Michelle D. Zimmerman v. Department of the Army
755 F.2d 156
Fed. Cir.
1985
Check Treatment
BISSELL, Circuit Judge.

The decision of the Merit Systems Protection Board (Board), Docket Number NY07528410190, affirming the removal of Michelle D. Zimmerman (Zimmerman) is affirmed

C CU

Zimmerman was a “dual status” Administrative Supply Technician with the United States Army in its Army Reserve Technician Program. A condition of her employment as a civilian technician was that she be an enlisted member in good standing with a United States Army Reserve unit. To maintain good standing in the Reserve program, each enlisted service member had to attend monthly unit drills and to perform annual training usually for a period of fourteen days.

On August 2, 1983, Zimmerman requested that her orders for the annual training scheduled from August 6 to 20, 1983, be revoked because her elderly mother was not capable of taking care of her children during that period. The Army denied her request. As a result of her failure to report for annual training, she was transfer red from her Army Reserve unit to the Individual Ready Reserve. Since she was no longer a member in good standing of a Reserve unit, she was then removed from her civilian position.

OPINION

Zimmerman contends that the Army failed to follow a number of its regulations in considering her hardship excuse which prevented her from attending the annual Army Reserve training period and in transferring her to the Individual Ready Re-T ,, , serve. In response the government argues ,, , ,, r, , , , , ? . j. ,. , that the Board lacked jurisdiction to consider this contention of Zimmerman. The Supreme Court in Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953), stated:

[J]udges are not given the task of running the Army. The responsibility for setting up channels through which such grievances can be considered and fairly settled rests uPon the Congress and upon the Prudent of the United States and hls subordinates The military consti^utes a special’zed community governed by a seParate discipline from that of the civilian.

Id. at 93-94, 73 S.Ct. at 539-540. Therefore, the Board does not have the jurisdiction to examine military assignments and transfers. See also Maier v. Orr, 754 F.2d 973; 984 (Fed.Cir.1985); Heisig v. United states, 719 F.2d 1153, 1156 (Fed.Cir.1983).

Peserve Technician Program imposes the requirement that a civilian technician must be a member of the Reserve. American Federation of Government Employees v. Hoffman, 178 U.S.App.D.C. 1, 543 F.2d 930 (D.C.Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct 1645 52 L.Ed.2d 356 (1977); accord Polos v. United States, 223 Ct.Cl. 547, 621 F.2d 385 (1980). Failure to be a member in good standing of a Reserve unit properly results in separation from the technician employment. See Tennessee v. Dunlap, 426 U.S. 312, 315, 96 S.Ct. 2099, 2100, 48 L.Ed.2d 660 (1976). Zimmerman undertook her civilian employment with fun knowledge that loss of her dual status might result in her removal from the Federal service,

In the proceeding before the Board the agency sustained its burden of proof under 5 U.S.C. § 7701(c)(1) by establishing by the preponderance of the evidence that "eason f°r f — man’s loss of membershlP m the Army Eeuserves was1 dueoto “stances within her control See ?"S* °f 1 V’ ? MSPB 566’ f7 ^ Smce *he was no longer m an Army RefrJe umt’ the a/en' cy properly separated Zimmerman from , .... her position as a technician,

light of the substantial evidence presented in support of the Board’s decision> we affirm-

AFFIRMED.