Butler v. Department of the Army

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARY LEWIS BUTLER,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
______________________
2013-3171
______________________
Petition for review of the Merit Systems Protection
Board in No. AT0752120838-I-2.
______________________
Decided: April 11, 2014
______________________
MARY LEWIS BUTLER, of Raymond, Mississippi, pro se.
MEEN GEU OH, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Assistant Attorney
General, BRYANT G. SNEE, Acting Director, and STEVEN J.
GILLINGHAM, Assistant Director. Of counsel on the brief
was REBECCA E. AUSPRUNG, Chief Attorney, Civilian
Personnel Branch, United States Army Litigation Divi-
sion, of Ft. Belvoir, Virginia.
2 BUTLER v. ARMY
______________________
Before NEWMAN, PLAGER, and TARANTO, Circuit Judges.
PER CURIAM.
Ms. Mary Lewis Butler pro se appeals the final deci-
sion of the Merit Systems Protection Board (“Board”)
affirming her removal from her position in the Depart-
ment of the Army (“Army”). Because the Board properly
affirmed the Army’s decision, we affirm.
BACKGROUND
In 2002, Ms. Butler was appointed to a dual status
Military Technician (“MT”) position, a position designed
to provide active reserve units with a core of more highly
trained personnel whose full-time civilian jobs coincide
with their military jobs. Ms. Butler concedes that she was
repeatedly informed and understood that maintaining her
active membership in the Selected Reserve was a condi-
tion of her employment as an MT. The military was given
a mandate, spurred by order of Congress, to address and
curb overstrength (i.e., personnel in excess of what is
required) within the Army. This led to Ms. Butler’s
removal from the Selected Reserve.
As a result of her removal from the Selected Reserve,
Ms. Butler no longer met a condition of her employment
as a dual status MT and the Army notified her of her
proposed removal from her MT position. Ms. Butler
submitted a response to this notice contesting the pro-
posed removal. Upon consideration of Ms. Butler’s re-
sponse, the Army issued a final decision letter on August
28, 2012, informing Ms. Butler that she would be removed
from her MT position, as required under 10 U.S.C.
§§ 10216, 10218.
Ms. Butler petitioned to the Board alleging that her
removal was improper. On June 6, 2013, following a
hearing on the issue, the Board issued a decision dismiss-
BUTLER v. ARMY 3
ing Ms. Butler’s appeal. The Board determined that the
MT position from which Ms. Butler was removed re-
quired, as a condition of employment, that the appointee
maintain Selected Reserve status, and that Ms. Butler
was not a dual status appointee at the time of her remov-
al. The Board also determined that Ms. Butler had been
afforded the requisite level of due process by being given
notice of the proposed action, the specific reasons for the
proposed action, an opportunity to respond, and a written
decision.
Ms. Butler petitioned us to review the Board’s dismis-
sal of her appeal. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9). We affirm the Board’s decision.
DISCUSSION
This court must affirm the Board unless its decision is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); Nguyen v. Dep’t of Homeland
Sec., 737 F.3d 711, 715 (Fed. Cir. 2013).
The Board found that Ms. Butler was transferred
from the Selected Reserve to the Individual Ready Re-
serve per military orders dated July 18, 2012, and effec-
tive that same day. The Board correctly determined that
the Army’s decision to remove Ms. Butler from Selected
Reserve status was a “military decision.” This conclusion
is adequately supported by the record. See, e.g., A. 2; A.
26.
It is well-settled that the Board lacks the authority to
review the merits of a military decision to separate an
appellant from Selected Reserve status. See Jeffries v.
Dep’t of the Air Force, 999 F.2d 529, 532 (Fed. Cir. 1993);
Zimmerman v. Dep’t of the Army, 755 F.2d 156, 157 (Fed.
Cir. 1985). In view of the Army’s decision to remove Ms.
4 BUTLER v. ARMY
Butler from Selected Reserve status, the Board’s review of
the decision is limited to: (1) whether her continued
Selected Reserve status was a condition to Ms. Butler’s
employment as an MT; (2) whether that condition was no
longer met; and (3) whether Ms. Butler was provided with
the minimum level of due process. See, e.g., Jordan v.
Dep’t of the Army, 74 Fed. App’x. 896, 897 (Fed. Cir. 2003)
(nonprecedential).
The Board found that it is undisputed that Ms. Butler
was employed as a civilian MT with the U.S. Army Re-
serves and that such position was an MT (dual status)
position. The Board also found that in the notice propos-
ing Ms. Butler’s removal from employment, the agency
listed the reason for the removal as her loss of member-
ship in the Selected Reserve. By military orders dated
July 18, 2012, and effective that same day, Ms. Butler
was transferred from the Selected Reserve to the U.S.
Army Reserve Control Group in an effort to curb over-
strength (i.e., personnel in excess of what is required)
within the Army. Thus, Ms. Butler no longer maintained
membership in the Selected Reserve as of July 18, 2012.
Further, the Board found that Ms. Butler was afforded
due process because she was given advanced written
notice stating the specific reason for the proposed action,
an opportunity to respond, and a written decision. We
find that the Board’s limited review was in accord with
law. 1
Ms. Butler’s failure to comply with a condition of her
employment led to her removal. Contrary to Ms. Butler’s
arguments, the fact that her loss of Selected Reserve
membership was not a result of misconduct, unacceptable
1 The Board is precluded from considering any of
Ms. Butler’s affirmative defenses relating to the loss of
active reserve status. See Butler v. Dep’t of the Air Force,
73 M.S.P.R. 313, 318-19 (1997).
BUTLER v. ARMY 5
military performance, or voluntary relinquishment, does
not mean that the Army is obligated to provide her with
an additional year of employment.
Although, under the applicable statute, 10 U.S.C.
§ 10216(e)(2), the Army may, in some circumstances,
exercise the option of continuing to pay compensation to a
separated employee for up to 12 months where the loss of
dual status “was not due to the failure of that individual
to meet military standards,” a plain reading of the statute
makes clear that this does not amount to an obligation.
See 10 U.S.C. § 10216(e)(2). Thus, we agree with the
Board that the Army was not required to retain Ms.
Butler in her dual status MT position for an additional 12
months even if her loss of Selected Reserve membership
was involuntary. 2
We find no error in the Board’s conclusion to affirm
the dismissal of Ms. Butler’s claim. We have considered
each of Ms. Butler’s remaining arguments, and we con-
clude that the Board should be affirmed.
AFFIRMED
COSTS
No Costs.
2 Pursuant to 10 U.S.C. § 10218, the Agency offered
Ms. Butler the opportunity to reapply for, and if qualified,
be appointed to, a position as an MT (dual status); or
apply for a civil-service position that is not a technician
position. A. 27.