United States Court of Appeals 

for the Federal Circuit 

__________________________ 

CRAIG STEVEN MORSE, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent, 

AND

DEPARTMENT OF HOMELAND SECURITY, 

Intervenor. 

__________________________ 

2010-3030 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in AT3330090571-I-1. 

___________________________ 

Decided: September 1, 2010 

___________________________ 

STEVEN L. HERRICK, Tully Rinckey P.L.L.C., of Washington, DC, argued for petitioner. 

JEFFREY A. GAUGER, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, argued for respondent. With him on the brief were 

JAMES M. EISENMANN, General Counsel, and KEISHA 

DAWN BELL, Deputy General Counsel. 
MORSE v. MSPB 2

SCOTT D. AUSTIN, Senior Trial Counsel, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for intervenor. With him on the brief were TONY WEST, Assistant 

Attorney General, JEANNE E. DAVIDSON, Director, and 

TODD M. HUGHES, Deputy Director. Of counsel on the 

brief was STEVEN M. TAPPER, Senior Counsel, Office of the 

Chief Counsel, Transportation Security Administration, of 

Atlanta, Georgia. 

__________________________ 

Before RADER, Chief Judge, NEWMAN and MOORE, Circuit 

Judges. 

RADER, Chief Judge. 

The Merit Systems Protection Board (“Board”) dismissed the petition of Craig Steven Morse for lack of 

jurisdiction. The petition alleged that the Transportation 

Security Administration (“TSA”) violated Mr. Morse’s 

veterans’ preference rights when it declined to waive its 

maximum entry age requirement in connection with his 

application for employment as a Federal Air Marshal. 

Because the TSA is exempt from section 3330(a) of Title 5, 

which provides Board appeal rights for preference eligible 

veterans, this court affirms. 

I 

Mr. Morse is a ten-point preference eligible veteran. 

On or about August 14, 2008, Mr. Morse, who was then 

thirty-nine years old, applied for a Federal Air Marshal 

position with the TSA. Mr. Morse never received notification from the TSA regarding the disposition of his application. However, Mr. Morse believes that he was not 

selected because he exceeded the maximum entry age of 
3 MORSE v. MSPB

thirty-seven for Federal Air Marshals based on the denial 

of an earlier application for the same position.

Mr. Morse appealed to the Board on April 23, 2009, 

contending that the TSA violated his rights under the 

Veterans Employment Opportunities Act of 1998 

(“VEOA”). In an initial decision, the administrative judge 

dismissed the appeal for lack of jurisdiction. The judge 

wrote that she had “no authority to overrule or deviate” 

from Belhumeur v. Department of Transportation, 104 

M.S.P.R. 408 (2007), where the Board held that it had no 

jurisdiction over VEOA appeals from Federal Aviation 

Administration (“FAA”) employees or applicants. Morse v. 

Dep’t of Homeland Sec., AT-3330-09-0571-I-1, 2009 WL 

3379670 (M.S.P.B. Aug. 7, 2009). The parties do not 

dispute that the FAA personnel management system 

applies to the TSA. 

The initial decision became final when neither party 

filed an administrative petition for review with the full 

Board. This appeal followed. This court has jurisdiction 

under 5 U.S.C. § 1295(a)(9). 

II 

This court 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)(1)-(3). This court reviews 

the Board’s decisions about jurisdiction without deference. 

Butler v. Soc. Sec. Admin., 331 F.3d 1368, 1371-72 (Fed. 

Cir. 2003). 

The 1996 Department of Transportation and Related 

Agencies Appropriations Act (“DOT Act”), Pub. L. No. 

104-50, § 347, 109 Stat. 436, 460 (1995), established the 
MORSE v. MSPB 4

FAA personnel management system. The FAA personnel 

management system addresses “the unique demands on 

the agency’s workforce” and “provide[s] for greater flexibility in the hiring, training, compensation, and location 

of personnel.” Id. Section 347(b) of the DOT Act expressly stated that the provisions of Title 5 “shall not 

apply” to this personnel management system, with the 

exception of specifically enumerated provisions. Id. 

Under these specifically enumerated provisions of Title 5, FAA employees and applicants receive the benefits 

of sections 3312 and 3320. Id. The former states that in 

determining the qualifications of a preference eligible 

veteran for appointment in the competitive service, the 

examining agency “shall waive” requirements as to age. 

5 U.S.C. § 3312. The latter expands the age waiver for 

preference eligible veterans to also include selection for 

appointment in the excepted service, which includes the 

Federal Air Marshal position sought by Mr. Morse. See 5 

U.S.C. § 3320. Even if the FAA employees and applicants 

gained these benefits, however, the Board did not necessarily have jurisdiction over violations of these specifically 

enumerated provisions. See, e.g, Diefenderfer v. Merit 

Sys. Prot. Bd., 194 F.3d 1275, 1278-79 (Fed. Cir. 1999) 

(holding that the Board lacked jurisdiction over whistleblower reprisal claims against the FAA, even though 

substantive whistleblower reprisal prohibition was included in the list of specifically enumerated provisions 

made applicable to FAA employees). 

In 1998, Congress enacted the VEOA. See Pub. L. No. 

105-339, 112 Stat. 3182 (Oct. 31, 1998). Section 3 of the 

VEOA, captioned “Improved Redress for Preference 

Eligibles,” added section 3330 to Title 5. Id. It states, in 

pertinent part, as follows: 
5 MORSE v. MSPB

(a)(1) A preference eligible who alleges that an agency 

has violated such individual's rights under any statute or regulation relating to veterans' preference may 

file a complaint with the Secretary of Labor. 

 . . . 

(d)(1) If the Secretary of Labor is unable to resolve a 

complaint under subsection (a) 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 in accordance with such procedures as the Merit Systems Protection Board shall 

prescribe. . . . 

5 U.S.C. § 3330 (emphases added). This section broadly 

provides preference eligible veterans with an enforcement 

mechanism for violations of individual rights “under any 

statute or regulation,” and includes the right to appeal 

violations to the Board. Id. Although the VEOA amended 

section 347(b) of the DOT Act to provide preference eligible veterans with substantive rights of protection against 

reductions in force, the VEOA did not similarly amend 

section 347(b) to make section 3330(a) applicable to the 

FAA personnel management system. Pub. L. No. 105-

337, § 5, 112 Stat. 3187. 

Two years later, Congress passed the Wendell H. Ford 

Aviation Investment and Reform Act for the 21st Century 

(“Ford Act”), Pub. L. No. 106-181, § 307(a), 114 Stat. 61, 

124 (2000) (codified at 49 U.S.C. § 40122(g)-(i) (2000)). 

The Ford Act repealed section 347 of the DOT Act and 

reenacted a slightly revised version of it. Pub. L. No. 106-

181, § 307(d), 114 Stat. 61, 126 (2000). The reenacted 

statute again states that the provisions of Title 5 “shall 

not apply” to the FAA’s personnel management system 

except for specifically enumerated provisions. 49 U.S.C. 
MORSE v. MSPB 6

§ 40122(g)(2). These enumerated provisions again include 

sections 3312 and 3320, which provide age-waiver for 

preference eligible veterans. 49 U.S.C. § 40122(g)(2)(B). 

The enumerated exceptions again, however, do not include section 3300 of Title 5, which provides preference 

eligible veterans with rights to appeal to the Board. See

id. 

III 

The Board considered the interplay between the Ford 

Act and the VEOA in Belhumeur. In that case, a preference eligible aerospace engineer at the FAA applied for a 

promotion but was not selected. Belhumeur, 104 M.S.P.R. 

at 409. The Board dismissed his appeal for lack of jurisdiction, holding that the VEOA does not apply to FAA 

employees and applicants because section 3330(a) of Title 

5 is not one of the specifically excepted provisions enumerated at 49 U.S.C. § 40122(g)(2)(B). Id. at 410.

Mr. Morse nevertheless contends that the Board has 

jurisdiction over his claim, and that Belhumeur was 

wrongly decided. Mr. Morse argues that prior to enactment of the Ford Act in 2000, preference eligible FAA 

employees already had appeal rights to the Board because 

of the enactment of the VEOA in 1998, which did not 

exclude FAA employees or applicants from the administrative redress it provides. While Mr. Morse acknowledges that the Ford Act does not enumerate section 

3330(a) as one of the exceptions to the bar against application of Title 5 provisions to the FAA’s personnel management system, he contends that the Act could not have 

been intended to repeal the right to administrative redress granted by the VEOA just two years earlier. Mr. 

Morse further argues that the Ford Act was intended to 

right a perceived wrong by restoring remedies that had 

been taken away in 1996. In particular, he notes that 
7 MORSE v. MSPB

section 40122(g)(3) restores to FAA personnel rights of 

appeal to the Board that had existed on March 31, 1996, 

one day before the DOT Act became effective. 49 U.S.C. 

§ 40122(g)(3). 

While sympathetic to Morse’s position, this court disagrees with his interpretation of the relevant statutes. 

First, 49 U.S.C. § 40122(g)(2) and its predecessor, section 

347(b) of the DOT Act, both expressly state that the 

provisions of Title 5 “shall not apply” to FAA’s personnel 

management system except for certain enumerated 

exceptions. These exceptions do not include section 

3330(a), which provides for right of appeal to the Board. 

“[O]mission [from the list of enumerated exceptions] is of 

no small consequence.” Gonzalez v. Dep’t of Transp., 551 

F.3d 1372, 1376 (Fed. Cir. 2009) (holding that the Board 

does not have jurisdiction to award back pay to FAA 

employees because the “unambiguous language of § 40122 

governs [the] claim”). 

In addition, Morse’s theory of the case assumes that 

passage of the VEOA in 1998 granted veterans’ preference 

rights to FAA applicants. But the DOT Act addressed a 

narrow category of activity, FAA personnel management, 

whereas section 3330(a) more generally addresses veterans’ employment activities throughout the government. 

“[A] statute dealing with a narrow, precise, and specific 

subject is not submerged by a later enacted statute covering a more generalized spectrum.” Radzanower v. Touche 

Ross & Co., 426 U.S. 148, 153 (1976). Moreover, Mr. 

Morse construes the VEOA as impliedly repealing section 

347(b) of the DOT Act. To the contrary, the Supreme 

Court counsels against crediting repeals of statutory 

provisions by implication. Hagen v. Utah, 510 U.S. 399, 

416 (1994). While Mr. Morse argues that one could instead assume that section 3330(a) be considered as an 

addition to the list of Title 5 sections made applicable to 
MORSE v. MSPB 8

the FAA personnel management system, both the VEOA 

itself and the later-enacted Ford Act expressly revised 

these specifically enumerated provisions yet neither 

added section 3330(a). See 49 U.S.C. § 40122(g)(2); Pub. 

L. No. 105-339, § 5, 112 Stat. 3187. Notably, this court 

has stated that “[b]etween 1996, when Congress passed 

the DOT Act, and 2000, when it passed the Ford Act, the 

Board did not have jurisdiction over any FAA appeals . . . .” Roche v. Merit Sys. Prot. Bd., 596 F.3d 1375, 

1378 (Fed. Cir. 2010). 

Still further, Morse’s reliance on section 40122(g)(3) 

as an expression of congressional intent is flawed. While 

section 40122(g)(3) restored to FAA personnel rights of 

appeal that had existed on March 31, 1996, the VEOA 

was not enacted until 1998. Pub. L. No. 105-339, 112 

Stat. 3182; Belhumeur, 104 M.S.P.R. at 410. Restoration 

of rights of appeal existing as of March 31, 1996 are 

therefore immaterial. 

Finally, section 40122(g)(2)(A) of the Ford Act includes a new enumerated exception for Board jurisdiction 

over whistleblower reprisal claims against the FAA, but 

includes no analogous exception for Board jurisdiction 

over violations of veterans’ preference rights. Before the 

Ford Act, this court held that the Board lacked jurisdiction to hear whistleblower reprisal claims against the 

FAA, even though substantive whistleblower reprisal 

prohibition was included in the list of specifically excepted 

provisions to the bar against Title 5 applicability. 

Diefenderfer, 194 F.3d at 1278. Congress’s subsequent 

action in modifying the DOT Act to provide the Board 

with jurisdiction over specific types of appeals against the 

FAA tellingly contrasts with its inactivity with respect to 

violations of veterans’ preference rights. In determining 

what exceptions Congress intended to carve out of its 

general decree that Title 5 shall not apply to the FAA 
9 MORSE v. MSPB

personnel management system, this court cannot assume 

that Congress wished to act with a machete when it in 

fact used a scalpel. Accordingly, this court holds that the 

Board correctly determined that it lacked jurisdiction to 

consider Morse’s claim that his non-selection for a position with the TSA violated his veterans’ preference rights. 

Mr. Morse argues that two additional sections of Title 

5, sections 1204 and 7701, both enacted as part of the 

Ford Act, manifest Congress’s intent to provide the Board 

with jurisdiction to hear claims of violations of veterans’ 

preference rights asserted against the FAA. Neither 

section is material. Section 1204(a)(1) provides that the 

Board shall “hear, adjudicate or provide for the hearing or 

adjudication, of all matters within the jurisdiction of the 

Board . . . .” Thus, it does not confer jurisdiction; it 

merely provides that the Board can hear and adjudicate 

matters that it has jurisdiction to entertain. If the Board 

lacks jurisdiction to entertain VEOA claims, then section 

1204(a)(1) is entirely inapplicable. 

Section 7701 provides 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.” 

But section 7701 “do[es] not grant the Board jurisdiction.” 

Belhumeur, 104 M.S.P.R. at 411; see Roche, 596 F.3d at 

1380 (“5 U.S.C. § 7701. . . does not independently provide 

the Board with jurisdiction over specific types of actions.”) 

“This Court has repeatedly recognized that the 

Board's jurisdiction is not plenary; rather, it is limited to 

actions designated as appealable to the Board ‘under any 

law, rule or regulation.’” Monasteri v. Merit Sys. Prot. Bd., 

232 F.3d 1376, 1378 (Fed. Cir. 2000) (quoting 5 U.S.C. § 

7701(a)). While 35 U.S.C. §§ 3308-20 relating to veterans’ 

preference rights apply to FAA applicants and employees, 
MORSE v. MSPB 10

section 3330(a), which grants the Board jurisdiction over 

violations of these rights, does not. 

IV 

Although the clear language of the pertinent statutory 

provisions controls, this court notes that the statutory 

scheme creates a discrepancy because it grants substantive rights to preference eligible veterans in the FAA 

while not affording those veterans Board appeal rights. 

However, “[o]ur individual appraisal of the wisdom or 

unwisdom of a particular course consciously selected by 

the Congress is to be put aside in the process of interpreting a statute.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 

194 (1978). Our role is merely “to interpret the language 

of the statute enacted by Congress.” Barnhart v. Sigmon 

Coal Co., 534 U.S. 438, 461 (2002). 

The Ford Act revisited the list of specifically enumerated exceptions made applicable to FAA employees. Of 

particular relevance, the Ford Act added the provision 

granting the Board jurisdiction to entertain whistleblower 

reprisal claims, 5 U.S.C. § 1221, after this court held that 

the DOT Act did not grant the Board jurisdiction to hear 

such claims for FAA employees even though whistleblower protection was included among the specifically 

enumerated exceptions. 49 U.S.C. § 40122(g)(2); 

Diefenderfer, 194 F.3d at 1278. This case may highlight a 

similar discrepancy. 

AFFIRMED