Ditzler v. Merit Systems Protection Board

NOTE: This order is nonprecedential.
United States Court of Appeals
for the FederaI Circuit
LARRY D. DITZLER,
Petiti0n,er,
V.
MERIT SYSTEMS PROTECTION BOA=RD,~
Resp0ndent, `
AND
DEPARTMENT OF TRANSPORTATION,
Interven0r.
2010-3148
Petiti0n for review of the Merit Systems Pr0tecti0n
i Board in case no. AT3330100136-I-1.
ON MOTION
0 R D E R
Before LOURIE, MAYER, and DYK, Circu,r,`t Judges.
DYK, Circuit Judge.
The Department of Transp0rtati0n moves to summa-
rily affirm the decision 0f the Merit Systems Pr0tecti0n
DITZLER V. MSPB 2
Board (Board) dismissing Larry D. Ditz1er’s appeal assert-
ing a violation of veteran’s preference rights pursuant to 5
U.S.C. § 3330.
The jurisdiction of the Board is not plenary; rather it
is limited to actions designated as appealable to the Board
“under any law, rule, or regulation." Monasteri t). Merit
Sys. Prot. Bd., 232 F.3d 1376, 1378 (Fed. Cir. 2000) (quot-
ing 5 U.S.C. § '7701(a)). Although 35 U.S.C. §§ 3308-20relating to veterans preference rights applies to Federal
Aviation Administration (FAA) applicants and employees
35 U.S.C. § 3330(a), the section which would grant juris-
diction to the B0ard, does not. That was recently made
clear by this court’s decision in Morse v. Merit=Sys. Prot.
Bd., 621 F.3d 1346 (Fed. Cir. 2010), which held that §
3330(a) was not one of the provisions specifically enumer-
ated as applicable to the FAA personnel management
system. »
This petition for review arises out of Ditz1er’s allega-
tion that his veteran’s preference rights were violated
when he was not selected for the position of Air Traffic
Control Specia1ist, a position that the petitioner conceded
below was within the FAA. The Board dismissed his
petition for lack of jurisdiction for the very reasons pro-
vided in our decision in Morse. Summary affirmance is
appropriate when the position of one party is so clearly
correct as a matter of law that no substantial question
regarding the outcome of the appeal eXists.” Joshua v.
Umlted States, 17 F.3d 378, 380 (Fed. Cir. 1994). Because
Morse controls this petition as a matter of law leaving no
substantial question regarding its outcome, we agree with
the Department that summary affirmance is warranted
under the circumstances presented here
Accordingly,
lT lS ORDERED THATZ
(1) The motion to summarily affirm is granted
3
DITZLER v . MSPB
(2) All sides shall bear their own costs.
_DEC_0_B_2l]lD__
cc: Norman H. Jackman, Esq.
Jeffrey A. Gauger, Esq.
s19
Date
Jessica R. Toplin, Esq.
FOR THE COURT
/s/ J an Horbaly
J an Horbaly
Clerk
-FlLED
u.s. c0uRT .
-HEFED€£ii"€.§thSrF°“
UEC 0 8 2010
JllN HORBALY
CLERK