finding that the Board lacked chapter 75 jurisdiction over the appellant’s involuntary demotion appeal because the appellant was a dual status technician appointed under section 709 and the demotion occurred prior to the enactment of the National Defense Authorization Act for Fiscal Year 2017 (2017 NDAA)
How later courts described this case
- finding that the Board lacked chapter 75 jurisdiction over the appellant’s involuntary demotion appeal because the appellant was a dual status technician appointed under section 709 and the demotion occurred prior to the enactment of the National Defense Authorization Act for Fiscal Year 2017 (2017 NDAA)
- concluding that the amendments to 32 U.S.C. § 709 included in the 2017 NDAA did not apply retroactively to conduct that predated the 2017 NDAA’s enactment date
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2023 MSPB 17
Docket No. AT-0752-20-0508-I-1
Jeremiah Timothy White,
Appellant,
v.
Department of the Army,
Agency.
May 3, 2023
Jeremiah Timothy White, Jacksonville, Florida, pro se.
Guy E. Reinecke, Saint Augustine, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his alleged involuntary demotion appeal for lack of jurisdiction. For
the reasons set forth below, we DENY the petition for review, MODIFY the
administrative judge’s analysis as to why section 512(a) of the National Defense
Authorization Act for Fiscal Year 2017 (2017 NDAA), Pub. L. No. 114-328,
130 Stat. 2000, 211-13 (2016) (codified, as relevant here, at 32 U.S.C.
§ 709(f)(4)-(5), (g)(1)), does not apply retroactively to this appeal, but otherwise
AFFIRM the initial decision.
2
BACKGROUND
¶2 The Department of the Air Force employed the appellant as an Aircraft
Pneudraulic Systems Mechanic. 1 Initial Appeal File (IAF), Tab 1 at 1, 6. The
agency appointed the appellant to his position as a “dual status” technician under
32 U.S.C. § 709. IAF, Tab 1 at 6, Tab 5 at 8. In late 2014, due to what the
agency described as the appellant’s “inability to perform [his] duties,” it issued
him an “Employee Decision Form” which provided him with three employment
options. IAF, Tab 5 at 10-12. The options were as follows: (1) a change to a
lower grade; (2) extended leave without pay; or (3) a resignation. Id. At the
appellant’s election, on December 14, 2014, he was demoted to the position of
Tools and Parts Attendant, which reduced his grade and salary. 2 IAF, Tab 1 at 6,
Tab 5 at 13.
¶3 The appellant subsequently appealed his demotion to the Board, alleging
that the agency violated Technician Personnel Regulation (TPR) 715, subjected
him to “unfair work practices,” and discriminated against him. IAF, Tab 1 at 3.
The administrative judge issued an initial decision dismissing the appeal for lack
of jurisdiction. IAF, Tab 8, Initial Decision (ID) at 1, 4. Therein, the
1
A dual status technician, like the appellant, “is an employee of the Department of the
Army or the Department of the Air Force, as the case may be, and an employee of the
United States.” 32 U.S.C. § 709(e); Fitzgerald v. Department of the Air Force,
108 M.S.P.R. 620, ¶ 14 (2008). Thus, although the appellant identified himself as an
employee of the Florida Air National Guard, for purposes of this appeal he is an Air
Force employee. IAF, Tab 1 at 1, 6. Accordingly, it appear s that this case was
incorrectly docketed against the Department of the Army. However, given the Florida
National Guard’s participation in the case and our disposition affirming the initial
decision, we find no prejudice in this error. IAF, Tab 5 at 7; Petition for Review File,
Tab 3 at 8; see Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981)
(finding an administrative judge’s procedural error is of no legal consequence unless it
is shown to have adversely affected a party’s substantive rights).
2
The agency subsequently terminated the appellant from his dual status position due to
his loss of compatible military membership. IAF, Tab 5 at 8. However, the appellant
does not challenge his separation from Federal service in the instant appeal .
3
administrative judge found that, at the time of the appellant’s demotion, the
Board lacked jurisdiction to review adverse action and involuntary adverse action
appeals from dual status technicians appointed under 32 U.S.C. § 709. ID at 2-3.
In addition, the administrative judge determined that the amendments to
section 709 set forth in the 2017 NDAA, which extended Board adverse action
appeal rights under chapter 75 to dual status technicians under certain
circumstances, did not apply retroactively, and thus did not provide for Board
jurisdiction in this matter. ID at 3 n.3. Finally, the administrative judge found
that, because the Board lacks jurisdiction over the underlying demotion, it does
not have authority to adjudicate the appellant’s disability discrimination claim.
ID at 3-4.
¶4 The appellant has filed a petition for review, alleging that he was coerced
into electing a demotion, rendering it involuntary. Petition for Review (PFR)
File, Tab 1 at 4-6. He further reiterates that the agency discriminated against him
and asserts that the agency violated various TPRs, Florida state law, and criminal
statutes. Id. at 4-8. The agency has responded to his petition for review, and the
appellant has replied to its response. PFR File, Tabs 3-4.
ANALYSIS
The administrative judge correctly determined that the amendments to
section 709 of the NDAA do not apply retroactively.
¶5 As discussed above, the administrative judge found that the amendments to
section 709 of the 2017 NDAA, which extend Board appeal rights to dual status
technicians under certain circumstances, do not apply retroactively. 3 ID at 3 n.3.
3
The 2017 NDAA limits dual status National Guard Technician appeals of most agency
actions to the adjutant general of the relevant jurisdiction “when the appeal concerns
activity occurring while the member is in a military pay status, or concerns fitness for
duty in the reserve components.” 32 U.S.C. § 709(f)(4). The law affords appeal rights
pursuant to 5 U.S.C. §§ 7511-7513 concerning any activity not covered by
subsection (f)(4). 32 U.S.C. § 709(f)(5). Office of Personnel Management regulations
4
The appellant does not challenge this finding on review. Although we agree with
the administrative judge’s conclusion, we modify the initial decision to
supplement the analysis on retroactivity.
¶6 Prior to the 2017 NDAA, the statutory scheme covering dual status
technicians did not allow for Board appeals challenging adverse actions such as
reductions in grade or pay, or removals. McVay v. Arkansas National Guard,
80 M.S.P.R. 120, 123 (1998). Section 512(a) of the 2017 NDAA amended
32 U.S.C. § 709 to provide that, when a dual status technician is in a non-military
pay status, he is entitled to appeal adverse actions to the Board in certain limited
circumstances. 32 U.S.C. § 709(f)(4)-(5); (g)(1); Dyer v. Department of the Air
Force, 971 F.3d 1377, 1382-84 (Fed. Cir. 2020).
¶7 Here, as noted above, the appellant was demoted in December 2014, prior to
the 2017 NDAA’s enactment on December 23, 2016. IAF, Tab 1 at 6. As
discussed below, the amended statutory provision of section 709 is not retroactive
and thus does not apply to this appeal.
¶8 The proper analytical framework for determining whether a new statute
should be given retroactive effect was set forth by the Supreme Court in Landgraf
v. USI Film Products, 511 U.S. 244, 280 (1994):
When a case implicates a federal statute enacted after the events in
suit, the court’s first task is to determine whether Congress has
expressly prescribed the statute’s proper reach. If Congress has done
so, of course, there is no need to resort to judicial default rules.
When, however, the statute contains no such express command, the
court must determine whether the new statute would have retroactive
effect, i.e., whether it would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose new
implementing the 2017 NDAA, which became effective on December 12, 2022, state
that adverse actions and performance-based removals or reductions in grade of dual
status National Guard Technicians are not appealable to the Board except as provided
by 32 U.S.C. § 709(f)(5). 5 C.F.R. §§ 432.102(b)(16), 752.401(b)(17); see Probation on
Initial Appointment to a Competitive Position, 87 Fed. Reg. 67,765, 67,782-83
(Nov. 10, 2022).
5
duties with respect to transactions already completed. If the statute
would operate retroactively, our traditional presumption teaches that
it does not govern absent clear congressional intent favoring such a
result.
¶9 When Congress intends for statutory language to apply retroactively, it is
capable of doing so very clearly. King v. Department of the Air Force,
119 M.S.P.R. 663, ¶ 9 (2013) (citing Presidio Components, Inc. v. American
Technical Ceramics Corp., 702 F.3d 1351, 1364-65 (Fed. Cir. 2012) (giving
retroactive effect to amendments enacted in 2011 in light of express statutory
language that the amendments applied to “all cases, without exception, that are
pending on, or commenced on or after, the date of the enactment of this Act”)).
Here, the 2017 NDAA, as enacted, is silent regarding the retroactivity of this
amendment to section 709. Thus, applying the first part of the Landgraf test, we
find that Congress has not expressly prescribed the statute’s proper reach.
¶10 Turning to the second part of the Landgraf test, we find that the
2017 NDAA would increase the agency’s liability for past conduct. As noted
above, prior to the 2017 NDAA, the Board lacked jurisdiction ove r dual status
technicians’ appeals involving adverse actions such as reductions in grade or pay.
McVay, 80 M.S.P.R. at 123. Thus, to hold now that the agency’s act of demoting
the appellant is subject to Board review, and potential reversal, would increa se
the agency’s liability. 4 See Rebstock Consolidation v. Department of Homeland
Security, 122 M.S.P.R. 661, ¶ 7 (2015) (declining to give retroactive effect to the
Whistleblower Protection Enhancement Act of 2012 (WPEA) provision expanding
jurisdiction over certain protected activity because doing so would increase a
party’s liability for past conduct as compared to pre -WPEA liability).
4
Nothing in the 2017 NDAA or elsewhere suggests that it clarified an existing law. Cf.
Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 10-26 (2013)
(observing that when legislation clarifies existing law, its application to pre -enactment
conduct does not raise concerns of retroactivity).
6
Accordingly, considering the test set forth in Landgraf, we find no basis for
finding that the 2017 NDAA amendments to 32 U.S.C. § 709 are retroactive.
The administrative judge correctly found that the Board lacks jurisdiction over
the appellant’s demotion.
¶11 The appellant argues on review that he is a Federal employee and thus the
Board has jurisdiction over his appeal. PFR File, Tab 1 at 4. The administrative
judge held that the Board lacked jurisdiction over appeals brought by Federal
employees appointed under 32 U.S.C. § 709. ID at 2-3. We agree with the
administrative judge.
¶12 Applying the language of section 709 prior to the enactment of the
2017 NDAA, the Board has consistently held that it lacked chapter 75 jurisdiction
over adverse actions brought by dual status technicians appointed under
section 709, like the appellant. McVay, 80 M.S.P.R. at 123; see Ockerhausen v.
State of New Jersey Department of Military and Veterans Affairs, 52 M.S.P.R.
484, 489 (1992) (finding that the Board lacked jurisdiction over adverse actions
brought by National Guard technicians because they are expressly excluded under
the applicable statutes). As such, although the appellant is correct that he is a
Federal employee, he nonetheless has failed to meet his burden of establishing
jurisdiction over this appeal.
¶13 Moreover, because we lack jurisdiction over the appeal, we likewise lack
jurisdiction over the appellant’s discrimination claim. ID at 3-4; see Wren v.
Department of the Army, 2 M.S.P.R. 1, 2 (1980) (finding prohibited personnel
practices and affirmative defenses are not independent sources of Board
jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). Similarly, we lack
jurisdiction to consider the appellant’s claims that the agency violated various
state and Federal laws. See Wren, 2 M.S.P.R. at 2. Accordingly, we affirm the
initial decision as modified to supplement the administrative judge’s analysis on
the retroactivity of the amendments to section 709 of the 2017 NDAA .
7
ORDER
¶14 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE OF APPEAL RIGHTS 5
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 choice s of review
below to decide which one applies to your particular case. If you have questions
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
5
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.
8
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 particu lar
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decisi on before
9
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 disab ling
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
10
(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. 6 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
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.
6
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.
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.