Larry Greene v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARRY S. GREENE, JR., DOCKET NUMBER
Appellant, SF-0752-22-0365-I-1
v.
DEPARTMENT OF THE ARMY, DATE: December 15, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Larry S. Greene, Jr. , Elk Grove, California, pro se.
Charmaine Betty-Singleton , Sacramento, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for failure to state a claim upon which relief can 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 regional
office for further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 Effective January 6, 2019, the California Army National Guard (CANG)
appointed the appellant to the position of GS-9 Information Technology (IT)
Specialist (Information Security). Initial Appeal File (IAF), Tab 1 at 7. On
March 30, 2022, it proposed his removal for failure to meet a condition of his
employment. IAF, Tab 10 at 212-14. The CANG issued a decision to remove
him on April 26, 2022, which was effective 3 days later. IAF, Tab 12 at 4-5, 51.
¶3 The appellant filed the instant appeal of his removal. IAF, Tab 1 at 3, 5.
He raised claims of whistleblower reprisal and race discrimination. IAF, Tab 1
at 5, 11-14, Tab 5 at 8-10. The administrative judge ordered the agency to
address the authority under which the appellant was hired, if he was a tenured
Federal employee with the right to appeal his removal to the Board under
chapter 75 of Title 5, and if the CANG or some other entity was his employer.
IAF, Tab 15 at 1-2. The agency responded to the order, acknowledging that the
appellant was a tenured Federal employee with adverse action appeal rights but
asserting that he had failed to state a claim upon which relief could be granted.
IAF, Tab 16. As to its contention that the appellant failed to state a claim upon
which relief could be granted, the agency argued that the appellant’s employer
was the California Adjutant General, and that the Board lacks the authority to
order an adjutant general to provide relief. Id. The appellant replied, in relevant
part, by agreeing he was a tenured Federal employee and indicating that his
supervisor, not the Adjutant General, was his employer. IAF, Tab 17 at 4-6.
¶4 The administrative judge issued an initial decision dismissing the appeal
without holding the appellant’s requested hearing. IAF, Tab 1 at 2, Tab 18,
Initial Decision (ID) at 1, 8. He found that the Board has chapter 75 jurisdiction
over the appellant’s removal. ID at 4-5. However, relying on the U.S. Court of
Appeals for the Federal Circuit’s decision in Singleton v. Merit Systems
Protection Board, 244 F.3d 1331 (Fed. Cir. 2001), he concluded that the Board
lacked the authority to grant the appellant any relief. ID at 5-7. He reasoned that
3
the appellant was an employee of the CANG and its Adjutant General, and “the
Board does not have power to order adjutant generals to comply with Board
orders.” ID at 6.
¶5 The appellant has filed a petition for review, to which the agency has not
responded. Petition for Review (PFR) File, Tab 1. On May 12, 2023, the Office
of the Clerk of the Board issued an order to the parties to address whether the
appellant was a dual status National Guard technician at the time of his removal
and, if not, to identify the agency’s appointing authority and the appellant’s
employer. PFR File, Tab 3. Both parties have responded. 2 PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the Board has chapter 75 jurisdiction
over the appellant’s removal but correct his reasoning.
¶6 The parties do not dispute the administrative judge’s determination that the
Board has chapter 75 jurisdiction over this appeal. ID at 4-5. Nonetheless, we
revisit the issue of jurisdiction here to correct the basis for concluding that the
appellant was employed by an Executive agency. See Ney v. Department of
Commerce, 115 M.S.P.R. 204, ¶ 7 (2010) (stating that the issue of the Board’s
jurisdiction is always before the Board, and it may be raised by either party or sua
sponte by the Board at any time).
The administrative judge properly concluded that the appellant, a
preference eligible in the excepted service, had more than 1 year of service
when he was subjected to an action appealable under chapter 75.
¶7 The Board has chapter 75 jurisdiction when an agency takes an “action”
under 5 U.S.C. § 7512 against an individual who meets the definition of an
“employee” under 5 U.S.C. § 7511(a)(1). 5 U.S.C. § 7513(d); Moncada v.
2
The agency filed its response to the Acting Clerk’s Order 1 day late. PFR File, Tab 3
at 1, 3, Tab 5. However, because the record on jurisdiction had not yet closed and
because the agency may have intended its submission to be a timely reply to the
appellant’s response to the Acting Clerk’s Order, we have considered the agency’s
pleading. PFR File, Tab 3 at 3.
4
Executive Office of the President, Office of Administration , 2022 MSPB 25, ¶¶ 13,
24. The administrative judge found that the appellant was subjected to an action
under 5 U.S.C. § 7512. ID at 4. We agree. A removal is an action over which
the Board has chapter 75 jurisdiction. 5 U.S.C. § 7512(1); Moncada,
2022 MSPB 25, ¶ 14.
¶8 The administrative judge also found that the appellant satisfied the
definition of “employee” under 5 U.S.C. § 7511(a)(1). ID at 4-5. Again, we
agree. As relevant here, an “employee” for purposes of chapter 75 includes “a
preference eligible in the excepted service who has completed 1 year of current
continuous service in the same or similar positions . . . in an Executive agency.”
5 U.S.C. § 7511(a)(1)(B)(i). The appellant is preference eligible and at the time of
his removal had completed more than 1 year of service in the same position. IAF,
Tab 1 at 7, Tab 12 at 25, 51. The administrative judge thus found that the
appellant satisfied the length of service requirement set forth in the definition of
“employee.” ID at 4-5. We discern no basis to disturb this finding.
We correct the administrative judge’s reasoning as to why the appellant
worked for an “Executive agency.”
¶9 The administrative judge found that the appellant was employed by an
Executive agency. ID at 4-5. The definitions of “employee” for individuals in
competitive-service positions and nonpreference-eligible individuals in
excepted-service positions do not require employment by an agency. Moncada,
2022 MSPB 25, ¶¶ 15, 24. However, as indicated above, the definition of
“employee” for a preference-eligible excepted-service individual like the
appellant is one who serves, as relevant here, “in an Executive agency.” 5 U.S.C.
§ 7511(a)(1)(B)(i). In Moncada, 2022 MSPB 25, ¶ 15 n.4, the Board recognized
this distinction. However, it declined to reach the issue of whether the Board’s
chapter 75 jurisdiction over actions taken against preference -eligible individuals
in the excepted service requires that an “Executive agency” take the action. Id.5
For purposes of our analysis here we assume, without deciding, that there is such
a requirement.
¶10 The Department of Defense (DOD) and the Department of the Army are
Executive agencies for purposes of Title 5. 5 U.S.C. §§ 101 (listing the DOD as
an “Executive department”), 105 (defining “Executive agency” to include an
“Executive department”); 10 U.S.C. § 111(a)-(b) (providing that DOD is an
“executive department” that is “composed of,” among other entities, “the
Department of the Army”); see Poole v. Department of the Army, 117 M.S.P.R.
516, ¶ 3 n.1 (2012) (explaining that the Board has viewed military departments as
components of the Department of Defense, and therefore as executive agencies
within the meaning of 5 U.S.C. § 105); Francis v. Department of the Navy,
53 M.S.P.R. 545, 547-52 (1992) (explaining that the Department of the Army and
Department of the Navy are separate from each other and from DOD for purposes
of tacking service to fulfill a 1-year service requirement). The administrative
judge reasoned that the CANG was also an “Executive agency” within the
meaning of Title 5 because under 10 U.S.C. § 10106, “[t]he Army National Guard
while in the service of the United States is a component of the Army.” ID at 5
(quoting 10 U.S.C. § 10106).
¶11 This reasoning oversimplifies the nature of the National Guard. The
National Guard is a hybrid state and Federal entity, serving the needs of each at
different times. Singleton, 244 F.3d at 1333. The governor of each state is in
charge of the state’s National Guard units except when the unit is called into
active Federal service. Erdel v. Department of the Army, 2023 MSPB 27, ¶ 6
(citation omitted). In most instances, a state’s National Guard is administered by
the state adjutant general. Id. (citation omitted). While serving the United States,
the Army National Guard is part of the Army, but “[w]hen not on active duty,
members of the Army National Guard . . . shall be administered, armed, equipped,
and trained in their status as members of the Army National Guard.” Compare
10 U.S.C. § 10106 (quoted above), with 10 U.S.C. § 10107 (quoted here); see
6
10 U.S.C. § 12405 (indicating that members of a National Guard are subject to
Army or Navy “laws and regulations,” as applicable, when “called into Federal
service”). We therefore do not agree with the administrative judge that the Army
National Guard functions, at all times, within the Department of the Army.
¶12 In order to clarify the nature of the appellant’s employment, the Clerk’s
Office instructed the parties to address whether the appellant was a dual status
National Guard technician and, if not, to identify the authority under which he
was appointed and the nature of his employment. PFR File, Tab 3 at 2. In
addition, the Clerk’s Office ordered the parties to indicate whether the appellant
was employed by the Army, the CANG, or both. Id. at 2-3. In response, the
agency argues, as it did below, that the appellant was a CANG employee who
could be separated by the California Adjutant General. PFR File, Tab 5 at 5; IAF,
Tab 16. The appellant asserts that he was “a [F]ederal employee that worked with
the [CANG],” but he disputes that the Adjutant General had the authority to
separate him. PFR File, Tab 4 at 4-5. While the parties agree that the appellant
was not a dual status National Guard technician, they do not identify the authority
under which he was hired. PFR File, Tab 4 at 4, Tab 5 at 4-5. Therefore, we
have looked to the record to determine the relevant appointing authority.
¶13 The Standard Form 50 (SF-50) memorializing the appellant’s appointment
reflects that he is employed by the CANG and the California Adjutant General.
IAF, Tab 12 at 25. It also states that his appointment was authorized under the
National Defense Authorization Act for Fiscal Year 2017 (2017 NDAA), Pub. L.
No. 114-328, §§ 932, 1084, 130 Stat. 2000, 2363-64, 2421-22 (2016) (codified in
relevant part at 10 U.S.C. §§ 10217, 10508). One of these statutory provisions,
10 U.S.C. § 10217, contains a prohibition on hiring non-dual status technicians
after September 30, 2017. 10 U.S.C. § 10217(e)(1), (4). Therefore, the CANG
could not lawfully have hired the appellant as a non-dual status technician.
¶14 The other statutory provision, 10 U.S.C. § 10508, concerns “[t]he manpower
requirements of the National Guard Bureau as a joint activity of the [DOD].”
7
10 U.S.C. § 10508(a). It states that “[t]he Chief of the National Guard Bureau
may . . . appoint, employ, [and] administer . . . persons” within the Bureau and
the National Guard of each jurisdiction under certain listed sections of Title 5 or
Title 32. 10 U.S.C. § 10508(b)(1). The National Guard Bureau is a component
within the DOD, and is a “joint activity of the [DOD].” 10 U.S.C. § 10501. The
National Guard Bureau Chief 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). The Chief can delegate his 10 U.S.C.
§ 10508(b)(1) appointing, employing, and managing authority to the various
adjutants general. 10 U.S.C. § 10508(b)(2); S. Rep. No. 114-255, at 256 (2016).
Congress intended 10 U.S.C. § 10508 to “enhance the personnel management
authority” of the National Guard Bureau Chief. S. Rep. 114-255, at 255-56. It
anticipated that individuals hired under 10 U.S.C. § 10508 would be Federal
civilian employees. S. Rep. No. 114-255 at 256.
¶15 In exercising this delegated authority, the adjutant general for each
jurisdiction is tasked with taking any “adverse actions under title 5” against such
employees. 10 U.S.C. § 10508(b)(3). The individual state National Guard is the
“employing agency” in any administrative claim challenging the agency’s action.
10 U.S.C. § 10508(b)(3)(A). While the responding state National Guard must
defend its action and comply with any final order, “settlement, judgment, or
costs . . . shall be paid from appropriated funds allocated to the National Guard of
the jurisdiction concerned.” 10 U.S.C. § 10508(b)(3)(B), (E); see S. Rep.
No. 114-255, at 256 (“The payment of any costs associated with such
[administrative] decisions would be paid out of federal funds appropriated to the
jurisdiction concerned.”). Thus, section 10508(b)(3) provides that an adverse
action, such as the removal at issue here, is appealable to the Board and any
resulting judgment is paid from Federal funds, notwithstanding the fact that the
action was taken by a state adjutant general of a National Guard. We find that,
8
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. As such, in removing an employee appointed under 10 U.S.C.
§ 10508(b)(1), an adjutant general acts under the authority of the DOD, and thus
as an “Executive agency” for purposes of 5 U.S.C. § 7511(a)(1)(B)(i).
¶16 In reaching this conclusion, we began with the appellant’s SF-50. However,
an SF-50 is not a legally operative document controlling on its face an
employee’s status and rights. Scott v. Department of the Air Force, 113 M.S.P.R.
434, ¶ 8 (2010). Although the issuance of an executed SF-50 is the customary
documentation for a Federal personnel action, it does not constitute the personnel
action itself. Id. Rather, the Board looks at the totality of the circumstances in
determining the nature of the appointment. Id.¶17 As noted above, the appellant’s appointing SF-50 refers to 10 U.S.C.
§ 10508 as authorizing his hiring. IAF, Tab 12 at 25. Further, in both its
proposed removal and removal decision, the agency advised the appellant of his
right to appeal to the Board. IAF, Tab 10 at 213, Tab 12 at 4-5. The SF-50 is
consistent with the position of the parties that the Board has jurisdiction over the
appellant’s removal. PFR File, Tab 4 at 4-5, Tab 5 at 4. Under the totality of the
circumstances, we conclude that the appellant was appointed under 10 U.S.C.
§ 10508(b), and thus effectively was a DOD employee for purposes of an adverse
action under Title 5. Because the DOD is an “Executive agency,” the appellant
meets the definition of “employee” under 5 U.S.C. § 7511(a)(1)(B)(i), and we
have jurisdiction over this appeal.
The appellant stated a claim upon which relief can be granted.
¶18 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)(1)-(2). In Singleton, 244 F.3d at 1333,
1336-37, the court determined that the Board could not order an adjutant general
to provide relief to a National Guard technician employee. It reasoned that an
9
adjutant general is not a Federal employee, and a state National Guard, even if an
agency, “can only act through its adjutant general.” Id. The administrative judge
relied on Singleton in dismissing the instant appeal. ID at 5-7.
¶19 However, the holding in Singleton that the Board lacks the authority to issue
enforceable orders to remedy improper employment actions taken against
National Guard technicians has been abrogated by 32 U.S.C. § 709. Erdel,
2023 MSPB 27, ¶¶ 11-16. In any event, both parties agree that the appellant was
not a dual status National Guard technician. PFR File, Tab 4 at 5, Tab 5 at 4-5;
see Erdel, 2023 MSPB 27, ¶ 8 n.3 (explaining that National Guard technicians are
appointed under 32 U.S.C. § 709, and not under section 932 of the 2017 NDAA,
which is codified at 10 U.S.C. § 10508). Further, as explained above, 10 U.S.C.
§ 10217(e) prevented his appointment as a non-dual status National Guard
technician. Therefore, even if Singleton had not been abrogated, it would not be
controlling here.
¶20 We have found that the totality of the evidence supports the conclusion that
the appellant was appointed under 10 U.S.C. § 10508(b). Under that provision,
an employee may file an “administrative complaint, grievance, claim or action”
challenging a Title 5 adverse action. 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 as to a tenured
Federal employee like the appellant. 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). 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
10
hired under 10 U.S.C. § 10508(b). 2017 NDAA, § 932, 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.
¶21 Further, as noted above, the costs of compliance are paid from Federal
funds, eliminating any concern that state funds will be burdened. 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. 10 U.S.C. § 10508(b)(3)(C)-(D). Accordingly, the
Board may order relief in this appeal. We vacate the initial decision, which came
to the opposite conclusion. 3
ORDER
¶22 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
3
To the extent that the appellant has made arguments regarding the merits of the appeal
and the parties have submitted documents on review, they are not relevant to the
jurisdictional issue and we have not considered them. E.g., PFR File, Tab 1, Tab 4
at 4-5, 8-60, Tab 5 at 7-33. The parties may raise these arguments and submit these
documents on remand, consistent with the orders of the administrative judge.