Federal Circuit: No MSPB Jurisdiction for Termination for Failure to Maintain National Guard Membership
A dual-status military technician, whose position was partially civilian and partially military, appealed his termination for failing to maintain membership in the National Guard, a prerequisite to his dual-status appointment under 32 U.S.C. § 709(b), to the Merit Systems Protection Board. The MSPB took jurisdiction and heard the case on the merits, ultimately affirming the termination. The employee petitioned the United States Court of Appeals for the Federal Circuit for review. On August 21, 2020, the appeals court vacated the MSPB decision, finding that the Board did not have jurisdiction to hear the appeal in the first place.
Under 32 U.S.C. § 709(b), dual-status technicians must maintain military membership with the National Guard. The employee in this case originally enlisted in the West Virginia National Guard in 1990, and while serving in the WVNG, was appointed by the serving adjunct general to a dual-status military technician position at the Department of the Air Force. On June 30, 2018, the serving adjunct general separated the employee from the WVNG. The employee was also terminated from his dual-status technician position, pursuant to 32 U.S.C. § 709(f)(1)(A)’s requirement that the adjunct general terminate from dual-status employment any technician who has been separated from the National Guard.
This case is complicated by changes made by Congress to the statute in the National Defense Authorization Act of 2017. The MSPB Administrative Judge relied on those changes, most notably the change stating that dual-status technicians are employees as defined by 5 U.S.C. § 7511 and are entitled to adverse action appeal rights at MSPB, to take jurisdiction over the employee’s termination appeal. But the appeals court observed that the grant of those appeal rights was limited by 32 U.S.C. 709(f)(4), which stated that appeal rights do not accrue when the appeal “concerns fitness for duty in the reserve components.”
The appeals court held that the employee’s “membership in the National Guard” was a “fundamental military-specific requirement,” and therefore a termination from dual-status employment as a result of removal from the National Guard concerns “fitness for duty in the reserve components.” Based on that finding, the appeals court held that the Board did not have jurisdiction to hear the employee’s appeal.
The employee also argued, based on the MSPB Administrative Judge’s holdings below, that the Board had jurisdiction to review the termination for much the same reason as the Board has jurisdiction to review terminations for failing to maintain a security clearance. In security clearance cases, the Board cannot review the merits of the revocation of the security clearance, but can review the lawfulness of the termination for failure to maintain the security clearance. According to the appeals court, the administrative judge erred when relying on security clearance cases (where an employee is terminated for failing to maintain a security clearance – a condition of employment). The appeals court held those cases to be inapposite, since they were “for cause” whereas terminations like the employee’s here were required by 32 U.S.C. § 709(f)(1)(A).
For the above stated reasons, the United States Court of Appeals for the Federal Circuit vacated the Board’s decision and remanded the case to the MSPB Administrative Judge to dismiss the matter for lack of jurisdiction.
Read the full decision: Dyer v. Department of the Air Force
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.