De Santis v. Merit Sys. Prot. Bd.

Decision Date22 June 2016
Docket Number2015-3134
Citation826 F.3d 1369
PartiesFrank C. De Santis, Petitioner v. Merit Systems Protection Board, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

Frank C. De Santis, Newton, CT, pro se.

Katrina Lederer, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by Bryan G. Polisuk.

Jeremy Peterman, Orrick, Herrington & Sutcliffe LLP, Washington, DC, argued for court-appointed amicus curiae Eric Shumsky. Also represented by Eric Shumsky; Haley Elizabeth Jankowski, San Francisco, CA.

Before Newman, Dyk, and Taranto, Circuit Judges.

Taranto, Circuit Judge.

The Federal Aviation Administration hired Frank De Santis in 2013. The FAA fired him less than one month later, while he was still in his probationary period. As now relevant, he appealed to the Merit Systems Protection Board under regulations, 5 C.F.R. §§ 210.101, 315.805, and 315.806, that have at all times relevant to this case applied only to employees in the competitive service. The Board dismissed the appeal for lack of jurisdiction because Mr. De Santis was in the excepted service, not in the competitive service. DeSantis v. Dep't of Transp. , 2014 WL 5422590, *2 (MSPB Oct. 10, 2014).

Whether the Board has jurisdiction to hear Mr. De Santis's appeal turns on the meaning of 49 U.S.C. § 40122(g)(3), which authorizes FAA employees to appeal certain actions to the Board. In 1996, Congress had stripped FAA employees of all Board appeal rights, effective April 1, 1996, but in 2000 Congress enacted section 40122(g)(3) to restore Board appeal rights. Specifically, section 40122(g)(3) allows an FAA employee to appeal “any action that was appealable to the Board under any law, rule, or regulation as of March 31, 1996.”

Under that provision, we conclude, Board jurisdiction over an appeal brought by an FAA employee depends on whether, taking as a given the employee's status in the excepted service at the time of the challenged action, that employee comes within the grants of appeal rights that existed on March 31, 1996. Thus, pre–April 1996 law is applied to actual current facts. We reject the alternative reading under which the Board would disregard the actual current status of the employee and ask what status a person in that position, or a similar position, would have had on March 31, 1996, then would use that counterfactual status in applying the grants of appeals that existed on March 31, 1996.

Under section 40122(g)(3) as we read it, the Board in this case was correct. Mr. De Santis, hired and fired in 2013, was undisputedly an excepted-service employee, and the regulatory appeal rights at issue, unchanged since March 31, 1996, do not apply to excepted-service employees. We therefore affirm the Board's dismissal.1


In 1978, Congress enacted the Civil Service Reform Act, a comprehensive system for managing the federal work force. Pub. L. No. 95-454, 92 Stat. 1111 (codified at 5 U.S.C. § 1101 et seq. ). The Civil Service Reform Act created two general classes of positions: those in the “competitive service,” which are subject to the extensive provisions of Title 5, and those in the “excepted service,” which are exempt from portions, but not all, of Title 5. See 5 U.S.C. §§ 2102, 2103. Putting aside Senior Executive Service positions and positions involving Senate confirmation, the “competitive service” broadly includes all federal executive-branch civil-service positions other than those “specifically excepted from the competitive service by or under statute.” Id. § 2102(a)(1). [T]he ‘excepted service’ consists of those civil service positions which are not in the competitive service or the Senior Executive Service.” Id. § 2103(a).

Before April 1996, nearly (but not) all FAA employees were within the competitive service. See Oral Arg. at 1:56–2:04. That changed under the 1996 Department of Transportation and Related Agencies Appropriations Act (DOT Act), which established an FAA Personnel Management System to “provide for greater flexibility in the hiring, training, compensation, and location” of FAA employees. Pub. L. No. 104-50, § 347(a), 109 Stat. 436, 460 (1995) (codified at 49 U.S.C. § 40122, see Federal Aviation Reauthorization Act of 1996, Pub. L. No. 104-264, § 253, 110 Stat. 3213, 3237). The DOT Act, which took effect on April 1, 1996, moved FAA employees from the competitive service to the excepted service and also exempted the FAA from all but certain provisions of Title 5 that it enumerated in 49 U.S.C. § 40122(g)(2). Because the basic Board jurisdictional provision, 5 U.S.C. § 7701(a), was not among the enumerated exceptions to the default Title 5 exemption, this court soon held that FAA employees could no longer appeal to the Board. See Allen v. MSPB , 127 F.3d 1074, 1076 (Fed. Cir. 1997).

Congress restored the Board's jurisdiction to hear appeals from FAA employees in 2000 by enacting the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (Ford Act). Pub. L. No. 106-181, §§ 307(a), 308(b), 114 Stat. 61, 124–26 (2000) (codified at 49 U.S.C. § 40122(g)(2)(3) ). The Senate Report stated an aim to “reinstate the statutory requirement for the FAA to adhere to merit system principles and restore the right of FAA employees to submit appeals to the [Board].” S. Rep. No. 106-9, at 36 (1999). To do so, the Ford Act added a new category to the list of exceptions (to the FAA's general Title 5 exemption) in 49 U.S.C. § 40122(g)(2) : sections 1204, 1211 –1218, 1221, and 7701 –7703, relating to the Merit Systems Protection Board.” 49 U.S.C. § 40122(g)(2)(H). That addition reestablished the Board's jurisdiction over FAA employee appeals. A further provision added by the Ford Act then defined what appeal rights FAA employees may invoke:

an employee of the [FAA] may submit an appeal to the Merit Systems Protection Board and may seek judicial review of any resulting final orders or decisions of the Board from any action that was appealable to the Board under any law, rule, or regulation as of March 31, 1996.

Id. § 40122(g)(3). The specified date, March 31, 1996, was the day before the DOT Act took effect.

In 2012, Congress added a sentence to section 40122(g)(3), which states: “Notwithstanding any other provision of law, retroactive to April 1, 1996, the Board shall have the same remedial authority over such employee appeals that it had as of March 31, 1996.” 49 U.S.C. § 40122(g)(3), added by FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 611, 126 Stat. 11, 117. That language restored the Board's authority to award back pay to FAA employees under the Back Pay Act, 5 U.S.C. § 5596. Compare Gallo v. Dep't of Transp. , 689 F.3d 1294, 1302 (Fed. Cir. 2012) ; Hankins v. Dep't of Transp. , 118 M.S.P.R. 499, ¶¶ 9–10 (MSPB 2012), with Gonzalez v. Dep't of Transp. , 551 F.3d 1372, 1375–77 (Fed. Cir. 2009).


Mr. De Santis joined the Federal Aviation Administration on September 29, 2013, years after Congress withdrew and then restored Board appeal rights to FAA employees. His position as an Aviation Safety Inspector was an excepted-service position, and he was not “preference eligible.” See 5 U.S.C. § 2108(3). Mr. De Santis began his service in the position with a one-year probationary period.

The FAA removed Mr. De Santis from his position less than one month later, effective October 25, 2013, on the ground that he violated the agency's rules regarding outside employment and holding a financial interest from a prohibited source. Mr. De Santis appealed to the Board, arguing that his termination was the result of procedural error, whistleblower reprisal, and age discrimination.

The administrative judge assigned to the case decided that the Board lacks jurisdiction to hear Mr. De Santis's claims. The administrative judge first concluded that Mr. De Santis could not appeal to the Board under 5 U.S.C. § 7513(d) because, as a non-preference-eligible excepted-service individual one month into his probationary period, he was outside the statutory definition of “employee,” id. § 7511(a)(1)(C)(i), (ii). That issue is not before us.

The Board may exercise jurisdiction pursuant to regulation, 5 U.S.C. § 7701(a), and Mr. De Santis invokes two related regulations, 5 C.F.R. §§ 315.805 and 315.806(c), which are in turn subject to 5 C.F.R. § 210.101(b). The regulations have been the same in respects relevant here since before April 1996, so we may refer to them in the present tense. Those regulations grant to a terminated probationary employee, but only one in the competitive service, certain procedural rights and a right of appeal to the Board where the employee makes a non-frivolous allegation that the termination rested wholly or partly on conditions arising before appointment. Although Mr. De Santis is in the excepted service, he invoked those regulations on the ground that 49 U.S.C. § 40122(g)(3) requires that he be treated as a competitive-service employee because his position (not him personally) and the positions of most FAA employees were in the competitive service on March 31, 1996. The administrative judge rejected Mr. De Santis's contention and therefore held the regulations inapplicable.

Mr. De Santis filed a petition with the full Board, which affirmed the administrative judge's determination that the Board lacks jurisdiction. The Board agreed with the administrative judge that the regulations Mr. De Santis invoked are inapplicable because he was in the excepted service, not the competitive service, and that 49 U.S.C. § 40122(g)(3) does not make them applicable to him by requiring that he be treated as if he were a competitive-service employee when hired and fired in 2013. DeSantis , 2014 WL 5422590 at *2.2

Mr. De Santis appeals, and we have jurisdiction under 28 U.S.C. § 1295(a)(9).


We 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...

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