The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL L. HERROD, DOCKET NUMBER
Appellant, PH-0752-19-0250-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: August 18, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.
Jeffrey S. Chang, Concord, New Hampshire, 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 appellant’s removal. For the reasons discussed below, we GRANT
the agency’s petition for review, VACATE the initial decision, and DISMISS the
appeal for lack of jurisdiction.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The Adjutant General of the New Hampshire Air National Guard (NHANG)
employed the appellant as a GS-9 Command and Control Specialist. Initial
Appeal File (IAF), Tab 4 at 8. The appellant was employed as a dual status
technician pursuant to 32 U.S.C. § 709. IAF, Tab 4 at 8-9. In the position, the
appellant was required to meet the following conditions of employment: (1) be a
dual status military technician as defined in 10 U.S.C. § 10216(a); (2) be a
member of the National Guard; (3) hold the military grade specified by the
Secretary concerning that position; and (4) wear the appropriate military uniform
while performing duties as a dual status military technician. 32 U.S.C. § 709(b);
Dyer v. Department of the Air Force, 971 F.3d 1377, 1383 (Fed. Cir. 2020).
¶3 The appellant’s NHANG enlistment contract ended on April 26, 2019. IAF,
Tab 28 at 14. The appellant’s NHANG unit commander found that the appellant
“did not meet the standard required by [Air Force Instruction] 36-2606 and was
unfit to continue to serve in the [NHANG].” Id. Accordingly, the unit
commander did not select the appellant for reenlistment and, effective April 26,
2019, he was honorably discharged from the NHANG and the Air Force Reserve.
Id. at 14, 20. The appellant was thus also separated from his Command and
Control Specialist position, effective April 26, 2019, due to the involuntary loss
of his military membership. IAF, Tab 1 at 10, Tab 28 at 23, 166.
¶4 The appellant filed this appeal of his separation, arguing that there was “no
basis for the agency’s action” and that he was denied due process. IAF, Tab 1
at 4. The agency filed a motion to dismiss, arguing, as relevant here, that the
Board is without jurisdiction to hear his appeal because his separation was based
entirely upon his loss of his military membership, which was in turn based on his
fitness for duty in the NHANG. IAF, Tab 5 at 8-9, 13. In such a case, the agency
argued, the appellant’s removal is appealable only to the NHANG’s Adjutant
General. Id.
3
¶5 The appellant withdrew his request for a hearing and the administrative
judge issued an initial decision based on the written record. IAF, Tab 23 at 4,
Tab 31, Initial Decision (ID). She found that, pursuant to the National Defense
Authorization Act for Fiscal Year 2017 (NDAA for 2017), the appellant was a
chapter 75 employee, and thus the Board had jurisdiction over his separation . ID
at 3-4. She determined that he was separated based on a charge of failure to meet
a condition of employment—in this case, the maintenance of his military status.
ID at 4. The administrative judge found that she was precluded from reviewing
the merits of the agency’s determination regarding the appellant’s loss of military
membership but not whether the appellant, as a covered employee, was denied
constitutional due process. ID at 4. She determined that the agency denied the
appellant his due process rights when it failed to provide an opportunity to
respond to its separation notice. ID at 4-5. As a result, the administrative judge
reversed the removal action, and ordered the agency to cancel the removal and
retroactively restore the appellant, effective April 26, 2019. 2 ID at 5.
¶6 The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has filed a response opposing the agency’s petition for
review, and the agency has filed a reply. PFR File, Tabs 3-4. With the
permission of the Acting Clerk of the Board, the agency has also filed a
supplemental pleading, arguing that the decision that the U.S. Court of Appeals
for the Federal Circuit has issued in Dyer, 971 F.3d 1377, is dispositive. PFR
File, Tabs 6, 8-9. The appellant has not responded to this submission.
2
The administrative judge did not order the agency to provide interim relief pursuant to
5 U.S.C. § 7701(b)(2)(A).
4
DISCUSSION OF ARGUMENTS ON REVIEW
The Board lacks jurisdiction over this appeal pursuant to 32 U.S.C. § 709 because
it concerns the appellant’s fitness for duty in the reserve components.
¶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 a preponderance of the evidence.
5 C.F.R. § 1201.56(b)(2)(i)(A).
¶8 The agency argues that the administrative judge erred in finding that dual
status military technicians, such as the appellant, are considered tenured Federal
employees with adverse action appeal rights regardless of the basis upon which
the adverse action at issue was taken. PFR File, Tab 1 at 19-20. For the
following reasons, we agree that the administrative judge erred by finding that the
Board has jurisdiction over this appeal even though the appellant was separated
because he lost his military membership.
¶9 The administrative judge correctly found that the NDAA for 2017 provided
dual status technicians with the right to appeal some adverse actions, such as
removals, to the Board. 32 U.S.C. § 709(f)(5); Dyer, 971 F.3d at 1382; see also
5 U.S.C. § 7512(1)-(5) (identifying the adverse actions that a Federal employee
may appeal to the Board under chapter 75). However, this right is limited. Dyer,
971 F.3d at 1382. Specifically, section 709(f)(4) provides that personnel
decisions that “concern[]” a dual status technician’s “fitness for duty in the
reserve components” are appealable only to the adjutant general of the
jurisdiction concerned. 3 32 U.S.C. § 709(f)(4), (g)(1).
3
The NDAA for 2017 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
implementing the NDAA for 2017, which became effective on December 12, 2022, state
5
¶10 After the initial decision was issued in this matter, the Federal Circuit
issued its decision in Dyer, 971 F.3d 1377. There, the court held that under
32 U.S.C. § 709, “termination of dual-status employment . . . as the result of
separation from the National Guard” necessarily concerns fitness for duty in the
reserve components. Dyer, 971 F.3d at 1382-84 (citing 32 U.S.C. § 709(b),
(f)(1)(A), (f)(4), (f)(6)). As a result, it concluded that the Board does not have
jurisdiction over such a termination. Id. at 1384. Here, the appellant was
terminated from his dual status technician position because of the loss of his
membership in the NHANG. IAF, Tab 1 at 10, Tab 28 at 23, 166. Thus, under
the court’s reasoning in Dyer, as well as the applicable statute, we find that the
Board lacks jurisdiction over his termination.
¶11 The appellant’s attorney argues on review that Air National Guard members
may not be selected for reenlistment for reasons other than their fitness for duty,
such as a lack of need in a specific career field due to the Air National Guard’s
own over-hiring or changes in new aircraft that leave certain members ’ skills
obsolete. PFR File, Tab 3 at 5-6. The appellant’s argument is not persuasive.
Termination from dual status employment on the basis of loss of National Guard
membership concerns fitness for duty in a reserve component regardless of the
“reason for separation” from the National Guard. Dyer, 971 F.3d at 1383-84.
Thus, it follows that the Board lacks jurisdiction regardless of the reason.
32 U.S.C. § 709(f)(4), (g)(1).
¶12 The appellant’s attorney also argues that the Board has jurisdiction because
the Board may review his appeal as a failure to maintain a condition of
employment, relying on the U.S. Supreme Court’s decision in Department of the
Navy v. Egan, 484 U.S. 518 (1988). PFR File Tab 3 at 7. In Egan, the Court held
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).
6
that the Board has limited authority to review whether an agency observed the
procedural protections of 5 U.S.C. § 7513 when taking an adverse action under
5 U.S.C. chapter 75 for reasons pertaining to a negative security clearance
determination. Egan, 484 U.S. at 531. The court in Dyer found that Egan was
inapposite to the removal of a dual status technician based on loss of National
Guard membership. Dyer, 971 F.3d at 1383-84. The court reasoned that Egan
did not concern 32 U.S.C. § 709 “at all,” and Mr. Dyer’s termination was not “for
cause” but was “compelled by statute due [to] his failure to meet a requirement of
employment provided for by statute.” Dyer, 971 F.3d at 1383-84.
¶13 Because we conclude the Board lacks jurisdiction over the instant appeal,
we vacate the initial decision and dismiss this appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 4
This is the Board’s final decision in this matter. 5 C.F.R. § 1201.113(c).
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.
4
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.
7
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:
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
8
were affected by an action that is appealable to t he 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. distri ct 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:
9
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. 5 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).
5
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.
10
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 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/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.