* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable G. Thomas Van Bebber, Chief Judge, UnitedStates District Court for the District of Kansas, sitting by design ation.

UNITED STATES COURT OF APPEALS Filed 9/19/96 FOR THE TENTH CIRCUIT

TERRY W. BATES,

Plaintiff-Appellant,

v. MARVIN T. RUNYON, Postmaster General, Defendant-Appellee. No. 95-5183 (D.C. No. 94-C-902-B) (N.D. Okla.)

ORDER AND JUDGMENT *
Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff Terry Bates filed this suit against the U nited States Postal Service (USPS), alleging discrimination based on disabilityunder the Rehabilitation Act, 29 U.S.C. § 791, and violation of the “preference e ligible” provision of the Veterans’ Preference Act, 5 U.S.C. § 3310. The dis trict court granted summary judgment to the USPS on the discrimination claim, a nd dismissed Mr. Bates’ Veterans' Preference Act claims under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be granted. Mr. Bates does not challenge the grant of summary judgment on the discrimination cla im, and therefore, the only issue before this court on appeal is the district c ourt’s Rule 12(b)(6) dismissal of Mr. Bates’ Veterans’ Preference Act claim. The “preference eligible” provision of the Veterans ’ Preference Act, 5 U.S.C. § 3310, states that “[i]n examinations for p ositions of guards, elevator operators, messengers, and custodians in the compet itive service, competition is restricted to preference eligibles as long as prefe rence eligibles are available.” Mr. Bates, a rural carrier associate with the USPS, applied for the position of custodian. He was not selected, and the position w as filled by a current, nonveteran employee. As a veteran and a preference eligible, Mr. Bates alleged that reassigning current, nonveteran employees to t hree custodian positions that were vacant at the time he applied for the position was in violation of § 3310. The USPS sought dismissal on the grounds that § 331 0 applies only to-3-

“competition in examination” for the positions, and does not restrict the employer from reassigning current employees, who are not pre ference eligibles, to the positions. The district court agreed, citing 5 C.F.R. § 330.40 3 which provides for appointment of nonpreference eligible persons to re stricted positions in particular types of cases as determined by the Office of Perso nnel Management and published in the Federal Personnel Manual. As repr esented by the USPS in its motion to dismiss, the Federal Personnel Manual, paragraph 4-3 states in relevant part: The restriction in 5 U.S.C. 3310 applies only to co mpetition in examinations for entrance into the service, that is , to competitive examinations. . . . An agency may fill a restricted position with a non veteran in one of the following ways without reference to the availab ility of preference eligibles. (1) By position change (demotion, promotion, or reassignment) to a position in the organizational e ntity in which the nonveteran is employed or to a positio n anywhere which is covered by the same generic title as the one in which he is serving.
See Appellant’s App. at 15-16 (footnotes omitted). The district court found that the regulation clearl y established that § 3310 applied only to competition in examination, and that the USPS could fill the custodian positions by reassignment of nonpreferenc e eligible persons. The court-4-

concluded that Mr. Bates had failed to state a clai m under the Veterans’ Preference Act upon which relief could be granted a nd dismissed his claim with prejudice. “We review the dismissal of a complaint for failure to state a claim de novo.” Riddle v. Mondragon , 83 F.3d 1197, 1201 (10th Cir. 1996). A complaint should not be dismissed for failure to state a clai m unless it is clear that the plaintiff could prove no set of facts which would s upport his claim. Id. “‘A court reviewing the sufficiency of a complaint presumes a ll of plaintiff’s factual allegations are true and construes them in the ligh t most favorable to the plaintiff.’” Id. at 1202 (quoting Hall v. Bellmon , 935 F.2d 1106, 1109 (10th Cir. 1991)). On appeal, Mr. Bates contends that § 3310 was inten ded to restrict all appointments to the positions of guards, elevator o perators, messengers, and custodians exclusively to preference eligibles as l ong as preference eligibles are available. He argues that the legislative history of the Veterans’ Preference Act supports his contention, and that, insofar as the “ federal regulations provide otherwise, they are a nullity.” Appellant’s Br. at7. The USPS argues that § 3310 applies only to competi tion in examinations, and does not restrict the named positions to prefer ence eligibles exclusively. In support, it asserts that this interpretation is borne out by the USPS Handbook-5-

EL-311, April 1990, section 262.1, Filling ReservedPositions, which states that the restrictions to preference eligibles under the Veterans’ Preference Act applies “only to competition in examinations for entrance i nto the Postal Service.” Appellees’ Br. at 5. The Veterans’ Preference Act was enacted in 1944 inorder to give wartime and disabled veterans preferential consideration fo r certain jobs and for retention in the event of a reduction in force. See generall yMitchell v. Cohen , 333 U.S. 411, 418-21 (1948). Our interpretation of a statut e begins with the plain meaning of the words. See United States v. McCullah , 76 F.3d 1087, 1108 (10th Cir. 1996). “[I]f the words of the statute are unambigu ous, our inquiry ends.” Id. Here, Mr. Bates attempts to read more into the stat ute than its plain meaning imparts. Contrary to Mr. Bates’ assertion, the legislative h istory of the Veterans’ Preference Act does not reveal a congressional inte nt which is different from the statute’s plain meaning. Moreover, judicial interp retation clearly establishes that veterans’ preference does not apply to an employee’ s transfer or other intraagency movement. See Glenn v. United States Postal Serv. , 939 F.2d 1516, 1521- 22 (11th Cir. 1991)(holding that veterans’ preferen ce does not apply to transfers); Qualls v. United States , 678 F.2d 190, 196-97 (Ct. Cl. 1982)(holding that veterans’ preference is only applicable “in connect ion with an initial appointment-6-

to the federal service or in connection with a redu ction-in-force”); Stephens v. Coleman , 712 F. Supp. 1571, 1581-82 (N.D. Ga. 1989)(holdin g veterans’ preference does not apply to internal agency promot ions), aff’d , 901 F.2d 1571 (11th Cir. 1990). Because Mr. Bates was a current USPS employee who w as denied preference for an internal agency reassignment, not hing in the statute gives him a federal cause of action. Therefore, the court was correct to dismiss his action as failing to state a redressable claim, and the judgm ent of the United States District Court for the Northern District of Oklahoma is AFFI RMED.

Entered for the Court

G. Thomas Van Bebber District Judge