United States Court of Appeals
for the Federal Circuit
__________________________
CRAIG STEVEN MORSE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
DEPARTMENT OF HOMELAND SECURITY,
Intervenor.
__________________________
2010-3030
__________________________
Petition for review of the Merit Systems Protection
Board in AT3330090571-I-1.
___________________________
Decided: September 1, 2010
___________________________
STEVEN L. HERRICK, Tully Rinckey P.L.L.C., of Wash-
ington, DC, argued for petitioner.
JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent. With him on the brief were
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
MORSE v. MSPB 2
SCOTT D. AUSTIN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for interve-
nor. With him on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
TODD M. HUGHES, Deputy Director. Of counsel on the
brief was STEVEN M. TAPPER, Senior Counsel, Office of the
Chief Counsel, Transportation Security Administration, of
Atlanta, Georgia.
__________________________
Before RADER, Chief Judge, NEWMAN and MOORE, Circuit
Judges.
RADER, Chief Judge.
The Merit Systems Protection Board (“Board”) dis-
missed 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 notifica-
tion from the TSA regarding the disposition of his applica-
tion. However, Mr. Morse believes that he was not
selected because he exceeded the maximum entry age of
3 MORSE v. MSPB
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 with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence . . . .” 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
MORSE v. MSPB 4
FAA personnel management system. The FAA personnel
management system addresses “the unique demands on
the agency’s workforce” and “provide[s] for greater flexi-
bility in the hiring, training, compensation, and location
of personnel.” Id. Section 347(b) of the DOT Act ex-
pressly 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 Ti-
tle 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 neces-
sarily 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 in-
cluded 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:
5 MORSE v. MSPB
(a)(1) A preference eligible who alleges that an agency
has violated such individual's rights under any stat-
ute or regulation relating to veterans' preference may
file a complaint with the Secretary of Labor.
...
(d)(1) If the Secretary of Labor is unable to resolve a
complaint under subsection (a) within 60 days after
the date on which it is filed, the complainant may
elect to appeal the alleged violation to the Merit Sys-
tems Protection Board in accordance with such proce-
dures as the Merit Systems Protection Board shall
prescribe. . . .
5 U.S.C. § 3330 (emphases added). This section broadly
provides preference eligible veterans with an enforcement
mechanism for violations of individual rights “under any
statute or regulation,” and includes the right to appeal
violations to the Board. Id. Although the VEOA amended
section 347(b) of the DOT Act to provide preference eligi-
ble veterans with substantive rights of protection against
reductions in force, the VEOA did not similarly amend
section 347(b) to make section 3330(a) applicable to the
FAA personnel management system. Pub. L. No. 105-
337, § 5, 112 Stat. 3187.
Two years later, Congress passed the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century
(“Ford Act”), Pub. L. No. 106-181, § 307(a), 114 Stat. 61,
124 (2000) (codified at 49 U.S.C. § 40122(g)-(i) (2000)).
The Ford Act repealed section 347 of the DOT Act and
reenacted a slightly revised version of it. Pub. L. No. 106-
181, § 307(d), 114 Stat. 61, 126 (2000). The reenacted
statute again states that the provisions of Title 5 “shall
not apply” to the FAA’s personnel management system
except for specifically enumerated provisions. 49 U.S.C.
MORSE v. MSPB 6
§ 40122(g)(2). These enumerated provisions again include
sections 3312 and 3320, which provide age-waiver for
preference eligible veterans. 49 U.S.C. § 40122(g)(2)(B).
The enumerated exceptions again, however, do not in-
clude section 3300 of Title 5, which provides preference
eligible veterans with rights to appeal to the Board. See
id.
III
The Board considered the interplay between the Ford
Act and the VEOA in Belhumeur. In that case, a prefer-
ence eligible aerospace engineer at the FAA applied for a
promotion but was not selected. Belhumeur, 104 M.S.P.R.
at 409. The Board dismissed his appeal for lack of juris-
diction, holding that the VEOA does not apply to FAA
employees and applicants because section 3330(a) of Title
5 is not one of the specifically excepted provisions enu-
merated at 49 U.S.C. § 40122(g)(2)(B). Id. at 410.
Mr. Morse nevertheless contends that the Board has
jurisdiction over his claim, and that Belhumeur was
wrongly decided. Mr. Morse argues that prior to enact-
ment of the Ford Act in 2000, preference eligible FAA
employees already had appeal rights to the Board because
of the enactment of the VEOA in 1998, which did not
exclude FAA employees or applicants from the adminis-
trative redress it provides. While Mr. Morse acknowl-
edges that the Ford Act does not enumerate section
3330(a) as one of the exceptions to the bar against appli-
cation of Title 5 provisions to the FAA’s personnel man-
agement system, he contends that the Act could not have
been intended to repeal the right to administrative re-
dress granted by the VEOA just two years earlier. Mr.
Morse further argues that the Ford Act was intended to
right a perceived wrong by restoring remedies that had
been taken away in 1996. In particular, he notes that
7 MORSE v. MSPB
section 40122(g)(3) restores to FAA personnel rights of
appeal to the Board that had existed on March 31, 1996,
one day before the DOT Act became effective. 49 U.S.C.
§ 40122(g)(3).
While sympathetic to Morse’s position, this court dis-
agrees with his interpretation of the relevant statutes.
First, 49 U.S.C. § 40122(g)(2) and its predecessor, section
347(b) of the DOT Act, both expressly state that the
provisions of Title 5 “shall not apply” to FAA’s personnel
management system except for certain enumerated
exceptions. These exceptions do not include section
3330(a), which provides for right of appeal to the Board.
“[O]mission [from the list of enumerated exceptions] is of
no small consequence.” Gonzalez v. Dep’t of Transp., 551
F.3d 1372, 1376 (Fed. Cir. 2009) (holding that the Board
does not have jurisdiction to award back pay to FAA
employees because the “unambiguous language of § 40122
governs [the] claim”).
In addition, Morse’s theory of the case assumes that
passage of the VEOA in 1998 granted veterans’ preference
rights to FAA applicants. But the DOT Act addressed a
narrow category of activity, FAA personnel management,
whereas section 3330(a) more generally addresses veter-
ans’ employment activities throughout the government.
“[A] statute dealing with a narrow, precise, and specific
subject is not submerged by a later enacted statute cover-
ing a more generalized spectrum.” Radzanower v. Touche
Ross & Co., 426 U.S. 148, 153 (1976). Moreover, Mr.
Morse construes the VEOA as impliedly repealing section
347(b) of the DOT Act. To the contrary, the Supreme
Court counsels against crediting repeals of statutory
provisions by implication. Hagen v. Utah, 510 U.S. 399,
416 (1994). While Mr. Morse argues that one could in-
stead assume that section 3330(a) be considered as an
addition to the list of Title 5 sections made applicable to
MORSE v. MSPB 8
the FAA personnel management system, both the VEOA
itself and the later-enacted Ford Act expressly revised
these specifically enumerated provisions yet neither
added section 3330(a). See 49 U.S.C. § 40122(g)(2); Pub.
L. No. 105-339, § 5, 112 Stat. 3187. Notably, this court
has stated that “[b]etween 1996, when Congress passed
the DOT Act, and 2000, when it passed the Ford Act, the
Board did not have jurisdiction over any FAA ap-
peals . . . .” Roche v. Merit Sys. Prot. Bd., 596 F.3d 1375,
1378 (Fed. Cir. 2010).
Still further, Morse’s reliance on section 40122(g)(3)
as an expression of congressional intent is flawed. While
section 40122(g)(3) restored to FAA personnel rights of
appeal that had existed on March 31, 1996, the VEOA
was not enacted until 1998. Pub. L. No. 105-339, 112
Stat. 3182; Belhumeur, 104 M.S.P.R. at 410. Restoration
of rights of appeal existing as of March 31, 1996 are
therefore immaterial.
Finally, section 40122(g)(2)(A) of the Ford Act in-
cludes a new enumerated exception for Board jurisdiction
over whistleblower reprisal claims against the FAA, but
includes no analogous exception for Board jurisdiction
over violations of veterans’ preference rights. Before the
Ford Act, this court held that the Board lacked jurisdic-
tion to hear whistleblower reprisal claims against the
FAA, even though substantive whistleblower reprisal
prohibition was included in the list of specifically excepted
provisions to the bar against Title 5 applicability.
Diefenderfer, 194 F.3d at 1278. Congress’s subsequent
action in modifying the DOT Act to provide the Board
with jurisdiction over specific types of appeals against the
FAA tellingly contrasts with its inactivity with respect to
violations of veterans’ preference rights. In determining
what exceptions Congress intended to carve out of its
general decree that Title 5 shall not apply to the FAA
9 MORSE v. MSPB
personnel management system, this court cannot assume
that Congress wished to act with a machete when it in
fact used a scalpel. Accordingly, this court holds that the
Board correctly determined that it lacked jurisdiction to
consider Morse’s claim that his non-selection for a posi-
tion with the TSA violated his veterans’ preference rights.
Mr. Morse argues that two additional sections of Title
5, sections 1204 and 7701, both enacted as part of the
Ford Act, manifest Congress’s intent to provide the Board
with jurisdiction to hear claims of violations of veterans’
preference rights asserted against the FAA. Neither
section is material. Section 1204(a)(1) provides that the
Board shall “hear, adjudicate or provide for the hearing or
adjudication, of all matters within the jurisdiction of the
Board . . . .” Thus, it does not confer jurisdiction; it
merely provides that the Board can hear and adjudicate
matters that it has jurisdiction to entertain. If the Board
lacks jurisdiction to entertain VEOA claims, then section
1204(a)(1) is entirely inapplicable.
Section 7701 provides that “[a]n employee, or appli-
cant for employment, may submit an appeal to the Merit
Systems Protection Board from any action which is ap-
pealable to the Board under any law, rule, or regulation.”
But section 7701 “do[es] not grant the Board jurisdiction.”
Belhumeur, 104 M.S.P.R. at 411; see Roche, 596 F.3d at
1380 (“5 U.S.C. § 7701. . . does not independently provide
the Board with jurisdiction over specific types of actions.”)
“This Court has repeatedly recognized that the
Board's jurisdiction 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) (quoting 5 U.S.C. §
7701(a)). While 35 U.S.C. §§ 3308-20 relating to veterans’
preference rights apply to FAA applicants and employees,
MORSE v. MSPB 10
section 3330(a), which grants the Board jurisdiction over
violations of these rights, does not.
IV
Although the clear language of the pertinent statutory
provisions controls, this court notes that the statutory
scheme creates a discrepancy because it grants substan-
tive rights to preference eligible veterans in the FAA
while not affording those veterans Board appeal rights.
However, “[o]ur individual appraisal of the wisdom or
unwisdom of a particular course consciously selected by
the Congress is to be put aside in the process of interpret-
ing a statute.” Tenn. Valley Auth. v. Hill, 437 U.S. 153,
194 (1978). Our role is merely “to interpret the language
of the statute enacted by Congress.” Barnhart v. Sigmon
Coal Co., 534 U.S. 438, 461 (2002).
The Ford Act revisited the list of specifically enumer-
ated exceptions made applicable to FAA employees. Of
particular relevance, the Ford Act added the provision
granting the Board jurisdiction to entertain whistleblower
reprisal claims, 5 U.S.C. § 1221, after this court held that
the DOT Act did not grant the Board jurisdiction to hear
such claims for FAA employees even though whistle-
blower protection was included among the specifically
enumerated exceptions. 49 U.S.C. § 40122(g)(2);
Diefenderfer, 194 F.3d at 1278. This case may highlight a
similar discrepancy.
AFFIRMED