United States Court of Appeals 

for the Federal Circuit ______________________ 

FRANK C. DE SANTIS,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2015-3134

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. NY-0752-14-0074-I-1.

______________________ 

Decided: June 22, 2016

______________________ 

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. 

______________________ 
2 DE SANTIS v. MSPB

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. De Santis 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. 
DE SANTIS v. MSPB 3

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

BACKGROUND

A 

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 

 

1 We appointed Eric Shumsky as amicus curiae to 

support Mr. De Santis’s position. The court thanks him, 

as well as his colleagues Jeremy Peterman and Haley 

Elizabeth Jankowski, for commendably developing the 

position in briefs and at oral argument.
4 DE SANTIS v. MSPB

(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 
DE SANTIS v. MSPB 5

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., No. DE-0752-10-0078-C-1, 2012 WL 3963384, 

¶¶ 9–10 (MSPB Sept. 11, 2012), with Gonzalez v. Dep’t of 

Transp., 551 F.3d 1372, 1375–77 (Fed. Cir. 2009). 

B 

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.
6 DE SANTIS v. MSPB

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 exceptedservice 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 com-
DE SANTIS v. MSPB 7

petitive-service employee when hired and fired in 2013. 

De Santis, 2014 WL 5422590 at *2.2

Mr. De Santis appeals, and we have jurisdiction under 

28 U.S.C. § 1295(a)(9).

DISCUSSION

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 without procedures required by law, rule, or regulation having been 

followed; or (3) unsupported by substantial evidence.” 5 

U.S.C. § 7703(c); see Terban v. Dep’t of Energy, 216 F.3d 

1021, 1024 (Fed. Cir. 2000). We review whether the 

Board has jurisdiction de novo. See Roche v. Merit Sys. 

Prot. Bd., 596 F.3d 1375, 1378 (Fed. Cir. 2010).

The Board concluded that Mr. De Santis may not invoke 5 C.F.R. §§ 315.805 and 315.806(c) to give it jurisdiction because those provisions apply only to employees in 

the competitive service. The only question before us is a 

legal one: whether, as Mr. De Santis and the courtappointed amicus contend, 49 U.S.C. § 40122(g)(3) re-

 

2 Mr. De Santis also made a claim of age discrimination and a whistleblower claim. Neither claim is before 

us. Mr. De Santis no longer has a discrimination claim: 

he did not pursue his discrimination claim with the 

Board, De Santis, 2014 WL 5422590 at *1 n.3, and he 

informed this court, in his Form 10 filing, that no claim of 

age discrimination “has been or will be made in this case.” 

As to the whistleblower claim, the administrative judge 

rejected it for non-exhaustion of the remedies available 

from the Office of Special Counsel, see 5 U.S.C. 

§ 1214(a)(3), and when Mr. De Santis then exhausted his 

remedies, the Board forwarded the claim to the Board’s 

regional office for docketing as a new appeal under 5 

U.S.C. §§ 1221, 2302. De Santis, 2014 WL 5422590 at *3.
8 DE SANTIS v. MSPB

quires that Mr. De Santis be treated as a competitiveservice employee for purposes of Board appeal rights 

because the position he occupied for a brief time in 2013 

was (like most FAA positions) in the competitive service 

on March 31, 1996. We reject that interpretation of 

section 40122(g)(3), which we interpret instead to require 

application of pre–April 1996 appeal rights to an FAA 

employee based on the actual status of the employee’s 

position at the time of the challenged action (which we 

will call the “current” status), not based on the status of 

the same position, or of some similar position, before April 

1996. 

Section 40122(g)(3) authorizes “an employee of the 

[FAA]” to appeal to the Board “any action that was appealable to the Board under any law, rule, or regulation 

as of March 31, 1996.” 49 U.S.C. § 40122(g)(3) (emphases 

added). In interpreting that language for purposes of 

resolving the issue presented to us, we begin by noting 

what it cannot sensibly mean.

Thus, although the words alone might bear the meaning that an FAA employee can now appeal an action 

whenever that action “was appealable” by some FAA 

employee on March 31, 1996, that interpretation makes 

no sense. Congress was not providing that a person 

employed by the FAA on March 31, 1996, who could not 

have appealed a particular action at that time, could 

suddenly take an appeal afterwards as long as any other 

FAA employee, even in a different position, could have 

done so on March 31, 1996. That would expand Board 

appeal rights beyond what they were on March 31, 1996, 

which we have already held Congress was not doing in 

enacting section 40122(g)(3). See Roche, 596 F.3d at 1383. 

Mr. De Santis and amicus do not argue for such an interpretation.

Similarly, they do not, and could not sensibly, argue 

that the appealability right of section 40122(g)(3) is 
DE SANTIS v. MSPB 9

personal to the individual bringing an appeal. Congress 

was not giving appeal rights to only individuals who 

themselves had appeal rights on March 31, 1996. The 

statute is written to apply to all FAA employees, not just 

those who actually were employed by the FAA on March 

31, 1996. Mr. De Santis himself was not employed by the 

FAA at that time. By now, twenty years after 1996, a 

large number of the FAA’s current employees must have 

joined the agency after March 31, 1996, and before long, 

that will be so for all FAA employees.

The only sensible interpretation of section 40122(g)(3) 

is that the appeal rights are tied to the position of the 

claimant. That is so even if the “any action” language, 

taken by itself, may refer to the agency conduct, not 

aspects of the position held by the claimant. See 5 U.S.C. 

§ 7512 (“Actions covered” include removal, suspension for 

more than 14 days, reduction in grade, reduction in pay, 

and furlough of 30 days or less); id. § 4303(a) (“Actions 

based on unacceptable performance”; “an agency may 

reduce in grade or remove an employee for unacceptable 

performance”); id. § 2302(a)(2)(A) (defining “personnel 

action”). Section 40122(g)(3) does not say that any FAA 

employee can now appeal any action. It says that an FAA 

employee can appeal “any action that was appealable to 

the Board,” and that language necessarily invokes the full 

set of preconditions to appeal, which commonly includes 

the status of the position involved in the employment 

action at issue. See 5 C.F.R. § 1201.3 (Board catalog of 

appeal rights); 5 U.S.C. § 7511(a)(1) (defining “employee,” 

applicable to 5 U.S.C. § 7513(d)); 5 C.F.R. § 210.101(b) 

(specifying that parts 315 through 339 of the chapter 

apply to all competitive-service positions but not excepted-service positions). 

The critical issue, then, is whether it is the actual appealability-relevant status of the claimant’s position at 

the time of the challenged action—excepted v. competitive 

service, duration, etc.—that is to be used in determining 
10 DE SANTIS v. MSPB

whether the action was “appealable” on March 31, 1996. 

The answer, we conclude, is yes. It is a straightforward 

and sensible reading of the statute to take the legal 

standards for appealability in force on March 31, 1996, 

and apply those standards to the claimant’s actual status 

whenever the claim happens to arise, whether in mid1996, mid-2016, or mid-2036. The alternative interpretation urged by Mr. De Santis and amicus—in broadly 

treating excepted-service employees as competitiveservice employees and requiring problematic job comparisons—is less sensible. 

The major practical difference in application between 

the two interpretations of section 40122(g)(3) involves 

recent hires. The basic adverse-action appeal rights of 5 

U.S.C. § 7513(d) apply to an “employee,” and that term is 

defined by reference to how recently the individual was 

hired.3 Significantly for current purposes, full appeal 

rights attach sooner for competitive-service employees 

(one year) than for (non-preference-eligible) exceptedservice employees (two years). See note 3, supra. 

The longer probationary period for most exceptedservice employees gives the agency a longer period for 

evaluation and possible firing without adverse-action 

review. That greater agency discretion regarding dismissal has a natural logical connection to the looser stand-

 

3 In general, i.e., except for some additional details 

that do not detract from the point being made here, 

section 7511 defines “employee” as: (1) an individual in 

the competitive service who has completed one year of 

service, 5 U.S.C. § 7511(a)(1)(A); (2) a preference-eligible 

individual in the excepted service who has completed one 

year of service in the same or similar position, id. 

§ 7511(a)(1)(B); or (3) an individual in the excepted service who has completed two years of service in the same 

or similar position, id. § 7511(a)(1)(C). 
DE SANTIS v. MSPB 11

ards for hiring excepted-service employees. Hiring into 

the excepted services is not subject to the stricter requirements applicable to competitive-service employees. 

See, e.g., 5 U.S.C. § 3304(b) (requiring an individual to 

pass an examination to enter the competitive service); id.

§ 3361 (promotions of competitive-service employees

generally depend on passing an examination). Laxer 

hiring standards are tied to greater firing discretion.

Our reading of section 40122(g)(3) respects that logical connection implicit in Title 5. Mr. De Santis’s alternative reading does not. Mr. De Santis’s position would give 

the greater firing protection of adverse-action appeal 

rights to those hired under the laxer standards, by treating all or virtually all FAA employees as competitiveservice employees for appeal purposes. Such enhanced 

competitive-service protections would apply to all FAA 

employees hired after March 31, 1996—all hired as excepted-service employees. That result would run counter 

to a structural Title 5 policy tying hiring standards and 

firing discretion. And we see no basis for inferring that 

Congress so intended when it enacted section 40122(g)(3) 

on April 5, 2000. Indeed, it is hardly clear that, by then, 

the probationary-period difference between competitiveand excepted-service employees (one versus two years) 

mattered for any FAA employee who had been hired into 

the competitive service, since such hiring had stopped 

four years earlier, on April 1, 1996.

The FAA’s expectations with respect to hiring and firing its employees, and of such employees’ excepted-service 

status determining their appeal rights, likely have settled 

since 2000. The Ford Act has been in place for 16 years, 

and the FAA and Board have treated its employees as 

excepted-service employees for Board-appeal purposes 

during that time. See Roche, 596 F.3d at 1377. Indeed, in 

the only case we have been pointed to in which the claimant initially pressed the position Mr. De Santis now 

presses, the Board rejected the argument that the claim-
12 DE SANTIS v. MSPB

ant qualified as a competitive-service employee due to 

section 40122(g)(3), and the claimant did not raise that 

argument on appeal—even though it appears that the 

argument, if successful, would have been result changing. 

See Roche, 596 F.3d at 1377. The FAA’s years of treating 

its employees as in the excepted service has likely generated expectations, concerning hiring and firing, that 

deserve weight in the resolution of the statutory issue. 

Mr. De Santis’s interpretation suffers from another 

difficulty: the need for problematic inquiries. Under that

interpretation, appeal rights would be determined not 

based on a straightforward identification of the current 

actual status of the claimant’s position in the excepted- or 

competitive-service but based on an inquiry into what 

status the position would have had on March 31, 1996. 

That might not be a problem for a position that has not 

changed since 1996, but a current position within the 

FAA might not have existed on March 31, 1996, and in 

any event the duties associated with a position may 

change over time. The creation of new positions and 

changes in positions presumably will increase over time. 

Moreover, in 2001, Congress created a wholly new agency, 

the Transportation Security Administration, and declared 

that “section 40122 shall apply to employees of the” new 

agency. 49 U.S.C. § 114(n). The TSA did not exist on 

March 31, 1996, making it even more problematic for 

section 40122 to require an inquiry into the status that a 

person in the same status-relevant circumstances would 

have had on that date. Our reading of section 40122(g)(3) 

avoids those problems.

Our reading gives a simple role to the language “as of 

March 31, 1996” in the provision. 49 U.S.C. § 40122(g)(3). 

Immediately preceding that language is “under any law, 

rule, or regulation.” What the date does is to identify the 

precise body of law—the body of law in force on March 31, 

1996—that determines current FAA employees’ appeal 
DE SANTIS v. MSPB 13

rights. That frozen-in-time body of law then gets applied 

to an FAA employee based on current actual status.

Our reading also is consistent with Congress’s general 

aim of “restoring” Board appeal rights. That restoration 

surely was focused on the great mass of Board appeal 

rights generally shared by competitive- and exceptedservice employees alike—including the adverse-action 

appeal rights that typically become available after a year 

or two, as well as appeal rights involving prohibited 

personnel practices, 5 U.S.C. § 1221(a). The 1996 DOT 

Act had taken away all such rights from all FAA employees, and the 2000 Ford Act gave them back. The choice 

we must make on the narrow issue before us does not 

materially change the fulfillment of that purpose. We are 

aware of no specific legislative history suggesting a focus 

on circumstances where appeal rights differ for competitive- and excepted-service employees.

For those reasons, we think that current status is 

what matters for purposes of applying the March 1996 

appeal-rights law. Here, Mr. De Santis was hired into an 

excepted-service position. His status as an exceptedservice employee means that he cannot invoke 5 C.F.R. 

§§ 315.805 and 315.806(c) to appeal his termination

because those regulations apply only to competitiveservice employees. As he does not identify any laws, 

rules, or regulations that apply to him as a probationary 

excepted-service employee, the Board correctly concluded 

that it lacks jurisdiction to hear his appeal.

CONCLUSION

For the foregoing reasons, we affirm the Board’s 

dismissal for want of jurisdiction.

AFFIRMED