[00:00:00] Speaker 02: The case this morning is number 15, 3134, dissatisfaction against the MSPB. [00:00:08] Speaker 02: Mr. Peterman. [00:00:15] Speaker 01: Good afternoon, your honors, and may it please the court, Jeremy Peterman as eminence. [00:00:20] Speaker 01: This case turns on the answer to a single question. [00:00:23] Speaker 01: When Congress decided to restore to FAA employees the right to appeal personnel actions to the Merit Systems Protection Board, did Congress restore the full package of appeal rights MSPB FAA employees enjoyed before Congress stripped them of their appeal rights in the DOT Act? [00:00:41] Speaker 03: Your theory is that the Ford Act requires that employees be treated as being in a competitive service for appeal purposes. [00:00:49] Speaker 01: It requires treating those employees who would have been in the competitive service in 1996 as if they were in the competitive service for appeal purposes. [00:00:57] Speaker 03: Right, but wouldn't the result of that be that the Korodashi and Roche cases would have come out the other way? [00:01:05] Speaker 01: I don't think so, Your Honor. [00:01:07] Speaker 01: I think in Roche, this court was very careful to rely on the conception that Roche was not in the competitive service. [00:01:14] Speaker 03: But if Roche had been treated in the competitive service, he would have won, right? [00:01:19] Speaker 01: He would have, but the court... No, the case would have come out differently. [00:01:22] Speaker 01: The court noted in note three that... No, no, no, no. [00:01:24] Speaker 03: But the case would have come out differently, right? [00:01:26] Speaker 01: Had Roche made that argument, the case would have come out differently. [00:01:28] Speaker 03: And the same is true of Cordasci, right? [00:01:31] Speaker 01: Well, at Cordasci, the court found that the petitioner could appeal because he was a preference eligible and he met the requirements. [00:01:39] Speaker 01: Correct. [00:01:39] Speaker 03: But the analysis would have been different because they treated him [00:01:45] Speaker 03: there as being in the accepted service under 7511, right? [00:01:49] Speaker 03: Correct. [00:01:49] Speaker 01: But again, the argument wasn't made in either Roche or in Koredashi. [00:01:54] Speaker 01: In both of the cases. [00:01:55] Speaker 00: Can I ask you, were all FAA employees before April 96 in the competitive service or only some jobs? [00:02:03] Speaker 01: Nearly all were in the competitive service. [00:02:04] Speaker 00: So if it's not an all or nothing proposition, what happens to a post 1996 FAA employee in a new job title? [00:02:15] Speaker 00: So I think- And the counterpart question to that is, what happens to the transportation security administration? [00:02:22] Speaker 01: So taking the first question first, under section 2102, the competitive service is the default. [00:02:31] Speaker 01: So all positions are in the default unless they're accepted by statute, or if they're political appointees, or if they're in the senior executive service. [00:02:39] Speaker 01: So if Congress created a new position that was the type of position that wouldn't have been accepted under a law rule or regulation in 1996, then I think they should be treated as if they were in the competitive service. [00:02:50] Speaker 01: And the Transportation Security Administration, that agency was always an accepted service agency. [00:02:56] Speaker 01: It was never in the competitive service. [00:02:57] Speaker 01: So I think they should be treated as if they are in the competitive service. [00:03:00] Speaker 00: But how do you even ask the question? [00:03:02] Speaker 00: So tell me if my premises are wrong. [00:03:05] Speaker 00: Congress created the TSA in November of 2001. [00:03:08] Speaker 00: It didn't exist before. [00:03:10] Speaker 00: And it says in 114N, 40122 applies. [00:03:16] Speaker 00: So how would 40122G3 even have any meaning as the TSA? [00:03:26] Speaker 01: So Congress passed that statute two months after September 11 as part of the massive Department of Homeland Security bill. [00:03:32] Speaker 01: I think Congress was scrambling to figure out what personnel system should apply to the TSA, and it just copied the FAA system whole cloth. [00:03:39] Speaker 01: I don't think Congress gave particular consideration to how it would apply here. [00:03:43] Speaker 00: But how would it work? [00:03:45] Speaker 00: Assuming that this was extremely low on any priorities. [00:03:50] Speaker 01: How it would work is I think you would just treat TSA employees as if they were accepted service employees. [00:03:57] Speaker 01: And it's important to point out that the rules and regulations authorizing appeals haven't meaningfully changed since 1996. [00:04:03] Speaker 01: So we're really just talking about what status the person is being treated as. [00:04:08] Speaker 01: for the purpose of applying those laws, rules, and regulations that authorize appeals. [00:04:12] Speaker 00: And if there had been created by regulation or statute some new appeal right since April 1, 1996, your view is that that would not apply to an FAA employee? [00:04:29] Speaker 01: Right. [00:04:30] Speaker 01: The court already crossed that line in the Morse case when it held that. [00:04:33] Speaker 01: The Veterans Employment Opportunity Act doesn't apply to FAA employees. [00:04:37] Speaker 01: And I think that highlights how strange the government's interpretation is. [00:04:41] Speaker 01: Because on the government's view, Congress passed the Ford Act to restore FA employees the right to appeal. [00:04:46] Speaker 01: But it gave them a package of appeal rights that's even more limited than the package that other employees in the accepted service enjoy in other agencies, because they don't get the benefit of any [00:04:56] Speaker 01: amendments to the provisions authorizing the appeal that came after. [00:05:02] Speaker 03: Why is that so odd? [00:05:04] Speaker 03: I mean, they restored some appeal rights. [00:05:06] Speaker 03: They only wanted to restore some appeal rights. [00:05:08] Speaker 03: The question is what they intended to do. [00:05:10] Speaker 03: It doesn't seem to me that there's a broad congressional intent that suggests they should be treated as competitive employees. [00:05:19] Speaker 03: And I mean, I think the government is wrong in suggesting that 7511 has anything to do with this. [00:05:25] Speaker 03: I mean, it's just not relevant here because both the definition of competitive and accepted service employees excludes probationary employees. [00:05:35] Speaker 03: The real question is really under 210.101 of the regulation, which I assume you're familiar with, right? [00:05:44] Speaker 03: Which tells us that [00:05:46] Speaker 03: this provision does not apply to employees who are in the accepted service, right? [00:05:54] Speaker 03: So, correct? [00:05:57] Speaker 01: 315. [00:05:59] Speaker 01: Sorry, I didn't put it here. [00:06:01] Speaker 03: 210.101. [00:06:02] Speaker 03: Are you familiar with that one? [00:06:05] Speaker 01: The regulation 210.101? [00:06:07] Speaker 01: Yeah. [00:06:09] Speaker 01: No, Your Honor. [00:06:10] Speaker 03: Well, I think it's the regulation that governs here because it says, [00:06:13] Speaker 03: It deals with applicability of various parts of the regulations, and it says that parts 315 through 339 apply to all positions in the competitive service and accept, as specified by an individual part, these parts do not apply to positions in the accepted service. [00:06:30] Speaker 03: It's this provision that the government should be relying on, but doesn't seem to be, for suggesting that this appeal is improper because this [00:06:43] Speaker 03: provision 805 and 806 don't apply here. [00:06:48] Speaker 01: So I guess I have two things to say in response. [00:06:51] Speaker 01: The first point is when Congress decided to restore the right to appeal to the right as it existed as of March 31st, 1996, [00:06:57] Speaker 01: That was a very significant decision. [00:06:59] Speaker 01: Congress departed from what it had done in both the DOT Act and the Ford Act when it wanted to make portions of Title V applicable to the FAA. [00:07:07] Speaker 01: In both of those acts, the Congress simply listed the present-day form of those provisions in Section 4122G2's list of provisions that applied to the FAA. [00:07:17] Speaker 01: Congress even did that with 5 USC 7701, which establishes the procedures for appeals before the board. [00:07:24] Speaker 01: But Congress didn't do that for the provisions that authorized FAA employees to appeal. [00:07:30] Speaker 01: Instead, Congress created a system where the procedures that govern appeals before the board are governed under present-day law, and the provisions authorizing specific FAA employees to appeal apply under the law as of March 1996. [00:07:43] Speaker 01: And I don't think Congress would have done that if it could have achieved its purpose in the way it traditionally had by simply incorporating the present-day law into 401-22-G2's list of Title V provisions. [00:07:53] Speaker 03: But what makes you think that they wanted to use a different definition of employee for these people than would be used for all other purposes, to treat them for appellate purposes only as being within the competitive service? [00:08:07] Speaker 03: That seems like kind of an odd thing, doesn't it? [00:08:09] Speaker 01: Because I think that's the only thing that gives meaning to that as of March 31, 1996 language. [00:08:14] Speaker 03: How is that true? [00:08:16] Speaker 03: Because even as accepted service employees that have certain appeal rights, which would have been restored, [00:08:22] Speaker 01: Right, but to restore those repeal rights, Congress did not need to tie the right to appeal to the right as it existed as of March 31st, 1996. [00:08:30] Speaker 03: Well, maybe they didn't want, as Moore suggested, new appeal rights to be covered. [00:08:35] Speaker 01: So I think it's fairly far-fetched that Congress, who's usually incredibly motivated to protect veterans, who included the substantive law granting veterans veteran preferences, intended that as of March 31, 1996, language solely to prevent preference-eligible FAA employees from appealing to the board. [00:08:53] Speaker 01: I think Congress had something broader in mind. [00:08:56] Speaker 03: I'm not following that. [00:08:57] Speaker 03: I mean, it seems to me they said, here's a set of appeal rights, hypothetically for accepted service employees, [00:09:04] Speaker 03: We want to give that to the FAA employees who qualify as being in the accepted service. [00:09:13] Speaker 03: The statute has meaning in the sense that it gave them those appeal rights, right? [00:09:18] Speaker 01: Sure. [00:09:18] Speaker 01: The statute has meaning. [00:09:19] Speaker 01: But Congress had no need to tie the right to appeal to that. [00:09:22] Speaker 01: As of March 31, 1996, language, I submit, doesn't have meaning. [00:09:27] Speaker 01: Because Congress could have conveyed that purpose entirely under present-day law. [00:09:32] Speaker 01: And if it wanted to exclude the Veterans Evil Opportunity Act, it could have simply said that section 330 doesn't apply to the FAA. [00:09:40] Speaker 01: But that's not what Congress did. [00:09:45] Speaker 00: Some of this is confusing to me, but is the point you just made equivalent to saying Congress could have said in 40122, G3, blah, blah, blah, any action that is appealable on the effective by law or regulation on the effective date of this statute? [00:10:13] Speaker 01: I think that would restore the same limited right to appeal. [00:10:25] Speaker 00: One of the things I've been trying to think about a little bit is let me ask you, what is the universe of appeal rights that would be different between the treating [00:10:43] Speaker 00: All FA employees as competitive service employees are all but the ones that have been specifically carved out as already not competitive before April 1996. [00:10:52] Speaker 00: So there is obviously some difference in, let's call them, non-preference eligible probationary employees. [00:11:01] Speaker 00: What about in the regulatory? [00:11:04] Speaker 00: The head of jurisdiction is not created specifically by statute, but is authorized by statute and is created throughout five CFR. [00:11:15] Speaker 00: How many appeal rights are there, for example, in 315 to 339, the chapters that are [00:11:24] Speaker 00: I think Judge Dyke referred to as generally speaking, excluding accepted service employees. [00:11:31] Speaker 01: So for the probationary employees, it's just the very narrow appeal right from 315-806. [00:11:36] Speaker 01: The right to appeal if the agency fails to provide basic notice and an opportunity to respond before terminating you, or if you have a credible allegation that the agency terminated you from your position. [00:11:47] Speaker 01: based on your marital status or your partisan political affiliation. [00:11:52] Speaker 01: So for probationary employees, we're really talking about a very, very, very narrow category of rights. [00:11:57] Speaker 01: More broadly speaking, for accepted service employees who are now in the FAA, I think the package of rights that they would get to appeal is the same. [00:12:06] Speaker 01: But they'd get to appeal in one year instead of two years, because you'd be treating them as competitive service employees. [00:12:12] Speaker 01: for the purpose of definitional provisions such as 7511, which authorizes appeals under 7513. [00:12:18] Speaker 00: So if you look throughout parts 315 to 339, besides 805 and 806, are there other appeal rights that we're talking about, or is it just those ones that you mentioned? [00:12:38] Speaker 01: I don't want to mislead the court, but I believe that the ones that would turn on the decision in this case are just the ones that I've mentioned. [00:12:47] Speaker 03: Well, I think there could be others, because the provision that I read you earlier deals with the entirety of 315. [00:12:54] Speaker 03: I don't know what other appeal rights might be conveyed by 350. [00:13:01] Speaker 03: Are you saying there aren't any other appeal rights conveyed by 350? [00:13:05] Speaker 01: Not that I believe that would turn on whether or not somebody is a probationary employee treated as if they are in the competitive service. [00:13:16] Speaker 00: The provision 210.101 is about the applicability of all of those parts. [00:13:22] Speaker 00: Most of that, and you're telling me virtually all of it, is about a set of employment rights that aren't specifically appeal rights. [00:13:31] Speaker 00: And so what I'm trying to understand is, [00:13:35] Speaker 00: what's the subcategory that's specifically about appeal rights, to try to get a sense about whether your interpretation of 40122, G3, or the government's, what the range of consequences are. [00:13:49] Speaker 01: Right. [00:13:49] Speaker 01: So if this court looks at 5 CFR 1201.3. [00:13:53] Speaker 01: I'm sorry, say that again. [00:13:55] Speaker 01: 5 CFR 1201.3. [00:13:56] Speaker 01: 1201.3. [00:13:58] Speaker 01: It spells out the appellate jurisdiction of the MSPBN lists all of the appeal rights. [00:14:03] Speaker 01: And going through that, I believe the difference between our interpretation and the government's interpretation is that MSPB or FAA employees can appeal adverse actions under 7513 just one year earlier because they'd qualify as an employee. [00:14:20] Speaker 01: That's the Roche. [00:14:21] Speaker 01: That's the Roche case. [00:14:22] Speaker 01: And it's important to point out that that's not Mr. DeSantis because he's a probationary employee and he's never argued that he can appeal there. [00:14:28] Speaker 01: and termination of the probationary employment, which is the 315-805-806. [00:14:34] Speaker 01: There are some other provisions that apply to performance-based actions, but those both apply to competitive service and accepted service. [00:14:44] Speaker 01: That's 4303. [00:14:46] Speaker 01: And the same definitional treatment would apply there as in the 7511. [00:14:52] Speaker 03: So what we're talking about here in terms of consequences [00:14:56] Speaker 03: Or one, whether 805 applies and whether in other circumstances you use the definition in 7511 for competitive employees or accepted service employees. [00:15:08] Speaker 01: That's correct, Judge. [00:15:10] Speaker 01: And I think whether or not 805 applies is very closely tied to whether 806 applies. [00:15:15] Speaker 01: Because 806 specifically gives the right to apply for a failure of the agency to provide the 805 procedures. [00:15:23] Speaker 01: And 4122 [00:15:25] Speaker 01: G3 says that you can appeal under any regulation that authorized appeal. [00:15:29] Speaker 01: And 315806 specifically authorized the appeal for the failure to appeal. [00:15:33] Speaker 00: One other question. [00:15:36] Speaker 00: On the assumption that in November [00:15:39] Speaker 00: 2001, when Congress created the TSA, it was not thinking about details like the kind that we are dealing with here today. [00:15:48] Speaker 00: But in 2012, Congress returned to 40122G3 and added a new sentence. [00:15:56] Speaker 00: By then, there had been 10 years of [00:15:59] Speaker 00: application of that to TSA. [00:16:03] Speaker 00: Was there any discussion that you're aware of of how the TSA statute was to apply even though, how the statute was to apply to [00:16:14] Speaker 00: to the TSA employees for whom you cannot ask the hypothetical question, how were they treated in March of 1996? [00:16:24] Speaker 00: Because there wasn't any TSA. [00:16:26] Speaker 01: Right. [00:16:26] Speaker 01: I haven't come across any of that in legislative history. [00:16:28] Speaker 01: And I think the reason for that might have been that probationary appeals are very, very, very rare. [00:16:34] Speaker 01: So I mean, this is the first time that this question has been presented to this court in 16 years since Congress passed the Ford Act. [00:16:41] Speaker 01: So I think Congress may simply just have not [00:16:44] Speaker 01: aware of it. [00:16:46] Speaker 02: Thank you, Your Honor. [00:16:48] Speaker 02: Well, just to wrap up that point, that's not before us to decide, is it? [00:16:52] Speaker 02: In your view, that is what would happen, what would be the consequences of a decision in your favor? [00:17:00] Speaker 01: No, Judge. [00:17:00] Speaker 02: It doesn't resolve this particular case, is that right? [00:17:04] Speaker 02: It just goes back to something. [00:17:06] Speaker 02: Correct, yes. [00:17:07] Speaker 02: Okay. [00:17:07] Speaker 02: Right, we'll save you rebuttal time. [00:17:08] Speaker 02: Thank you, Your Honor. [00:17:09] Speaker 02: And let's hear from the MSPB. [00:17:19] Speaker 02: This letter. [00:17:23] Speaker 04: May it please the court. [00:17:25] Speaker 04: Petitioners proposed reading of the Ford Act would effectively overrule Section 347 of the DOT Act, which removed FAA employees from the competitive service and exempted them from Title V, with a list of exceptions. [00:17:39] Speaker 00: But Congress, to some significant extent, did that, in part, in the Ford Act. [00:17:46] Speaker 00: The question is, to what extent? [00:17:50] Speaker 04: Yes, Congress, however, left the personnel system that was created by the DOT Act in place. [00:17:58] Speaker 04: Congress simply added in board appeal rights to the list of exceptions to Title V. So because the DOT Act removed FAA employees from the competitive service, they're no longer hired under the competitive service rules. [00:18:14] Speaker 04: They're hired into the accepted service, as Petitioner was. [00:18:17] Speaker 04: And so there's no precedent for finding that certain employees are exempt from the competitive service in regard to hiring, but when it comes to firing, the competitive service rules have to be followed, which is essentially what Petitioner is arguing. [00:18:34] Speaker 04: for the FAA employees in this case. [00:18:39] Speaker 00: So... Do you have a different view about the range of consequences question that we discussed a few minutes ago with Mr. Peterman that there's obviously a difference in as to who constitutes a relevant probationary employee depending on whether you're accepted or [00:19:01] Speaker 00: or competitive, and then there's, within the regulations, the 805, 806 difference. [00:19:07] Speaker 00: Are there other differences that, as a practical matter, we're talking about? [00:19:12] Speaker 04: Primarily, it goes to how long the probationary period is for somebody to qualify as an employee for appeals under Chapter 75. [00:19:19] Speaker 04: Heads in the road sticks. [00:19:21] Speaker 04: I'm sorry? [00:19:21] Speaker 03: Heads in the road sticks. [00:19:23] Speaker 04: Yes, exactly. [00:19:24] Speaker 04: And also, for whether these regulations, 5C VAR, 315.805 and 806, apply. [00:19:30] Speaker 04: which is what petitioners are arguing. [00:19:33] Speaker 04: And there's never been any dispute that those regulations apply only to competitive service employees, which means employees hired under competitive service appointments. [00:19:43] Speaker 04: subject to the competitive service hiring rules, which are very detailed, as Your Honors know. [00:19:48] Speaker 04: And so, given the fact that when Congress passed the Ford Act, it said nothing to reverse the DOT Act's provision, which exempted the FAA from the competitive service. [00:20:03] Speaker 04: I don't think there's any basis to infer that they somehow did that just by saying, [00:20:07] Speaker 04: just by restoring MSPB appeal rights. [00:20:10] Speaker 04: As we pointed out in our brief, the accepted service employees do have certain appeal rights to the MSPB and those rights were restored by the Ford Act. [00:20:24] Speaker 04: So also accepting petitioners' argument that [00:20:27] Speaker 04: apparently all FAA employees should now have competitive service appeal rights with regard to board appeals because their quote predecessors had them would lead to absurd results because how would you determine whether the same position existed in 1996 as the position is being appealed now? [00:20:46] Speaker 04: For example, Petitioner is alleging that his position was in the competitive service in 1996. [00:20:52] Speaker 04: We know that there was a position with his job title in 1996, but we have no information in the record as to if the duties had substantially changed or if that's even the same position that exists now effectively. [00:21:05] Speaker 04: Also, what about new positions that have been created since 1996 in the FAA? [00:21:09] Speaker 04: Are those employees to be treated? [00:21:11] Speaker 04: as if they're standing in the shoes of their predecessors who didn't exist. [00:21:17] Speaker 00: It's just it would create such a complicated and difficult... What is the effect that your view gives to this obviously unusual statutory language as of March 31st, 1996? [00:21:31] Speaker 00: What work is that language doing in the statute in your view? [00:21:35] Speaker 04: Well, I believe the most literal reading of it, given from [00:21:41] Speaker 04: is looking at the language that immediately precedes it in the statute, which is, quote, any action that was appealable to the board under any law, rule, or regulation as of March 31, 1996. [00:21:51] Speaker 04: That seems to refer to whatever laws, rules, or regulations existed as of March 31, 1996. [00:22:00] Speaker 04: And as Petitioner acknowledges, the board and this court have found that subsequently enacted legislation after that date does not apply to the FDA employees. [00:22:12] Speaker 04: Petitioner argues that this date refers to the status of employees as of that date. [00:22:19] Speaker 04: But I believe it's more likely that it refers to the laws that were in existence as of that date. [00:22:24] Speaker 03: Well, it uses the word action instead of employees, which action sounds like hiring, firing, or firing, suspension, whatever. [00:22:36] Speaker 04: Well, yeah, if you're referring to, that also goes to the Roche case and whether we're importing the definitions in the statutes that the petitioner is appealing under. [00:22:47] Speaker 04: For example, in Chapter 75, that defines actions that are appealable to the board. [00:22:52] Speaker 04: word action has a specific meaning in that law. [00:22:55] Speaker 04: And so given the fact that it's effectively modifying law, rule, or regulation, because it says any action that was appealable under any law, rule, or regulation, as this court found in Roche, you have to look to those laws, rules, or regulations and how they define actions that are appealable under those laws. [00:23:14] Speaker 04: The Ford Act itself doesn't contain any definition of employee or action that I'm aware of. [00:23:21] Speaker 04: So you have to look to the statute that's enabling the appeal to define those words. [00:23:31] Speaker 04: And also I would note that in Roche, this case, or this court said that it will not infer Congress's intent to widen the category of personnel who qualify as employees without a clear expression of its intent to do so. [00:23:45] Speaker 03: Do you agree that Roche will come out differently under the petitioner's theory here? [00:23:52] Speaker 04: Well, Petitioner is arguing that he's not appealing under Chapter 75. [00:23:56] Speaker 03: Of course he's not. [00:23:58] Speaker 03: But treating FAA employees as being under the competitive service would mean that in Roche the case came out the other way because they were treated as being in the accepted service. [00:24:09] Speaker 04: Right. [00:24:10] Speaker 04: In Roche, I believe the employee was in a probationary period under the executive service. [00:24:14] Speaker 04: So if he had served the amount of time to qualify as an employee under the committed service, he would have had appeal rights. [00:24:21] Speaker 04: And that would have a big impact on that case and many other cases brought by probationary employees. [00:24:39] Speaker 04: So as I mentioned, with regard to the petitioner's argument that for purposes of board appeals, the phrase an employee of the administration should be read to include anyone who works for the FAA, that question was already resolved by this court in Roche, where the court rejected the outpellent's argument that [00:25:01] Speaker 04: the AVA's internal regulations should define employee. [00:25:05] Speaker 00: Just to be clear, I thought it was really plain that the issue we have in front of us was not presented in Roche. [00:25:14] Speaker 00: And Roche, in fact, relied affirmatively on the idea that the argument taking the definition of employee would have given Mr. Roche more than he would have had available on March 31st, 1996. [00:25:28] Speaker 04: Right. [00:25:28] Speaker 04: But it also goes to this court's interpretation of Congress's intent in passing the Ford Act and whether the Ford Act changed the relevant definitions of employee for purposes of the statutes that enable appeal to the board. [00:25:41] Speaker 04: So in that sense, I do think it's relevant to this case. [00:25:44] Speaker 00: I mean, the core of their argument is treat this man by turning the clock back to March 31, 1996, look at his position, and ask what rights he would have had. [00:25:56] Speaker 00: That's what he gets now. [00:25:57] Speaker 00: Your position is different from that. [00:25:59] Speaker 00: Your position says look at his current job status and ask what that current job status would have allowed him to do by way of appeal back on March 31st, 1996, right? [00:26:13] Speaker 04: Yes, Your Honor, because his appeal rights depend on his job status. [00:26:17] Speaker 04: You can't just say this person is in the accepted service, but we're going to pretend he's in the competitive service because some theoretical person that worked for the agency in 96, which may or may not have been in the same position that he's in, was in the competitive service. [00:26:30] Speaker 04: Part of the competitive service regulations is you have to go through certain [00:26:35] Speaker 04: rules and processes in order to hire somebody into the competitive service. [00:26:39] Speaker 04: They're much more explicit and stringent than those in the accepted service, and part of that is when you fire that person, you also have to go through more. [00:26:48] Speaker 04: Congress's intent in the DOT Act was to give the FAA the flexibility to hire outside those rules. [00:26:54] Speaker 04: The flip side of that is they get to fire people outside of those rules, because those employees don't have competitive service rights. [00:27:00] Speaker 04: And he's trying to appeal under 315.805 and 806, which explicitly only refer to competitive service. [00:27:08] Speaker 04: And they're based on that statutory and regulatory scheme. [00:27:12] Speaker 04: It's frankly a little odd that we would take an employee that doesn't have appeal rights under the statute [00:27:22] Speaker 04: If a theoretical competitive service or accepted service employee at the FAA had worked there in 1996, he would not be able to appeal under those regulations either because they apply to the competitive service. [00:27:34] Speaker 04: So our argument is that you have to look at the status of those employees and then see what rights employees with that status would have had in 1996, not say, well, another employee hired under a different scheme would have had more rights, and therefore we should give it to this employee. [00:27:53] Speaker 04: There's simply no evidence in anywhere in the legislative history or in the statute that Congress intended to do that. [00:28:00] Speaker 04: And so we just think inferring that would be too great a leap for this court to make as far as Congress's intent. [00:28:12] Speaker 04: And if the court has no further questions, I will complete my argument and just ask you to affirm the decision of the board. [00:28:19] Speaker 02: Thank you. [00:28:20] Speaker 02: Thank you, Ms. [00:28:20] Speaker 02: Eder. [00:28:24] Speaker 02: Mr. Peterman. [00:28:28] Speaker 01: I'd just like to make three quick points in response. [00:28:32] Speaker 01: First, the MSPB argued that we're trying to widen the scope of appeal rights. [00:28:37] Speaker 01: We're simply trying to give FAA employees the appeal rights they would have had had they been working for the agency as of March 31, 1996. [00:28:44] Speaker 01: When FAA employees lobbied Congress to restore their rights in 1997, they were former competitive service employees who had just been transferred to the accepted service. [00:28:52] Speaker 01: and would have wanted the competitive service rights that they had in 1996. [00:28:56] Speaker 01: Second? [00:28:57] Speaker 01: The fact that they wanted that doesn't mean that they got it, right? [00:29:03] Speaker 01: That's of course true, Judge Dyke, but when Congress decided to restore the right as it existed as of March 31, 1996, it suggests that that was in fact what Congress intended to do, because the only [00:29:14] Speaker 01: reason that I've been able to come up with for why Congress put in that language was to restore to FAA employees the rights they would have had as if they were in the competitive service and the government hasn't offered any other explanation for that language in response to Judge Toronto's question. [00:29:29] Speaker 00: Well, I mean just address directly if you would and I gather that the government's reading of the language is [00:29:36] Speaker 00: take the current employee and that current employee's status and then apply to that employee with that status the laws, rules, and regulations that existed on March 31, 1996. [00:29:50] Speaker 00: What's the problem with that interpretation? [00:29:55] Speaker 01: So Congress had just no need to make the laws, rules, and regulations as of March 31, 1996. [00:30:01] Speaker 01: The applicable laws, rules, and regulations, if it intended only to restore the right to appeal, [00:30:06] Speaker 01: as accepted service employees. [00:30:08] Speaker 01: It could have accomplished that purpose in the way it made other Title V provisions applicable to the FAA in both the DOT Act and with other Ford Act provisions that govern the Merit Systems Protection Board simply by listing their present law in 401-22-G2's list. [00:30:24] Speaker 03: Well, unless they wanted to freeze the appeal rights for accepted service employees as of that date in 1996. [00:30:32] Speaker 01: There's no evidence in the legislative history that they intended to freeze the rights in order to prevent FAA employees from acting on some hypothetical change that may happen in the future. [00:30:42] Speaker 01: But we do know that Congress was motivated to restore FAA employees' rights because it said that in the legislative history. [00:30:48] Speaker 01: And the fact that it linked the restoration to the last day FA employees were in the competitive service suggests to me that they intended to restore the rights that FA employees had when they were in the competitive service. [00:30:59] Speaker 01: With the remainder of my time, I just want to make one quick point on the search results point. [00:31:03] Speaker 01: First, in this case, it's very easy to know that Mr. DeSantis would have been in the competitive service in 1996 because on two occasions this court held that aviation safety inspectors, Mr. DeSantis's precise position, were in the competitive service. [00:31:18] Speaker 01: That's the Ben Cosme versus DOT decision and Spike versus DOT. [00:31:22] Speaker 01: Again, for some hypothetical position, I think you simply look to whether there's a law that would have exempted that position from the accepted service, and if you have that position, [00:31:33] Speaker 01: such a law, then you treat them as accepted service, and otherwise you treat them as competitive service. [00:31:37] Speaker 02: Any more questions? [00:31:39] Speaker 02: Any more questions? [00:31:40] Speaker 02: Thank you, Your Honor. [00:31:41] Speaker 02: Thank you, Mr. Peterman. [00:31:42] Speaker 02: This letter, case is taken into submission. [00:31:45] Speaker 02: That concludes this afternoon's afternoon. [00:31:47] Speaker 03: Could I just, as I'm sure all of us, want to thank Mr. Peterman for undertaking this representation. [00:31:53] Speaker 02: Indeed. [00:31:53] Speaker 02: We appreciate the amicus coming forward in helping us to try and understand these issues and these close questions. [00:32:01] Speaker 02: Thank you. [00:32:02] Speaker 02: Thank you as well for the MSPB. [00:32:07] Speaker ?: All rise.