                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                     2008-3201

                             KEVIN LOUIS THOMPSON,

                                                           Petitioner,

                                          v.

                        DEPARTMENT OF THE AIR FORCE,

                                                           Respondent.


      Kevin Louis Thompson, of Waimanalo, Hawaii, pro se.

      Michael D. Austin, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Gregory G. Katsas, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Patricia A. McCarthy, Assistant Director.

Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                        2008-3201

                               KEVIN LOUIS THOMPSON,

                                                                  Petitioner,

                                            v.

                         DEPARTMENT OF THE AIR FORCE,

                                                                 Respondent.

   Petition for review of the Merit Systems Protection Board in SF0752060219-B-2.

                            __________________________

                            DECIDED: August 12, 2008
                            __________________________


Before MAYER, LOURIE and SCHALL, Circuit Judges.

PER CURIAM.

       Kevin Louis Thompson appeals the decision of the Merit Systems Protection

Board, which upheld his removal by the United States Department of the Air Force from

the position of civilian Air Traffic Control Specialist (Terminal) for failure to maintain an

Air Traffic Control Specialist (ATCS) certificate as required by Air Force Instruction 13-

203 (AFI 13-203) and 14 C.F.R., Part 65, Subpart B (14 C.F.R. § 31, et seq.). He

argues that the board erred as a matter of law because under Subpart B, he is not

required to hold an ATCS certificate, but rather an Air Traffic Control Tower Operator

certificate (CTO).   He also argues that the ATCS requirement in AFI 13-203 is a
fabrication counter to law, thus inherently in bad faith and patently unfair. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

       This court must affirm a decision of the Merit Systems Protection Board unless

the decision is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C.

§ 7703(c). Because the decision of the board met these requirements, we affirm.

       Thompson does not contest that he lost his ATCS certification.             Instead, he

argues that AFI 13-203, which required him to have this certification, was in bad faith

and patently unfair. At the time of his removal, AFI 13-203 Paragraph 14.1 read: “In

accordance with the Code of Federal Regulations 14, Part 65, Subpart B, Air Traffic

Control Tower Operators, only personnel holding a current Air Traffic Control Specialist

(ATCS) Certificate shall be authorized to perform air traffic control duties in USAF

facilities.” It further states: “Additionally, each individual must satisfactorily complete the

FAA CTO written test or hold an FAA CTO certification.” Subpart B however requires

only the CTO certificate, stating that “[n]o person may act as an air traffic control tower

operator at an air traffic control tower in connection with civil aircraft unless he … [h]olds

an air traffic control tower operator certificate issued to him under this subpart.” 14

C.F.R. § 65.31(a). The discrepancy can be accounted for because the Federal Aviation

Administration has expressly granted permission to the military to add extra

requirements in addition to those stated in Part 65 in FAA Order 7220.1A, chapter 1,

paragraph 9. Thus, the Air Force was legally entitled to require Thompson to hold a

current ATCS certificate in addition to the requirements of Subpart B, and AFI 13-203




2008-3201                                     2
was not a fabrication. Without evidence that the Air Force had acted in bad faith or

patently unfairly, the board deferred to the Air Force.




2008-3201                                    3
