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 subparagraph (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 subparagraph (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