Larry D. Ditzler v. Merit Systems Protection Board

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

LARRY D. DITZLER,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
DEPARTMENT OF TRANSPORTATION,
Intervenor.

2010-3148

Petition for review of the Merit Systems Protection
Board in case no. AT3330100136-I-1.

## ON MOTION

ORDER
Before LOURIE, MAYER, and DYK, Circuit Judges.
DYK, Circuit Judge.

The Department of Transportation moves to summa-
rily affirm the decision of the Merit Systems Protection

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Board (Board) dismissing Larry D. Ditzler's appeal assert-
ing a violation of veteran's preference rights pursuant to 5
U.S.C. § 3330.

The jurisdiction of the Board is not plenary; rather it
is limited to actions designated as appealable to the Board
"under any law, rule, or regulation." Monasteri v. Merit
Sys. Prot. Bd., 232 F.3d 1376, 1378 (Fed. Cir. 2000) (quot-
ing 5 U.S.C. § 7701(a)). Although 35 U.S.C. §§ 3308-20
relating to veterans' preference rights applies to Federal
Aviation Administration (FAA) applicants and employees,
35 U.S.C. § 3330(a), the section which would grant juris-
diction to the Board, does not. That was recently made
clear by this court's decision in Morse v. Merit Sys. Prot.
Bd., 621 F.3d 1346 (Fed. Cir. 2010), which held that §
3330(a) was not one of the provisions specifically enumer-
ated as applicable to the FAA personnel management
system.

This petition for review arises out of Ditzler's allega-
tion that his veteran's preference rights were violated
when he was not selected for the position of Air Traffic
Control Specialist, a position that the petitioner conceded
below was within the FAA. The Board dismissed his
petition for lack of jurisdiction for the very reasons pro-
vided in our decision in Morse. Summary affirmance is
appropriate when the position of one party is so clearly
correct as a matter of law that no substantial question
regarding the outcome of the appeal exists." Joshua v.
United States, 17 F.3d 378, 380 (Fed. Cir. 1994). Because
Morse controls this petition as a matter of law leaving no
substantial question regarding its outcome, we agree with
the Department that summary affirmance is warranted
under the circumstances presented here.

Accordingly,

IT IS ORDERED THAT:

(1) The motion to summarily affirm is granted.

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(2) All sides shall bear their own costs.

FOR THE COURT

DEC 0 8 2010

/s/ Jan Horbaly

Date

Jan Horbaly

Clerk

cc: Norman H. Jackman, Esq.
Jeffrey A. Gauger, Esq.
Jessica R. Toplin, Esq.

$19

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
DEC 0 8 2010

JAN HORBALY
CLERK