Knight v. Merit Systems Protection Board ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CANDICE V. KNIGHT,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3002
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. SF0752100263-I-1.
____________________________
Decided: March 14, 2011
____________________________
CANDICE V. KNIGHT, of Oakland, California, pro se.
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With him on the brief
were JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
KNIGHT v. MSPB 2
Before RADER, Chief Judge, and PLAGER and LOURIE,
Circuit Judges.
PER CURIAM.
Candice Knight petitions for review of the final deci-
sion of the Merit Systems Protection Board (“the Board”)
dismissing her appeal for lack of jurisdiction. Knight v.
Dept. of Homeland Sec., No. SF-0752-10-0263-I-1
(M.S.P.B. Mar. 4, 2010) (“Initial Decision”), (M.S.P.B.
Aug. 4, 2010) (“Final Order”). We affirm.
BACKGROUND
On March 30, 2008, the Transportation Security Ad-
ministration (“TSA” or “the Agency”) appointed Knight to
an excepted service Transportation Security Officer
(Screener) position, subject to a two-year probationary
period. During the probationary period, Knight sustained
a work-related injury and filed a claim for workers’ com-
pensation. On November 20, 2009, the TSA decided to
terminate Knight’s employment with the Agency for
allegedly violating TSA Management Directive No.
1100.73-5 after she repeatedly failed to follow the instruc-
tions of a superior. The termination became effective
November 23, 2009.
Knight filed an appeal with the Board claiming that
the Agency (1) improperly terminated her employment;
and (2) failed to restore her to her position pursuant to 5
U.S.C. § 8151, which grants an injured federal employee
certain employment retention rights. Knight also alleged
that the Agency’s action was motivated by discrimination.
The Agency filed a motion to dismiss arguing that the
Board lacked jurisdiction, which the Board granted.
3 KNIGHT v. MSPB
In an initial decision, the administrative judge (“AJ”)
determined that the Board lacked jurisdiction over
Knight’s appeal based on § 111(d) of the Aviation and
Transportation Security Act (“ATSA”), codified as 49
U.S.C. § 44935 note, which provides that
“[n]otwithstanding any other provision of law, the
[Agency] may employ, appoint, discipline, terminate, and
fix the compensation, terms, and conditions of employ-
ment [of TSA screeners].” Initial Decision, at 3. Regard-
ing Knight’s claim for improper termination, the AJ
explained that, although TSA employees are covered by
the Federal Aviation Administration (“FAA”) personnel
management system, 49 U.S.C. § 40122, which permits
adverse action appeals to the Board, § 111(d) of the ATSA
authorizes the Agency to terminate TSA screeners with-
out regard to any other provision of law. Id. Next, re-
garding Knight’s 5 U.S.C. § 8151 claim, the AJ
determined that 49 U.S.C. § 40122(g)(2)(F)’s allowance of
such claims also did not apply to TSA screeners in light of
§ 111(d). Id. at 4. Finally, the AJ dismissed Knight’s
claim of discrimination, concluding that in the absence of
an otherwise actionable appeal, such a claim does not
provide an independent basis for jurisdiction. Id. at 5.
Knight filed a petition for review with the Board,
which the Board denied on August 4, 2010. Final Order,
at 1-2. The initial decision of the AJ accordingly became
the decision of the Board. Knight then timely appealed to
this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
DISCUSSION
The scope of our review in an appeal from a decision
of the Board is limited. We must affirm the Board’s
decision unless we find it to be “(1) arbitrary, capricious,
KNIGHT v. MSPB 4
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) un-
supported by substantial evidence.” 5 U.S.C. § 7703(c);
see also Kewley v. Dep’t of Health & Human Servs., 153
F.3d 1357, 1361 (Fed. Cir. 1998). The Board’s dismissal of
an appeal for lack of jurisdiction presents an issue of law
that we review de novo. Delalat v. Dep’t of Air Force, 557
F.3d 1342, 1343 (Fed. Cir. 2009). Knight, as appellant
below, bears the burden of establishing jurisdiction by a
preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2);
Delalat, 557 F.3d at 1343.
The Board has jurisdiction over only those matters
entrusted to it by statute or regulation. 5 U.S.C.
§ 7701(a); Meeker v. Merit Sys. Prot. Bd., 319 F.3d 1368,
1374 (Fed. Cir. 2003). Knight appears to argue that the
Board has jurisdiction over her appeal because she was
not appealing her termination but rather the Agency’s
failure to follow 5 U.S.C. § 8151, 1 which applies to TSA
employees under 49 U.S.C. § 40122(g)(2)(F). According to
Knight, § 111(d) did not override 49 U.S.C.
§ 40122(g)(2)(F) because § 111(d) nowhere states that TSA
screeners are to be excluded from returning to work after
a work-related injury.
This court has held that § 111(d)’s “‘[n]otwithstanding
any other provision of law’ language renders inapplicable
general federal statutes that otherwise would apply” to
TSA screeners, including section 7701(a) of Title 5, which
states that “[a]n employee, or applicant for employment,
may submit an appeal to the [Board] from any action
1 5 U.S.C. § 8151 does not provide a right to appeal.
Rather, 5 C.F.R. § 353.304 provides the scope of the right
to appeal an alleged denial of restoration.
5 KNIGHT v. MSPB
which is appealable to the Board under any law, rule, or
regulation.” Conyers v. Merit Sys. Prot. Bd., 388 F.3d
1380, 1382 (Fed. Cir. 2004); see also id. (“The language
‘[n]otwithstanding any other provision of law’ signals that
this screener-specific provision is to override more general
conflicting statutory provisions to the extent that they
would apply to screeners.”).
In Conyers, the court held § 111(d) divested the Board
of jurisdiction to hear an appeal of non-selection for a
screener position with TSA under, inter alia, (1) 38 U.S.C.
§ 4324, the Uniformed Service Employment and Reem-
ployment Act of 1994; (2) 5 U.S.C. § 2302(b), the Whistle-
blower Protection Act; and (3) id. § 3330a, the Veterans’
Employment Opportunities Act of 1998. Conyers, 388
F.3d at 1381-82. The same reasoning applies to this case
and to 49 U.S.C. § 40122(g)(2)(F). Section 111(d)’s broad
language gives the Agency the right to “employ, appoint,
discipline, terminate, and fix the compensation, terms,
and conditions of employment [of TSA screeners]” without
regard to “any other provision of law.” Section 111(d)
thus erects a jurisdictional bar not only to appeals of non-
selection for a TSA screener position as in Conyers, but
also to appeals by TSA screeners of any adverse employ-
ment action and failure to reinstate under 5 U.S.C.
§ 8151. Accordingly, we affirm the Board’s dismissal of
Knight’s appeal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.