UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JUANITA PHILIP,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

NY-0752-18-0166-I-1

DATE: May 3, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.

John Gupton and Nina A. Clarke-Brewley, Kingshill, Virgin Islands, for 

the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which 

found that the agency violated the appellant’s due process rights and reversed the 

removal action taken pursuant to 32 U.S.C. § 709. For the reasons discussed 

below, we GRANT the agency’s petition for review, VACATE the initial 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 contra st, 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

decision, and DISMISS the appeal for lack of jurisdiction. We also DENY the 

appellant’s motion to dismiss the agency’s petition for review for failur e to 

comply with interim relief.

BACKGROUND

¶2 The Adjutant General of the Virgin Islands National Guard (VING) 

employed the appellant pursuant to 32 U.S.C. § 709(a) in a Public Affairs 

Specialist position at VING’s Joint Force Headquarters in St. Croix, Virgin 

Islands. Initial Appeal File (IAF), Tab 9 at 7-8. In the 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

(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. 32 U.S.C. § 709(b). 

¶3 In an order dated July 9, 2018, the Adjutant General honorably discharged 

the appellant, effective June 14, 2018, from the Army National Guard and as a 

reserve of the Army. IAF, Tab 9 at 9. Also, on July 9, 2018, the VING’s Human 

Resources Officer issued a memorandum informing the appellant that she would 

be separated from her dual status military technician position, effective July 13,

2018, due to her loss of military membership. Id. at 8. 

¶4 The appellant filed an appeal of her removal with the Board and requested a 

hearing. IAF, Tab 1 at 2, 4. The agency subsequently filed a motion to dismiss, 

arguing that the Board is without jurisdiction to hear her appeal because her 

removal from her dual status military technician position was based entirely upon 

her fitness for duty in the VING and the resulting failure to maintain her military 

 

2 As relevant here, a dual status military technician includes a Federal civilian employee 

who is employed under 32 U.S.C. § 709(b), is required as a condition of employment to 

maintain membership in the Selected Reserve, and “is assigned to a civilian position as 

a technician in the organizing, administering, instructing, or training of the Selected 

Reserve or in the maintenance and repair of supplies or equipment issued to the 

Selected Reserve or the armed forces.” 10 U.S.C. § 10216(a). 
3

membership. IAF, Tab 8 at 5, 8-9. In such a case, the agency argued, the 

appellant’s removal is appealable only to the VING’s Adjutant General. Id. at 9. 

The appellant responded, arguing that she was entitled to the procedural 

protections of 5 U.S.C. § 7513, which include advance written notice of a 

removal action and an opportunity to provide a response. IAF, Tab 13 at 6-8. 

Because the agency did not provide her with an opportunity to respond prior to 

her removal, she argued that the agency violated her constitutional right to due 

process. Id. 

¶5 The appellant withdrew her request for a hearing, and the administrative 

judge issued an initial decision based on the written record. IAF, Tab 17 at 2, 

Tab 20, Initial Decision (ID). The administrative judge found that, pursuant to 

the National Defense Authorization Act for Fiscal Year 2017 (2017 NDAA), the 

appellant was a covered employee entitled to the procedural protections of Title 5 

of the U.S. Code. ID at 3. She rejected the agency’s argument that the Board 

lacks jurisdiction over the appeal because it was based on her loss of military 

membership; instead, she found that the appellant’s removal was based on a 

charge of failure to meet a condition of employment—in this case, the 

maintenance of her military status. ID at 3-4. The administrative judge found 

that the statute precluded her from reviewing the merits of the agency’s 

determination regarding the appellant’s loss of military membership; she further 

found that the appellant, as a covered employee, was nevertheless entitled to the 

procedural protections of Title 5 during the removal process. ID at 5. The

administrative judge therefore found that the agency denied the appellant her due 

process rights when it failed to provide adequate notice, an opportunity to 

respond, and a subsequent written decision. ID at 5. As a result, the 

administrative judge reversed the action, and she ordered the agency to cancel the 

removal and retroactively restore the appellant, effective July 13, 2018. ID at 6. 

The administrative judge also ordered the agency to provide interim relief 

pursuant to 5 U.S.C. § 7701(b)(2)(A). ID at 7.
4

¶6 The agency has filed a petition for review. Petition for Review (PFR) File, 

Tab 1. The appellant has filed a response to the agency’s petition for review and 

a motion to dismiss the petition for review for failure to comply with the 

administrative judge’s interim relief order. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 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 her appeal by a preponderance of the evidence. 

5 C.F.R. § 1201.56(b)(2)(i)(A).

¶8 On review, the agency argues that the administrative judge erred in finding 

that dual status military technicians are considered covered employees under 

Title 5 regardless of the basis upon which the adverse action at issue was taken. 

PFR File, Tab 1 at 19-20. In support of its argument, the agency contends that 

Congress plainly limited the expansion of dual status military technicians’ appeal 

rights to appeals that did not concern “activity occurring while the member is in a 

military pay status, or . . . fitness for duty in the reserve components.” Id.

at 20-21 (quoting 32 U.S.C. § 709(f)(4)). The agency argues that because the 

appellant lost her military membership as a result of a fitness-for-duty 

determination, the Board lacks jurisdiction over the appeal. Id. at 6-7, 25. For

the following reasons, we agree with the agency that the Board lacks jurisdiction 

over the appeal.

¶9 While this appeal was pending on petition for review, the U.S. Court of 

Appeals for the Federal Circuit issued Dyer v. Department of the Air Force, 

971 F.3d 1377 (Fed. Cir. 2020), which governs the outcome in this matter, even 

though the events in this matter predate the issuance of the Dyer decision. See

Heartland By-Products, Inc. v. U.S., 568 F.3d 1360, 1365 (Fed. Cir. 2009) 

(“Under general principles of law, judicial decisions are given retroactive 
5

effect.”); NV24-Keyport2 v. Department of the Navy, 123 M.S.P.R. 263, ¶ 22 

(2016) (noting that the Board generally applies case law issued while an appeal is 

pending); Porter v. Department of Defense, 98 M.S.P.R. 461, ¶¶ 11-14 (2005) 

(explaining that judicial decisions are given retroactive effect to all pending 

cases, whether or not those cases involve predecision events); see also Fairall v. 

Veterans Administration, 33 M.S.P.R. 33, 39 (stating that decisions of the U.S. 

Court of Appeals for the Federal Circuit are controlling authority for the Board),

aff’d, 844 F.2d 775 (Fed. Cir. 1987). We briefly discuss the relevant facts from 

Dyer. 

¶10 Mr. Dyer enlisted in the West Virginia Air National Guard (WVANG), and 

he was later appointed in his civilian capacity to a dual status position as a 

military technician. Dyer, 971 F.3d at 1378. Pursuant to 32 U.S.C. 

§ 709(b), (f)(1)(A), and as a requirement to maintain his dual status position, 

Mr. Dyer was required to continue his membership with the WVANG. Id. In 

June 2017, the WVANG Selective Retention Review Board recommended Mr. 

Dyer’s separation from the WVANG. Id. Based on this recommendation, the 

West Virginia Adjutant General notified Mr. Dyer that he would be separated 

from the WVANG on December 31, 2017. Id. at 1378-79. Mr. Dyer requested 

reconsideration, and the Adjutant General declined to overturn the separation 

decision.3 Id. at 1379. The Adjutant General also notified Mr. Dyer that upon his 

separation from the WVANG, his position as a dual status technician would be 

terminated because he no longer fulfilled the requirement of 32 U.S.C. § 709(b). 

Id. Mr. Dyer filed a Board appeal, and the administrative judge found that the 

Board had jurisdiction over the appeal and that Mr. Dyer was provided with due 

process. Id. The initial decision became the Board’s final decision, and Mr. Dyer 

petitioned the court for review. Id.

 

3 Ultimately, the Adjutant General extended Mr. Dyer’s term of service until June 30,

2018. Dyer, 971 F.3d at 1379.
6

¶11 The court found that the Board lacked jurisdiction over Mr. Dyer’s appeal. 

Id. In pertinent part, the court noted that, to be employed as a dual status 

technician, the civilian must be a military member of the National Guard, among 

other requirements. Id. at 1380 (citing 32 U.S.C. § 709(b)(2)). The court 

described as “clear” the statutory language in 32 U.S.C. § 709(f)(1)(A), which 

states that the state Adjutant General must “promptly separate[] from military 

technician (dual status) employment any dual status technician who has been 

separated from the National Guard.” Id. (citing 32 U.S.C. § 709(f)(1)(A)). 

¶12 The court noted that, prior to the 2017 NDAA, any dual status technician 

who was separated due to the failure to maintain National Guard membership 

only had appeal rights to the state Adjutant General and dual status technicians 

were excluded from certain procedural protections under Title 5. Id. However,

the court explained that the 2017 NDAA added a clause to section 709(f)(4) 

limiting the prohibition on appeal rights. Importantly, the provision at 32 U.S.C. 

§ 709(f)(4) now states that “a right of appeal which may exist with respect to 

paragraph (1) . . . shall not extend beyond the adjutant general of the jurisdiction 

concerned when the appeal concerns activity occurring while the member is in a 

military pay status, or concerns fitness for duty in the reserve components.”4 

Dyer, 971 F.3d at 1381 (emphasis in original). The court also noted that the 2017 

NDAA amended sections related to Title 5 to allow dual status employees to be 

covered in some circumstances.5 Id.

 

4

The 2017 NDAA defined the term “fitness for duty in the reserve components” as 

referring “only to military-unique service requirements that attend to military service 

generally.” 32 U.S.C. § 709(j)(2); Dyer, 971 F.3d at 1382. 

5 Office of Personnel Management regulations implementing the 2017 NDAA, 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).
7

¶13 The court stated that it was undisputed that Mr. Dyer was not in a military 

pay status when he was terminated from dual status employment. Id. at 1382. 

Noting that National Guard membership is a “fundamental military-specific 

requirement attendant to dual[] status employee’s military service,” and the 

statute does not give the Adjutant General any discretion with respect to the 

termination of a dual status employee who has been separated from the National 

Guard, the court concluded that Mr. Dyer’s termination from dual status 

employment as a result of his separation from the National Guard concerned 

fitness for duty in the reserve components. Id. The court further held that the 

termination fell within an exception that precludes a right of appeal to the Board 

pursuant to section 709(f)(4), and the Board therefore lacks jurisdiction over Mr. 

Dyer’s appeal. Id. at 1384.

¶14 Similarly, here, the appellant’s termination based on her separation from the 

National Guard concerned her fitness for duty in the reserve components. 

Pursuant to 32 U.S.C. § 709(f)(4), her only avenue for appeal is with the Adjutant 

General, and the Board lacks jurisdiction over the appeal. Accordingly, we do

not address any arguments related to due process, and 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. See Lovoy v. 

Department of Health and Human Services, 94 M.S.P.R. 571, ¶ 28 (2003).

NOTICE OF APPEAL RIGHTS6

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 

 

6

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

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. 

(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 
9

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 

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, 
10

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: 

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.7The court of appeals must receive your petition for 

 

7

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. 
11

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 

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. 

 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
12

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:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board