Luis Cruz v. Department of Defense ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUIS R. CRUZ, DOCKET NUMBERS
Appellant, NY-0752-20-0029-I-1
NY-0752-20-0029-C-1
v.
DEPARTMENT OF DEFENSE,
Agency. DATE: April 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.
William Edward O’Connor, Fort Buchanan, Puerto Rico, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed petitions for review of the initial decision reversing
the appellant’s removal in Cruz v. Department of Defense, MSPB Docket
No. NY-0752-20-0029-I-1, and the compliance initial decision granting the
appellant reinstatement with back pay in Cruz v. Department of Defense, MSPB
Docket No. NY-0752-20-0029-C-1. Because these petitions for review concern
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 same underlying facts and their legal resolutions are interdependent such that
joinder will expedite their processing without adversely affecting the parties’
rights, we JOIN them for adjudication pursuant to 5 C.F.R. § 1201.36(a)(2), (b).
For the reasons discussed below, we GRANT the agency’s petitions for review,
VACATE the initial decision and the compliance initial decision, and DISMISS
the now joined appeals for lack of jurisdiction.
BACKGROUND
¶2 The Adjutant General of the Puerto Rico Army National Guard (PRARNG)
employed the appellant as a GS-07 Transportation Assistant. Cruz v. Department
of Defense, MSPB Docket No. NY-0752-20-0029-I-1, Initial Appeal File (IAF),
Tab 7 at 20. It is undisputed that in this 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. IAF, Tab 7 at 6, Tab 8 at 4; 32 U.S.C.
§ 709(b); Dyer v. Department of the Air Force, 971 F.3d 1377, 1383 (Fed. Cir.
2020).
¶3 In a June 2019 memorandum, the PRARNG informed the appellant that a
Qualitative Retention Board (QRB) did not select him for retention in the Army
National Guard. IAF, Tab 7 at 18. Accordingly, the appellant was honorably
discharged from the PRARNG in October 2019. IAF, Tab 7 at 18, Tab 16 at 10.
That same month, the PRANG informed him that he would be discharged from his
technician employment as a Transportation Assistant based on his loss of his
military membership, effective November 2019. IAF, Tab 7 at 19. He was
separated from his Transportation Assistant position on November 22, 2019. Id.
at 20-21.
3
¶4 The appellant filed this appeal of his separation, arguing that he was denied
due process and “there [was] no evidence to support the agency’s action and the
action [was] otherwise unwarranted.” IAF, Tab 1 at 6. The agency filed a motion
to dismiss, arguing, as relevant here, that the Board is without jurisdiction to hear
his appeal because his separation was based entirely upon his loss of his military
membership, which was in turn based on fitness for duty in a reserve component.
IAF, Tab 7 at 9-12. In such a case, the agency argued, the appellant’s separation
was appealable only to the PRARNG Adjutant General. Id. at 10, 12-13.
¶5 The appellant withdrew his request for a hearing, and the administrative
judge issued an initial decision based on the written record. IAF, Tab 14 at 4,
Tab 17, Initial Decision (ID). She found that, pursuant to the National Defense
Authorization Act for Fiscal Year 2017 (NDAA for 2017), the appellant was a
chapter 75 employee, and thus the Board had jurisdiction over his sepa ration. ID
at 2-4. She determined that he 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 she 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. She determined that the agency denied the
appellant his due process rights when it failed to provide an opportunity to
respond to its separation notice. ID at 4-5. As a result, the administrative judge
reversed the removal action and ordered the agency to cancel the removal and
retroactively restore the appellant, effective Nov ember 22, 2019. ID at 5-6. The
administrative judge ordered the agency to provide interim relief to the appellant
in accordance with 5 U.S.C. § 7701(b)(2)(A) if a petition for review was filed by
either party. ID at 7.
¶6 Subsequently, the appellant filed a petition for enforcement of the interim
relief order. Cruz v. Department of Defense, MSPB Docket No. NY-0752-20-
0029-C-1, Compliance File (CF), Tab 1. The agency responded, rearguing that
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the Board lacks jurisdiction over the appellant’s removal and that the agency is
prohibited by statute from reinstating the appellant and placing him in a pay
status, pending the outcome of the petition for review. CF, Tab 7 at 4 -6. The
administrative judge issued a compliance initial decision granting enforcement of
the interim relief order. CF, Tab 8, Compliance Initial Decision (CID) at 1, 3.
She reasoned that there was no authority to support reversal of the interim relief
order. CID at 2.
¶7 The agency has filed a petition for review and a compliance petition for
review. Petition for Review (PFR) File, Tab 1; Compliance Petition for Review
(CPFR) File, Tab 1. The appellant has responded to the agency’s petition for
review and moved to dismiss the petition, alleging that the agency failed to
provide interim relief or certify that it was in the process of doing so . PFR File,
Tabs 3-4. The agency did not file a reply to the appellant’s response to the
petition for review, and the appellant has not responded to the compliance
petition for review.
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 a reserve component.
¶8 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).
¶9 The agency argues that the administrative judge erred in finding that dual
status military technicians, such as the appellant, are considered tenured Federal
employees with adverse action appeal rights regardless of the basis upon which
the adverse action at issue was taken. PFR File, Tab 1 at 22. After the
administrative judge issued her initial decision, but before she issued her
compliance initial decision, the U.S. Court of Appeals for the Federal Circuit
5
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.
¶10 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 also
5 U.S.C. § 7512(1)-(5) (identifying the adverse actions that a Federal employee
may appeal to the Board under chapter 75). Howev er, this right is limited. Dyer,
971 F.3d at 1382. Specifically, section 709(f)(4) provides that actions that
“concern[]” a dual status technician’s “fitness for duty in the reserve
components” are appealable only to the adjutant general of the jurisdict ion
concerned. 2 32 U.S.C. § 709(f)(4), (g)(1).
¶11 In Dyer, 971 F.3d 1377, the court held that under 32 U.S.C. § 709,
“termination of dual-status employment . . . as the result of separation from the
National Guard” necessarily concerns fitness for duty in the reserve com ponents.
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 the loss of his membership in the PRARNG. IAF,
Tab 7 at 19. Thus, under the court’s reasoning in Dyer, as well as the applicable
statute, we find that the Board lacks jurisdiction over his termination.
2
The NDAA for 2017 limits dual status National Guard Technician appeals of most
agency actions to the adjutant general of the relevant jurisdiction when the appeal
concerns activity occurring while the member is in a military pay status, or concerns
fitness for duty in the reserve components. 32 U.S.C. § 709(f)(4). The law affords
appeal rights pursuant to 5 U.S.C. §§ 7511-7513 concerning any activity not covered by
subsection (f)(4). 32 U.S.C. § 709(f)(5). Office of Personnel Management regulations
implementing the NDAA for 2017, which became effective on December 12, 2022, state
that adverse actions and performance-based removals or reductions in grade of dual
status National Guard Technicians are not appealable to the Board except as provided
by 32 U.S.C. § 709(f)(5). 5 C.F.R. §§ 432.102(b)(16), 752.401(b)(17); see Probation on
Initial Appointment to a Competitive Position, 87 Fed. Reg. 67765, 67782-83 (Nov. 10,
2022).
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¶12 The appellant’s attorney argues the Board has jurisdiction because the
Board may review his appeal 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). PFR File, Tab 3 at 5. 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. 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 a requirement of
employment provided for by statute.” Dyer, 971 F.3d at 1383-84.
The administrative judge erred in granting the petition for enfo rcement.
¶13 The administrative judge erred in granting the appellant’s petition for
enforcement of the interim relief order. Our regulations do not allow for a
petition for enforcement of an interim relief order. Ayers v. Department of the
Army, 123 M.S.P.R. 11, ¶ 7 (2015); 5 C.F.R. § 1201.182(a)-(b). Instead, the
Board treats motions to enforce an interim relief order as a motion to dismiss the
petition for review. Batten v. U.S. Postal Service, 101 M.S.P.R. 222, ¶ 6, aff’d
per curiam, 208 F. App’x. 868 (Fed. Cir. 2006); 5 C.F.R. § 1201.116(d).
Nevertheless, in light of our dismissal for lack of jurisdiction, we exercise our
discretion not to dismiss the agency’s petition for review regardless of whether
the agency complied with the administrative judge’s interim relief order. PFR
File, Tab 3 at 6-7, Tab 4 at 4-5; see Lovoy v. Department of Health and Human
Services, 94 M.S.P.R. 571, ¶ 28 (2003) (declining to dismiss an agency’s petition
for review for failure to provide interim relief when the issue of the Board’s
jurisdiction over the appeals was not yet resolved); 5 C.F.R. § 1201.116(e)
(reflecting that dismissal for failure to comply with an interim relief order is
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discretionary). The appellant’s motion to dismiss the agency’ s petition for
review, therefore, is denied.
¶14 Therefore, we vacate the initial decision and the compliance initial decision
and dismiss these joined appeals for lack of jurisdiction. 3
NOTICE OF APPEAL RIGHTS 4
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.
3
On review, the agency also argues that the administrative judge erred in finding the
appellant had a property interest in his employment, PFR File, Tab 1 at 11-14, and
asserts that the appellant failed to state a claim upon which relief can be granted, id.
at 14, that the Board lacks jurisdiction over his separation because it was required by
statute, id. at 26-27, and that the Government is immune from review of military
personnel decisions, id. at 27-28. In light of our findings here, we find it unnecessary
to address those arguments.
4
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
(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
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
9
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (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
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:
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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. 5 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
5
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.