UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL A. ENGEN,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

CH-0752-21-0242-I-1

DATE: September 6, 2024

THIS ORDER IS NONPRECEDENTIAL1

Michael A. Engen, Duluth, Minnesota, pro se.

Justin Garrett Baker, Esquire, Saint Paul, Minnesota, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

REMAND ORDER

The appellant has filed a petition for review of the initial decision,

which dismissed his removal appeal for lack of jurisdiction. For the reasons

discussed below, we GRANT the appellant’s petition for review, VACATE the

initial decision, and REMAND the case to the Central Regional Office for further

adjudication in accordance with this Remand Order. 

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
BACKGROUND

The agency employed the appellant as a WS-6 Material Handler

Supervisor, a dual-status military technician position in the agency’s 148th

Fighter Wing Logistics Readiness Squadron (LRS). Initial Appeal File (IAF),

Tab 9 at 40, 59. The appellant was also a member of the Minnesota Air National

Guard (MNANG). Id. at 60. In August 2020, the agency appointed the LRS

Operations Group Superintendent to conduct a Commander Directed Investigation

(CDI) into allegations that the appellant made sexual and degrading

gender-specific comments and participated in or created an environment that was

hostile to members of his squadron based on prohibited factors such as sex and

sexual harassment. Id. at 12-13. 

Effective February 25, 2021, the agency removed the appellant based on

three charges: (1) sexual harassment involving a subordinate based on a June 8,

2020 conversation; (2) discrimination based on a prohibited consideration due to

incidents that occurred on unspecified dates; and (3) conduct unbecoming a

National Guard Bureau employee based on incidents occurring between June

2018 and June 2020. Id. at 54-59. The appellant then initiated the instant appeal

of his removal. IAF, Tab 1 at 2-3, Tab 9 at 60. One month later, the Adjutant

General of the MNANG separated the appellant from MNANG. IAF, Tab 9 at 60.

The administrative judge in the instant appeal issued a jurisdictional order.

IAF, Tab 3. She explained that the Board lacks jurisdiction to review the

separation of a dual-status technician if that separation concerned either “activity

occurring while [he was] in a military pay status” or “his fitness for duty in the

reserve components.” Id. at 2-3 (quoting 32 U.S.C. § 709(f)(4)). She ordered the

parties to file evidence and argument regarding whether the appeal was within the

Board’s jurisdiction. IAF, Tab 3 at 3, Tabs 4, 7. The appellant did not respond.

The agency argued that the Board lacks jurisdiction because “the appellant’s

misconduct partly occurred while in a military pay status” and concerned his

fitness for duty in MNANG, as evidenced by his later separation from MNANG.

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IAF, Tab 9 at 6. The administrative judge agreed with the agency and dismissed

the appeal for lack of Board jurisdiction. IAF, Tab 10, Initial Decision (ID)

at 2-5.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. He argues that his removal from a dual-status technician position

was without merit, alleges that the agency committed harmful error and violated

his right to due process, and asserts that a Military Separation Review Board

largely absolved him of the alleged misconduct and recommended he be issued

lesser discipline. Id. The agency has not responded to the petition for review. 

ANALYSIS

On review, the appellant does not dispute the administrative judge’s

jurisdictional findings. Nonetheless, the Board has an obligation to determine its

own jurisdiction over a particular appeal. Parrish v. Merit Systems Protection

Board, 485 F.3d 1359, 1362-63 (Fed. Cir. 2007). Therefore, although not directly

addressed in the appellant’s petition for review, we have considered whether the

Board has jurisdiction over his removal from his dual-status technician position.

The Board generally has jurisdiction over a tenured dual-status technician’s

removal unless he was removed for conduct occurring while he served in a

military pay status or as a result of his lack of fitness for duty in the reserve.

5 U.S.C. §§ 7511(a)(1), 7512(1), 7513(d); 32 U.S.C. § 709(f)(4)-(5); Dyer v.

Department of the Air Force, 971 F.3d 1377, 1382, 84 (Fed. Cir. 2020). Citing

Dyer, the administrative judge found that the Board lacks jurisdiction because the

appellant was separated from the MNANG following his removal from Federal

employment. ID at 4. We disagree. In Dyer, 971 F.3d at 1382-84, the U.S.

Court of Appeals for the Federal Circuit held that when a dual-status technician is

separated from the National Guard, his termination from dual-status employment

is required by statute and concerns fitness for duty in the reserves. Id. (citing

32 U.S.C. §§ 709(b)(2), (f)(1)(A), (f)(4)). Therefore, it concluded that, unlike a

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removal for cause, termination of dual-status employment based on the

employee’s National Guard separation is outside the Board’s jurisdiction. Id.

at 1383-84. 

The instant appeal is distinguishable from Dyer because the appellant in

this case was removed from his civilian technician position based on allegations

of misconduct rather than his separation from the National Guard. IAF, Tab 9

at 48-50, 54-58. In fact, the Standard Form 50 effectuating his removal states

that the removal was “[f]or [c]ause” and lists chapter 75 as the legal authority for

the removal. Id. at 59. Further, the appellant was first removed from his civilian

employment and then separated from the National Guard. Id. at 59-60.

Therefore, his later National Guard separation logically could not serve as the

basis for his earlier removal. 

The administrative judge also found that the Board lacks jurisdiction

because the appellant’s alleged misconduct occurred “partly when he was in a

military pay status.” IAF, Tab 10 at 5. As noted above, the Board lacks

jurisdiction over the removal of a dual-status technician based on conduct

occurring while he served in a military pay status. 32 U.S.C. § 709(f)(4), (g)(1).

However, the Superintendent who conducted the agency’s CDI concluded that the

appellant was in a Federal technician, as opposed to a military, status for “the

majority of the time” during which the alleged misconduct occurred. IAF, Tab 9

at 26. This included the alleged incident of June 8, 2020, which served as the

basis for one of the agency’s three charges. Id. at 48. The Superintendent’s

admission that a “majority” of the incidents occurred while the appellant was in a

Federal technician status is sufficient for the appellant to prove by preponderant

evidence that at least some of the conduct at issue in his removal occurred while

he was not in a military pay status. See Bruhn v. Department of Agriculture,

124 M.S.P.R. 1, ¶ 10 (2016) (observing that an administrative judge may consider

the agency’s documentary submissions to the extent they support a determination

that the appellant made a nonfrivolous allegation of jurisdiction).

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As for the remaining incidents, the Superintendent could not confirm

whether the appellant was in a military pay or civilian technician status because

the witnesses he interviewed could not provide specific dates for the alleged

misconduct. Id. at 26-27. Thus, neither party may ever be in a position to know

the appellant’s status during every incident underlying the proposed removal, and

we cannot infer, as the administrative judge did, that the appellant’s alleged

misconduct occurred, in whole or in part, while he was in a military pay status.

ID at 5. Nevertheless, based on the manner in which the agency charged the

appellant’s misconduct, we cannot separate the dual-status technician conduct

from the military pay status conduct. IAF, Tab 9 at 48-49. Accordingly, we find

that the appellant met his burden to prove jurisdiction. On remand,

the administrative judge should adjudicate the merits of the appellant’s

termination and his due process and harmful error claims. PFR File, Tab 1.

ORDER

For the reasons discussed above, we VACATE the initial decision and

REMAND this case to the Central Regional Office for further adjudication in

accordance with this Remand Order.

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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