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Morse v. Merit Systems Protection Board

September 1, 2010

CRAIG STEVEN MORSE, PETITIONER,
v.
MERIT SYSTEMS PROTECTION BOARD, AND DEPARTMENT OF HOMELAND SECURITY, RESPONDENT, INTERVENOR.



Petition for review of the Merit Systems Protection Board in AT3330090571-I-1.

The opinion of the court was delivered by: Rader, Chief Judge.

Before RADER, Chief Judge, NEWMAN and MOORE, Circuit Judges.

The Merit Systems Protection Board ("Board") dismissed the petition of Craig Steven Morse for lack of jurisdiction. The petition alleged that the Transportation Security Administration ("TSA") violated Mr. Morse's veterans' preference rights when it declined to waive its maximum entry age requirement in connection with his application for employment as a Federal Air Marshal. Because the TSA is exempt from section 3330(a) of Title 5, which provides Board appeal rights for preference eligible veterans, this court affirms.

I.

Mr. Morse is a ten-point preference eligible veteran. On or about August 14, 2008, Mr. Morse, who was then thirty-nine years old, applied for a Federal Air Marshal position with the TSA. Mr. Morse never received notification from the TSA regarding the disposition of his application. However, Mr. Morse believes that he was not selected because he exceeded the maximum entry age of thirty-seven for Federal Air Marshals based on the denial of an earlier application for the same position.

Mr. Morse appealed to the Board on April 23, 2009, contending that the TSA violated his rights under the Veterans Employment Opportunities Act of 1998 ("VEOA"). In an initial decision, the administrative judge dismissed the appeal for lack of jurisdiction. The judge wrote that she had "no authority to overrule or deviate" from Belhumeur v. Department of Transportation, 104 M.S.P.R. 408 (2007), where the Board held that it had no jurisdiction over VEOA appeals from Federal Aviation Administration ("FAA") employees or applicants. Morse v. Dep't of Homeland Sec., AT-3330-09-0571-I-1, 2009 WL 3379670 (M.S.P.B. Aug. 7, 2009).The parties do not dispute that the FAA personnel management system applies to the TSA.

The initial decision became final when neither party filed an administrative petition for review with the full Board. This appeal followed. This court has jurisdiction under 5 U.S.C. § 1295(a)(9).

II.

This court must affirm the Board's decision unless it is "(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)(1)-(3). This court reviews the Board's decisions about jurisdiction without deference. Butler v. Soc. Sec. Admin., 331 F.3d 1368, 1371-72 (Fed. Cir. 2003).

The 1996 Department of Transportation and Related Agencies Appropriations Act ("DOT Act"), Pub. L. No. 104-50, § 347, 109 Stat. 436, 460 (1995), established the FAA personnel management system. The FAA personnel management system addresses "the unique demands on the agency's workforce" and "provide[s] for greater flexibility in the hiring, training, compensation, and location of personnel." Id. Section 347(b) of the DOT Act expressly stated that the provisions of Title 5 "shall not apply" to this personnel management system, with the exception of specifically enumerated provisions. Id.

Under these specifically enumerated provisions of Title 5, FAA employees and applicants receive the benefits of sections 3312 and 3320. Id. The former states that in determining the qualifications of a preference eligible veteran for appointment in the competitive service, the examining agency "shall waive" requirements as to age.

5 U.S.C. § 3312. The latter expands the age waiver for preference eligible veterans to also include selection for appointment in the excepted service, which includes the Federal Air Marshal position sought by Mr. Morse. See 5 U.S.C. § 3320. Even if the FAA employees and applicants gained these benefits, however, the Board did not necessarily have jurisdiction over violations of these specifically enumerated provisions. See, e.g, Diefenderfer v. Merit Sys. Prot. Bd., 194 F.3d 1275, 1278-79 (Fed. Cir. 1999) (holding that the Board lacked jurisdiction over whistle-blower reprisal claims against the FAA, even though substantive whistleblower reprisal prohibition was included in the list of specifically enumerated provisions made applicable to FAA employees).

In 1998, Congress enacted the VEOA. See Pub. L. No. 105-339, 112 Stat. 3182 (Oct. 31, 1998). Section 3 of the VEOA, captioned "Improved Redress for Preference Eligibles," added section 3330 to Title 5. Id. It states, in pertinent part, as follows:

(a)(1) A preference eligible who alleges that an agency has violated such individual's rights under any statute or regulation relating to veterans' preference may file ...


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