Before Rader, Circuit Judge, Skelton and Archer, Senior Circuit Judges.
The opinion of the court was delivered by: Archer, Senior Circuit Judge.
Appealed from: Merit Systems Protection Board
Mary Rose Diefenderfer appeals the decision of the Merit Systems Protection Board (Board) dismissing her appeal for lack of jurisdiction. Because the Board does not have jurisdiction to hear Federal Aviation Administration (FAA) whistleblower claims, we affirm.
Ms. Diefenderfer was employed as an Aviation Safety Inspector with the FAA in the Seattle Flight Standards District Office in Renton, Washington. On June 26, 1997, she was reassigned to the position of Aviation Safety Inspector with the Technical Standards Branch in Renton without a reduction in grade or pay.
Ms. Diefenderfer made a request, on July 7, 1997, to file a whistleblower complaint with the Office of Special Counsel (OSC). The OSC, however, denied the request on the basis that the OSC did not have jurisdiction to investigate whistleblower complaints from FAA employees. On February 27, 1998, Ms. Diefenderfer asked the OSC to reconsider its position and filed a formal whistleblower complaint with the OSC against the FAA for violations of 5 U.S.C. § 2302(b) (1994). The OSC denied the reconsideration request and directed her to pursue her claim of reprisal in accordance with internal procedures under the FAA's Personnel Management System adopted pursuant to the Department of Transportation Appropriations Act of 1996, Pub. L. No. 104-50, § 347, 109 Stat. 436, 460 (1995) as amended by Pub. L. No. 104-122, § 1, 110 Stat. 876, 876 (1996) (DOT Act).
Ms. Diefenderfer subsequently filed an IRA appeal with the Board in which she challenged her reassignment and asserted that the FAA had failed to select her for several positions and had engaged in "other harassing and retaliatory actions." The administrative Judge (AJ) issued an Initial Decision on July 24, 1998, dismissing the appeal for lack of jurisdiction. The AJ found that although § 347(b) of the DOT Act provided that 5 U.S.C. § 2302(b), relating to whistleblower protection, applied to FAA employees, that section did not give the OSC or the Board jurisdiction over whistleblower claims or appeals. Relying upon Allen v. Merit Sys. Protection Board, 127 F.3d 1074 (Fed. Cir. 1997), the AJ concluded that because § 347(b) of the DOT Act did not specifically refer to or incorporate § 1221(a) of title 5 (the Board's statutory authority to adjudicate IRA appeals), the Board was without jurisdiction to hear FAA employees' appeals. He determined that Ms. Diefenderfer's whistleblower claims were covered under the FAA Personnel Management System and that she had not asserted a claim that would establish Board jurisdiction. Ms. Diefenderfer did not file a petition for review by the Board, and the Initial Decision became final on August 28, 1998. This appeal followed.
We may set aside a decision of the Board only when 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) (1994); see also Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986). Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law, which we review de novo. See King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996).
Section 347 of the DOT Act provides:
(a) In consultation with the employees of the Federal Aviation
Administration and such non governmental experts in personnel management systems as he may employ, and notwithstanding the provisions of title 5, United States Code, and other Federal Personnel laws, the Administrator of the Federal Aviation Administration shall develop and implement, not later than January 1, 1996, a personnel management system for the Federal Aviation Administration that addresses the unique demands on the agency's workforce. Such a new system shall, at a minimum, provide for greater flexibility in the hiring, training, compensation, and location of personnel.
(b) The provisions of title 5, United States Code, shall not apply to the new personnel management system developed and implemented pursuant to ...