Dimanni v. Rhode Island Army National Guard

62 F. App'x 937
CourtCourt of Appeals for the Federal Circuit
DecidedApril 10, 2003
DocketNo. 02-3351
StatusPublished

This text of 62 F. App'x 937 (Dimanni v. Rhode Island Army National Guard) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dimanni v. Rhode Island Army National Guard, 62 F. App'x 937 (Fed. Cir. 2003).

Opinion

PER CURIAM.

Mr. DiManni appeals the dismissal of his case by the Merit Systems Protection Board (Board) for lack of jurisdiction and for failure to state a claim upon which relief can be granted. DiManni v. R.I. Army Nat’l Guard, No. BN3443010092-I-1, 2002 WL 1370667 (M.S.P.B. June 14, 2002). Because the Board does not have jurisdiction to adjudicate Mr. DiManni’s claim, the Board’s decision is affirmed.

I.

Mr. DiManni held the position of Management Auditor, GS-9-11, in the United States Property Fiscal Office (USPFO), Analysis and Internal Review Division, Providence, Rhode Island. As a National Guard technician, Mr. DiManni received funds and property of the United States for the Rhode Island Army National Guard (RIANG). In particular, Mr. DiManni had the duty of preventing incidents of fraud, waste, and abuse of Government funds by members of the RIANG. From September 1985 to May 1989, auditors in his position were also required to hold membership in the state National Guard. Mr. DiManni satisfied this duality requirement by holding membership in the RIANG, and achieved the rank of Chief Warrant Officer. From September 1985 until January 1989, Mr. DiManni received positive Officer Evaluation Reports and promotions to the next higher grade in step with or in advance of his contemporaries. Mr. DiManni’s appraisals for his job as a Management Auditor reflected above-average or excellent performance of his duties.

In March 1989, Mr. DiManni testified before the First Army Inspector General Team, which was investigating evidence of misappropriation of federal Government funds by Assistant Adjutant General Andre Trudeau, RIANG. Although the testimony of most of the witnesses against General Trudeau was confidential, Mr. DiManni’s testimony became public because he testified as part of his official duties as an employee of the USPFO. Two months after Mr. DiManni testified against General Trudeau, General Trudeau convened the Rhode Island Guard Annual Selective Retention Board (SRB). General Trudeau assumed the presidency of the SRB, but did not recuse himself from the proceedings when evaluating the record of Mr. [939]*939DiManni, despite an apparent conflict of interest. Of the seventy-five commissioned and warrant officers reviewed by this SRB, only Mr. DiManni was not selected for retention. Following his non-retention by the RIANG, Mr. DiManni was involuntarily separated from his position as a Management Auditor for the USPFO. This separation, effective August, 28, 1989, was “due to loss of military membership other than for cause.” Mr. DiManni was then deemed eligible for a discontinued service retirement.

Mr. DiManni appealed his separation from his Management Auditor position to the Board, asserting his non-selection was in retaliation for his whistleblowing. Mr. DiManni moved to join the USPFO as an appellee agency. Specifically, Mr. DiManni alleged that the USPFO “failed to reclassify him” in violation of various statutory provisions, as the position of Management Auditor was redescribed on May 25, 1989, as having competitive status. Mr. DiManni argued that this change to competitive status eliminated the concurrent National Guard membership requirement for his position. The administrative judge denied this motion, suggesting that the USPFO is statutorily part of the RIANG under the National Guard Technician’s Act. See 32 U.S.C. § 708 (2000).

The administrative judge determined in his Initial Decision that the Board lacked jurisdiction to review a National Guard Technician removal action. Relying on the Board’s interpretation of the National Guard Technician’s Act, the administrative judge determined that the sole remedy for removal from a National Guard Technician’s position is an appeal to the Adjutant General of the applicable state National Guard. Furthermore, the administrative judge concluded that, even if the Board had jurisdiction to hear Mr. DiManni’s claim, the Board was unable to grant the relief Mr. DiManni sought. The administrative judge reasoned that although Mr. DiManni was a federal employee of the USPFO, as a National Guard Technician, his position was under the authority of a state official, i.e., the Adjutant General of the RIANG. The Board has no authority to enforce an order against state officials, such as the Adjutant General of the RIANG. Therefore, the administrative judge dismissed Mr. DiManni’s appeal for lack of jurisdiction.

The Initial Decision of the administrative judge became final on June 14, 2002, when the Board denied Mr. DiManni’s petition for review. Mr. DiManni timely appealed to this court, which has exclusive jurisdiction. 28 U.S.C. § 1295(a)(9) (2000).

II.

Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law reviewed de novo by this court. Herman v. Dep’t. of Def., 193 F.3d 1375, 1378 (Fed.Cir.1999). This court’s ability to review final decisions of the Board is limited by statute. Decisions of the Board will not be set aside unless found to be 1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2) obtained without procedures required by law, rule or regulation having been followed; or 3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); See Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984).

III.

Regarding the Board’s denial of Mr. DiManni’s motion to add the USPFO as an appellee, Mr. DiManni argues that he was inappropriately separated from his Technician’s position because he was denied retention in the National Guard via an improper evaluation of his service records in retaliation for his whistle-blowing activi[940]*940ties. This court notes that Mr. DiManni properly raises arguments questioning the Board’s rationale for denying his motion. In denying the motion the administrative judge states that “the USPFO is part of the RIANG.” DiManni, No. BN3443010092-I-1 at 4. However, this court finds no legal basis for that conclusion by the administrative judge. 32 U.S.C. § 708 reads in part:

(a) The Governor of each State or Territory and Puerto Rico, and the commanding general of the National Guard of the District of Columbia, shall appoint, designate or detail, subject to the approval of the Secretary of the Army and the Secretary of the Air Force, a qualified commissioned officer of the National Guard of that jurisdiction who is also a commissioned officer of the Army National Guard of the United States or the Air National Guard of the United States, as the case may be, to be the property and fiscal officer of that jurisdiction. If the officer is not on active duty, the President may order him to active duty, with his consent, to serve as a property and fiscal officer.
(c) When he ceases to hold that assignment, a property officer resumes his status as an officer of the National Guard.

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Related

Perpich v. Department of Defense
496 U.S. 334 (Supreme Court, 1990)
Loyce E. Hayes v. Department of the Navy
727 F.2d 1535 (Federal Circuit, 1984)
Richard D. Herman v. Department of Justice
193 F.3d 1375 (Federal Circuit, 1999)
James Singleton v. Merit Systems Protection Board
244 F.3d 1331 (Federal Circuit, 2001)
William A. Clark v. United States
322 F.3d 1358 (Federal Circuit, 2003)

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Bluebook (online)
62 F. App'x 937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dimanni-v-rhode-island-army-national-guard-cafc-2003.