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

1
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.


2
* 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.


3
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

4
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).


5
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").


6
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

7
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).


8
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.


9
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.


10
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 restoration rights.  The Board had previously held that, with respect to such restoration  rights, national guards are not to be deemed federal agencies. See Gordon  v. Mass. Nat'l Guard, 42 M.S.P.R. 251 (1989). In Gordon, the Board followed  the course it had taken in Everett, concluding that a national guard is not  a federal agency. But in Kostan, the Board grappled with an uncodified  section of the NGTA that had not been considered in either Everett or  Gordon. The uncodified statutory NGTA language reads:


11
Except as provided in this Act and in the amendments made by this Act, and notwithstanding any law, rule, regulation, or decision to the contrary, the positions of persons employed under section 709 of title 32, United States Code, existing on the day before the effective date of this Act, and the persons holding those positions on that day, shall, on and after that effective date, be considered to be positions in and employees of the Department of the Army or Department of the Air Force, as the case may be, and employees of the United States to the same extent as other positions in and employees of the Department of the Army or the Department of the Air Force.


12
Pub. L. No. 90-486, § 3(b), 82 Stat. 755, 757 (1968). In the light of this  specific statutory language, the Board in Kostan determined that a national  guard technician must be considered to be an employee of a federal agency.  Accordingly, the Board overruled its previous decision in Everett.


13
Shortly thereafter, the Board had another occasion to consider whether a  national guard should be considered a federal agency for purposes of  enforcement of the WPA. In Ockerhausen v. New Jersey, 52 M.S.P.R. 484  (1992), the Board referred again to the uncodified provision of the NGTA  recited in Kostan, and concluded that national guard technicians, being  treated as employees of their corresponding federal military department,  must be treated as employees of a federal agency. Ockerhausen, however, had  been removed from his technician job in reprisal for an alleged protected  WPA disclosure. Since any remedy for a removal is expressly and solely  reserved in the NGTA to the state adjutant general, the Board dismissed  Ockerhausen's petition for want of jurisdiction. Coming full circle,  however, the Board held that it does have jurisdiction to consider WPA  cases so long as NGTA has not expressly reserved the avenue of appeal to  the state adjutant general.


14
Board precedent seems not to have considered the anomaly presented by the  fact that severe adverse personnel actions, such as removals and reductions  in rank and compensation, can be taken by adjutants general with no  consequences under the WPA whatsoever, while relatively lesser adverse  personnel actions, for example a half-day suspension, may be pursued fully  by an individual right of action. The purpose of the WPA is to encourage  federal employees to bring to light situations that an employee reasonably  believes to evidence a violation of law, or gross mismanagement, gross  waste of funds, abuse of authority, and other unwanted circumstances in  federal government. It hardly makes sense for Congress to have excluded  national guard technicians from protection under the WPA in situations  where the employees are treated in reprisal very harshly, say, with removal  for making protected disclosures, while affording WPA protection to  similarly-situated employees who assert WPA rights after receiving adverse  actions of much lesser impact. In other words, if Congress intended for the  governmental benefits of the WPA to apply when governmental wrong-doing  occurs in a national guard, it seems odd indeed that those benefits can  only be assured if the national guard takes only modest adverse actions in  reprisal for a technician's protected disclosure. This anomaly, coupled  with the very limited purposes for which technicians are deemed by the NGTA  to be federal employees, and with the Board's previous awareness that the  WPA by its terms does not expressly seek to reach national guard entities,  mounts a strong counter argument to the proposition that the uncodified  text of the NGTA requires the Board to assume jurisdiction over WPA cases  when the adverse actions against national guard technicians are less severe  than the actions over which the Board clearly has no WPA enforcement  powers. We need not decide in this case, however, whether the NGTA should  be interpreted to preclude all aspects of WPA enforcement by the Board.  This is so because even if Mr. Singleton were to prevail in his individual  right of action based on his alleged failure of promotion, we agree that  the Board lacks the power to enforce any order it would issue in Mr.  Singleton's favor.

IV

15
We thus turn to the Board's enforcement powers. The Board is a creature of  limited authority, enjoying and exercising only the powers vested in it by  Congress. Cruz v. Dep't of the Navy, 934 F.2d 1240, 1243 (Fed. Cir. 1991).  The Board is authorized to adjudicate all matters within its jurisdiction  and to take final action on any such matter. 5 U.S.C. § 1204(a)(1) (1994).  In the event the Board exercises its adjudicative powers under section  1204(a)(1), it is expressly authorized to "order any Federal agency or  employee to comply with any order or decision issued by the Board under the  authority granted under paragraph (1) of this subsection and enforce  compliance with any such order." 5 U.S.C. § 1204(a)(2) (1994).


16
If the Board were to rule in Mr. Singleton's favor on his individual right  of action, relief for Mr. Singleton would have to come in the form of an  order by the Board to direct some corrective action by the ONG. The  adjutant general of the ONG is not a federal employee, as that term is  defined in Title 5. Therefore, no order of the Board may be directed to the  adjutant general. The Governor of Ohio similarly is not a federal employee,  and consequently no order of the Board could command the Governor to order  a corrective act to be taken by the adjutant general. If the ONG is a  federal agency, as the Board has held, then an order could hypothetically  issue by the Board commanding the ONG to take some action in Mr.  Singleton's favor. But the ONG itself, even if considered a federal agency,  can act only through its adjutant general. So if the Board were to order  the ONG to direct the adjutant general to take an act, the Board would lack  any authority over the adjutant general to compel him to perform the  ordered act. In this case, the corrective order would involve some  personnel action in favor of Mr. Singleton. That action would not fall into  the category of a mandatory act, one compelled by an express law, and  consequently even the remedy of mandamus would not be available to enforce  a Board order. See Heckler v. Ringer, 466 U.S. 602, 616 (1984) (stating  that the remedy of mandamus is only available if the defendant owes the  plaintiff a clear nondiscretionary duty).


17
For these reasons, the Board has determined that its orders are not  enforceable against state national guards, and for that reason, the Board  is without power to supply an effective remedy even in the instance of a  federal employee who can prevail on the merits of a WPA claim over which  the Board considers itself vested with jurisdiction. See Melendez v. Puerto  Rico Nat'l Guard, 70 M.S.P.R. 252 (1996), appeal dismissed, 152 F.3d 943  (Fed. Cir. 1998). For instance, were Mr. Singleton to prevail, the Board  could not implement any order concerning back pay, front pay, damages,  correction of records, or other similar matters. See McVay v. Ark. Nat'l  Guard, 80 M.S.P.R. 120 (1998).


18
As the Board indicated in this case, the most that Mr. Singleton might  obtain would be a declaration that he had been treated improperly with  respect to the promotion denied to him. Such a declaration is hardly  effective relief, and instead would be a mere advisory opinion, an act that  the Board is barred by statute from taking. See 5 U.S.C. § 1204(h) (1994).  Because Mr. Singleton cannot obtain effective relief on his WPA cause of  action, the Board was correct in dismissing his claim as one for which  relief cannot be granted.

AFFIRMED


Notes:


1
 In 1990, Congress amended 5 U.S.C. § 2301(a) to no longer apply to the Administrative Office of the United States Courts. 230to no longer Administrative Office of the United States Courts Personnel Act of 1990, Pub.to no longer L. No. 101-474, § 5(c), 104 Stat. 1097, 1099 (1990).


