                    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
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.




04-3355                                    2
       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




04-3355                                      3
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




04-3355                                       4
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




04-3355                                     5
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.




04-3355                                      6
