The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 4
Docket No. DE-0752-23-0001-I-1
Abenayaa Lane,
Appellant,
v.
Department of the Army,
Agency.
March 19, 2024
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Beverly G. Schneider , Fort Harrison, Montana, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for failure to state a claim upon which relief could 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 Denver Field
Office for further adjudication in accordance with this Opinion and Order.
BACKGROUND
¶2 The appellant was employed by the Montana National Guard in Helena,
Montana in the excepted-service position of Military and Family Readiness
Specialist. Initial Appeal File (IAF), Tab 16 at 9-10. On September 23, 2021, the
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agency issued a decision removing her from her position. IAF, Tab 5 at 106-10.
That same day, the parties entered into a last chance settlement agreement
(LCSA), which held the removal action in abeyance. Id. at 55-57. Nearly 1 year
later, on September 16, 2022, the agency reinstated the removal, alleging that the
appellant engaged in misconduct, thereby violating the terms of the LCSA. Id. at
22-23. The removal was effective September 24, 2022. Id. at 20.
¶3 The appellant timely appealed her removal to the Board. IAF, Tab 1.
Following the submission of briefs regarding the Board’s jurisdiction as it relates
to the parties’ LCSA, IAF, Tab 2 at 2-3, Tabs 4, 6-7, the administrative judge
found that the appellant made nonfrivolous allegations of Board jurisdiction and
was, thus, entitled to a hearing on the issue of jurisdiction, IAF, Tab 9. Before
that hearing was held, however, the agency filed a motion to dismiss the appeal
for failure to state a claim upon which relief could be granted. IAF, Tab 13. In
its motion, the agency argued that the Board only has authority under 5 U.S.C.
§ 1204(a)(2) to “order any Federal agency or employee” to comply with
corrective action and that the Montana Adjutant General, the senior official in the
Montana National Guard, is not a Federal employee, nor is the Montana National
Guard a Federal agency. Id. at 4-7. Thus, the agency argued that the Board lacks
the authority to order corrective action that is enforceable against the Montana
National Guard. Id. In response, the appellant asserted that she is a Title 5
employee of the Department of the Army and that part of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000
(2017 NDAA), amended applicable law to provide for the enforcement of a Board
decision involving a state National Guard. IAF, Tab 14.
¶4 Before holding the hearing on the issue of jurisdiction as it relates to the
parties’ LCSA, the administrative judge issued an initial decision finding that the
Board lacked the authority to order effective relief, pursuant to Singleton v. Merit
Systems Protection Board, 244 F.3d 1331 (Fed. Cir. 2001). IAF, Tab 22, Initial
Decision (ID) at 3-7. He acknowledged that the 2017 NDAA amended relevant
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law to require the National Guard of the relevant jurisdiction to “defend any
administrative complaint, grievance, claim, or action,” to “promptly implement
all aspects of any final administrative order, judgement, or decision,” and to pay
for any settlement, judgment, or costs arising from an action from appropriate
funds allocated to it. ID at 5-6 (quoting 10 U.S.C. § 10508, as amended by the
2017 NDAA). Nonetheless, he concluded that it did not amend relevant law to
designate state National Guards as Federal agencies or adjutants general as
Federal employees and that the Board’s ability to order relief was still limited to
Federal agencies and Federal employees, as set forth in 5 U.S.C. § 1204(a)(2). ID
at 6. Accordingly, he found that he could not “order effective relief in this
matter,” and he dismissed the appeal for failure to state a claim upon which relief
could be granted. Id.
¶5 The appellant has filed a petition for review of the initial decision arguing
that the administrative judge misinterpreted the 2017 NDAA amendments and,
therefore, erred in finding that the Board lacked the authority to grant relief.
Petition for Review (PFR) File, Tab 1. The agency has filed a response. 1
PFR File, Tab 3.
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After the close of record in this matter, the appellant filed two separate motions to
present supplemental authority and corresponding argument based on the U.S. Supreme
Court’s decision in Ohio Adjutant General’s Department v. Federal Labor Relations
Authority, 598 U.S. 449 (2023), and the Board’s recent Opinion and Order in Erdel v.
Department of the Army, 2023 MSPB 27. PFR File, Tabs 4, 6. The Board generally
does not permit an additional pleading after the close of the record on review unless the
party demonstrates a 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 of
and need for the pleading”). We already addressed the Supreme Court’s decision in the
recent Opinion and Order in Erdel, 2023 MSPB 27, ¶ 14 & n.7, which was issued after
the appellant filed his first motion. Additionally, the application of Erdel to this appeal
is discussed in this Opinion and Order. Because there is no need for additional
argument on either case at this stage of the proceedings, we deny the appellant’s
motions.
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ANALYSIS
The Board has the authority to grant relief in this appeal.
¶6 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)(2). In Singleton, the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit) addressed the “hybrid” state-Federal
character of the National Guard and held that the Board could not order an
adjutant general to provide relief to a National Guard technician employee
because the adjutant general is not a Federal employee, and a state National
Guard, even if an agency, “can act only through its adjutant general.” Singleton,
244 F.3d at 1333, 1336-37. As noted above, the administrative judge applied the
holding in Singleton and determined that neither the 2017 NDAA nor the
appellant’s status as a Title 5 civilian employee compelled a different outcome.
ID at 5-6. We disagree.
¶7 The holding in Singleton that the Board lacks the authority to issue
enforceable orders to remedy improper employment actions taken against
National Guard dual-status technicians has been abrogated by 32 U.S.C. § 709.
Erdel v. Department of the Army, 2023 MSPB 27, ¶¶ 11-16. The appellant,
however, was not a dual-status technician appointed pursuant to 32 U.S.C. § 709.
Rather, the agency appointed the appellant under the authority of section 932 of
the 2017 NDAA. IAF, Tab 16 at 9. Therefore, the Federal Circuit’s decision in
Singleton and our decision in Erdel are not controlling here.
¶8 Section 932, the appellant’s appointment authority, 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 under certain listed sections of Title 5 or Title 32. 130 Stat.
at 2363 (codified as amended at 10 U.S.C. § 10508(b)(1)). The National Guard
Bureau is a component within the Department of Defense (DOD) and is a “joint
activity of the [DOD].” 10 U.S.C. § 10501. The Chief of the National Guard
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Bureau is not an employee of a state National Guard or an adjutant general.
Rather, he is a military officer appointed by and serving at the will of the
President, and “a member of the Joint Chiefs of Staff.” 10 U.S.C. § 10502(a)-(b),
(d). Section 932 of the 2017 NDAA authorizes the Chief of the National Guard
Bureau to designate adjutants general to appoint and employ National Guard
employees. 130 Stat. at 2363 (codified at 10 U.S.C. § 10508(b)(2)). In
exercising this delegated authority, the adjutant general for each jurisdiction is
tasked with taking and defending any “adverse actions under [T]itle 5” against
such employees. Id. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)). Under this
arrangement, a state National Guard acts through the authority delegated to it by
the National Guard Bureau and its Chief, which are integrated into the DOD.
¶9 Turning to administrative actions taken by a state National Guard against
employees, the amended statute expressly provides that an employee appointed
under 10 U.S.C. § 10508(b), such as the appellant, may file “an administrative
complaint, grievance, claim or action” challenging a Title 5 adverse action.
130 Stat. at 2363 (codified at 10 U.S.C. § 10508(b)(3)). It would be implausible
for Congress to have specifically provided for an administrative remedy for
adverse actions under Title 5, but for there to be no relief available from the
Board, which has jurisdiction to adjudicate such claims. 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 U.S. Code
to provide for Board appeal rights to National Guard technicians, but for there to
be no relief available from the Board). Further, in the 2017 NDAA, Congress
provided that the applicable adjutant general and National Guard “shall promptly
implement all aspects of any final administrative order, judgment, or decision” in
connection with an administrative proceeding challenging its adverse action
against an individual hired under section 10508(b). 130 Stat. at 2363-64
(codified at 10 U.S.C. § 10508(b)(3)(B)). This language effectively authorizes
the Board to enforce orders against the various National Guards.
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¶10 Moreover, the 2017 NDAA provides that any “settlement, judgment, or
costs . . . shall be paid from appropriated funds allocated to the National Guard of
the jurisdiction concerned,” thereby eliminating any concern that state funds will
be burdened. 130 Stat. at 2364 (codified at 10 U.S.C. § 10508(b)(3)(E)). In fact,
if an adverse action is challenged in “any court . . . , the United States shall be the
sole defendant or respondent,” and the U.S. Attorney General “shall defend” it.
130 Stat. at 2363-64 (codified at 10 U.S.C. § 10508(b)(3)(C)-(D)).
¶11 Based on the foregoing, we conclude that the Board may order relief in this
appeal. We vacate the initial decision which came to the opposite conclusion.
ORDER
¶12 For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Opinion and Order. On
remand, the administrative judge should hold the jurisdictional hearing to which
he initially found the appellant was entitled to determine whether the Board has
jurisdiction over the appeal in light of the parties’ LCSA.
Gina K. Grippando
Clerk of the Board
Washington, D.C.