Brian K. Hatton v. Merit Systems Protection Board

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3355
BRIAN K. HATTON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: March 16, 2005
___________________________
Before NEWMAN, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Brian Hatton appeals the decision of the Merit Systems Board of Protection,
Docket No. SF-3443-03-0243-I-1, which dismissed his case for lack of jurisdiction. We
affirm.
BACKGROUND
Mr. Hatton is a veteran with a service-connected disability that makes him eligible
for civil service veterans’ preferences. In 2002, Mr. Hatton attended a job fair held by
the Federal Aviation Administration (“FAA”). At the fair, the FAA distributed an

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announcement stating that it had positions open for the job of Air Traffic Control
Specialist and that interested applicants were required to take an entry-level
employment examination. Mr. Hatton submitted a written application to the FAA, and
about a month later, the FAA sent him a letter stating that the FAA had conducted a
random lottery to determine which applicants would be allowed to take the examination
and that Mr. Hatton had not been selected in that lottery. Had he been allowed to take
the exam, Mr. Hatton would have been entitled to have ten extra points added to his
examination score because of the veterans’ preferences for which he was eligible.
Mr. Hatton sought relief under 5 U.S.C. § 3330a(a) from the Department of
Labor. He argued that he should be allowed to take the exam and receive the extra
points. The Department of Labor declined to pursue his case. Mr. Hatton then filed an
appeal with the Merit Systems Protection Board under 5 U.S.C. § 3330a(d). In an initial
decision, the administrative judge to whom the case was assigned dismissed the appeal
for lack of jurisdiction based on 49 U.S.C. § 40122(g). The administrative judge
reasoned that because section 40122(g)(2) states that, in general, “[t]he provisions of
title 5 shall not apply” to the FAA, the statute permits the FAA to develop its own
personnel management system. While section 40122(g)(2) lists eight exceptions to the
FAA’s exemption from title 5, none of those exceptions includes section 3330a, the
statutory provision relevant to Mr. Hatton’s case. The administrative judge further found
that while 49 U.S.C. § 40122(g)(3) provides that “an employee of the Federal Aviation
Administration may submit an appeal to the Merit Systems Protection Board,” Mr.
Hatton failed to satisfy the requirements of section 40122(g)(3) because he was an
applicant, not an employee of the FAA.
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Mr. Hatton petitioned for review by the full Board, but the petition was denied.
DISCUSSION
On appeal, Mr. Hatton argues that the Board has jurisdiction over his appeal
because he has satisfied the requirements of 5 U.S.C. § 3330a and because that
section is one of the exceptions to the FAA’s general exemption from title 5. See 49
U.S.C. § 40122(g)(2). He also argues that as an applicant for an FAA job, he is entitled
to appeal to the Board under 49 U.S.C. § 40122(g)(3). We disagree on both points.
1. Section 3330a provides that a preference-eligible veteran may file a complaint
with the Secretary of Labor alleging a violation of veterans’ preference rights and that
“[i]f the Secretary of Labor is unable to resolve a complaint . . . within 60 days after the
date on which it is filed, the complainant may elect to appeal the alleged violation to the
Merit Systems Protection Board . . . .” 5 U.S.C. § 3330a(d). Mr. Hatton asserts that the
Board had jurisdiction under that section, because he was a preference-eligible veteran,
the FAA denied him the preference to which he was entitled, and he exhausted
administrative remedies with the Secretary of Labor. In light of 49 U.S.C. § 40122(g),
however, Mr. Hatton must also show that section 3330a falls within one of the statutory
exceptions to the general rule that title 5 provisions do not apply to the FAA’s personnel
system.
Mr. Hatton argues that section 3330a falls within the exceptions described in 49
U.S.C. § 40122(g)(2)(B). Section 40122(g)(2)(B) provides that “sections 3308-3320,
relating to veterans’ preference” are not subject to the title 5 exemption. While section
3330a is not listed in the text of that statute, Mr. Hatton contends that the exception in
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section 40122(g)(2)(B) was intended to cover section 3330a because section 3330a
relates to veterans’ preferences.
The statutory reference to “veterans’ preference” does not have the effect of
incorporating all the provisions of title 5 pertaining to veterans’ preference, including
those not explicitly listed. Instead, the statute sets forth specific sections of title 5 that
are exceptions to the general rule of 49 U.S.C. 40122(g)(2). See Diefenderfer v. Merit
Sys. Prot. Bd., 194 F.3d 1275, 1278 (Fed. Cir. 1999); Allen v. Merit Sys. Prot. Bd., 127
F.3d 1074, 1076 (Fed. Cir. 1997). The statute accurately describes sections 3308
through 3320 of title 5 as relating to “veterans’ preference,” but that description of those
provisions does not mean that all title 5 provisions that relate to veterans’ preferences
are included within the exception. In the absence of evidence of contrary legislative
intent, we agree with the administrative judge that the term “veterans’ preference” is
merely used to describe the subject matter that sections 3308 through 3320 cover, and
not to broaden the statutory exception beyond the scope of the provisions that are
explicitly listed in the statute.
Mr. Hatton also contends that the Board has jurisdiction pursuant to 5 U.S.C.
§ 7701, which is listed as one of the exceptions to the title 5 exemption under 49 U.S.C.
§ 40122(g)(2)(H). Section 7701 states that “[a]n employee, or applicant for
employment, may submit an appeal to the Merit Systems Protection Board from any
action which is appealable to the Board under any law, rule, or regulation.” 5 U.S.C.
§ 7701(a). Mr. Hatton asserts that he falls under section 7701 because his action is
“appealable to the Board” pursuant to 5 U.S.C. § 3330a. However, the general title 5
exemption set forth in 49 U.S.C. § 40122(g)(2) bars Mr. Hatton’s action from being
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appealable under section 3330a, because none of the eight categories of exceptions to
the title 5 exemption includes section 3330a. His eligibility for an exception under sub-
paragraph (H) depends on his case falling within sub-paragraph (B). But because
section 3330a does not fall within sub-paragraph (B), Mr. Hatton’s argument that he is
entitled to appeal pursuant to sub-paragraph (H) likewise fails.
Mr. Hatton points out that the public law creating 49 U.S.C. § 40122(g), the
Department of Transportation and Related Agencies Appropriation Act, Pub. L. No. 104-
50, 109 Stat. 436 (1995) (“DOT Act”), was enacted prior to the public law that created 5
U.S.C. § 3330a, the Veterans Employment Opportunity Act of 1998, Pub. L. No. 105-
339, 112 Stat. 3182 (“VEOA”), and that Congress therefore could not have included
section 3330a when it drafted the exceptions set forth in 49 U.S.C. § 40122(g). Mr.
Hatton concludes that when Congress enacted the VEOA, it simply neglected to amend
the DOT Act and that the DOT Act should be interpreted as if it had been amended to
include section 3330a among the exceptions to the FAA’s statutory exemption from title
5. We disagree. The VEOA amended the DOT Act to make specific sections of title 5
applicable to the FAA so that the FAA would apply veterans’ preferences when
considering reductions in force. See Pub. L. No. 105-339, § 5, 112 Stat. 3187. Hence,
Congress’s failure to add section 3330a to the exceptions listed in section 40122(g)(2)
cannot be attributed to an oversight regarding the DOT Act as a whole. Indeed,
Congress had yet another chance to add section 3330a into the list of exceptions in a
subsequent reenactment of the DOT Act through the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century, Pub. L. No. 106-181, 114 Stat. 61
(2000). That Act added the eighth category of exceptions to section 40122(g)(2), which
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was codified as 49 U.S.C. § 40122(g)(2)(H). Significantly, however, it left sub-
paragraph (B) unaffected and did not add section 3330a to that category. Hence, to the
extent that Mr. Hatton argues that the court should fill a gap that Congress inadvertently
left with regard to section 3330a, his argument fails.
2. In the alternative, Mr. Hatton contends that the Board has jurisdiction to hear
his appeal because his action falls under 49 U.S.C. § 40122(g)(3). Section 40122(g)(3)
states that “an employee of the [FAA] may submit an appeal to the Merit Systems
Protection Board . . . .” Mr. Hatton contends that although he is an applicant, not an
employee, he is entitled to invoke section 40122(g)(3), because “employment statutes
which refer only to ‘employees’ are routinely interpreted to cover applicants and former
employees as necessary to promote the law’s purpose.” That broad assertion,
however, is unsupported by the authorities he cites. Indeed, one of his authorities,
Robinson v. Shell Oil Co., 519 U.S. 337 (1997), specifically points out that applicants
and employees fall under entirely different categories, in that the category of applicants
includes “many persons who will not become employees,” such as “[u]nsuccessful
applicants or those who turn down a job offer.” Id. at 344.
Mr. Hatton further asserts that it is irrelevant whether he is an employee or
applicant, because rights created by section 3330a apply to a “preference eligible”
regardless of his employment status. We reject that argument. While section 3330a
does not refer to employee status, the issue of status becomes relevant in applying the
jurisdiction-conferring provision of 49 U.S.C. § 40122(g)(3), which is explicitly limited to
employees.
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