NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3291
JAMES M. HILL,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
James M. Hill, of Homestead, Florida, pro se.
Kenneth S. Kessler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Mark A. Melnick, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3291
JAMES M. HILL,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
Petition for review of the Merit Systems Protection Board in AT0752071020-I-1.
___________________________
DECIDED: February 9, 2009
___________________________
Before RADER, BRYSON, And DYK, Circuit Judges.
PER CURIAM.
Petitioner James M. Hill (“Hill”) petitions for review of a final decision of the Merit
Systems Protection Board (“Board”) affirming Hill’s nondisciplinary removal from his
civilian Air Reserve Technician position with the Air Force (“Agency”). Hill v. Dep’t of the
Air Force, No. AT-0752-07-1020-I-1 (M.S.P.B. May 12, 2008). We affirm.
BACKGROUND
Certain civilian positions in the military departments must be filled by individuals
who are members of the active reserves. Such civilian jobs in the Air Force are known
as Air Reserve Technician (“ART”) positions. Jeffries v. Dep’t of the Air Force, 999 F.2d
529, 530 (Fed. Cir. 1993). Although they are full-time civilian employees, ARTs are also
members of the Air Force Reserve unit in which they are employed and are assigned to
equivalent positions in the reserve organization with a military rank or grade. Id. “An
ART plays a vital role in combat readiness by training other reservists and serving as a
mobilization asset when the unit is mobilized.” Id.
Hill served as an ART in an Aircraft Overhaul Supervisor position at Homestead
Air Reserve Base in Florida. As required by the conditions of his employment in that
ART position, Hill served as a Chief Master Sergeant (enlisted grade E-9) in the Air
Force Reserve. In early 2006, Hill was detailed to the position of Aircraft Overhaul
Inspector Supervisor, in which capacity he served until August 2007.
On July 12, 2007, the Agency provided Hill with a “Notice of Proposed Removal
(Non-Disciplinary).” The notice stated that under Agency regulations, Hill would
mandatorily lose membership in the active reserves upon reaching his “High Year of
Tenure” on August 28, 2007. 1 The notice further stated that at that time Hill would be
removed from his civilian position with the Agency. The notice emphasized that the
proposed removal was not disciplinary, but rather “a feature of the ART program and is
based on the fact that active membership in the Reserve is a condition of your
employment and necessary to promote the efficiency of the service.”
Hill objected in writing to the proposed notice on August 2, 2007. First, he
argued that in 2006 he had been permanently reassigned, not detailed, to the Aircraft
Overhaul Inspector Supervisor position, as his “detail” had lasted over 120 days. Hill
1
According to an Air Force fact sheet, the “enlisted high year tenure
program limits participation in the Air Force Reserve to a total of 33 years creditable
service based upon established pay date, or age 60, whichever occurs first,” in order to
ensure combat readiness and to ensure promotion opportunity for lower-graded enlisted
airmen. Air Reserve Personnel Center, “Enlisted High Year Tenure,” available at
http://www.arpc.afrc.af.mil/library/factsheets/factsheet.asp?id=8238.
2008-3291 2
contended that the reassignment effectively de-linked his military and civilian positions,
making the new position he occupied a non-dual status (purely civilian) position that did
not require active reserve membership as a condition of employment. Second, he
argued that the Agency inconsistently enforced its High Year of Tenure policy.
On August 21, 2007, the Agency confirmed its decision to remove Hill from his
civilian position. Hill chose to retire, effective August 28, 2007, in lieu of involuntary
removal. Both parties agree that his retirement was involuntary if the removal was
improper. On September 20, 2007, Hill appealed his effective removal to the Board,
raising substantially the same objections as in his response to the notice of proposed
removal and seeking reinstatement to his civilian position.
In a prehearing conference before a Board administrative judge (“AJ”), Hill
stipulated that the Aircraft Overhaul Supervisor position to which he was originally
assigned was an ART position. He also stipulated that “[t]he Aircraft Overhaul Inspector
Supervisor (Quality Assurance) position was an ART position,” although he continued to
contend that he was in effect permanently transferred to that position in a purely civilian
capacity, rather than detailed to it as an ART. Finally, Hill stipulated that he lost his ART
status upon reaching his High Year of Tenure. After the AJ stated that a hearing
consequently would be limited to the question of “Whether the agency properly removed
the appellant for loss of his required ART status,” Hill waived a hearing.
The AJ issued his initial decision on January 14, 2008. While acknowledging
Hill’s claim that the Agency had not consistently enforced its rule mandating separation
of ART employees who lose membership in the active reserves, the AJ held that military
determinations concerning active reserve status were not subject to review by the
2008-3291 3
Board. With regard to Hill’s own removal, the AJ noted that Hill had stipulated that both
his original and detailed civilian positions were ART positions requiring active reserve
status as a condition for employment and that he had lost ART eligibility when removed
from the active reserves upon reaching his High Year of Tenure. Because Air Force
Reserve Command Instruction 36-114 requires removal from an ART position of an
employee who is no longer a member of the active reserves, the AJ affirmed the agency
action.
The initial decision became the Board’s final decision on May 12, 2008, when the
full Board denied Hill’s petition for review. Hill timely petitioned this court for review, and
we have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm a decision of the Board unless it is: “(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); Leatherbury v. Dep’t of the Army, 524
F.3d 1293, 1299-1300 (Fed. Cir. 2008).
Air Force Reserve Command Instruction (“AFRCI”) 36-114 § 3.2 provides, in
relevant part, that “ART enlisted members who lose active membership in the Reserve
due to reaching their reserve [High Year of Tenure] date face mandatory removal from
their ART position. This program helps to ensure military mission capability.” On
appeal, Hill does not dispute that the position of Aircraft Overhaul Supervisor was an
ART position requiring active reserve membership, or that he lost active reserve
2008-3291 4
membership upon reaching his High Year of Tenure. 2 Instead, Hill argues that he was
unlawfully detailed for more than 120 days to the position of Aircraft Overhaul Inspector
Supervisor, effecting in his view an “unlawful permanent transfer between civilian
positions by the Agency” that “de-linked” his civilian and Reserve positions.
Consequently, Hill contends that in the new position he “no longer served as an ART”
but was purely a civilian employee who was not required to maintain active reserve
status as a condition of employment.
This argument is not persuasive. Even if improperly detailed within the Agency
to the Aircraft Overhaul Inspector Supervisor position, under Hill’s own theory he cannot
complain that he was improperly separated from his position. We have held that an
improperly detailed employee “is entitled only to the rights and salary of the position to
which he has actually been appointed by one having the authority to do so.” Wilson v.
United States, 229 Ct. Cl. 510, 511 (1981) (emphasis added); see also Spagnola v.
Stockman, 732 F.2d 908, 910 (Fed. Cir. 1984). Being improperly detailed is not the
same as being properly appointed. There is no evidence that Hill was actually
permanently appointed to the Aircraft Overhaul Inspector Supervisor position.
Hill additionally contends that the Board erred in not allowing discovery
concerning his claims that the Agency “had treated other ARTs in a fundamentally
disparate manner” by permitting them to continue to work despite a loss of active
2
In his briefing, Hill addresses the question of whether his loss of active
reserve status should be treated as “voluntary” or “involuntary,” as those terms are
defined by AFRCI 36-114 §§ 3.3 and 3.4. That question is not before us, however,
because removal based upon loss of active reserve status upon reaching High Year of
Tenure is specifically governed by § 3.2 of the regulation, rather than by the separate
provisions addressing removal based upon “voluntary” and “involuntary” loss of reserve
status.
2008-3291 5
reserve membership. Regardless of the treatment of other individuals, however,
AFRCI 36-114 § 3.2 requires that “enlisted members who lose active membership in the
Reserve due to reaching their reserve [High Year of Tenure] date face mandatory
removal from their ART position.” (Emphasis added). Because the Agency was
required by regulation to remove Hill from his ART position, the Board did not err in
declining to consider the circumstances of other individuals.
Hill similarly complains that the Board erred in failing to allow evidence that he
was not properly placed in the Agency’s priority placement program for separated ARTs
before his removal. Even if Hill was not properly placed in the priority placement
program before his removal date, AFRCI 36-114 § 4.2 expressly provides that “failure to
be registered [in the priority placement program] will not extend the date of separation.
Separation is effected on the [High Year of Tenure] date regardless of the length of
registration.” The alleged failure to place Hill in the priority placement program therefore
did not affect his removal, and is not itself an adverse action appealable to the Board.
Finally, Hill contends that he was not accorded due process in connection with
his removal. This argument is without merit. The record indicates that Hill was apprised
of the basis of the proposed removal and advised of his right to respond, which he then
exercised.
Accordingly, the decision of the Board is affirmed.
COSTS
No costs.
2008-3291 6