Case: 19-2185   Document: 36     Page: 1   Filed: 08/21/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                 LEONARD G. DYER,
                     Petitioner

                            v.

         DEPARTMENT OF THE AIR FORCE,
                    Respondent
              ______________________

                       2019-2185
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. PH-0752-19-0083-I-1.
                 ______________________

                Decided: August 21, 2020
                 ______________________

    NEIL CURTIS BONNEY, Bonney, Allenberg & O'Reilly,
 PC, Virginia Beach, VA, argued for petitioner.

     MEEN GEU OH, Commercial Litigation Branch, Civil Di-
 vision, United States Department of Justice, Washington,
 DC, argued for respondent. Also represented by ETHAN P.
 DAVIS,    ALLISON     KIDD-MILLER,    ROBERT     EDWARD
 KIRSCHMAN, JR.; CHARLES L. YOUNG, Office of the Chief
 Counsel, National Guard Bureau, Arlington, VA; NADIA K.
 PLUTA, Office of General Counsel, United States Office of
 Personnel Management, Washington, DC.
                  ______________________
Case: 19-2185    Document: 36      Page: 2    Filed: 08/21/2020




 2                                           DYER   v. AIR FORCE



  Before PROST, Chief Judge, MAYER and TARANTO, Circuit
                         Judges.
 PROST, Chief Judge.
     Mr. Leonard Dyer petitions for review of a decision by
 the Merit Systems Protection Board (“Board”) affirming
 the West Virginia adjutant general’s termination of
 Mr. Dyer from his position as a dual-status military tech-
 nician with the U.S. Air Force.
     The National Guard Technicians Act of 1968 (“NGTA”)
 established authority for dual-status positions like Mr.
 Dyer’s. Under 32 U.S.C. § 709, the NGTA requires dual-
 status technicians to maintain military membership with
 the National Guard. Mr. Dyer met this requirement by
 maintaining membership with the West Virginia Air Na-
 tional Guard (“WVANG”) until 2018, when Mr. Dyer was
 separated from the WVANG. The WV adjutant general ter-
 minated his dual-status position because he no longer met
 the military membership requirement of his employment.
 Mr. Dyer appealed the termination to the Board, arguing
 that he was not provided the due process he is entitled to
 under Title 5.
     A threshold issue in this petition for review is whether
 the Board had jurisdiction to review Mr. Dyer’s termina-
 tion from his dual-status position as a result of his separa-
 tion from the WVANG. The Board determined that the
 2017 National Defense Authorization Act (“NDAA”), which
 amended the NGTA in part, provided it jurisdiction. We
 disagree. We hold that according to 32 U.S.C. § 709, the
 Board does not have jurisdiction over the termination of a
 dual-status employee to the extent the termination was re-
 quired under the statute because the employee had been
 separated from the National Guard. We therefore vacate
 the Board’s decision and remand with instructions to dis-
 miss Mr. Dyer’s appeal for lack of jurisdiction. We do not
 reach the merits of Mr. Dyer’s appeal.
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 DYER   v. AIR FORCE                                        3



                        BACKGROUND
                               I
      Mr. Dyer enlisted in the WVANG in December 1979
 and continued his service for thirty-seven years, ultimately
 reaching the rank of master sergeant. In 1990, the WV ad-
 jutant general—the highest-ranking member of the WV
 National Guard—appointed Mr. Dyer in his civilian capac-
 ity to a “dual status” position as a military technician sup-
 porting the state’s 130th Airlift Wing Maintenance Group.
 The dual-status nature of Mr. Dyer’s appointment reflects
 that his position was part civilian, as a federal employee of
 the U.S. Air Force, and part military, as a member of the
 state National Guard. As a requirement to maintain his
 “dual status” position, Mr. Dyer was required to continue
 his membership with the WVANG. See 32 U.S.C. § 709(b),
 (f)(1)(A).
     In June 2017, the WVANG’s Selective Retention Re-
 view Board recommended Mr. Dyer’s separation from the
 WV National Guard. Based on this recommendation, the
 WV adjutant general notified Mr. Dyer that he would be
 separated from the WVANG at the close of the year, i.e.,
 December 31, 2017. The notice provided Mr. Dyer an op-
 portunity to request reconsideration, which he did. On re-
 consideration, the adjutant general declined to overturn
 the separation decision but extended Mr. Dyer’s term of
 service for an additional six months, until June 30, 2018.
     On August 28, 2017, just after sending Mr. Dyer notice
 that he would be separated from the WVANG, the adjutant
 general sent a second notice notifying Mr. Dyer that upon
 his separation from the WVANG, his position as a dual-
 status technician would be terminated because he would
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 4                                           DYER   v. AIR FORCE



 no longer fulfill the § 709(b) requirement of National
 Guard membership. Appx. 25. 1
     On June 29, 2018, just before the expiration of his term
 with the WVANG, Mr. Dyer filed an age discrimination
 complaint with the National Guard’s Equal Employment
 Opportunity (“EEO”) office challenging his commander’s
 recommendation to separate him from his military position
 with the WV National Guard. On November 19, 2018, the
 EEO office dismissed Mr. Dyer’s claim for failure to state a
 claim upon which relief could be granted.
                              II
     In December 2018, Mr. Dyer filed the underlying ap-
 peal with the Board. Mr. Dyer argued that he was not pro-
 vided the procedural protections of Title 5 when he was
 terminated from his dual-status position. The parties
 agree that the Board does not have the authority to review
 the WV adjutant general’s decision to separate Mr. Dyer
 from the WVANG. See Oral Arg. at 00:54–01:16, No. 19-
 2185 (Fed. Cir. Apr. 8, 2020), http://oralargu-
 ments.cafc.uscourts.gov/default.aspx?fl=19-2185.mp3; see
 also Appellee’s Br. 1.
      The government moved to dismiss the appeal for lack
 of jurisdiction. 2 The government argued that Mr. Dyer was
 not a covered employee under Title 5 because he was ter-
 minated for failure to maintain his military status and that
 according to § 709, this was a condition of employment over


     1   Citations to “Appx.” reference the appendix filed
 with Mr. Dyer’s opening brief. See Appx. 1–27. Citations
 to “S.Appx.” reference the supplemental appendix filed
 with the government’s response brief. See S.Appx. 28–100.
     2   Though the caption identifies the U.S. Air Force as
 the respondent agency, the WV National Guard, which
 made the decision to terminate Mr. Dyer as a dual-status
 technician, defended the case below.
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 DYER   v. AIR FORCE                                       5



 which the Board has no authority to review. The adminis-
 trative judge (“AJ”), however, determined that the NDAA
 provided Mr. Dyer coverage under Title 5. The AJ there-
 fore determined that it had jurisdiction over Mr. Dyer’s ap-
 peal. See Appx. 4–6.
     The AJ next considered the merits of Mr. Dyer’s appeal.
 The AJ determined that Mr. Dyer was provided due process
 consistent with 5 U.S.C. § 7513(b). See Appx. 6–7.
     The initial decision became the Board’s final decision
 and Mr. Dyer timely petitioned for our review. We have
 jurisdiction under 28 U.S.C. § 1295(a)(9).
                         DISCUSSION
     As a threshold issue, the government argues that the
 Board did not have jurisdiction over Mr. Dyer’s appeal. For
 the below-described reasons, we agree.
     We review the Board’s jurisdictional determinations de
 novo. Banks v. MSPB, 854 F.3d 1360, 1361 (Fed. Cir.
 2017); see also Waldau v. MSPB, 19 F.3d 1395, 1398 (Fed.
 Cir. 1994). Evaluating the Board’s jurisdiction in this case
 requires statutory interpretation, a question of law.
 Banks, 854 F.3d at 1361 (citing Ellison v. MSPB, 7 F.3d
 1031, 1034 (Fed. Cir. 1993)).
      “In statutory construction, we begin ‘with the language
 of the statute.’” Kingdomware Techs., Inc. v. United States,
 136 S. Ct. 1969, 1976 (2016) (quoting Barnhart v. Sigmon
 Coal Co., 534 U.S. 438, 450 (2002)). Our “first step ‘is to
 determine whether the language at issue has a plain and
 unambiguous meaning with regard to the particular dis-
 pute in the case.’” Barnhart, 534 U.S. at 450 (quoting Rob-
 inson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). “It is a
 ‘fundamental canon of statutory construction that the
 words of a statute must be read in their context and with a
 view to their place in the overall statutory scheme.’” FDA
 v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
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 6                                           DYER   v. AIR FORCE



 (2000) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S.
 803, 809 (1989)).
                               I
     The National Guard Technicians Act of 1968 formally
 established dual-status technicians as they exist today.
 Pub. L. No. 90-486, 82 Stat. 755 (codified in relevant part
 at 32 U.S.C. § 709). Prior to the NGTA, Congress had au-
 thorized National Guard technicians, formerly called “care-
 takers and clerks,” to provide support to the National
 Guard military organization. These technicians were state
 employees paid with federal funds, and most were mem-
 bers of the National Guard. Congress passed the NGTA
 with the purpose of converting technicians to federal em-
 ployees in order to provide them with a uniform system of
 federal salaries and benefits, and to clarify their status as
 covered by the Federal Tort Claims Act. See H.R. Rep. No.
 90-1823, at 1 (1968), as reprinted in 1968 U.S.C.C.A.N.
 3318, 3319. Congress also intended to “recognize the mili-
 tary requirements and the State characteristics of the Na-
 tional Guard by providing for certain statutory
 administrative authority at the State level with respect to
 the technician program.” Id.
     According to § 709, “dual-status” technicians occupy a
 unique space between federal/state organizations and civil-
 ian/military status. Dual-status technicians work in a va-
 riety of roles with National Guards but are designated
 employees of the U.S. Army or Air Force. See 32 U.S.C.
 § 709(a). Even though dual-status technicians are federal
 employees, authority over dual-status technicians, includ-
 ing all hiring and firing decisions, remains with the Na-
 tional Guard at the state level. Id. § 709(d), (f)(1).
     To be employed as a dual-status technician, among
 other requirements, the civilian must be a military mem-
 ber of the National Guard. See id. § 709(b)(2). The lan-
 guage of the statutory provision is clear that the state
 adjutant general must “promptly separate[] from military
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 DYER   v. AIR FORCE                                           7



 technician (dual status) employment” any dual-status tech-
 nician who has been separated from the National Guard.
 Id. § 709(f)(1)(A).
     As provided by the NGTA, under § 709(f)(4), all rights
 of appeal were previously limited to the state adjutant gen-
 eral for terminations resulting from separations under
 § 709(f)(1)(A) due to failure to maintain National Guard
 membership. Section 709(f)(4) of Title 32 stated:
     (f) Notwithstanding any other provision of law . . .
     (4) a right of appeal which may exist with respect
     to paragraph (1) . . . shall not extend beyond the
     adjutant general of the jurisdiction concerned; . . . .
 32 U.S.C. § 709(f)(4) (2015).
      Further, according to the NGTA, § 709 previously ex-
 cluded dual-status technicians from certain protections of
 Title 5. Relevant here, the statute provided that § 7511 of
 Title 5 did not apply to a person employed as a dual-status
 technician. Id. § 709(g). Section 7511 defines “employee”
 for the purpose of Title 5 to specify which persons are enti-
 tled to its protections and may appeal to the Board. Con-
 sistent with the NGTA, § 7511 expressly excluded dual-
 status technicians from the definition of an “employee” cov-
 ered by Title 5. See 5 U.S.C. § 7511(b)(5) (2015).
     In December 2016, Congress passed the 2017 National
 Defense Authorization Act to “clarify” that dual-status
 technicians, “under certain conditions, may appeal adverse
 employment actions to the Merit Systems Protection Board
 and Equal Employment Opportunity Commission.” See
 H.R. Rep. No. 114-840, at 1016–17, 2016 WL 7042751
 (2016). The NDAA amended portions of the NGTA and one
 portion of 5 U.S.C. § 7511. See 2017 NDAA, Pub. L.
 No. 114-328, §§ 512, 513, 130 Stat. 2000, 2112–13 (2016)
 (codified at 32 U.S.C. § 709).
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 8                                           DYER   v. AIR FORCE



     As amended, § 709 maintains the requirements that
 dual-status technicians must be members of the National
 Guard, § 709(b)(2), and that the adjutant general must
 “promptly separate[]” from dual-status employment a tech-
 nician who is separated from the National Guard,
 § 709(f)(1). The NDAA, however, added a clause to
 § 709(f)(4) limiting the prohibition on appeal rights. Sec-
 tion 709(f)(4) now states:
     (f) Notwithstanding any other provision of law . . .
     (4) 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 . . . .
 32 U.S.C. § 709(f)(4) (2016) (emphasis added reflecting
 added language). The NDAA defined the term “fitness for
 duty in the reserve components,” as referring “only to mil-
 itary-unique service requirements that attend to military
 service generally, including service in the reserve compo-
 nents or service on active duty.” Id. § 709(j).
     The NDAA also amended sections related to Title 5 to
 allow dual-status employees to be covered in some circum-
 stances. The NDAA added paragraph (5) to § 709(f),
 providing that certain provisions of Title 5—including
 §§ 7511, 7512, and 7513—“shall apply” to “an appeal con-
 cerning any activity not covered by paragraph (4).”
 32 U.S.C. § 709(f)(5) (2016). Section 709(g) was also
 amended to provide that dual-status technicians remain
 excluded from §§ 7511 and 7512, among other sections of
 Title 5, “[e]xcept as provided in subsection (f).” Id. at
 § 709(g). And, consistent with this change, the NDAA
 amended Title 5 to eliminate the categorical exclusion of
 dual-status technicians from the definition of “employee”
 subject to Board jurisdiction. See 5 U.S.C. § 7511(b) (2016).
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 DYER   v. AIR FORCE                                        9



                              II
     The government argues that the NGTA precludes
 Board review of the WV adjutant general’s decision to ter-
 minate Mr. Dyer from his dual-status position in this case.
 According to the government, the NGTA required the adju-
 tant general to “promptly separate[]” Mr. Dyer from his
 dual-status position once he had been separated from the
 WVANG. Appellee’s Br. 22 (citing 32 U.S.C. § 709(f)(1)(A)
 (emphasis removed)). The government acknowledges that
 the NDAA afforded dual-status technicians Board review
 rights in some cases but asserts that the changes do not
 confer review rights in this case. See Appellee’s Br. 23–24.
 The government argues that here the statute precludes a
 right to appeal beyond the state adjutant general because
 Mr. Dyer’s separation “concern[ed] fitness for duty in the
 reserve components.” Id. at 22–23 (citing 32 U.S.C.
 § 709(f)(4)).
     We agree with the government that the Board does not
 have jurisdiction to review the adjutant general’s separa-
 tion of Mr. Dyer from his dual-status position in this case.
     As an initial matter, we agree that, in passing the
 NDAA, Congress intended for dual-status technicians to be
 able to invoke review rights under Title 5 in some actions.
 See 32 U.S.C. § 709(f)(4)–(5). Before the NDAA, the ex-
 press language of the NGTA precluded a right of appeal for
 a variety of adverse actions taken by the adjutant general
 with respect to dual-status employment. See 32 U.S.C.
 § 709(f) (2015). And the NGTA expressly excluded dual-
 status employees from certain Title 5 protections, includ-
 ing the ability to appeal adverse employment actions to the
 Board. See id. § 709(f), (g) (2015).
     Following the NDAA, however, the statute has been
 clarified to allow civilian dual-status technicians to appeal
 some adverse employment actions to the Board. See H.R.
 Rep. No. 114-840, at 1016–17. Indeed, rather than broadly
 excluding Title 5 as before, the statute now takes the
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 10                                           DYER   v. AIR FORCE



 opposite approach. Dual-status technicians may now be
 considered “employees” under Title 5, thereby providing a
 right of appeal, except as limited by § 709(f). Specifically,
 § 709(f) excludes a dual-status technician from Title 5’s def-
 inition of “employee” and thus precludes a right of appeal
 when the employment action (1) “concerns activity occur-
 ring while the member is in a military pay status” or
 (2) “concerns fitness for duty in the reserve components.”
 32 U.S.C. § 709(f)(4) (2017). As amended, the statute pro-
 vides that “fitness for duty in the reserve components”
 means “military-unique service requirements that attend
 to military service generally.” Id. § 709(j)(2) (2017).
     In this case, there appears to be no dispute that
 Mr. Dyer was not in military pay status when he was ter-
 minated from dual-status employment. The WV adjutant
 general explained that Mr. Dyer was terminated from his
 dual-status position because, once separated from the
 WVANG, he no longer met a requirement of his employ-
 ment. Appx. 25 (citing § 709(a)). The relevant question
 therefore becomes: Did Mr. Dyer’s termination from dual-
 status employment as a result of separation from the Na-
 tional Guard “concern[] fitness for duty in the reserve com-
 ponents”? We conclude that it did.
     Looking first to the language of the statute, it is clear
 that membership in the National Guard is a fundamental
 military-specific requirement attendant to a dual-status
 employee’s military service. As previously described,
 § 709(b) provides that a person employed as a dual-status
 technician must meet several requirements, including be-
 ing “a member of the National Guard.” 32 U.S.C.
 § 709(b)(2) (2017).
     National Guard membership is central to the military
 function of a “dual-status” technician. Beyond mere mem-
 bership, the provision requires a dual-status technician to
 hold a particular military grade, and, while performing du-
 ties as a dual-status technician, to “wear the uniform
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 DYER    v. AIR FORCE                                      11



 appropriate for the member’s grade and component of the
 armed forces.” Id. § 709(b)(3)–(4). Notably, if a dual-status
 technician is not a member of the National Guard, he can-
 not fulfill these additional requirements prescribed by stat-
 ute. 3
     Our interpretation is further confirmed by the remain-
 der of the statute. Section 709 instructs that the adjutant
 general must “promptly separate[]” from dual-status em-
 ployment any technician who has been separated from the
 National Guard. Id. § 709(f)(1)(A) (2017). The statute does
 not provide the adjutant general any discretion with re-
 spect to termination of a dual-status employee that has
 been separated from the National Guard. Nor does the
 statute take into account the reason for separation. Even
 the parties agree that the Board does not have jurisdiction
 to review Mr. Dyer’s separation from the WVANG. 4 Thus,
 accepting that a separation has occurred, termination from
 dual-status employment is required.
     Furthermore, with respect to notice required for termi-
 nation under § 709(f), the statute contemplates exactly this
 case.    Paragraph 6 of subsection (f) describes a


     3    We do not mean to suggest the only “military-spe-
 cific requirements” are those prescribed by statute. Ra-
 ther, looking to the language of the statute, we find that
 ability to meet at least those “military-specific require-
 ments” included in the statute must “concern[] fitness for
 duty.”
      4   Though Mr. Dyer cannot seek review of his military
 separation from the Board, Mr. Dyer was not without any
 opportunity for review of that decision. Mr. Dyer was pro-
 vided the opportunity to respond to the initial retirement
 recommendation, see Appx. 22–23, and the opportunity to
 request reconsideration of the subsequent separation deci-
 sion, see Appx. 24. Notably, this review came from within
 the National Guard.
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 12                                          DYER   v. AIR FORCE



 circumstance in which a decision to separate a technician
 from the National Guard will result in termination of his
 dual-status employment. 32 U.S.C. § 709(f)(6) (2017). The
 statute provides that in such circumstances, the employee
 shall be given at least 30 days written notice of his termi-
 nation of employment. The statute does not provide an op-
 portunity to respond or to request reconsideration. 5
     Mr. Dyer’s limited argument to the contrary is not per-
 suasive. To the extent that Mr. Dyer argues the Board has
 jurisdiction, he relies on the AJ’s conclusion that the Board
 may review his appeal as a failure to maintain a condition
 of employment. See Appellant’s Br. 10–11; Oral Arg. at
 01:30–02:20, 06:33–08:01; see also Appx. 6. As support,
 both the AJ and Mr. Dyer cite Department of the Navy v.
 Egan, 484 U.S. 518 (1988). In Egan, the Supreme Court
 considered the removal of an employee “for cause” because
 he had failed to maintain a security clearance that was a
 condition of his employment. Id. at 520. The Court con-
 cluded that even though the Board could not review the un-
 derlying decision to deny security clearance, the Board had
 jurisdiction to review his removal. See id. at 530–31. Egan,
 however, is inapposite here. As an initial matter, Egan did
 not consider § 709 at all. Furthermore, unlike in Egan,



      5  The procedural rights provided by § 709(f) are in-
 consistent with those provided by § 7513 of Title 5, which
 further requires an opportunity to respond or appear at a
 hearing. Having expressed that there are circumstances
 when the protections of § 7513 would apply to a dual-status
 employee, but declining to apply such protections to termi-
 nations under § 709(f)(1), the statute suggests that Con-
 gress did not intend for the protections of Title 5 to apply
 to terminations under § 709(f)(1). The most consistent
 reading of the statute therefore precludes Board review
 when the adverse employment action was required by
 § 709(f)(1).
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 DYER   v. AIR FORCE                                       13



 Mr. Dyer’s termination was not “for cause.” See Appx. 24.
 Instead, Mr. Dyer’s termination was compelled by statute
 due his failure to meet a requirement of employment pro-
 vided for by statute. Thus, Egan does not change our in-
 terpretation of § 709 in this case.
     Accordingly, we conclude that Mr. Dyer’s termination
 from dual-status employment under § 709(f)(1) as a result
 of his separation from the National Guard “concern[ed] fit-
 ness for duty.” We therefore conclude that Mr. Dyer’s ter-
 mination falls within an exception precluding a right of
 appeal to the Board under § 709(f)(4).
                        CONCLUSION
     For the above-described reasons we hold that according
 to 32 U.S.C. § 709, the Board does not have jurisdiction
 over the termination of a dual-status employee to the ex-
 tent the termination was required under the statute be-
 cause the employee had been separated from the National
 Guard. We therefore vacate the Board’s decision and re-
 mand to the Board with instructions to dismiss Mr. Dyer’s
 appeal for lack of jurisdiction.
                VACATED AND REMANDED
                           COSTS
     The parties shall bear their own costs.
