Rich Bradley v. Department of the Air Force

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RICH BRADLEY, DOCKET NUMBER

Appellant, DA-1221-22-0365-W-1

v.

DEPARTMENT OF THE AIR FORCE, DATE: January 8, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Michael Kleinman , Esquire, Houston, Texas, for the appellant.

Barry D. Elliott , Austin, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his individual right of action (IRA) appeal for failure to state a claim

upon which relief can be granted. For the reasons discussed below, we GRANT

the appellant’s petition for review, VACATE the initial decision, and REMAND

the case to the regional office for further adjudication in accordance with this

Remand Order.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appellant was appointed to the position of Physician (Aerospace

Medicine) on January 31, 2021. Initial Appeal File (IAF), Tab 10 at 35.

The agency cited provisions of the National Defense Authorization Act for Fiscal

Year 2017 (2017 NDAA), Pub. L. No. 114-328, 130 Stat. 2000 (2016), as the

legal authority for the appointment. Id. He was terminated during his trial period

effective January 14, 2022. Id. at 11-12. The appellant filed a complaint with the

Office of Special Counsel (OSC) alleging that the agency terminated him and

initiated a Quality Assurance Investigation (QAI) in reprisal for whistleblowing.

IAF, Tab 1 at 9-10, Tab 4 at 32-45. After OSC informed the appellant that it was

closing its investigation into his complaint, he filed this IRA appeal. IAF, Tab 1.

¶3 In response to the appeal, the agency argued that the Board could not order

any relief because it lacks the authority to order the Adjutant General of Texas, a

state employee, to take any remedial action regarding the appellant’s employment.

IAF, Tab 10 at 6-7. After giving the appellant an opportunity to address the issue

of relief, IAF, Tab 11, the administrative judge issued an initial decision

dismissing the appeal, IAF, Tab 21, Initial Decision (ID). The administrative

judge found that the Board has jurisdiction over the appellant’s whistleblower

reprisal claim as to his termination, but not as to the QAI. She found that the

appellant’s termination was accomplished by the Adjutant General of Texas and

that under Singleton v. Merit Systems Protection Board, 244 F.3d 1331, 1336-37

(Fed. Cir. 2001), the Board lacks authority to compel a state adjutant general to

perform an ordered act. ID at 8-11. The administrative judge acknowledged that

the 2017 NDAA had extended Board appeal rights to certain National Guard

employees, but she found that it did not specifically grant the Board authority to

order relief against a state entity such as an adjutant general. ID at 11-12.

¶4 The appellant has filed a petition for review of the initial decision.

Petition for Review (PFR) File, Tab 1. He argues that the Board has authority to

order effective relief in this case, whether by ordering the Department of the

3

Air Force to provide relief or by treating the Texas National Guard as a Federal

agency for purposes of this appeal. Id. at 16-24. He also argues that the

administrative judge erred in finding that the Board lacks jurisdiction over his

claim that the agency initiated an investigation in reprisal for his whistleblowing.

Id. at 10-16. The agency has responded in opposition to the appellant’s petition

for review, PFR File, Tab 3, and the appellant has filed a reply, PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the Board lacks jurisdiction over

the appellant’s claim that the agency initiated an investigation in reprisal for

whistleblowing.

¶5 On petition for review, the appellant challenges the administrative judge’s

finding that the Board lacks jurisdiction over his claim that the agency initiated a

QAI about him in reprisal for his protected disclosures and activities. 2 PFR File,

Tab 1 at 10-16. For the reasons set forth below, we agree with the administrative

judge.

¶6 The agency initiated the allegedly retaliatory QAI in March 2022,

IAF, Tab 4 at 24-25, approximately 2 months after the appellant’s termination,

IAF, Tab 10 at 11. The administrative judge found that the Board lacked

jurisdiction over the claim arising out of the QAI both because the appellant was

neither an employee nor an applicant for employment at the time it was initiated,

and because the QAI was neither a personnel action covered under 5 U.S.C.

§ 2302(a)(2)(A) nor closely related to a personnel action. ID at 6-8.

¶7 The right to file an IRA appeal derives from 5 U.S.C. § 1221(a), which

provides a right to seek corrective action before the Board to “an employee,

former employee, or applicant for employment.” Maloney v. Executive Office of

the President, Office of Administration, 2022 MSPB 26, ¶ 33. Although former

2

On petition for review, neither party challenges the administrative judge’s finding that

the Board has jurisdiction over the appellant’s claim that the agency terminated him in

reprisal for his protected disclosures and activities. ID at 2-6, 8. We see no reason to

disturb that finding.

4

employees are included among those who can seek corrective action from the

Board, they cannot do so for matters occurring after their employment.

See Guzman v. Office of Personnel Management, 53 F. App’x 927, 929-30

(Fed. Cir. 2002) (holding that a former employee may not seek corrective action

for alleged disclosures made or retaliatory acts taken after his employment

ended) 3 ; Weed v. Social Security Administration, 113 M.S.P.R. 221, ¶ 11 (2010)

(citing this principle from Guzman with approval). Section 2302(b)(8) prohibits

any employee in a position of authority from taking, failing to take, or threatening

to take “a personnel action with respect to any employee or applicant.” 5 U.S.C.

§ 2302(b)(8) (emphasis added). Section 2302(b)(9) similarly prohibits personnel

actions taken “against any employee or applicant” because of certain classes of

protected activity. 5 U.S.C. § 2302(b)(9) (emphasis added). Therefore, we agree

with the administrative judge that the appellant cannot seek corrective action for

an alleged personnel action that occurred after he was no longer a Federal

employee.

The Board has authority to grant relief in this appeal.

¶8 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). In Singleton, 244 F.3d at 1333,

1336-37, the Federal Circuit determined that the Board could not order an

adjutant general to provide relief to a National Guard technician employee.

It reasoned that an adjutant general is not a Federal employee, and a National

Guard, even if an agency, “can only act through its adjutant general.” Id.

The administrative judge applied the holding in Singleton and determined that the

2017 NDAA did not compel a different outcome. ID at 11-12. This was error.

3

The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the

Federal Circuit when, as here, it finds its reasoning persuasive. LeMaster v.

Department of Veterans Affairs, 123 M.S.P.R. 453, ¶ 11 n.5 (2016).

5

¶9 The holding in Singleton that the Board lacks the authority to issue

enforceable orders to remedy improper employment actions taken against

National Guard technicians has been abrogated by Congress’s changes to

32 U.S.C. § 709, enacted as part of the 2017 NDAA. Erdel v. Department of the

Army, 2023 MSPB 27, ¶¶ 11-16. In any event, the appellant was not a dual status

National Guard technician. The agency appointed the appellant under the

authority of section 932 of the 2017 NDAA. 4 IAF, Tab 10 at 35. Section 932

amended 10 U.S.C. § 10508 to authorize the Chief of the National Guard Bureau

to employ individuals within the National Guard Bureau and the National Guard

of each state and territory. 130 Stat. at 2363 (codified as amended at 10 U.S.C.

§ 10508(b)(1)). Section 932 further authorizes the Chief of the National Guard

Bureau to designate adjutants general to employ National Guard employees. Id.

(codified at 10 U.S.C. § 10508(b)(2)). Section 932 provides that the adjutant

general and National Guard of a jurisdiction are responsible for taking and

defending any personnel action against employees appointed under its authority,

stating as follows:

The adjutant general of the jurisdiction concerned shall be

considered the head of the agency and the National Guard of the

jurisdiction concerned shall be considered the employing agency of

the individual and the sole defendant or respondent in any

administrative action.

The National Guard of the jurisdiction concerned shall defend any

administrative complaint, grievance, claim, or action, and 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)). It would be

implausible for Congress to have specifically provided for an administrative

remedy for improper personnel actions, but for there to be no relief available

4

The agency also cited section 1084 of the 2017 NDAA, codified at 10 U.S.C. § 10217,

as authority for the appellant’s appointment. IAF, Tab 10 at 35. However, that

provision does not actually authorize the appointment of new employees such as the

appellant. See 130 Stat. at 2421.

6

from the Board, which has jurisdiction under 5 U.S.C. § 1221 to adjudicate

whistleblower reprisal claims arising out of such actions. See Erdel, 2023 MSPB

27, ¶ 11 (observing that it would be “beyond strange” for Congress to have

specifically amended two statutory provisions in different titles of the United

States Code to provide for Board appeal rights to National Guard technicians, but

for there to be no relief available from the Board).

¶10 We note that whereas Erdel involved an appeal of a chapter 75 removal

action, the instant case involves a request for corrective action under 5 U.S.C.

§ 1221 for alleged whistleblower reprisal. However, that distinction does not

affect the Board’s ability to order relief here. Section 932 authorizes adjutants

general to accomplish “all personnel actions or conditions of employment,

including adverse actions under title 5,” and to defend “any administrative

complaint, grievance, claim, or action arising from, or relating to, such a

personnel action or condition of employment.” 130 Stat. at 2363-64 (codified at

10 U.S.C. § 10508(b)(3)). Based on that broad statutory language, we find that

Congress did not intend to limit the Board’s remedial authority regarding

National Guard employees to a particular subset of personnel actions or types of

appeals.

¶11 Accordingly, we vacate the administrative judge’s finding that the appellant

failed to state a claim upon which relief can be granted.

7

ORDER

¶12 For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order. 5

FOR THE BOARD: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

5

After the close of the record on review, the appellant requested leave to file an

additional pleading to address the recent decision of the U.S. Supreme Court in Ohio

Adjutant General’s Department v. Federal Labor Relations Authority , 598 U.S. 449,

453-54 (2023). PFR File, Tab 6. He subsequently requested further leave to file an

additional pleading to address a recent nonprecedential decision in another Board

appeal involving the Board’s authority to order relief in an appeal filed by a National

Guard employee. PFR File, Tab 8. The Board generally does not permit any pleadings

on review other than a petition for review, cross petition for review, and the responses

and replies to those petitions. 5 C.F.R. § 1201.114(a)(5). No other pleading is allowed

unless the party seeking leave demonstrates the need for such a pleading. See 5 C.F.R.

§ 1201.114(a)(5) (requiring that a motion for leave to file an additional pleading on

review “describe the nature and need for the pleading”). The Board has already

addressed the Supreme Court’s decision in its recent Opinion and Order in Erdel, 2023

MSPB 27, ¶¶ 6, 14, which was issued after the appellant filed his first request for leave.

Our decision in this case is consistent with the nonprecedential decision that is the basis for

the appellant's most recent motion, and we do not require any additional pleadings

addressing that decision. Because there is no need for additional argument, we deny the

appellant’s requests for leave.