The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RUSSELL C. PENTZ, DOCKET NUMBER
Appellant, AT-0752-19-0322-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: July 18, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joshua L. Klinger, Esquire, Denver, Colorado, for the appellant.
John Cummings, Esquire, Columbia, South Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the agency’s indefinite suspension of the appellant and ordered the
agency to provide the appellant with interim relief if either party filed a petition
for review. For the reasons discussed below, we GRANT the agency’s petition
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 judg es 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
for review, VACATE the initial decision, and DISMISS the appeal for lack of
jurisdiction.
BACKGROUND
¶2 The appellant was employed by the South Carolina Army National Guard as
a WG-10 Powered Support Systems Mechanic in Columbia, South Carolina.
Initial Appeal File (IAF), Tab 6 at 43. It is undisputed that he was a dual-status
military technician as defined in 10 U.S.C. § 10216(a) and that, as a condition of
employment, he had to be a member of the National Guard. Id. at 21-26; IAF,
Tab 36 at 1; see 32 U.S.C. § 709(b). Additionally, the appellant’s position
description indicated that a condition of employment required that he “[m]ust b e
able to obtain and maintain the appropriate security clearance of the position.” 2
IAF, Tab 6 at 25.
¶3 In a December 20, 2018 Memorandum for Record, the agency documented
that the appellant’s access to classified information had been suspended, pending
an investigation of his alleged theft of Government property. IAF, Tab 6 at 45.
Thereafter, on January 7, 2019, the agency proposed the appellant’s indefinite
suspension from his position based on the suspension of his access to class ified
information. Id. at 12-13. After considering the appellant’s January 29, 2019
written response to the proposed indefinite suspension, id. at 35-39, wherein he
argued that the agency committed harmful error and failed to provide him with
sufficient information to make an informed reply, the deciding official issued a
2
In the initial decision, the administrative judge found that the appellant’s position did
not require a security clearance. IAF, Tab 41, Initial Decision (ID) at 4 -5. She made
this finding as a part of her analysis of the merits of the appellant’s appeal of his
indefinite suspension and contrary to the testimony of several witnesses that the
appellant’s position required a security clearance and to the appellant’s position
description. ID at 2-5; IAF, Tab 6 at 25; IAF, Tab 40, Hearing Compact Disc
(testimony of the proposing and deciding officials, the Commander, and a Labor
Relations Specialist). Because we recommend dismissing this appeal for lack of
jurisdiction, we do not reach the question of whether the administrative judge erred in
this finding.
3
final decision, effective February 12, 2019, finding that an indefinite suspension
was appropriate, id. at 15-16.
¶4 The appellant appealed the indefinite suspension to the Board, assertin g that
the agency committed harmful error and violated his due process rights by failing
to provide him with all the information the deciding official relied upon to reach
his final decision. 3 IAF, Tab 1 at 4. In its prehearing submission, the agency
asserted that the Board lacked jurisdiction over the appellant’s appeal pursuant to
32 U.S.C. § 709(f)(4), which provides that a right to an appeal otherwise provided
by the statute “shall not extend beyond the adjutant general of the jurisdiction
concerned when the appeal concerns activity occurring while the member is in a
military pay status, or concerns fitness for duty in the reserve components .” IAF,
Tab 32 at 6-8 (quoting 32 U.S.C. § 709(f)(4)). In an order and summary of the
prehearing conference, the administrative judge addressed the agency’s challenge
to the Board’s jurisdiction. IAF, Tab 36 at 1-2. She concluded that, although the
alleged theft appears to have occurred while the appellant was in a military pay
status, the agency’s indefinite suspension action was based on the suspension of
his security clearance, not the purported theft. Id. at 2. Therefore, she concluded
that the Board retains jurisdiction over his appeal, and she conducted the
appellant’s requested hearing. Id.; IAF, Tab 40, Hearing Compact Disc (HCD).
¶5 Prior to the commencement of the hearing, the agency reiterated its position
that the Board lacked jurisdiction over the appellant’s appeal pursuant to
32 U.S.C. § 709(f)(4). HCD (statements from agency counsel). Thereafter, the
administrative judge issued an initial decision finding that the agency f ailed to
3
It appears that the appellant was subsequently removed from his position for
misappropriating Government property and committing larceny while in a deployed
Title 10 status. See Pentz v. Department of the Air Force, MSPB Docket No. AT-0752-
20-0286-I-1, Initial Appeal File, Tab 1 at 12. That removal is the basis of the
appellant’s appeal in Pentz v. Department of the Air Force, MSPB Docket No.
AT-0752-20-0286-I-1. The Board will issue a separate decision addressing the issues
raised therein.
4
prove by preponderant evidence that it established a security clearance
requirement for the appellant’s position, and she reversed the appellant’s
indefinite suspension. IAF, Tab 41, Initial Decision (ID) at 4-5. She also ordered
the agency to provide the appellant with interim relief, in accordance with
5 U.S.C. § 7701(b)(2)(A). ID at 7.
¶6 The agency has filed a petition for review, wherein it again argues that the
Board lacks jurisdiction over this matter under 32 U.S.C. § 709(f)(4). Petition for
Review (PFR) File, Tab 1 at 7-11. It also argues that the administrative judge
erred in finding that the agency failed to prove by preponderant evidence that the
appellant’s position requires that he maintain eligibility for access to classified
information. Id. at 6-7. The appellant has filed a response to the age ncy’s
petition for review and asserts that the agency failed to provide interim relief, as
ordered. PFR File, Tabs 3, 5, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The appeal must be dismissed for lack of jurisdiction, pursuant to 32 U.S.C.
§ 709.
¶7 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 his appeal by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A).
¶8 The National Defense Authorization Act for Fiscal Year 2017 amended
existing law to provide that dual-status military technicians, such as the appellant,
may appeal an adverse action to the Board when their appeals do not concern
“activity occurring while the member is in a military pay status” or “fitness for
duty in the reserve components.” See 32 U.S.C. § 709(f)(4)-(5), (g); Dyer v.
Department of the Air Force, 971 F.3d 1377, 1381-82 (Fed. Cir. 2020). As
discussed above, the administrative judge considered the question of whether the
Board has jurisdiction over this appeal, but did so in a limited capacity,
5
concluding that, although the underlying activity that led to the suspension of the
appellant’s access to classified information occurred while he was in a military
pay status, his indefinite suspension was based on the suspension of his access to
classified information—not the underlying activity. IAF, Tab 36 at 2. Although
the administrative judge is correct in her assessment of the basis for the
appellant’s indefinite suspension, she did not further consider, for the purposes of
jurisdiction, whether the agency suspended the appellant’s access to classified
information while he was in a military pay status or whether it concerned his
fitness for duty in the reserve components. Id. Thus, we consider that question
here.
¶9 Section 709 defines “military pay status” as “a period of service where the
amount of pay payable to a technician for that service is based on rates of military
pay provided for under title 37.” 32 U.S.C. § 709(j)(1). In the decision
indefinitely suspending the appellant, the deciding official indicated that “[t]he
Commander chose to serve the notification [regarding the suspension of the
appellant’s access to classified information] while [the appellant was] in a
military status to coincide with the service of information related t o the military
investigation.” IAF, Tab 6 at 16. The appellant has not denied or disputed this
claim. Additionally, the proposing official testified at the hearing that she waited
to propose the appellant’s indefinite suspension until the appella nt was notified
on the military side of the suspension of his access to classified information.
IAF, Tab 40, HCD (testimony of the proposing official). Based on the foregoing,
we find that the appellant’s appeal of his indefinite suspension concerns
activity—the suspension of his access to classified information—which occurred
while he was in a military pay status. 4
4
Because we find that the Board lacks jurisdiction on this basis, we need not address
whether the appellant was required to maintain a security clearance, and if so, whether
that requirement concerns his “fitness for duty in the reserve components” under
32 U.S.C. § 709(f)(4).
6
¶10 Moreover, we reiterate that it is the appellant’s burden to establish Board
jurisdiction by preponderant evidence. See 5 C.F.R. § 1201.56(b)(2)(i)(A). In
the order and summary of the prehearing conference, the administrative judge
explained that, although dual-status military technicians, such as the appellant,
now have adverse action appeal rights, those rights are limited to appeals that do
not concern activity that occurred while they are in a military pay status or
concern fitness for duty in the reserve components. IAF, Tab 36 at 2. Thus, the
appellant was aware of the potential jurisdictional bars on his appeal. Although
he argues in his response to the agency’s petition for review that the “loss of his
clearance [] occurred while [he] was in his civilian status,” PFR File, Tab 6 at 7,
he has not pointed to any specific part of the record establishing that point. To
the contrary, as explained above, the record supports a finding that he was in a
military status when his access to classified information was suspended. IAF,
Tab 6 at 15; HCD (testimony of the proposing official). We, therefore, find that
the appellant has failed to meet his burden to establish jurisdiction over his
appeal. 5
¶11 For the reasons set forth above, we vacate the initial decision and dismiss
the appeal for lack of jurisdiction. 6
5
In light of this finding, we exercise our discretion not to dismiss the agency’s petition
for review regardless of whether the agency complied with the administrative judge’s
interim relief order. PFR File, Tabs 3, 5, 6; see Lovoy v. Department of Health and
Human Services, 94 M.S.P.R. 571, ¶ 28 (2003) (declining to dismiss an agency’s
petition for review for failure to provide interim relief when the issue of the Board’s
jurisdiction over the appeal was not yet resolved). To the extent the appellant’s
pleadings on review include a motion to dismiss the agency’s petition for review based
on an alleged failure to provide interim relief, such a motion is, therefore, denied.
6
In his response to the agency’s petition for review, the appellant reasserts that, even if
the agency had proven its charge, it still nonetheless violated his due process rights.
PFR File, Tab 6 at 6 n.3. Because we find that the Board lacks jurisdiction over this
appeal, we cannot consider the appellant’s due process violation claim. See Rivera v.
Department of Homeland Security, 116 M.S.P.R. 429, ¶ 16 (2011).
7
NOTICE OF APPEAL RIGHTS 7
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
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:
7
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
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
9
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
10
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. 8 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.
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 war rants that
any attorney will accept representation in a given case.
8
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
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/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.