preference eligible” are listed in 5 U.S.C. § 2108. These individuals are 

generally veterans and their close relatives. Id.; United 

States v. Fausto, 484 U.S. 439, 440 n.1 (1988). 
BENNETT v. MSPB 4

Chapters 75 and 77 of title 5 relate to adverse actions 

taken against certain government employees and the 

rights those employees have to contest such actions. 

Section 7513(d) gives an employee, as defined by sections 

7511(a)(1) and (b), the right to appeal an adverse action to 

the MSPB. 

Although several jurisdictional issues relating to 

Bennett’s appeal were raised,3 only one is relevant here. 

The Department of Veterans Affairs (“DVA”) asserted in a 

motion for a stay that the MSPB lacked jurisdiction 

because Bennett was appointed under 38 U.S.C. § 7802(e), 

which excluded her from the protections of 5 U.S.C. 

§ 7513(d). The administrative judge (“AJ”) granted the 

stay and issued an order on October 15, 2009, stating that 

Bennett was “entitled to the hearing she requested only if 

she makes a nonfrivolous allegation of jurisdiction.” 

Bennett v. Dep’t of Veterans Affairs, Docket No. PH-0752-

09-0673-I-1, slip op. at 2 (M.S.P.B. Oct. 15, 2009). In her 

response, Bennett argued that the MSPB had jurisdiction 

because her appeal was filed under chapters 75 and 77 of 

title 5 and she met the statutory definition of “employee” 

 3 Initially, in an order to show cause issued four 

days after Bennett’s appeal was filed, the administrative 

judge (“AJ”) ordered Bennett to produce evidence that the 

MSPB had jurisdiction over her appeal. The AJ believed 

the MSPB lacked jurisdiction because it appeared that 

Bennett was challenging a proposed action that had not 

yet taken place. In response, Bennett submitted evidence 

to show she was terminated on October 20, 2008, which 

was before her appeal was filed. This triggered the AJ to 

issue a second order on October 13, 2009 related to jurisdiction, this time requesting that Bennett show cause why 

her appeal, which was filed more than 310 days after the 

thirty day deadline, should not be dismissed for untimely 

filing or that she had good cause for filing late. While the 

DVA raised this issue with the MSPB, the MSPB did not 

render a decision on this issue. 
5 BENNETT v. MSPB

under section 7511(a)(1)(C). The DVA response maintained that Bennett’s termination was within the exclusive authority of the Secretary of Veterans Affairs 

(“Secretary”) under 38 U.S.C. § 7802(e) and the provisions 

of title 5 were inapplicable. Bennett replied that because 

the VCS was not explicitly excluded from chapter 75, she 

had appeal rights from an adverse employment action. 

In his initial decision of December 7, 2009, the AJ 

found that Bennett’s appointment was made pursuant to 

38 U.S.C. § 7802(e) and dismissed her appeal. The AJ 

adopted the reasoning in Chavez v. Dep’t of Veterans 

Affairs, 65 M.S.P.R. 590 (1994), which held that certain 

non-preference eligible employees in the excepted services—like Bennett—were excluded from the appointing 

provisions of chapter 75 of title 5. Neither party petitioned the MSPB to review the AJ’s decision, and, pursuant to 5 C.F.R. § 1201.113, the AJ’s initial decision 

became the final decision of the MSPB on January 11, 

2010. Bennett then timely filed her appeal with this 

court. We have jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(9) and 38 U.S.C. § 4324(d). 

STANDARD OF REVIEW

Our review of MSPB decisions is limited under 5 

U.S.C. § 7703(c). The MSPB’s holding must be affirmed 

unless it is found to be: “(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); 

Barrett v. Soc. Sec. Admin., 309 F.3d 781, 785 (Fed. Cir. 

2002). The MSPB’s determination that it lacked jurisdiction is a question of law that the court reviews de novo. 

Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 

1995). 
BENNETT v. MSPB 6

DISCUSSION

The MSPB’s jurisdiction is limited to those matters 

over which it has been given jurisdiction by law, rule or 

regulation. Maddox v. Merit Sys. Prot. Bd., 759 F.2d 9, 10 

(Fed. Cir. 1985). As the petitioner, Bennett bears the 

burden of proving the MSPB’s jurisdiction over her appeal 

by a preponderance of the evidence. 5 C.F.R. 

§ 1201.56(a)(2)(i); Yates v. Merit Sys. Prot. Bd., 145 F.3d 

1480, 1483 (Fed. Cir. 1998). The question we address is 

whether the MSPB has jurisdiction over an appeal of 

removal by an employee, such as Bennett, who was appointed by the VCS pursuant to 38 U.S.C. § 7802. The 

resolution of this question depends on (1) whether 38 

U.S.C. § 7802(e) excludes VCS employees from the right 

to appeal under 5 U.S.C. § 7513(d); and (2) whether the 

amendments to 5 U.S.C. §§ 7511(a)(1), (b) remove any 

limitations on the right to appeal imposed by 38 U.S.C. 

§ 7802(e). 

I. 

It is a basic rule of statutory construction that “[a] 

statute should be construed so that effect is given to all its 

provisions, so that no part will be inoperative or superfluous, void or insignificant . . . .” Corley v. United States, 

129 S.Ct. 1558, 1556 (2009) (citation omitted) (internal 

quotation marks omitted). “[T]he starting point in every 

case involving construction of a statute is the language 

itself.” Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 472 

(1977) (quotation marks omitted). “It is a fundamental 

canon of statutory construction that the words of a statute 

must be read in their context and with a view to their 

place in the overall statutory scheme.” Nat’l Ass’n of 

Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666 

(2007) (citations omitted) (internal quotation marks 

omitted). If a statute requires interpretation beyond the 
7 BENNETT v. MSPB

terms of the language, we can use its legislative history to 

inform the statutory interpretation—analysis of legislative history is also a “traditional tool of statutory construction.” Zuni Public Sch. Dist. No. 89 v. Dep’t of Educ., 

550 U.S 81, 106 (2007) (Stevens, J. concurring). 

“If, however, the court determines Congress has not 

directly addressed the precise question at issue,” the court 

then turns to the agency interpretation of a statute. 

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

467 U.S. 837, 842 (1984). Then, the court must determine 

“whether the agency’s answer is based on a permissible 

construction of the statute.” Id. at 843; see also Fed. 

Express Corp.v. Holowecki, 552 U.S. 339, 395 (2008) 

(“[W]hen an agency invokes its authority to issue regulations, which then interpret ambiguous statutory terms, 

the courts defer to its reasonable interpretations.”) These 

principles guide the analysis below. 

A. 

We begin with the plain language of 38 U.S.C. 

§ 7802(e), which states that “[VCS p]ersonnel shall be . . . 

removed by the Secretary without regard to the provisions 

of title 5 governing appointments in the competitive service

. . . .” Id. (emphases added). Bennett contends that 38 

U.S.C. § 7802(e) only permits the Secretary to ignore the 

provisions of title 5 governing competitive service appointments, rather than all of title 5. When analyzing 

the plain language of the statute in the context of the 

VCS’s legislative history, as the MSPB did in Chavez, the 

true meaning of this language—to exclude non-preference 

eligible employees in the excepted service from appeal 

rights under title 5—is clear. 

When Congress adopted the VCS Act in 1946, section 

2(e), which would eventually be codified as section 

7802(e), stated that “[p]ersonnel . . . shall be . . . removed 
BENNETT v. MSPB 8

by the Administrator without regard to civil-service laws . 

. . [p]rovided, [t]hat such employees shall be subject to the 

Veterans’ Preference Act of 1944.” VCS Act of 1946, Pub. 

L. No. 79-636, § 2(e), 60 Stat. 887, 888 (1946). Section 

2(e) therefore provided that individuals appointed under 

the VCS could be removed by the Administrator regardless of civil service laws providing otherwise. 

The Secretary’s ability to remove VCS employees distinguishes the present case from King v. Briggs, 83 F.3d 

1384 (Fed. Cir. 1996), on which Bennett relies. The 

petitioner in Briggs was appointed Executive Director of 

the National Council on Disability pursuant to 29 U.S.C. 

§ 783(a)(1), an authority that, at that time, was silent as 

to the National Council’s removal power over that position. 29 U.S.C. § 783(a) (amended by the Workforce 

Investment Act of 1998, 105 P.L. 220, § 403, 112 Stat. 

936, 1200-01 (1998)). The court found that an employee 

appointed under section 783(a)(1) was therefore not 

precluded from appealing an adverse action under section 

7513(d). Briggs, 83 F.3d at 1388. Here, section 7802(e) 

gives the Secretary removal power over employees appointed under that section, thus excluding them from 

appeal rights under section 7513(d). 

In 1982, Congress amended section 4202(e) (previously section 2(e)) of the VCS Act to read as it does today 

(as section 7802(e)), replacing the language “without 

regard to civil-service laws” with “without regard to the 

provisions of title 5 governing appointments in the competitive service” and eliminating the provision that employees under the VCS Act would be subject to the VPA. 

Pub. L. No. 97-295, § (4)88, 96 Stat. 1287, 1312 (1982) 

(“1982 Amendments”). The 1982 Amendments also 

included a section on legislative purpose and construction. 

Id. § (5), 96 Stat. at 1313. According to section (5)(a), 

“[s]ections 1-4 of [the 1982 Amendments] restate, without 
9 BENNETT v. MSPB

substantive change, laws enacted before December 2, 

1981, that were replaced by those sections. Those sections may not be construed as making a substantive 

change in the laws replaced.” Id. § (5)(a), 96 Stat. at 

1313. 

Congress could not have stated more clearly that its 

amendment to section 4202(e) did nothing to change that 

section’s meaning. See Chavez, 65 M.S.P.R. at 594. As 

before the 1982 amendment, individuals appointed under 

the VCS could be removed by the Administrator regardless of the protections of title 5. When the Secretary 

removes a VCS employee, that employee is not entitled to 

the same rights that would be afforded under title 5. 

Bennett also contends that the VCS Act’s reference to 

the Veterans’ Preference Act of 1944 (“VPA”) means that 

VCS employees were included in the due process provisions of the VPA—later codified in chapter 75 of title 5. 

The VPA originally provided that a “preference eligible

[employee] shall have the right to appeal to the Civil 

Service Commission from an adverse decision of the 

administrative officer . . . .” VPA, 78 Pub. L. No. 359, 

§ 14, 58 Stat. 387, 388 (1944) (emphasis added). By a 

1962 executive order, the President “extend[ed] to all 

employees in the competitive civil service rights identical 

in adverse action cases to those provided preference 

eligibles under section 14 of the [VPA].” Exec. Order No. 

10,988, 3 C.F.R. 130, 136 (1963) (emphasis added). Thus, 

only preference eligible employees and those in the competitive service had the right to appeal adverse decisions. 

Non-preference eligible members of the excepted service, 

like Bennett, were not included. As discussed below in 

section I.B., the subsequent amendments to the VPA did 

nothing to change this. Thus, unless the subsequent 

amendments to the Civil Service Reform Act of 1978 
BENNETT v. MSPB 10

(“CSRA”) award employees appointed under section 

7802(e) appeal rights, Bennett’s claim will fail. 

B. 

Bennett claims that, as a result of amendments to the 

CSRA in 1990, she is entitled to appeal her removal under 

section 7513(d). The CSRA, which codified section 14 of 

the VPA in chapter 75 of title 5, was amended after the 

Supreme Court’s decision in United States v. Fausto, 484 

U.S. 439 (1988).. In Fausto, the Supreme Court decided 

that the CSRA’s silence regarding appeal rights for nonpreference eligible members of the excepted service reflected congressional intent to preclude any review under 

chapter 75 for such employees. 484 U.S. at 448. In 

response, Congress passed the Civil Service Due Process 

Amendments in 1990 (“1990 Amendments”) to provide 

MSPB appeal rights for some, but not all, non-preference 

eligible excepted service employees. Pub. L. No. 101-376, 

104 Stat. 461 (1990). Section 7511(a)(1)(C) was amended 

to define an “employee” as: 

[A]n individual in the excepted service (other than 

a preference eligible) -- (i) who is not serving a 

probationary or trial period under an initial 

appointment pending conversion to the 

competitive service; or (ii) who has completed 2 

years of current continuous service in the same or 

similar positions in an Executive agency under 

other than a temporary appointment limited to 2 

years or less. 

5 U.S.C. § 7511(a)(1)(C). The 1990 Amendments also 

amended section 7511(b) and listed certain employees as 

excluded from the coverage of chapter 75. Bennett’s 

position at the VCS is not listed in section 7511(b). Bennett argues that because she meets the definition of 

employee under section 7511(a)(1)(C) and is not specifi-
11 BENNETT v. MSPB

cally excluded by section 7511(b), she should be entitled to 

appeal her removal. 

The government correctly responds that although the 

list of employees in section 7511(b) does not include VCS 

employees, this omission does not create any new rights 

for employees previously excluded from the statute. In 

Todd v. Merit Systems Protection Board, 55 F.3d 1574 

(Fed. Cir. 1995), Todd was hired pursuant to 20 U.S.C. 

§ 241(a) (repealed 1994) and challenged a reduction in 

pay, claiming that the MSPB had jurisdiction because she 

met the newly added definition of employee under section 

7511(a)(1)(C). Id. at 1575-76. This court disagreed, 

finding that the amendment to section 7511 did not 

implicitly repeal section 241(a), which allowed the agency 

to employ individuals “without regard to . . . sections . . . 

7511, 7512, and 7701 of title 5.” Id., 55 F.3d at 1577. The 

court reasoned that while Todd met the provisions of both 

statutes, nothing in section 7511 indicated that it was 

meant to substitute for or to override section 241(a). Id. 

Similar reasoning applies here—sections 7511(a) and 

(b) do not explicitly give employees appointed under 38 

U.S.C. § 7802(e) MSPB appeal rights, and therefore these 

individuals continue to lack such rights. To the extent 

there is any ambiguity, the relevant regulation that was 

enacted and adopted by the agency, 5 C.F.R. 

§ 752.401(d)(12), provides a permissible interpretation. 

Section 752.401(d)(12) states that adverse action appeal 

rights under 5 U.S.C. §§ 7511-13 “do[] not apply to [a]n 

employee whose agency or position has been excluded 

from the appointing provisions of title 5, United States 

Code, by separate statutory authority in the absence of 

any provision to place the employee within the coverage of 

chapter 75, title 5, Untied States Code . . . .” According to 

the regulation, because individuals appointed to the VCS 

under section 7802(e) have always been excluded from 
BENNETT v. MSPB 12

appeal rights, the amendments to sections 7511-13 did 

nothing to change this. To be afforded the rights under 

sections 7511-13, a VCS employee would have to be 

granted those rights affirmatively. 

Thus, Bennett has failed to carry her burden to show 

that the MSPB has been granted jurisdiction over her 

appeal. The MSPB properly dismissed her appeal because she was a non-preference eligible employee appointed pursuant to 38 U.S.C. § 7802(e) and therefore has 

no right to appeal an adverse action to the MSPB under 5 

U.S.C. § 7513(d). 

CONCLUSION

For the foregoing reasons, we affirm the decision of 

the MSPB. 

AFFIRMED

COSTS

No costs.