De Santis v. Merit Sys.Protection Bd., No. 15-3134 (Fed. Cir. 2016)
Annotate this CaseThe Federal Aviation Administration hired De Santis in 2013 and fired him less than one month later, while he was in his probationary period. He appealed to the Merit Systems Protection Board under 5 C.F.R. 210.101, 315.805, and 315.806, which apply to employees in the competitive service. The Board dismissed for lack of jurisdiction because De Santis was in the excepted service, not the competitive service. The Federal Circuit affirmed, citing 49 U.S.C. 40122(g)(3), which authorizes FAA employees to appeal “any action that was appealable to the Board … as of March 31, 1996.” Under that section, Board jurisdiction over an FAA employee’s appeal depends on whether, 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. The court rejected an alternative reading under which the Board would disregard the employee's actual current status and ask what status a person in that position, or a similar position, would have had on March 31, 1996. De Santis was an excepted-service employee, and the regulatory appeal rights at issue, unchanged since March 31, 1996, do not apply to excepted-service employees.
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