The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RILEY C. KEEHR, DOCKET NUMBER
Appellant, CH-0752-19-0520-I-2
v.
DEPARTMENT OF THE ARMY, DATE: April 2, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
David D. Gorman , Springfield, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his indefinite suspension. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. However, after full
consideration of the appellant’s appeal, we VACATE the initial decision, and
DISMISS the appeal for lack of jurisdiction.
BACKGROUND
The following facts are undisputed unless otherwise indicated. The
appellant is employed as a dual status military technician with the Illinois Army
and Air National Guard. Keehr v. Department of the Army, MSPB Docket
No. CH-0752-19-0520-I-1 Initial Appeal File (IAF) Tab 5 at 12. As a dual status
military technician, as defined in 10 U.S.C. § 10216(a), he was required to be a
member of the National Guard. Id. at 5, 12; see 32 U.S.C. § 709(b). On May 30,
2019, the Governor of Illinois and the Adjutant General of the Illinois National
Guard ordered the appellant to State Active Duty (SAD) to help protect
communities along the Illinois and Mississippi rivers from rising flood waters.
IAF, Tab 5 at 5, Tab 8 at 15-16. The order indicated that the appellant’s effective
dates of SAD were from May 30, 2019, through June 9, 2015. 2 IAF, Tab 8 at 15.
On June 9, 2019, while on SAD, the appellant was arrested by local police
for an incident that occurred during the early morning hours of that day and was
ultimately charged with aggravated battery and battery, two crimes under Illinois
2
The record includes two SAD orders dated the same day. IAF, Tab 8 at 15-16. One
provides that the effective dates of the service are from May 30, 2019, through June 14,
2019, and the second SAD order shows the effective dates of the appellant’s service as
from May 30, 2019, through June 9, 2019. Id.
3
law for which a sentence of imprisonment can be imposed. IAF, Tab 5 at 5-6,
Tab 6 at 7, Tab 7 at 30. Thereafter, the appellant was released from active
military duty. IAF, Tab 6 at 7, 9, 15. As a result, the agency proposed the
appellant’s indefinite suspension on July 9, 2019, based on a charge of conduct
unbecoming a National Guard technician, citing his June 9, 2019 arrest while on
SAD for “flood duty” with the Illinois National Guard. Id. at 7. Following a
response from the appellant, IAF, Tab 5 at 23, the deciding official sustained the
proposed action based on the reasons set forth in the proposal notice and imposed
the appellant’s indefinite suspension, effective August 9, 2019, id. at 12, 14.
The appellant timely filed an appeal of his indefinite suspension with the
Board, arguing that he was not guilty of any wrongdoing. 3 IAF, Tab 1 at 4. The
appellant subsequently withdrew his initial request for a hearing, id. at 2;
Keehr v. Department of the Army, MSPB Docket No. CH-0752-19-0520-I-2
Appeal File (I-2 AF), Tab 12 at 1, and the administrative judge decided the appeal
on the written record, I-2 AF, Tab 13, Initial Decision (ID) at 1. In the initial
decision, the administrative judge discussed the circumstances under which an
agency may impose an indefinite suspension, noting that one such circumstance is
when the agency has reasonable cause to believe an employee has committed a
crime for which a sentence of imprisonment could be imposed. ID at 3 (citing
Mattison v. Department of Veterans Affairs, 123 M.S.P.R. 492, ¶ 5 (2016)). She
concluded that the agency proved that it had reasonable cause to indefinitely
suspend the appellant, despite his decision to waive his right to a preliminary
hearing. ID at 4-5. She further found that the appellant’s suspension had an
ascertainable end, that it bore a nexus to the efficiency of the service, and that it
3
On October 1, 2019, the administrative judge dismissed the appellant’s initial appeal
without prejudice and with leave to refile after the final disposition of his criminal case.
IAF, Tab 13. On November 13, 2019, the appellant pled guilty to the charge of
disorderly conduct and was sentenced to 4 days incarceration with credit for the 2 days
he had served immediately following his arrest. Keehr v. Department of the Army,
MSPB Docket No. CH-0752-19-0520-I-2, Appeal File (I-2 AF), Tab 4 at 6-11. On
November 15, 2016, the appellant refiled his appeal. I-2 AF, Tab 1.
4
was a reasonable penalty. ID at 5-7. Accordingly, she affirmed the appellant’s
indefinite suspension. ID at 8.
The appellant has filed a petition for review of the initial decision, wherein
he argues that his waiver of the preliminary hearing prevented the agency from
establishing reasonable cause and that, therefore, the agency’s indefinite
suspension action was improper. Petition for Review (PFR) File, Tab 1 at 4-5.
He further argues that, even if the agency had reasonable cause once he waived
his right to a preliminary hearing, it could not show that it had reasonable cause
to indefinitely suspend him at the time it proposed the action, which was before
the appellant waived the preliminary hearing. Id. at 5. The agency has responded
to the appellant’s petition for review. PFR File, Tab 3. While the appellant’s
petition for review was pending before the Board, the Board recognized that there
may be a question of whether it has jurisdiction to hear this matter in the first
instance, explained to the parties the question at issue, and provided them with an
opportunity to brief the jurisdictional question. PFR File, Tab 4. Both parties
filed submissions on the question of jurisdiction. PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
We vacate the initial decision and dismiss the appellant’s appeal for lack of
jurisdiction under 32 U.S.C. § 709.
As a limited jurisdiction tribunal whose authority to act is derived from
statute and regulation, the Board is obligated to satisfy itself that it has
jurisdiction over the action before it. See Cooley v. U.S. Postal Service,
68 M.S.P.R. 353, 357 (1995). The Board will not act when it lacks statutory or
regulatory authority and may raise the matter of jurisdiction at any time in the
proceedings. Id. We, therefore, examine the issue of whether the action being
appealed in the first instance, here, the appellant’s indefinite suspension, is within
our jurisdiction. See id.
In Dyer v. Department of the Air Force, the U.S. Court of Appeals for the
Federal Circuit explained that the National Defense Authorization Act for Fiscal
5
Year 2017 amended existing law to provide that dual status military technicians,
such as the appellant, may appeal an adverse action under chapter 75 to the Board
only 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.” 971 F.3d
1377, 1381-82 (Fed. Cir. 2020); see 32 U.S.C. § 709(f)(4)-(5), (g). In an order
regarding jurisdiction, the Acting Clerk of the Board informed the parties that,
because it was undisputed that the appellant was on SAD by order of the
Governor of Illinois and the Adjutant General between May 30, 2019, and June 9,
2019, and the appellant was arrested while on SAD on June 9, 2019, it appeared
the Board may lack jurisdiction based on his military pay status under 32 U.S.C.
§ 709(f)(4). 4 PFR File, Tab 4. After informing the appellant that he bears the
burden of establishing jurisdiction over his appeal, id. at 3 (citing 5 C.F.R.
§ 1201.56(b)(2)(i)(A)), the Acting Clerk of the Board issued an order for him to
submit evidence and argument regarding Board jurisdiction, id. The order also
instructed the agency to submit all evidence it had regarding jurisdiction, such as
pay records reflecting the appellant’s pay status for each day during the time
period in question and records showing the appellant’s military service status for
each day during the time period in question, and to submit argument on the
subject. Id.
The appellant responded to the Board’s order on jurisdiction, stating that,
because he was activated and served as part of the SAD, he was “not working in a
military pay status.” 5 PFR File, Tab 5 at 4. He further states that he was
“working for the State and received his payment from the State.” Id. at 4-5. As
stated above, the appellant bears the burden of proof on jurisdiction. See 5 C.F.R.
§ 1201.56(b)(2)(i)(A). Although the appellant asserts that he was not working in
a military pay status, it is undisputed that he was on SAD, and he has not
4
It does not appear that the question of jurisdiction was raised below.
5
The agency also responded to the order on jurisdiction, but it did not submit any of the
documentation requested by the Board. PFR File, Tab 6.
6
provided any evidence to support his assertion that being on SAD does not
constitute being in a military pay status, despite bearing the burden and having
been provided with the opportunity to do so. PFR File, Tab 5.
Further, the source of his payment—whether he was paid by the Federal
Government or the State of Illinois—is not relevant to the question of his pay
status under section 709. Indeed, subsection (j)(1) of section 709—the section
that sets forth the limited appeal rights for dual status technicians—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) (emphasis added). Here, the agency indicated in
its response to the order regarding jurisdiction that the governing state provision
for the appellant’s SAD pay is 20 I.L.C.S. § 1805/49, which concerns “[a]ctive
service pay for enlisted personnel” for the Illinois’s Department of Military
Affairs. 6 PFR File, Tab 6 at 4; see 20 I.L.C.S. § 1805/49. That provision
provides that “[w]hen in active service of the State, under orders of the
Commander-in-Chief, enlisted personnel of the Illinois National Guard shall
receive all pay as provided by law for enlisted personnel of the armed forces of
the United States of like grade and longevity.” See 20 I.L.C.S. § 1805/49. In
other words, the applicable statute for the appellant’s pay as a National
Guardsman for the State of Illinois provides that his pay rate for his service is
based on the same rates as the armed forces of the United States. See id. In the
U.S. Code, Title 37 governs pay and allowances of the uniformed services of the
United States. See 37 U.S.C. §§ 203, 206. Thus, because 32 U.S.C. § 709(j)(1)—
the section defining “military pay status”—defines that term as a period of
service for which an individual is paid based on the rates set forth in Title 37, we
find that the appellant’s pay for his National Guard service for the time period in
6
Because the applicable state statute is one that can be independently found and
verified, we take official notice of it. See 5 C.F.R. § 1201.64 (explaining that
“[o]fficial notice is the Board’s or judge’s recognition of certain facts without requiring
evidence to be introduced establishing those facts”).
7
question, as provided for in 20 I.L.S.C. § 1805/49, brings him within the
definition of “military pay status” as set forth in 32 U.S.C. § 709(j)(1). The
appellant’s assertion to the contrary, without any supporting evidence and a
dearth of analysis, does not overcome the plain meaning of the statutes.
PFR File, Tab 5 at 4. Accordingly, we find that the appellant has failed to prove
that he was not in a “military pay status” while on SAD and during the time
which the activity at issue in his appeal occurred, namely, his June 9, 2019 arrest.
Accordingly, he has failed to prove the Board’s jurisdiction over his appeal. See
32 U.S.C. § 709(f)(4)-(5), (g).
Based on the foregoing, we vacate the initial decision and dismiss the
appeal for lack of jurisdiction.
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
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
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 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
9
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
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
10
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. 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
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
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.