Singleton v. MSPB

• Decision Date: 29 March 2001
• Citation: 244 F.3d 1331
• Parties: (Fed. Cir. 2001) JAMES SINGLETON, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. 99-3341 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1331

244 F.3d 1331 (Fed. Cir. 2001)

JAMES SINGLETON, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

99-3341

United States Court of Appeals for the Federal Circuit

DECIDED: March 29, 2001

Appealed from: Merit Systems Protection Board

[Copyrighted Material Omitted]

Richard B. Reiling, Walsh, Harrison & Reiling, of Dayton, Ohio, argued for petitioner.

Sara B. Rearden, Attorney, Office of General Counsel, Merit Systems Protection Board, of Washington, DC, argued for respondent. With her on the brief was Martha B. Schneider, Assistant General Counsel.

Before MICHEL, LOURIE and CLEVENGER, Circuit Judges.

CLEVENGER, Circuit Judge

James Singleton seeks review of the final decision of the Merit Systems Protection Board ("Board") dismissing his appeal for failure to state a claim upon which relief can be granted. Singleton v. Ohio Nat'l Guard, No. CH1221970678-B-I (M.S.P.B. May 14, 1999). We affirm.

I

Mr. Singleton is a technician employed by the Ohio National Guard under the terms of the National Guard Technicians Act of 1968 ("NGTA" or "the Act"). 32 U.S.C. § 709 (1994). He contends that he was denied a promotion by the adjutant general of the Ohio National Guard ("ONG") as a reprisal for his having "blown the whistle" on the ONG by disclosing what he considered to be wrongdoing at the ONG. Denial of a promotion is a prohibited personnel practice under the Whistleblower Protection Act ("WPA"), 5 U.S.C. § 2302(a)(2)(A)(ii), pursuant to which relief may be granted if the adversely affected employee can satisfy the test of 5 U.S.C. § 2302(b)(8) for proving that the action was taken in reprisal for having made a protected disclosure. Mr. Singleton presented his case to the Board by seeking corrective action pursuant to 5 U.S.C. § 1221, which affords an individual right of action to employees proven to have been victimized by a prohibited personnel practice.

The Board ultimately concluded that even if Mr. Singleton can prevail on his claim that he was not promoted in reprisal for making a protected disclosure, no effective remedy could be afforded to Mr. Singleton because an order of the Board is not enforceable against the ONG. For the reasons that follow, we conclude that the Board is correct on this point, and therefore it properly dismissed Mr. Singleton's case for failure to state a claim upon which relief could be granted.

II

By way of background, we borrow the following description of the national guard from a previous Board decision. The national guard is an essential reserve component of the armed forces of the United States, available with regular forces in time of war, and on stand-by to be federalized to assist in controlling civil disorders. The national guard is the successor to state militias of the nation's early years, and thus is a deeply imbedded feature of our national defense system. The national guard, however, is available to serve state needs as well. Hence, the role of the national guard does not fit neatly within the scope of either state or national concerns; instead, the national guard is somewhat of a hybrid. Within each state, the national guard is a state agency, under state authority and control. At the same time, the activity, make-up, and function of the national guard are provided for, to a large extent, by federal law. See Special Counsel v. Everett, 28 M.S.P.R. 348, 350 (1985).

The NGTA provides in 32 U.S.C. § 314 for the existence of adjutants general in each state and territory, Puerto Rico, and the District of Columbia. Except for the adjutant general of the District of Columbia, who is appointed by the President of the United States, adjutants general are appointed locally and perform such duties as are prescribed by the laws of the pertinent local jurisdiction. The NGTA also provides for the employment of technicians by the various adjutants general, and it expressly provides that such technicians are deemed to be federal employees. Subsection (e) of 32 U.S.C. § 709 states that a "technician employed under subsection (a) is an employee . . . of the United States." The legislative history of the NGTA notes that technicians previously were state employees whose salaries were paid in full by the federal government. Because of a lack of nationwide uniform fringe and retirement benefits, the Act declared national guard technicians to be federal employees for the purpose of providing them with the same fringe and retirement benefits enjoyed by other federal employees. See H.R. Rep. No. 1823 (1968), reprinted in 1968 U.S.C.C.A.N. 3318, 3319; see also Am. Fed'n of Gov't Employees v. Fed. Labor Relations Auth., 730 F.2d 1534, 1536-37 (D.C. Cir. 1984) (stating that the NGTA vests technicians with federal employee status for the limited purpose of affording uniform fringe and retirement benefits). For purposes of enforcement of the limited employee rights afforded them by the NGTA, technicians are defined as "employees" in 5 U.S.C. § 2105(a) ("'employee' . . . means an . . . individual who is - appointed in the civil service by . . . an adjutant general designated . . . under section 709(c) of title 32").

In this case, the adjutant general of the ONG is appointed "by the governor [of Ohio] and shall hold office during the governor's pleasure." Ohio Rev. Code Ann. § 5913.02 (West 2000). Ohio statutes set forth the qualifications and duties of the Ohio adjutant general, and expressly provide that the salary of the Ohio adjutant general is to be paid from state funds. Ohio Rev. Code Ann. §§ 5913.01, 5913.021, 141.02, 124.15 (West 2000).

III

With regard to a national guard technician's rights under the WPA, the NGTA imposes severe and significant restrictions. In particular, the NGTA provides that "notwithstanding any other provision of law," which of course includes the WPA, "a reduction in force, removal, or an adverse action involving discharge from technician employment, suspension, furlough without pay, or reduction in rank or compensation shall be accomplished by the adjutant general of the jurisdiction concerned" and "a right to appeal which may exist with respect to [the above enumerated actions] shall not extend beyond the adjutant general of the jurisdiction concerned." 32 U.S.C. §§ 709(f)(3), (f)(4).

Even though a national guard technician is a federal employee for purposes of fringe and retirement benefits, when it comes to protection under the WPA, the NGTA by its clear terms bars a technician from federal appeal rights under Title 5 when the adverse action taken is one of those enumerated in the statute. Thus, Mr. Singleton has no right to pursue an individual right of action under 5 U.S.C. § 1221 in the event he is removed or subjected to any of the other severe adverse actions for which appeal rights lie only to the adjutant general. Mr. Singleton concedes this point, which is well-established in Board jurisprudence. See Kostan v. Ariz. Nat'l Guard, 50 M.S.P.R. 182, 186 (1991). The question remains, however, whether a national guard technician who has made an alleged protected disclosure has the right to invoke the protections of the WPA when the reprisal action taken against the technician is not listed in the NGTA as a penalty for which appeal lies only to the adjutant general.

When the Board first considered the question of whether a state national guard should be deemed a federal agency for purposes of exercising its authority to enforce the WPA, the Board concluded that the essentially state character of the national guard precluded treating the national guard as a federal agency. The question of the state national guard's status, for WPA enforcement purposes, arose in Special Counsel v. Everett, 28 M.S.P.R. 348 (1985). In that case, Everett, a technician in the North Carolina Army National Guard, took an adverse personnel action against Barbee, a subordinate technician. Barbee complained to the Office of Special Counsel that his removal was a reprisal for having made a protected WPA disclosure. The Special Counsel agreed with Barbee, and initiated disciplinary proceedings before the Board to punish Everett for violation of the WPA. An administrative judge of the Board held that the national guard was subject to the WPA, but dismissed the Special Counsel's petition on the ground that Barbee had not in fact made a protected disclosure. The full Board undertook review of the decision of the administrative judge, and concluded that the state national guard is not an agency to which the WPA applies. The Board took notice of the hybrid character of the national guards--state agencies that receive substantial federal assistance and whose technicians are by statute considered federal employees. However, the Board noted that the WPA by the terms of 5 U.S.C. § 2301(a) is applicable only to executive agencies, the Administrative Office of the United States Courts,¹ and the Government Printing Office. Because national guards are not specifically included in the WPA as a covered agency, the full Board concluded that the administrative judge had erred in reaching the merits of the case. The full Board thus held that because a national guard is not an agency within the reach of the WPA, its terms could not be enforced against Everett.

Six years after its decision in Everett, the Board considered again in Kostan the question of whether a national guard should be considered a federal agency. There, however, the question did not involve enforcement of the WPA but instead concerned enforcement of Kostan's...