Opinion

Robin E Brown v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: Jul 1, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBIN E. BROWN, DOCKET NUMBER

Appellant, AT-0752-18-0660-I-1

DEPARTMENT OF THE AIR FORCE, DATE: July 1, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.

Christopher D. Brown , Nashville, Tennessee, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her termination appeal for lack of jurisdiction. Generally, we grant

petitions such as this one only in the following circumstances: the initial decision

contains erroneous findings of material fact; the initial decision is based on an

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

erroneous interpretation of statute or regulation or the erroneous application of

the law to the facts of the case; the administrative judge’s rulings during either

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.

§ 1201.115). After fully considering the filings in this appeal, we conclude that

the petitioner has not established any basis under section 1201.115 for granting

the petition for review. Therefore, we DENY the petition for review and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

The appellant was separated from her dual status military technician

position for failure to maintain membership in the National Guard, as required by

32 U.S.C. § 709(b)(2) and (f)(1)(A), after the Tennessee National Guard denied

her reenlistment. Initial Appeal File (IAF), Tab 4 at 23, 25-26. In an initial

decision, the administrative judge dismissed the appellant’s termination appeal

for lack of jurisdiction. IAF, Tab 17, Initial Decision. The appellant has filed a

petition for review of the initial decision, and the agency has filed a response.

Petition for Review (PFR) File, Tabs 1, 3. After the close of the record on

review, the appellant submitted two motions for leave to file additional evidence

that she claims is new and material. PFR File, Tabs 5, 9. The agency has filed

responses to the appellant’s motions. PFR File, Tabs 7, 11.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden

of establishing jurisdiction over her appeal by a preponderance of the evidence.

5 C.F.R. § 1201.56(b)(2)(i)(A). On review, the appellant makes the following

arguments in support of her contention that the Board has jurisdiction over her

appeal: (1) there is no evidence in the record that her appeal concerns either

activity occurring while she was in a military pay status or her fitness for duty;

(2) the administrative judge impermissibly expanded the meaning of

“military-unique service requirements” to include requirements other than those

strictly related to physical fitness; and (3) the agency violated her due process

rights. PFR File, Tab 1 at 4-10. For the following reasons, we agree with the

administrative judge that the Board lacks jurisdiction over the appeal.

While this appeal was pending on review, the U.S. Court of Appeals for the

Federal Circuit issued Dyer v. Department of the Air Force, 971 F.3d 1377 (Fed.

Cir. 2020), which governs the outcome in this matter, even though the events in

this matter predate the issuance of the Dyer decision. See Porter v. Department

of Defense, 98 M.S.P.R. 461, ¶¶ 11-14 (2005) (explaining that judicial decisions

are given retroactive effect to all pending cases, whether or not those cases

involve predecision events); see also Fairall v. Veterans Administration,

33 M.S.P.R. 33, 39 (stating that decisions of the U.S. Court of Appeals for the

Federal Circuit are controlling authority for the Board in adverse action appeals),

aff’d per curiam, 844 F.2d 775 (Fed. Cir. 1987). We briefly discuss the relevant

facts of Dyer here.

Mr. Dyer enlisted in the West Virginia Air National Guard (WVANG), and

he was later appointed in his civilian capacity to a dual status position as a

military technician. Dyer, 971 F.3d at 1378. Pursuant to 32 U.S.C. § 709(b)(2)

and (f)(1)(A), and as a requirement to maintain his dual status position, Mr. Dyer

was required to continue his membership with the WVANG. Dyer, 971 F.3d

at 1378. He was eventually separated from the WVANG, and, on that basis, the

WVANG Adjutant General terminated his dual status employment. Id.

at 1378-79. Mr. Dyer filed a Board appeal, and the administrative judge found

that the Board had jurisdiction over the appeal and that Mr. Dyer was provided

with due process. Id. at 1379. The initial decision became the Board’s final

decision, and Mr. Dyer petitioned the court for review. Id.

The court found that the Board lacked jurisdiction over Mr. Dyer’s appeal.

Id. at 1379, 1384. In pertinent part, the court noted that, “[t]o be employed as a

dual-status technician, among other requirements, the civilian must be a military

member of the National Guard.” Id. at 1380 (citing 32 U.S.C. § 709(b)(2)). The

court described as “clear” the statutory language in 32 U.S.C. § 709(f)(1)(A),

which states that the Adjutant General must “‘promptly separate[] from military

technician (dual status) employment’ any dual status technician who has been

separated from the National Guard.” Id. (quoting 32 U.S.C. § 709(f)(1)(A)).

Noting that National Guard membership is a “fundamental military-specific

requirement attendant to a dual-status employee’s military service,” and that the

statute does not give the Adjutant General any discretion with respect to the

termination of a dual status employee who has been separated from the National

Guard, the court concluded that Mr. Dyer’s termination from dual status

employment as a result of his separation from the National Guard concerned

fitness for duty in the reserve components. Id. at 1381-84. The court further held

that, pursuant to section 709(f)(4), the termination fell within an exception that

precludes a right of appeal to the Board “ when the appeal concerns . . . fitness for

duty in the reserve components ,” and the Board therefore lacked jurisdiction over

Mr. Dyer’s appeal. 2 Id. at 1381, 1384 (quoting 32 U.S.C. § 709(f)(4)) (emphasis

in original).

Similarly, here, the appellant’s termination based on her separation from

the National Guard concerned her fitness for duty in the reserve components.

Pursuant to 32 U.S.C. § 709(f)(4), her only avenue for appeal is with the Adjutant

The Office of Personnel Management regulations implementing this statutory language

recognize the exception to Board jurisdiction in 32 U.S.C. § 709(f)(4). 5 C.F.R.

§ 432.102(b)(16), 752.401(b)(17); see Probation on Initial Appointment to a

Competitive Position, 87 Fed. Reg. 67765, 67769, 67779, 67782-83 (Nov. 10, 2022).

General, and the Board lacks jurisdiction over her appeal. Accordingly, we do

not address any arguments related to due process. See Smith v. Department of

Defense, 106 M.S.P.R. 228, ¶ 13 (2007) (recognizing that the Board has no

jurisdiction to review constitutional claims that are not coupled with an

independently appealable action) (citation omitted).

Finally, we address the appellant’s motions for leave to file additional

evidence. PFR File, Tabs 5, 9. The appellant states that the additional evidence

pertains to the underlying decision by the Tennessee National Guard to deny her

reenlistment. Id. Because the Board lacks jurisdiction over her appeal, it lacks

authority to review arguments concerning the merits of the denial of her

reenlistment. Accordingly, we find that the additional evidence she seeks to

submit is immaterial, and we deny the motions. 5 C.F.R. § 1201.114(a)(5), (k).

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.