# Robin E Brown v. Department of the Air Force

> Merit Systems Protection Board · July 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10454103

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** July 1, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

ROBIN E. BROWN, DOCKET NUMBER
Appellant, AT-0752-18-0660-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2

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
3

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
4

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

2
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).
5

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

3
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.
6

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
7

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
8

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
4
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.
9

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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10454103. Public record. Not legal advice.