Asatov v. Merit Systems Protection Board , 513 F. App'x 984 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RAKHMATULLA ASATOV,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3020
______________________
Petition for review of the Merit Systems Protection
Board in No. PH1221120263-W-1.
______________________
Decided: May 13, 2013
______________________
RAKHMATULLA ASATOV, of Plainville, Connecticut, pro
se.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were BRYAN G.
POLISUK, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
______________________
2 RAKHMATULLA ASATOV v. MSPB
Before MOORE, BRYSON, and LINN, Circuit Judges.
PER CURIAM.
Rakhmatulla Asatov applied for several national
guard technician positions with the Connecticut National
Guard. He was found ineligible for six positions and was
not selected for two other positions. He then filed a
complaint with the Office of Special Counsel seeking
corrective action. When that office terminated its investi-
gation, Mr. Asatov filed an Individual Right of Action
appeal to the Board, alleging that he was not selected
because he had engaged in protected whistleblowing
activity. The administrative judge who was assigned to
the case ruled that, although the Board had jurisdiction to
review Mr. Asatov’s whistleblower claims, 1 it lacked the
authority to provide him relief. The administrative judge
explained that because the adjutant general, the respon-
sible official of the Connecticut National Guard, is a state
appointee, the Board lacks the power to order any reme-
dial action. Mr. Asatov appealed to this court.
Our decision in Singleton v. Merit Systems Protection
Board, 244 F.3d 1331 (Fed. Cir. 2001), forecloses Mr.
Asatov’s argument on appeal. In that case we held that
the Board lacked the authority to order the adjutant
general of the Ohio National Guard to grant relief to a
national guard technician who claimed he was denied a
promotion as a result of his whistleblower activity. The
Singleton court recognized that the national guard has a
“hybrid” state-federal character. Id. at 1333. The nation-
al guard serves as a reserve component of the United
States military, and federal law provides for the positions
of both adjutant general and national guard technician.
1 Because the Board dismissed Mr. Asatov’s appeal
on other grounds, we assume without deciding that 32
U.S.C. § 709(f) does not deprive the Board of jurisdiction
to hear Mr. Asatov’s appeal. See Singleton v. Merit Sys.
Prot. Bd., 244 F.3d 1331, 1336 (Fed. Cir. 2001).
RAKHMATULLA ASATOV v. MSPB 3
32 U.S.C. §§ 314, 709(a), (d). In addition, 32 U.S.C.
§ 709(e) classifies a national guard technician as a federal
employee for purposes of fringe and retirement benefits.
Singleton, 244 F.3d at 1334. However, the national guard
of each state is an agency of that state; in Singleton, we
noted, the adjutant general of the Ohio National Guard
was appointed by the Governor. 2 Id. at 1333-34. As such,
the adjutant general did not fall within the Board’s power
to “order any Federal agency or employee to comply with
any order or decision issued by the Board.” 5 U.S.C.
§ 1204(a)(2). Because the adjutant general was the re-
sponsible official in the Ohio National Guard, any order
by the Board to grant Singleton a promotion would have
improperly compelled the adjutant general’s compliance.
244 F.3d at 1336-37. The court therefore held that the
Board could not offer Singleton any effective relief.
Singleton governs this case. The adjutant general of
the Connecticut National Guard is appointed by the
Governor. Conn. Gen. Stat. § 27-19 (2011). He is there-
fore a state official; the Board accordingly lacks statutory
authority to order the adjutant general to alter his em-
ployment practices or decisions in response to a Board
decision. As this court held in Singleton, the Board’s
“orders are not enforceable against state national guards.”
244 F.3d at 1337. Mr. Asatov’s argument to the contrary
has already been considered and rejected by this court.
Mr. Asatov’s attempts to distinguish his case are un-
persuasive. He states that the adjutant general has
delegated his responsibilities under the Whistleblower
2 Other circuits have held that the adjutant general
may be a federal agent for certain purposes. See Gilliam
v. Miller, 973 F.2d 760, 762 (9th Cir. 1992); Costner v.
Okla. Army Nat’l Guard, 833 F.2d 905, 907 (10th Cir.
1987); NeSmith v. Fulton, 615 F.2d 196, 199 (5th Cir.
1980). However, those cases do not speak to the Board’s
authority under 5 U.S.C. § 1204(a)(2), and they are not in
conflict with this court’s ruling in Singleton.
4 RAKHMATULLA ASATOV v. MSPB
Protection Act to the director of the human resources
department, who is a federal employee. See 5 U.S.C.
§ 2302(c); cf. 5 U.S.C. § 302(b) (discussing delegation of
agency authority). But the administrative judge properly
determined that the delegation does not change the fact
that any remedial order must be directed to the adjutant
general. As this court reasoned in Singleton, a state’s
national guard “can act only through its adjutant gen-
eral.” 244 F.3d at 1337. An order addressed to a subordi-
nate still compels the adjutant general to accept the
Board’s decision.
Mr. Asatov responds by analogy, noting that 5 U.S.C.
§ 1204(e)(2)(A) permits the Board to suspend the pay of
any federal employee “charged with complying with [the
Board’s remedial] order” unless that employee is a princi-
pal officer—i.e., a presidential appointee confirmed by the
Senate. When an agency headed by a principal officer
fails to respond satisfactorily to an order, the Board has in
some cases suspended the pay of a subordinate with
delegated responsibilities, such as a director of human
resources. Mr. Asatov concludes that, just as the Board
may suspend the pay of a subordinate federal employee to
ensure compliance with its orders, it should be able to
order the director of human resources for the Connecticut
National Guard to comply with a decision in Mr. Asatov’s
favor.
That argument conflates the Board’s remedial author-
ity over a federal agency or responsible federal employee
under section 1204(a)(2) with the method prescribed in
section 1204(e)(2)(A) for enforcing compliance with such a
remedial order. The latter provision merely enforces the
former; an agency may invoke section 1204(e)(2)(A) only
“[i]n enforcing compliance with any order under subsec-
tion (a)(2).” That section does not grant the Board inde-
pendent remedial authority over federal employees
working in state agencies under the direction of state-
appointed officials. The Board may order a federal em-
ployee’s pay suspended only if there is a federal agency or
RAKHMATULLA ASATOV v. MSPB 5
decisionmaker that it may direct to provide the mandated
relief. In this case, both the Connecticut National Guard
and its adjutant general fall outside the Board’s remedial
power.
Mr. Asatov’s analogies to other federal statutes are
likewise inapt. He points out that the Board has issued
remedial orders to state agencies under the Hatch Act.
But the Board has specific statutory authority to enforce
the Hatch Act against state and local entities. 5 U.S.C.
§ 1506(a). That kind of statutory grant of authority is
precisely what is missing in this case. Similarly, Mr.
Asatov argues that the Board’s decision ignores 5 U.S.C.
§ 2302(a)(2)(C), which lists the agencies covered by the
Whistleblower Protection Act. However, Mr. Asatov fails
to distinguish between the coverage of the Act and the
Board’s authority to enforce it. He also points to 38
U.S.C. §§ 4303(4)(B) and 4323(a), which pertain to the
enforcement of service members’ employment rights
against state employers. But those provisions do not
authorize the Board to order any relief.
Finally, Mr. Asatov argues that the Board’s recent de-
cisions are inconsistent with its previous position that it
may exercise remedial authority over the national guard.
Regardless of the merits of Mr. Asatov’s characterization
of the Board’s precedent, he has not shown how his claim
can survive Singleton. 3 We therefore we affirm the dis-
missal of his appeal.
3 Mr. Asatov seeks to distinguish Singleton on the
ground that, unlike the appellant in Singleton, he was
merely an applicant to become a national guard techni-
cian. However, the decision in Singleton was based on the
legal status of the adjutant general as a state official, not
the status of the claimant, so that distinction is of no aid
to Mr. Asatov.
In his reply brief, Mr. Asatov tries to avoid the force of
Singleton by styling his appeal as a petition for manda-
6 RAKHMATULLA ASATOV v. MSPB
No costs.
AFFIRMED
mus. However, he waived any argument that he is enti-
tled to mandamus relief by not presenting it in his open-
ing brief. SmithKline Beecham Corp. v. Apotex Corp., 439
F.3d 1312, 1319-20 (Fed. Cir. 2006). In any event, he has
failed to show why invoking a different vehicle for review
enables him to avoid the basic problem that the Board
lacks statutory authority to enter a remedial order
against the adjutant general of the Connecticut National
Guard.