* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

** Honorable G. Thomas Van Bebber, Chief Judge, United States District

Court for the District of Kansas, sitting by designation. 

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, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
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Plaintiff Terry Bates filed this suit against the United States Postal Service

(USPS), alleging discrimination based on disability under the Rehabilitation Act,

29 U.S.C. § 791, and violation of the “preference eligible” provision of the

Veterans’ Preference Act, 5 U.S.C. § 3310. The district court granted summary

judgment to the USPS on the discrimination claim, and 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 claim, and therefore, the only

issue before this court on appeal is the district court’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 positions of guards, elevator

operators, messengers, and custodians in the competitive service, competition is

restricted to preference eligibles as long as preference 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 was filled by a current,

nonveteran employee. As a veteran and a preference eligible, Mr. Bates alleged

that reassigning current, nonveteran employees to three 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 § 3310 applies only to
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“competition in examination” for the positions, and does not restrict the employer

from reassigning current employees, who are not preference eligibles, to the

positions.

The district court agreed, citing 5 C.F.R. § 330.403 which provides for

appointment of nonpreference eligible persons to restricted positions in particular

types of cases as determined by the Office of Personnel Management and

published in the Federal Personnel Manual. As represented 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 competition in

examinations for entrance into the service, that is, to competitive

examinations. . . .

An agency may fill a restricted position with a nonveteran in one of

the following ways without reference to the availability of preference

eligibles.

(1) By position change (demotion, promotion, or

reassignment) to a position in the organizational entity

in which the nonveteran is employed or to a position

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 clearly established that § 3310

applied only to competition in examination, and that the USPS could fill the

custodian positions by reassignment of nonpreference eligible persons. The court
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concluded that Mr. Bates had failed to state a claim under the Veterans’

Preference Act upon which relief could be granted and 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 claim unless it is clear that the

plaintiff could prove no set of facts which would support his claim. Id. “‘A court

reviewing the sufficiency of a complaint presumes all of plaintiff’s factual

allegations are true and construes them in the light 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 intended to restrict all

appointments to the positions of guards, elevator operators, messengers, and

custodians exclusively to preference eligibles as long 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. at 7.

The USPS argues that § 3310 applies only to competition in examinations,

and does not restrict the named positions to preference eligibles exclusively. In

support, it asserts that this interpretation is borne out by the USPS Handbook
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EL-311, April 1990, section 262.1, Filling Reserved Positions, which states that

the restrictions to preference eligibles under the Veterans’ Preference Act applies

“only to competition in examinations for entrance into the Postal Service.” 

Appellees’ Br. at 5.

The Veterans’ Preference Act was enacted in 1944 in order to give wartime

and disabled veterans preferential consideration for certain jobs and for retention

in the event of a reduction in force. See generally Mitchell v. Cohen, 333 U.S.

411, 418-21 (1948). Our interpretation of a statute 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 unambiguous, our inquiry ends.” Id.

Here, Mr. Bates attempts to read more into the statute than its plain meaning

imparts.

Contrary to Mr. Bates’ assertion, the legislative history of the Veterans’

Preference Act does not reveal a congressional intent which is different from the

statute’s plain meaning. Moreover, judicial interpretation 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’ preference 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 connection with an initial appointment
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to the federal service or in connection with a reduction-in-force”); Stephens v.

Coleman, 712 F. Supp. 1571, 1581-82 (N.D. Ga. 1989)(holding veterans’

preference does not apply to internal agency promotions), aff’d, 901 F.2d 1571

(11th Cir. 1990).

Because Mr. Bates was a current USPS employee who was denied

preference for an internal agency reassignment, nothing 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 judgment of the United States District

Court for the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

G. Thomas Van Bebber

District Judge