Asatov v. MSPB , 595 F. App'x 979 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RAKHMATULLA ASATOV,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3124
______________________
Petition for review of the Merit Systems Protection
Board in No. PH4324130227-I-1.
______________________
Decided: December 18, 2014
______________________
RAKHMATULLA ASATOV, of Plainville, Connecticut, pro
se.
NICOLE DECRESCENZO, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
2 ASATOV v. MSPB
Before NEWMAN and DYK, Circuit Judges. ∗
NEWMAN, Circuit Judge.
Mr. Rakhmatulla Asatov appeals the decision of the
Merit Systems Protection Board (“MSPB” or “Board”)
dismissing the appeal of his non-selection for two em-
ployment positions with the Connecticut Army National
Guard for failure to state a claim on which relief can be
granted. 1 The MSPB stated that it cannot order that
remedial action be taken by the state authority that
controls the employment of National Guard technicians,
and thus “even if [Mr. Asatov] establishes the Board’s
jurisdiction over his VEOA [Veterans Employment Oppor-
tunity Act] and USERRA [Uniformed Services Employ-
ment and Reemployment Rights Act] claims, it does not
appear that the Board can provide him with effective
relief in the event he prevails.” MSPB Op. at 3.
Mr. Asatov argues that since National Guard techni-
cians are federal employees, the VEOA and USERRA
apply, and that his rights under these statutes were
violated when the Connecticut Army National Guard
failed to hire him for certain National Guard technician
positions. The Department of Labor notified Mr. Asatov
of the right to appeal his VEOA claim to the MSPB.
The MSPB dismissed his appeals for failure to state a
claim upon which relief can be granted. It stated that
even if the subject matter is within the Board’s jurisdic-
tion, MSPB orders are not enforceable against State
∗
Randall R. Rader who retired from the position of
Circuit Judge on June 30, 2014, did not participate in this
decision.
1 Asatov v. Dep’t of the Army, Nos. PH-3330-12-
0306-I-1; PH-4324-13-0227-I-1 (MSPB March 29, 2013)
(“MSPB Op.”).
ASATOV v. MSPB 3
adjutants general. This court has accepted and endorsed
that position.
In Melendez v. Puerto Rico National Guard, 70
M.S.P.R. 252 (1996), appeal dismissed 152 F.3d 943 (Fed.
Cir. 1998), the Board held that “because the Puerto Rico
National Guard is not a federal entity and because the
adjutant general is not a federal employee, the Board has
no authority to enforce its decision in this case.” Id. at
253–54. The Board again held in McVay v. Arkansas
National Guard, 80 M.S.P.R. 120 (1998), that even if the
appellant could prevail on the merits of his claim against
a state National Guard, he would be without a remedy,
and that an MSPB decision on the merits would be a
prohibited advisory opinion. Id. at 124–25.
The Federal Circuit agreed with this position, holding
in Singleton v. MSPB, 244 F.3d 1331 (Fed. Cir. 2001),
that “[MSPB] orders are not enforceable against national
guards.” Id. at 1337. In Singleton, a National Guard
technician sought remedy in the MSPB against the Ohio
National Guard for violation of the Whistleblower Protec-
tion Act. On appeal the Federal Circuit received the
argument that “[t]he Adjutant General of the State of
Ohio is an agency of the Federal Government as 32 U.S.C.
§ 709 charges him with employment and administration
of civilian technicians who are federal employees.” Brief
of Petitioner at 12, Singleton v. Merit Sys. Prot. Bd., 244
F.3d 1331 (Fed. Cir. 2001). We held that the adjutant
general is an employee of the State, and that since the
National Guard can act only through its adjutant general
in employment matters, and “no order of the Board may
be directed to the Adjutant General,” the Board has no
enforceable remedy. Id. at 1336. We affirmed the
MSPB’s dismissal on the ground that the appellant had
failed to state a claim upon which relief can be granted.
Mr. Asatov states that the precedent on which the
MSPB relied is conflicting or incorrect and should be
4 ASATOV v. MSPB
overruled. He points to Sanford v. Connecticut National
Guard, 50 M.S.P.R. 120 (1991), where the MSPB held
that “national guard technicians are employees of an
agency in the executive branch who may appeal a restora-
tion claim to the Board.” Id. at 123. Mr. Asatov argues
that Sanford was never overruled, and that the several
conflicting opinions should be resolved in favor of tradi-
tional appeal rights. However, in Parker v. Office of
Personnel Management, the MSPB explained that San-
ford is “no longer effective” for restoration actions because
a judicial remedy is available:
USERRA confers jurisdiction on the United States
district courts to consider restoration actions
brought on behalf of individuals by the United
States against State employers. 38 U.S.C. §
4323(b)(1). With regard to an individual who is
not represented by the United States, USERRA
provides that the individual may bring an action
against a State employer in a State court of com-
petent jurisdiction. 38 U.S.C. § 4323(b)(2).
90 M.S.P.R. 480, 489 n.6 (2002), rev’d on other grounds,
93 M.S.P.R. 529 (2003).
The MSPB and the Federal Circuit have relied on
5 U.S.C. § 1204(a)(2), which limits the MSPB’s enforce-
ment authority to a “Federal agency or employee,” to hold
that the MSPB lacks enforcement power in cases involv-
ing National Guard technician employment matters, even
if subject matter jurisdiction exists. Applying this prece-
dent, we conclude that Mr. Asatov’s appeal to the MSPB
was correctly dismissed for failure to state a claim upon
which relief can be granted.
The National Guard Technicians Act, section 709(d)
provides that the state adjutant general will “employ and
administer the technicians,” including the “dual status”
positions for which Mr. Asatov applied. The Act provides:
ASATOV v. MSPB 5
§ 709 (a) Under regulations prescribed by the Sec-
retary of the Army or the Secretary of the Air
Force, as the case may be, and subject to subsec-
tions (b) and (c), persons may be employed as
technicians in—
(1) the organizing, administering, in-
structing, or training of the National
Guard;
(2) the maintenance and repair of supplies
issued to the National Guard or the armed
forces; and
(3) the performance of the following addi-
tional duties
...
(b) Except as authorized in subsection (c), a per-
son employed under subsection (a) must meet
each of the following requirements:
(1) Be a military technician (dual status)
as defined in section 10216 (a) of title 10.
(2) Be a member of the National Guard.
...
Section 709(f) provides that no appeal can be taken from a
designated employment action beyond the adjutant gen-
eral:
(3) a reduction in force, removal, or an adverse ac-
tion involving discharge from technician employ-
ment, suspension, furlough without pay, or
reduction in rank or compensation shall be ac-
complished by the adjutant general of the jurisdic-
tion concerned.
6 ASATOV v. MSPB
(4) a right of appeal which may exist with respect
to paragraph [3] shall not extend beyond the adju-
tant general of the jurisdiction concerned . . . .
(Emphasis added).
The legislative history of the National Guard Techni-
cians Act provides background for the Singleton decision.
The Senate Report on the National Guard Technicians
Act states that a “principal feature” of the Act is the
“[r]equirement for adjutants general to be the sole agent
for employment and administration of [the] technician
program under regulations prescribed by the Secretary
concerned.” S. Rep. No. 90-1446 (2d Sess. 1968). The
Report explains that the designation of the state adjutant
general “to employ and administer the technicians” is
intended to achieve two purposes: (a) recognize the
State character of the Guard and (b) meet the re-
quirement of giving the adjutants general (who
are State officers) the statutory function of em-
ploying Federal employees.
Id. at 15 (emphases added); see also 114 Cong. Rec. 23,251
(July 25, 1968) (remarks of Sen. Stennis) (“The basic
purpose of this bill, Mr. President, is to provide Federal
employee status for the technicians thereby establishing
for them a uniform and adequate retirement and fringe
benefit program and at the same time provide for statuto-
ry administrative authority at the state level for the tech-
nician program in recognition of the military
requirements and State characteristics of the National
Guard.” (emphasis added)).
USERRA, one of the statutes invoked by Mr. Asatov,
provides for a judicial appeal path in district or state
court. In defining the term “employer,” USERRA pro-
vides: “In the case of a National Guard technician em-
ployed under section 709 of Title 32, the term ‘employer’
means the adjutant general of the State in which the
ASATOV v. MSPB 7
technician is employed.” 38 U.S.C. § 4303(4)(B). The
procedure for “[e]nforcement of [USERRA] rights with
respect to a State or private employer” is set out in 38
U.S.C. § 4323, which provides for district court jurisdic-
tion over actions against a state commenced by the Unit-
ed States, and state court jurisdiction over actions against
a state commenced by a person. The National Guard
federal regulations explain that “[a]n action brought
against a State Adjutant General, as an employer of a
civilian National Guard technician, is considered an
action against a State for purposes of determining which
court has jurisdiction.” 20 C.F.R. § 1002.305.
The legislative purpose of the National Guard Techni-
cians Act has been reviewed in various contexts. In
American Federation of Government Employees AFL-CIO,
Local 2953 v. Federal Labor Relations Authority, 730 F.2d
1534 (D.C. Cir. 1984), the District of Columbia Circuit
discussed the status of National Guard technicians for the
purpose of determining whether a state adjutant general
is required to engage in certain collective bargaining
negotiations. The court reviewed the legislative struc-
ture:
It thus appears that the scheme of the National
Guard Technicians Act is to create the technicians
as nominal federal employees for a very limited
purpose and to recognize the military authority of
the states through their Governors and Adjutants
General to employ, command and discharge them.
The employment, discipline and discharge of
technicians remains completely with the state of-
ficials, and their day to day activities on the job
are controlled at the state level. In addition, no
appeal lies from personnel decisions of the adju-
tants general.
Id. at 1537–38.
8 ASATOV v. MSPB
Also in the context of collective bargaining rights, the
Federal Labor Relations Authority held that “[u]nder the
Technician Act, general authority over employment is
vested in state officials—at least to some degree—as is
unreviewable authority over discipline, separations, and
reductions in force.” U.S. Dep’t of Def. Nat’l Guard Bu-
reau, 55 F.L.R.A. 657, 661 (1999). It has also noted that
National Guard technicians “have no appellate rights to
the Merit Systems Protection Board.” Dep’t of Def., Nat’l
Guard Bureau, 13 F.L.R.A. 232, 234 (1983).
The consistent position of these federal agencies, and
the accumulated weight of precedent in a variety of situa-
tions, reinforce the conclusion that appeal to the MSPB
was excluded in the statutory plan for National Guard
technician employment matters. The MSPB’s dismissal of
Mr. Asatov’s appeal is affirmed.
AFFIRMED
No costs.