Merit Systems Protection Board (MSPB or Board) Provides Notice of Opportunity To File Amicus Briefs in the Matter of Michael B. Graves v. Department of Veterans Affairs, 32236-32237 [2011-13737]

Download as PDF 32236 Federal Register / Vol. 76, No. 107 / Friday, June 3, 2011 / Notices TABLE C—U.S. DEPARTMENT OF LABOR, EMPLOYMENT AND TRAINING ADMINISTRATION WIA DISLOCATED WORKER ACTIVITIES STATE ALLOTMENTS—Continued [Comparison of PY 2011 vs PY 2010] PY 2010 (Pre-FY 2011 0.2% Rescission) State PY 2011 Difference Percent difference Wisconsin ......................................................................... Wyoming .......................................................................... 19,934,322 786,008 17,345,523 1,201,048 (2,588,799) 415,040 ¥12.99 52.80 State Total ......................................................... American Samoa ............................................................. Guam ............................................................................... Northern Marianas ........................................................... Palau ................................................................................ Virgin Islands ................................................................... 1,183,840,000 201,066 1,636,618 605,632 123,006 966,178 1,063,432,320 182,437 1,484,984 549,518 125,260 876,661 (120,407,680) (18,629) (151,634) (56,114) 2,254 (89,517) ¥10.17 ¥9.27 ¥9.27 ¥9.27 1.83 ¥9.27 Outlying Areas Total ................................................. National Reserve ............................................................. 3,532,500 225,627,500 3,218,860 220,892,820 (313,640) (4,734,680) ¥8.88 ¥2.10 [FR Doc. 2011–13806 Filed 6–2–11; 8:45 am] BILLING CODE 4510–FN–P MERIT SYSTEMS PROTECTION BOARD [MSPB Docket Numbers SF–3330–09–0570– B–1 and SF–3330–09–0725–B–1.] Merit Systems Protection Board (MSPB or Board) Provides Notice of Opportunity To File Amicus Briefs in the Matter of Michael B. Graves v. Department of Veterans Affairs AGENCY: Merit Systems Protection Board. jlentini on DSK4TPTVN1PROD with NOTICES ACTION: Notice. SUMMARY: In Graves v. Department of Veterans Affairs, 114 M.S.P.R. 245 (2010), and Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209 (2010), which involved appeals filed under the Veterans Employment Opportunities Act of 1998 (VEOA), the Board held that the agency’s use of veterans’ preference status as a ‘‘tiebreaker’’ in making selections for excepted service ‘‘hybrid’’ positions under 38 U.S.C. 7401(3), which includes the Medical Records Technician (MRT) positions at issue in these cases, was inadequate, and that the agency must comply with the competitive service veterans’ preference requirements set forth in title 5 of the United States Code. The Board reasoned that although title 5 provisions such as those relating to veterans’ preference rights do not apply to appointments listed under 38 U.S.C. 7401(1) (physicians, dentists, etc.) because those appointments are made ‘‘without regard to civil-service requirements,’’ ‘‘hybrid’’ employees retain many title 5 rights, including the adverse action and reduction in force (RIF) rights mentioned in 38 U.S.C. VerDate Mar<15>2010 15:49 Jun 02, 2011 Jkt 223001 7403(f)(3). The Board noted that section 7403(f)(2) provides that ‘‘[i]n using such authority to appoint individuals to such positions, the Secretary shall apply the principles of preference for the hiring of veterans and other persons established in subchapter I of chapter 33 of title 5,’’ and that section 7403(f)(3) provides that ‘‘the applicability of the principles of preference referred to in paragraph (2) * * * shall be resolved under the provisions of title 5 as though such individuals had been appointed under that title.’’ Based on its reading of these two provisions, the Board concluded that title 5 competitive service veterans’ preference requirements apply to appointments made to 38 U.S.C. 7401(3) positions such as MRTs. The Board also suggested in Graves, 114 M.S.P.R. 209, ¶¶ 12–15, that the agency violated veterans’ preference requirements set forth in the Office of Personnel Management’s Delegated Examining Operations Handbook and VetGuide, and that corrective action was therefore warranted. The Graves cases are now before the Board on petition for review after remand. The agency has raised several arguments regarding the above findings. The agency asserts that 38 U.S.C. 7403(f)(3) does not address the appointment of individuals because its plain language refers multiple times to individuals who have already been appointed. Thus, the agency contends that the Board’s decisions do not give effect to the word ‘‘appointed’’ in section 7403(f)(3), and under the statutory construction maxim noscitur a sociis (a word is defined by the company it keeps), the reference in section 7403(f)(3) to ‘‘matters relating to * * * the applicability of the principles of preference referred to in paragraph (2)’’ should mean matters relating to veterans’ preference principles that PO 00000 Frm 00102 Fmt 4703 Sfmt 4703 apply to individuals who have already been appointed, like ‘‘matters relating to’’ adverse actions, RIFs, part-time employees, disciplinary actions, and grievance procedures. The agency also contends that the legislative history for 5 U.S.C. 7403(f)(2)–(3) indicates that a Senate committee specifically intended for the agency to apply a tie-breaker principle to ‘‘hybrid’’ applicants, and that Congress did not intend to require the agency to apply title 5 rights to applicants for employment. The agency further asserts that in 1984 it provided notice in the Federal Register that it would be implementing the ‘‘principles of preference’’ requirement in the statute through an internal circular that called for the use of the ‘‘tie-breaker’’ principle that has been in effect from 1984 through the Board’s decisions in Graves. We also note that while section 7403(f)(2) calls for applying ‘‘the principles of preference for the hiring of veterans and other persons established in subchapter I of chapter 33 of title 5,’’ such application appears to relate to the use of ‘‘such authority,’’ i.e., the ‘‘authority’’ mentioned in 38 U.S.C. 7403(a), which in turn calls for appointments to be made ‘‘without regard to civil-service requirements.’’ See Scarnati v. Department of Veterans Affairs, 344 F.3d 1246, 1248 (Fed. Cir. 2003) (under 38 U.S.C. 7403(a), title 5 provisions, including those regarding veterans’ preference rights, do not apply to appointments made ‘‘without regard to civil service requirements’’). Further, deference is generally given to an agency’s consistent, long-standing regulatory interpretation of an ambiguous statute as long as it is reasonable, Rosete v. Office of Personnel Management, 48 F.3d 514, 518–19 (Fed. Cir. 1995), and Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt E:\FR\FM\03JNN1.SGM 03JNN1 Federal Register / Vol. 76, No. 107 / Friday, June 3, 2011 / Notices that interpretation when it adopts a new law incorporating sections of a prior law without change, Fitzgerald v. Department of Defense, 80 M.S.P.R. 1, 14 (1998). The Graves cases thus present the following legal issues: (1) Does 38 U.S.C. 7403(f)(2) require the agency to apply title 5 veterans’ preference provisions, including but not limited to 5 U.S.C. 3305(b) and 5 CFR 332.311(a), which the Board found the agency violated in not accepting the appellant’s late-filed application, see Graves, 114 M.S.P.R. 245, ¶¶ 12–15, in filling ‘‘hybrid’’ positions under 38 U.S.C. 7401(3); (2) does the legislative history for the applicable statutory provisions offer guidance regarding how those provisions should be interpreted; (3) are the Delegated Examining Operations Handbook and VetGuide ‘‘statute[s] or regulation[s]’’ relating to veterans’ preference within the meaning of 5 U.S.C. 3330a(a)(1)(A), such that a violation of a provision in those documents would constitute a violation under VEOA; (4) does the law of the case doctrine apply to the Board’s rulings in these cases; and (5) if so, is there a basis for finding that the ‘‘clearly erroneous’’ exception to that doctrine has been met? In addition, we note that the resolution of the above issues may affect whether the Board has jurisdiction over VEOA appeals filed by ‘‘hybrid’’ applicants. Interested parties may submit amicus briefs or other comments on these issues no later than June 30, 2011. Amicus briefs must be filed with the Clerk of the Board. Briefs shall not exceed 30 pages in length. The text shall be doublespaced, except for quotations and footnotes, and the briefs shall be on 81⁄2 by 11 inch paper with one inch margins on all four sides. All briefs submitted in response to this notice shall be filed with the Clerk of the Board on or before June 30, 2011. DATES: All briefs shall be captioned ‘‘Michael B. Graves v. Department of Veterans Affairs’’ and entitled ‘‘Amicus Brief.’’ Only one copy of the brief need be submitted. Briefs must be filed with the Office of the Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419. jlentini on DSK4TPTVN1PROD with NOTICES ADDRESSES: FOR FURTHER INFORMATION CONTACT: Matthew Shannon, Office of the Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, VerDate Mar<15>2010 15:49 Jun 02, 2011 Jkt 223001 32237 DC 20419; (202) 653–7200; mspb@mspb.gov. 397–4209, or 301–415–4737 or by e-mail to pdr.resource@nrc.gov. William D. Spencer, Clerk of the Board. Dated at Rockville, Maryland, this 26th day of May 2011. For the Nuclear Regulatory Commission. Jon Thompson, Project Manager, Plant Licensing Branch II– 1, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation. [FR Doc. 2011–13737 Filed 6–2–11; 8:45 am] BILLING CODE 7400–01–P NUCLEAR REGULATORY COMMISSION [FR Doc. 2011–13809 Filed 6–2–11; 8:45 am] BILLING CODE 7590–01–P [Docket Nos. 50–369, 50–370, 50–413, and 50–414; NRC–2011–0127] Duke Energy Carolinas, LLC; Notice of Withdrawal of Application for Amendments to Renewed Facility Operating Licenses The U.S. Nuclear Regulatory Commission (the Commission, NRC) has granted the request of Duke Energy Carolinas, LLC (the licensee) to withdraw its June 29, 2010, application for proposed amendments to Renewed Facility Operating License Nos. NPF–9 and NPF–17 for the McGuire Nuclear Station, Units 1 and 2, located in Mecklenburg County, North Carolina, and for proposed amendments to Renewed Facility Operating License Nos. NPF–35 and NPF–52 for the Catawba Nuclear Station, Units 1 and 2, located in York County, South Carolina. The proposed amendment would have revised Technical Specification (TS) 3.3.1, ‘‘Reactor Trip System (RTS) Instrumentation’’ and TS 3.3.2, ‘‘Engineered Safety Feature Actuation System (ESFAS) Instrumentation.’’ The Commission had previously issued a Notice of Consideration of Issuance of Amendment published in the Federal Register on January 25, 2011 (76 FR 4384). However, by letter dated April 12, 2011, the licensee withdrew the proposed change. For further details with respect to this action, see the application for amendment dated June 29, 2010, and the licensee’s letter dated April 12, 2011, which withdrew the application for license amendment. Documents may be examined, and/or copied for a fee, at the NRC’s Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available documents created or received at the NRC are available online in the NRC library at https://www.nrc.gov/reading-rm/ adams.html. Persons who do not have access to the Agencywide Documents Access and Management System (ADAMS) or who encounter problems in accessing the documents located in ADAMS should contact the NRC PDR Reference staff by telephone at 1–800– PO 00000 Frm 00103 Fmt 4703 Sfmt 4703 NUCLEAR REGULATORY COMMISSION [Docket Number 50–302; NRC–2009–0039] Florida Power Corporation, Crystal River Unit 3 Nuclear Generating Plant; Notice of Availability of Draft Supplement 44 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants and Public Meetings for the License Renewal of Crystal River Unit 3 Nuclear Generating Plant Notice is hereby given that the U.S. Nuclear Regulatory Commission (NRC) has published a draft plant-specific supplement to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS), NUREG–1437, regarding the renewal of operating license DPR–72 for an additional 20 years of operation for Crystal River Unit 3 Nuclear Generating Plant. Crystal River Unit 3 Nuclear Generating Plant is located in Crystal River, Florida, approximately 80 miles north of Tampa, Florida. Possible alternatives to the proposed action (license renewal) include no action and reasonable alternative energy sources. Any interested party may submit comments on the draft supplement to the GEIS for consideration by the NRC staff. To be considered, comments on the draft supplement to the GEIS and the proposed action must be received by July 25, 2011. The NRC staff is able to ensure consideration only for comments received on or before this date. Addresses: Please include Docket ID NRC–2009–0039 in the subject line of your comments. Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site, https:// www.regulations.gov. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed. The NRC requests that any party soliciting or aggregating comments received from other persons for E:\FR\FM\03JNN1.SGM 03JNN1

Agencies

Merit Systems Protection Board

[Federal Register Volume 76, Number 107 (Friday, June 3, 2011)]
[Notices]
[Pages 32236-32237]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-13737]


=======================================================================
-----------------------------------------------------------------------

MERIT SYSTEMS PROTECTION BOARD

[MSPB Docket Numbers SF-3330-09-0570-B-1 and SF-3330-09-0725-B-1.]


Merit Systems Protection Board (MSPB or Board) Provides Notice of 
Opportunity To File Amicus Briefs in the Matter of Michael B. Graves v. 
Department of Veterans Affairs

AGENCY: Merit Systems Protection Board.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: In Graves v. Department of Veterans Affairs, 114 M.S.P.R. 245 
(2010), and Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209 
(2010), which involved appeals filed under the Veterans Employment 
Opportunities Act of 1998 (VEOA), the Board held that the agency's use 
of veterans' preference status as a ``tie-breaker'' in making 
selections for excepted service ``hybrid'' positions under 38 U.S.C. 
7401(3), which includes the Medical Records Technician (MRT) positions 
at issue in these cases, was inadequate, and that the agency must 
comply with the competitive service veterans' preference requirements 
set forth in title 5 of the United States Code. The Board reasoned that 
although title 5 provisions such as those relating to veterans' 
preference rights do not apply to appointments listed under 38 U.S.C. 
7401(1) (physicians, dentists, etc.) because those appointments are 
made ``without regard to civil-service requirements,'' ``hybrid'' 
employees retain many title 5 rights, including the adverse action and 
reduction in force (RIF) rights mentioned in 38 U.S.C. 7403(f)(3). The 
Board noted that section 7403(f)(2) provides that ``[i]n using such 
authority to appoint individuals to such positions, the Secretary shall 
apply the principles of preference for the hiring of veterans and other 
persons established in subchapter I of chapter 33 of title 5,'' and 
that section 7403(f)(3) provides that ``the applicability of the 
principles of preference referred to in paragraph (2) * * * shall be 
resolved under the provisions of title 5 as though such individuals had 
been appointed under that title.'' Based on its reading of these two 
provisions, the Board concluded that title 5 competitive service 
veterans' preference requirements apply to appointments made to 38 
U.S.C. 7401(3) positions such as MRTs. The Board also suggested in 
Graves, 114 M.S.P.R. 209, ]] 12-15, that the agency violated veterans' 
preference requirements set forth in the Office of Personnel 
Management's Delegated Examining Operations Handbook and VetGuide, and 
that corrective action was therefore warranted.
    The Graves cases are now before the Board on petition for review 
after remand. The agency has raised several arguments regarding the 
above findings. The agency asserts that 38 U.S.C. 7403(f)(3) does not 
address the appointment of individuals because its plain language 
refers multiple times to individuals who have already been appointed. 
Thus, the agency contends that the Board's decisions do not give effect 
to the word ``appointed'' in section 7403(f)(3), and under the 
statutory construction maxim noscitur a sociis (a word is defined by 
the company it keeps), the reference in section 7403(f)(3) to ``matters 
relating to * * * the applicability of the principles of preference 
referred to in paragraph (2)'' should mean matters relating to 
veterans' preference principles that apply to individuals who have 
already been appointed, like ``matters relating to'' adverse actions, 
RIFs, part-time employees, disciplinary actions, and grievance 
procedures. The agency also contends that the legislative history for 5 
U.S.C. 7403(f)(2)-(3) indicates that a Senate committee specifically 
intended for the agency to apply a tie-breaker principle to ``hybrid'' 
applicants, and that Congress did not intend to require the agency to 
apply title 5 rights to applicants for employment. The agency further 
asserts that in 1984 it provided notice in the Federal Register that it 
would be implementing the ``principles of preference'' requirement in 
the statute through an internal circular that called for the use of the 
``tie-breaker'' principle that has been in effect from 1984 through the 
Board's decisions in Graves.
    We also note that while section 7403(f)(2) calls for applying ``the 
principles of preference for the hiring of veterans and other persons 
established in subchapter I of chapter 33 of title 5,'' such 
application appears to relate to the use of ``such authority,'' i.e., 
the ``authority'' mentioned in 38 U.S.C. 7403(a), which in turn calls 
for appointments to be made ``without regard to civil-service 
requirements.'' See Scarnati v. Department of Veterans Affairs, 344 
F.3d 1246, 1248 (Fed. Cir. 2003) (under 38 U.S.C. 7403(a), title 5 
provisions, including those regarding veterans' preference rights, do 
not apply to appointments made ``without regard to civil service 
requirements''). Further, deference is generally given to an agency's 
consistent, long-standing regulatory interpretation of an ambiguous 
statute as long as it is reasonable, Rosete v. Office of Personnel 
Management, 48 F.3d 514, 518-19 (Fed. Cir. 1995), and Congress is 
presumed to be aware of an administrative or judicial interpretation of 
a statute and to adopt

[[Page 32237]]

that interpretation when it adopts a new law incorporating sections of 
a prior law without change, Fitzgerald v. Department of Defense, 80 
M.S.P.R. 1, 14 (1998).
    The Graves cases thus present the following legal issues: (1) Does 
38 U.S.C. 7403(f)(2) require the agency to apply title 5 veterans' 
preference provisions, including but not limited to 5 U.S.C. 3305(b) 
and 5 CFR 332.311(a), which the Board found the agency violated in not 
accepting the appellant's late-filed application, see Graves, 114 
M.S.P.R. 245, ]] 12-15, in filling ``hybrid'' positions under 38 U.S.C. 
7401(3); (2) does the legislative history for the applicable statutory 
provisions offer guidance regarding how those provisions should be 
interpreted; (3) are the Delegated Examining Operations Handbook and 
VetGuide ``statute[s] or regulation[s]'' relating to veterans' 
preference within the meaning of 5 U.S.C. 3330a(a)(1)(A), such that a 
violation of a provision in those documents would constitute a 
violation under VEOA; (4) does the law of the case doctrine apply to 
the Board's rulings in these cases; and (5) if so, is there a basis for 
finding that the ``clearly erroneous'' exception to that doctrine has 
been met? In addition, we note that the resolution of the above issues 
may affect whether the Board has jurisdiction over VEOA appeals filed 
by ``hybrid'' applicants.
    Interested parties may submit amicus briefs or other comments on 
these issues no later than June 30, 2011. Amicus briefs must be filed 
with the Clerk of the Board. Briefs shall not exceed 30 pages in 
length. The text shall be double-spaced, except for quotations and 
footnotes, and the briefs shall be on 8\1/2\ by 11 inch paper with one 
inch margins on all four sides.

DATES: All briefs submitted in response to this notice shall be filed 
with the Clerk of the Board on or before June 30, 2011.

ADDRESSES: All briefs shall be captioned ``Michael B. Graves v. 
Department of Veterans Affairs'' and entitled ``Amicus Brief.'' Only 
one copy of the brief need be submitted. Briefs must be filed with the 
Office of the Clerk of the Board, Merit Systems Protection Board, 1615 
M Street, NW., Washington, DC 20419.

FOR FURTHER INFORMATION CONTACT: Matthew Shannon, Office of the Clerk 
of the Board, Merit Systems Protection Board, 1615 M Street, NW., 
Washington, DC 20419; (202) 653-7200; mspb@mspb.gov.

William D. Spencer,
Clerk of the Board.
[FR Doc. 2011-13737 Filed 6-2-11; 8:45 am]
BILLING CODE 7400-01-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.