The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 19
Docket No. DE-3330-23-0125-I-1
Jason Terry,
Appellant,
v.
Department of the Air Force,
Agency.
December 20, 2024
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Lieutenant Colonel Neal Patrick Rodak , Esquire, Phoenix, Arizona,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
OPINION AND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal
for failure to state a claim on which relief could be granted. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the appeal for further adjudication in accordance
with this Opinion and Order.
2
BACKGROUND
The appellant began working as a GS-9 General Supply Specialist with the
Arizona Air National Guard (AZ ANG) in May 2021. Initial Appeal File (IAF),
Tab 4 at 9, Tab 11 at 86. He held that position as a dual-status National Guard
technician pursuant to 32 U.S.C. § 709. IAF, Tab 11 at 86. In December 2022,
he applied for the GS-11 Supervisory General Supply Specialist position with the
AZ ANG pursuant to vacancy announcement AZ-11738400-23-NW-22-205C,
which was open to the public. IAF, Tab 1 at 5, Tab 11 at 36. In his application,
the appellant claimed a 10-point veterans’ preference based on his Veterans
Affairs (VA) rating of a 30% or more service-connected disability. IAF, Tab 4
at 8, Tab 11 at 36, 101. The agency interviewed the appellant for the position but
selected another applicant. IAF, Tab 11 at 17, 72.
The appellant filed a VEOA complaint with the Department of Labor
(DOL), which DOL later notified him that it had closed, although it indicated that
it had found the complaint “to have merit.” IAF, Tab 1 at 9. DOL determined, as
it explained to the agency, that the selectee was deemed to have no veterans’
preference at the time of selection, and that the agency provided no evidence that
it properly followed the required “pass over” procedures through the Office of
Personnel Management (OPM) when a nonpreference eligible is hired over an
applicant with veterans’ preference eligibility as set forth in 5 U.S.C. § 3318.
IAF, Tab 11 at 36-37. DOL notified the appellant of his right to a Board appeal,
which the appellant timely filed. IAF, Tab 1. He asserted that the agency
violated his veterans’ preference rights and requested a hearing. Id. at 2, 5.
The agency moved to dismiss the appeal, asserting that it had cancelled the
selection and submitted a pass over request to OPM. IAF, Tab 9. Therefore, it
argued, the appeal was not ripe for adjudication. Id. The appellant objected to
the agency’s motion, arguing that an agency’s unilateral modification of its action
after an appeal has been filed cannot divest the Board of jurisdiction. IAF,
Tab 11 at 4. The administrative judge issued a show cause order assuming that
3
the Board had jurisdiction but stating that it appeared that the Board would
nonetheless lack the authority to order relief if the appellant prevailed. IAF,
Tab 12 at 1. The administrative judge explained that, pursuant to the holding of
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Singleton v.
Merit Systems Protection Board, 244 F.3d 1331 (Fed. Cir. 2001), the Board only
has the authority under 5 U.S.C. § 1204(a)(2) to “order any Federal agency or
employee” to comply with corrective action, and the Arizona Adjutant General is
not a “Federal employee” as defined in Title 5 of the United States Code. Id.
at 1-2. Accordingly, he ordered the appellant to show cause why he should not
dismiss the appeal for failure to state a claim on which relief can be granted. Id.
at 2-3.
In response to the show cause order, the appellant appears to have argued
that the vacancy announcement at issue was a Title 5 civilian position with the
National Guard under the appointment authority codified at 10 U.S.C. § 10508.
IAF, Tab 13 at 4-9. He argued that the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2017 NDAA), amended
10 U.S.C. § 10508 to subject the state adjutants general and the various National
Guards to the Board’s enforcement authority under 5 U.S.C. § 1204(a)(2). Id.
at 4-7. In its response to the show cause order, the agency argued that state
National Guards and state adjutants general remain outside the definition of a
“Federal agency or employee,” and, thus, the Board does not have statutory
enforcement authority under 5 U.S.C. § 1204(a)(2) over either. IAF, Tab 14 at 5.
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for failure to state a claim on which relief
can be granted. IAF, Tab 15, Initial Decision (ID). He found that, although the
Board has jurisdiction, it could not grant relief because it could not order
compliance by the Adjutant General of Arizona, the Governor of Arizona, or any
other person or entity. ID at 3-6. Specifically, he found that the 2017 NDAA did
4
not resolve the issue that the Federal Circuit confronted in Singleton, 244 F.3d
at 1336, because it did not amend 5 U.S.C. § 1204(a)(2). ID at 5.
The appellant has filed a timely petition for review, arguing that the
administrative judge failed to address 10 U.S.C. § 10508. Petition for Review
(PFR) File, Tab 1 at 7. 1 The agency has not responded to the appellant’s petition
for review.
ANALYSIS
The Board has jurisdiction over the appellant’s VEOA appeal.
To establish the Board’s jurisdiction over a VEOA appeal based on an
alleged violation of veterans’ preference rights, an appellant establishes
jurisdiction by (1) showing that he exhausted his remedy with DOL; and
(2) making nonfrivolous allegations that: (a) he is a preference eligible within
the meaning of VEOA; and (b) the agency violated his rights under a statute or
regulation relating to veterans’ preference. 5 U.S.C. § 3330a; Jarrard v. Social
Security Administration, 115 M.S.P.R. 397, ¶ 7 (2010), aff’d sub nom. Jarrard v.
Department of Justice, 669 F.3d 1320 (Fed. Cir. 2012); see Davis v. Department
of Defense, 2022 MSPB 20, ¶ 5 n.1 (determining that an accurate exposition of
VEOA’s jurisdictional elements may omit reference to the requirement that an
appellant nonfrivolously allege that the action at issue took place on or after the
October 30, 1998 enactment date of VEOA). We agree with the administrative
judge that the appellant met his burden to prove that he exhausted his
administrative remedy with DOL and nonfrivolously alleged that his nonselection
1
Following the submission of his petition for review, the appellant moved to present
supplemental authority and corresponding argument based on the U.S. Supreme Court’s
decision in Ohio Adjutant General’s Department v. Federal Labor Relations Authority ,
598 U.S. 449, 453-54 (2023), issued on May 18, 2023, PFR File, Tab 3, and the Board’s
decision in Erdel v. Department of the Army, 2023 MSPB 27; PFR File, Tab 5. The
Board generally does not permit additional pleadings on review unless the party
demonstrates a need for such a pleading. See 5 C.F.R. § 1201.114(a)(4). In this matter,
there is no need for additional argument. Therefore, we DENY the appellant’s motions.
5
and another candidate’s selection violated his veterans’ preference rights. ID
at 3. We revisit the jurisdictional issue to expressly find that the alleged VEOA
violation was committed by an “agency” within the meaning of VEOA.
VEOA does not define “agency,” and there is nothing in the Act’s
legislative history to illuminate the meaning of that word in the context of
5 U.S.C. § 3330a. Willingham v. Department of the Navy, 118 M.S.P.R. 21, ¶ 9
(2012). However, the Board has held that the remedial purpose of VEOA and the
congressional solicitude for veterans reflected therein strongly favor reading
section 3330a broadly in favor of the veteran when possible. Id., ¶ 15. For the
reasons discussed below, we find that the alleged appointment authority for the
vacancy announcement at issue shows that the appointment was to be made
pursuant to the Department of Defense (DOD) civilian personnel system, and,
therefore, the appellant’s nonselection comes within the purview of VEOA.
The appellant nonfrivolously alleges that the vacancy announcement was
for a Title 5 civilian position with the AZ ANG open under the authority of the
2017 NDAA. 2 IAF, Tab 13 at 4; PFR File, Tab 1; see also IAF, Tab 1 at 12,
Tab 11 at 16, 36-37. At this stage, we accept the appellant’s allegations that the
appointment authority for the vacancy was 10 U.S.C. § 10508 and that the
position was a Title 5 civilian position. See Ohio Adjutant General’s Department
v. Federal Labor Relations Authority, 598 U.S. 449, 453-54 (2023) (concluding
that dual-status technicians are Federal civilian employees). Section 10508, as
amended by the 2017 NDAA, states that “[t]he Chief of the National Guard
Bureau may . . . appoint, employ, [and] administer . . . persons” within the
Bureau and the National Guard of each jurisdiction under certain listed sections
of Title 5 and Title 32. 10 U.S.C. § 10508(b)(1). As we explained in Lane v.
Department of the Army, 2024 MSPB 4, ¶ 8, a state National Guard acts through
2
The appellant’s allegation that the vacancy announcement was for a Title 5 civilian
position is consistent with DOL’s conclusion that Title 5 veterans’ preference rights
applied. IAF, Tab 11 at 36-37.
6
the authority delegated to it by the National Guard Bureau and its Chief, which
are integrated into the DOD. See 10 U.S.C. §§ 10501, 10502(a)-(b), (d). The
Chief can delegate his 10 U.S.C. § 10508(b)(1) appointing, employing, and
administering authority to the various adjutants general. 10 U.S.C.
§ 10508(b)(2). Because of this arrangement, we find that the AZ ANG is an
“agency” for purposes of 5 U.S.C. § 3330a. See Willingham, 118 M.S.P.R. 21,
¶¶ 16-18 (finding that a non-appropriated fund instrumentality integrated into the
DOD civilian personnel system should be viewed as an agency for purposes of
5 U.S.C. § 3330a). Furthermore, 10 U.S.C. § 10508(b)(3)(A) specifies that, for
administrative claims arising from, or relating to, “personnel actions or
conditions of employment, including adverse actions under Title 5, pertaining to a
person appointed, employed, or administered by an adjutant general under this
subsection,” the individual state National Guard shall be considered the
“employing agency.” 10 U.S.C. § 10508(b)(3)(A) (emphasis added).
Accordingly, because we find that the appellant exhausted his remedy with DOL,
and he has made nonfrivolous allegations that he is a preference eligible and that
an agency violated his rights under a regulation relating to veterans’ preference,
we find that the Board has jurisdiction over this appeal. See 5 U.S.C. § 3330a.
The appellant has stated a claim on which relief can be granted.
The Board has the authority to “order any Federal agency or employee to
comply with any order or decision issued by the Board” in matters falling within
its jurisdiction. 5 U.S.C. § 1204(a)(1)-(2); see Lane, 2024 MSPB 4, ¶ 6. The
administrative judge relied on the Federal Circuit’s decision in Singleton,
244 F.3d at 1333, 1336-37, which held that, prior to the 2017 NDAA, Board
orders were unenforceable against adjutants general of the National Guard
because adjutants general were not Federal employees. The administrative judge
applied the holding in Singleton and determined that, while the 2017 NDAA
amended statutory provisions at Titles 5 and 32 to provide dual-status National
Guard technicians with Title 5 appeal rights under certain circumstances, it did
7
not warrant a different outcome because it did not amend 5 U.S.C. § 1204(a) to
provide the Board with enforcement authority against adjutants general. ID at 5.
Since the issuance of the initial decision, we have held otherwise. Lane,
2024 MSPB 4, ¶¶ 7-11; Erdel v. Department of the Army, 2023 MSPB 27,
¶¶ 11-16. As the Supreme Court has determined, “[w]hile it is state adjutants
general who ‘employ and administer’ dual-status technicians working for their
respective State National Guard units, they can only do so pursuant to an express
‘designat[ion]’ of authority by the Secretary of the Army or the Secretary of the
Air Force.” Ohio Adjutant General’s Department, 598 U.S. at 454 (citations
omitted). Because National Guard technicians are ultimately employees of the
Department of the Army and the Department of the Air Force, which are Federal
agencies, the Board has the authority to order the employing agency of a National
Guard technician to take an employment action under 5 U.S.C. § 1204(a)(2).
Erdel, 2023 MSPB 27, ¶¶ 11-14. In Lane, we extended the holding in Erdel to
find that the Board has the authority to provide relief in Title 5, chapter 75
adverse action appeals to any National Guard employees who were appointed to
civilian positions under the authority of 10 U.S.C. § 10508. Lane, 2024 MSPB 4,
¶¶ 8-11. In doing so, we recognized that in the 2017 NDAA, Congress provided
that the applicable adjutant general and National Guard “shall promptly
implement all aspects of any final administrative order, judgment, or decision” in
connection with an administrative proceeding challenging its adverse action
against an individual hired under 10 U.S.C. § 10508(b). Lane, 2024 MSPB 4,
¶ 11 (citing 130 Stat. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)(A)-(B))).
This language effectively authorizes the Board to enforce orders against the
various National Guards. Id.
The reasoning applied in Erdel and Lane is equally applicable here. The
right of preference-eligible Federal employees, like the appellant, to appeal an
agency’s violation of a veterans’ preference rule to the Board exists pursuant to
5 U.S.C. § 3330a. We previously concluded herein that the AZ ANG is an
8
“agency” for the purposes of 5 U.S.C. § 3330a. Supra pp. 5-6. Further, the
2017 NDAA provided that “all personnel actions or conditions of employment,
including adverse actions under Title 5, pertaining to a person appointed,
employed, or administered by an adjutant general under [10 U.S.C. § 10508(b)]”
may be subject to administrative complaints, grievances, claims, or actions, and
that the relevant National Guard “shall promptly implement all aspects of any
final administrative order, judgment, or decision.” 130 Stat. at 2363-64 (codified
at 10 U.S.C. § 10508(b)(3)(A)-(B)); see Lane, 2024 MSPB 4, ¶ 9 (finding that an
employee appointed under 10 U.S.C. § 10508(b) may file “an administrative
complaint, grievance, claim or action” challenging a Title 5 adverse action). A
violation of veterans’ preference rules in hiring involves a “personnel action or
condition of employment.” See 5 U.S.C. §§ 3309 (providing for the addition of
points to a preference eligible’s score for hiring purposes), 3311 (providing credit
for a preference eligible’s experience for hiring purposes), 3318(c) (providing
that an agency must obtain permission from OPM before passing over a
preference-eligible veteran for hiring).
It would be implausible for Congress to have specifically provided for an
administrative remedy under VEOA but for there to be no relief available to
certain Federal employees, like the appellant, from the Board, which has
jurisdiction to adjudicate such claims. See Erdel, 2023 MSPB 27, ¶ 11 (finding
that it would be beyond strange for Congress to have specifically amended two
statutory provisions in different Titles of the U.S. Code to provide dual-status
technicians with Board appeal rights, but for there to be no relief available from
the Board); see also Willingham, 118 M.S.P.R. 21, ¶¶ 16-18 (finding Board
jurisdiction and adjudicating a claim for corrective action under VEOA after
concluding that a non-appropriated fund instrumentality operating as a component
of the U.S. Marine Corps came within the purview of VEOA). We can conceive
of no reason why 5 U.S.C. § 1204(a)(2) would preclude the Board from enforcing
orders against state National Guards in Title 5 VEOA appeals when it does not
9
preclude the Board from doing so in Title 5, chapter 75 adverse action appeals.
10 U.S.C. § 10508(b)(3)(B); see Lane, 2024 MSPB 4, ¶¶ 8-11; see also
Willingham, 118 M.S.P.R. 21, ¶¶ 14-15 (discussing the long-standing solicitude
of Congress for veterans). Thus, we conclude that the Board has the authority
under 5 U.S.C. § 1204(a)(2) to order the DOD and, by extension, the state
National Guard to provide relief in this matter. Accordingly, we vacate the initial
decision, which came to the opposite conclusion.
ORDER
For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
Gina K. Grippando
Clerk of the Board
Washington, D.C.