The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADAM C. HARPER, DOCKET NUMBER
Appellant, PH-0752-19-0191-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: January 25, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
William B. Dorsey , Esquire, Charleston, West Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review and the agency has filed a
cross petition for review of the initial decision, which affirmed the appellant’s
separation. For the reasons discussed below, we DENY the petition for review,
GRANT the cross 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
The agency employed the appellant pursuant to 32 U.S.C. § 709(a) as an
Aircraft Mechanic for the 130th Maintenance Group in Charleston, West Virginia.
Initial Appeal File (IAF), Tab 1 at 1, Tab 7 at 26, 34. 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 concerned for 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).
The appellant was a member of the West Virginia Air National Guard
(WVANG). The appellant’s military chain of command submitted a
recommendation to the Air National Guard Selective Retention Review Board
(SRRB) that he be non-retained because (1) he had been a Master Sergeant for a
number of years and failed to meet the military requirement for promotion to the
next higher grade; (2) he was holding up other unit members for promotion;
(3) he failed to maintain Air Force physical fitness standards; (4) his failure to
meet military standards would likely cause him to lose rank; and (5) his failure to
maintain standards had become a poor example to peers and subordinates. IAF,
Tab 7 at 36-37. The SRRB met and did not approve the appellant’s retention in
the WVANG. Id. at 41. The Adjutant General notified the appellant that, as a
consequence of the SRRB’s decision, he would be separated from the WVANG
effective December 31, 2018. Id. at 41. The appellant requested that the
Adjutant General reconsider the decision. Id. at 46. The Adjutant General
considered the appellant’s request and upheld the SRRB’s decision not to retain
him. Id. at 47-48, 51. The WVANG separated the appellant effective
December 31, 2018. Id. at 51, 53. On February 7, 2019, a Human Resources
Officer in the Adjutant General’s office notified the appellant that, as a
3
consequence of his separation from the WVANG, he would be separated from his
dual status military technician employment, due to the loss of his military
membership, 30 days from his receipt of the letter. Id. at 43-44. The agency
separated the appellant effective March 8, 2019. Id. at 34.
The appellant filed the instant appeal. IAF, Tab 1. He withdrew his
request for a hearing. IAF, Tab 3 at 3. The agency moved to dismiss the appeal
for lack of jurisdiction, and the appellant filed a response. IAF, Tabs 7-8. The
administrative judge subsequently issued a close of record order, and the parties
made their final submissions. IAF, Tabs 9-11.
On the written record, the administrative judge found that pursuant to the
National Defense Authorization Act for Fiscal Year 2017 (NDAA for 2017), the
appellant was a 5 U.S.C. chapter 75 employee, and thus, the Board had
jurisdiction over his separation. IAF, Tab 12, Initial Decision (ID) at 3-5. He
determined that the appellant 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 he 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, 6. He found that the agency did not deny the
appellant due process because the deciding official considered the appellant’s
written reply to the proposed removal in reaching his decision. ID at 5-6. The
administrative judge further found that the agency’s procedural error in failing to
afford the appellant an oral reply was harmless because the appellant failed to
prove that the agency would not have separated him if he had provided an oral
reply. ID at 5-6. As a result, he affirmed the separation. ID at 5-6 (citing
32 U.S.C. § 709(f)(1)).
In his petition for review, the appellant reargues his due process claim,
alleging that the deciding official failed to afford him an oral reply and failed to
consider his written reply. Petition for Review (PFR) File, Tab 1 at 4-9. The
4
agency has filed a response to the appellant’s petition for review and a cross
petition for review in which it argues, in pertinent part, that the administrative
judge erred in finding jurisdiction over the appeal. PFR File, Tab 3 at 6-14. The
appellant filed a reply to the agency’s response to his petition for review and a
response to the agency’s cross petition for review. PFR File, Tabs 6-7. 2
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.
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).
The sum and substance of the agency’s argument in its cross petition for
review is that the administrative judge erred in not dismissing the appeal for lack
of jurisdiction because the appeal concerned the appellant’s fitness for duty in a
reserve component. PFR File, Tab 3 at 6-14. After the administrative judge
issued his initial decision, the U.S. Court of Appeals for the Federal Circuit
issued its decision in Dyer, 971 F.3d 1377. In light of that decision, we agree
with the agency that the Board lacks jurisdiction over this appeal.
2
On review, both parties resubmitted documentation that was already part of the record
below. Compare PFR File, Tab 1 at 11-35, with IAF, Tab 8 at 8-33; compare PFR File,
Tab 3 at 19-50, with IAF, Tab 7 at 17-44, 47-49; compare PFR File, Tab 4 at 5, 7, with
IAF, Tab 7 at 46, 51. Evidence that is already part of the record is not new evidence
that warrants granting review. Meier v. Department of the Interior, 3 M.S.P.R. 247,
256 (1980); see 5 C.F.R. § 1201.115(d) (identifying new and material evidence as a
basis on which the Board may, in appropriate circumstances, grant review). In any
event, we have considered all of the evidence in the record that relates to the Board’s
jurisdiction, regardless of when it was submitted. See Stoglin v. Department of the Air
Force, 123 M.S.P.R. 163, ¶ 7 (2015) (explaining that the issue of Board jurisdiction is
always before the Board and may be raised at any time), aff’d per curiam, 640 F. App’x
864 (Fed. Cir. 2016).
5
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
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, as relevant here, actions 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. 32 U.S.C. § 709(f)(4),
(g)(1).
In Dyer, the court held that under 32 U.S.C. § 709, “termination of
dual-status employment as a 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 loss of his membership in the WVANG. IAF, Tab 7 at 43-44.
Thus, under the court’s reasoning in Dyer, we find that the Board lacks
jurisdiction over his termination.
The administrative judge erred in finding that the Board has jurisdiction
because the Board may review the appellant’s separation 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). ID at 4. In Egan, the
Court held that the Board has limited authority to review an adverse action under
5 U.S.C. chapter 75 for reasons pertaining to a negative security clearance
determination. Egan, 484 U.S. at 530-31. However, 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,” as in Egan, but was “compelled by statute due [to] his failure to meet
6
a requirement of employment provided for by statute.” Dyer, 971 F.3d
at 1383-84.
Accordingly, we vacate the initial decision and dismiss the appeal for lack
of jurisdiction. In light of our findings here, we do not address any of the
appellant’s arguments related to due process or the merits of his discharge from
the WVANG.
NOTICE OF APPEAL RIGHTS 3
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
3
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
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 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
8
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:
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
9
(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. 4 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.
4
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 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.