Dyer v. Department of the Air Force, No. 19-2185 (Fed. Cir. 2020)
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The West Virginia adjutant general terminated Dyer from his position as a dual-status military technician with the U.S. Air Force. The National Guard Technicians Act of 1968 (NGTA) established authority for dual-status positions like Dyer’s. Under 32 U.S.C. 709, the NGTA requires dual-status technicians to maintain military membership with the National Guard. Dyer met this requirement by maintaining membership with the West Virginia Air National Guard (WVANG) until 2018 when Dyer was separated from the WVANG. The WV adjutant general terminated his dual-status position because he no longer met the military membership requirement of his employment.
The Merit Systems Protection Board affirmed, rejecting Dyer’s argument that he was not provided the due process he is entitled to under Title 5. The Federal Circuit directed the Board to dismiss the appeal. 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 required under the statute because the employee had been separated from the National Guard.
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