Merit Systems Protection Board – Federal Register Recent Federal Regulation Documents
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Practices and Procedures
The Merit Systems Protection Board (MSPB or the Board) invites public input concerning options the MSPB is considering to revise its regulations governing how jurisdiction is established over Board appeals.
Membership of the Merit Systems Protection Board's Performance Review Board
Notice is hereby given of the members of the Merit Systems Protection Board's Performance Review Board.
Practices and Procedures
The Merit Systems Protection Board (MSPB or the Board) is adopting as final an interim rule that conformed the Board's regulations to legislative changes that amended whistleblower protections for Federal employees and the penalties available in cases where the MSPB determines that a Federal employee or a State or local officer or employee violated restrictions on partisan political activity.
Practices and Procedures
The Merit Systems Protection Board (MSPB or the Board) is amending its rules of practice and procedure to reflect the relocation of its Washington Regional Office.
Practices and Procedures
The Merit Systems Protection Board (MSPB or the Board) is adopting as final an interim rule that amended the requirement that agencies provide a copy of the MSPB appeal form when the agency issues a decision notice to an employee on a matter that is appealable to MSPB.
Practices and Procedures
The Merit Systems Protection Board (MSPB or the Board) hereby amends its rules of practice and procedure to conform the Board's regulations to legislative changes that amended whistleblower protections for Federal employees and the penalties available in cases where the MSPB determines that a Federal employee or a State or local officer or employee violated restrictions on partisan political activity.
Practices and Procedures
The Merit Systems Protection Board (MSPB or Board) hereby amends its rules of practice and procedure in order to correct several minor errors inadvertently introduced into the Board's regulations during a recent comprehensive revision of the Board's adjudicatory regulations.
Practices and Procedures
The Merit Systems Protection Board (MSPB or Board) hereby amends its rules of practice and procedure to allow federal agencies, when issuing a decision notice to an employee on a matter that is appealable to MSPB, to satisfy the obligation to provide a copy of the MSPB appeal form (MSPB Form 185) to an employee by providing the employee with access to a copy of the appeal form, i.e., in paper or electronic form.
Agency Information Collection Activities; Proposed Collection
In compliance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506 and 3507), the Merit Systems Protection Board (MSPB or Board) announces that an Information Collection Request (ICR) was forwarded to the Office of Management and Budget (OMB) for review and approval. The ICR is for MSPB's revised Appeal Form (MSPB Form 185). We request public comments on the revised form, which is available for review (along with the comments previously received) on MSPB's Web site at https://www.mspb.gov/appeals/revisedappealform.htm.
Notice of Opportunity To File Amicus Briefs
The Merit Systems Protection Board (MSPB or Board) announces the opportunity to file amicus briefs in the matter of Barbara R. King v. Department of the Air Force, MSPB Docket Number DA-0752-09-0604-P-1, currently pending before the Board on interlocutory appeal. The administrative judge certified for interlocutory review the question of whether the provisions of the Whistleblower Protection Enhancement Act of 2012 (WPEA), 112 Public Law 199, with regard to damages may be applied retroactively to cases pending prior to its effective date. Of particular relevance in King is the question of the retroactive effect of section 107(b) of the WPEA, which addresses damages available to individuals who have suffered reprisal for protected disclosures or activities. Prior to enactment of the WPEA, the corrective action available to such individuals under the Whistleblower Protection Act (WPA) included reasonable and foreseeable consequential damages, but not compensatory, or non-pecuniary, damages. See Bohac v. Department of Agriculture, 239 F.3d 1334, 1337-43 (Fed. Cir. 2001). However, under section 107(b) of the WPEA, corrective action may also include ``compensatory damages (including interest, reasonable expert witness fees, and costs).'' Therefore, the Board must determine in King whether to apply the WPEA standard or the WPA standard in determining what corrective action is available in appeals pending prior to the effective date of the WPEA. In King, the appellant's protected disclosures and the agency's retaliatory personnel action occurred in 2009. The appellant filed her initial Board appeal in 2009, and the administrative judge issued an initial decision on October 3, 2012, finding, in relevant part, that the appellant established reprisal for whistleblowing. The initial decision became the final decision of the Board on November 7, 2012, after neither party filed a petition for review. The appellant filed her request for compensatory damages on December 17, 2012. The WPEA was enacted on November 27, 2012, and became effective on December 27, 2012. Interested persons or organizations may submit amicus briefs or other comments on the question presented in King no later than April 12, 2013. 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. All amicus briefs received will be posted on the Board's Web site at www.mspb.gov/SignificantCases.
Notice of Opportunity To File Amicus Briefs
The Merit Systems Protection Board (MSPB or Board) announces the opportunity to file amicus briefs in the matter of Thomas F. Day v. Department of Homeland Security, MSPB Docket Number SF-1221-12-0528-W- 1, currently pending before the Board on interlocutory appeal. The administrative judge certified for interlocutory review the question of whether the provisions of the Whistleblower Protection Enhancement Act of 2012 (WPEA), 112 Public Law 199, may be applied retroactively to pending cases involving conduct occurring prior to its effective date. Of particular relevance in Day is the question of the retroactive effect of section 101(b)(2)(B) of the WPEA, which provides in relevant part that a disclosure made to an alleged wrongdoer or during an employee's normal course of duties is not excluded from protection against reprisal under 5 U.S.C. 2302(b)(8). In Huffman v. Office of Personnel Management, 263 F.3d 1341, 1352 (Fed. Cir. 2001), the U.S. Court of Appeals for the Federal Circuit held that a disclosure made as part of an employee's normal duties, and through normal channels, was not protected under the Whistleblower Protection Act (WPA). The court in Huffman further held that a complaint made to a supervisor regarding the supervisor's own alleged wrongdoing was not protected under the WPA. Id. at 1350. The Board has applied the holdings in Huffman as binding precedent. See, e.g., Stiles v. Department of Homeland Security, 116 M.S.P.R. 263, ] 15 (2011). Therefore, the Board must determine in Day whether to apply the WPEA standard or the Huffman standard in determining whether disclosures that occurred prior to the effective date of the WPEA are entitled to protection. Information about the Day case and the WPEA may be found on the Board's Web site at www.mspb.gov/SignificantCases. Interested individuals or organizations may submit amicus briefs or other comments on the question presented in Day no later than March 1, 2013. 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. All amicus briefs received will be posted on the Board's Web site at www.mspb.gov/ SignificantCases after March 1, 2013.
Agency Information Collection Activities; Proposed Collection
The Merit Systems Protection Board (MSPB) intends to request approval of a revised information collection from the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3506 and 3507). The MSPB Appeal Form (MSPB Form 185) has been revised. At this time, the MSPB is requesting public comments on the revised MSPB Form 185, which is available for review on the MSPB's Web site at https://www.mspb.gov.
Agency Information Collection Activities; Emergency Reinstatement of Previously Approved Collection
The Merit Systems Protection Board (MSPB) is requesting approval from the Office of Management and Budget (OMB) to reinstate Information Collection Request (ICR) 3124-0009, E-Appeal/US Merit Systems Protection Board Appeal Form which expired on March 31, 2012. This ICR is necessary for individuals who file appeals with MSPB. The form serves as a guide to appellants in providing all needed information. The MSPB is requesting emergency reinstatement approval from OMB by November 27, 2012. A revised version of the MSPB Appeal Form (Form 185) was approved by OMB on November 5, 2012. At this time, MSPB is requesting public comments on the previous version of Form 185, which is available for review on MSPB's Web site at https:// www.mspb.gov/appeals/forms.htm.
Agency Information Collection Activities; Emergency Reinstatement of Previously Approved Collection
The Merit Systems Protection Board (MSPB) is requesting approval from the Office of Management and Budget (OMB) to reinstate Information Collection Request (ICR) 3124-0009, E-Appeal/US Merit Systems Protection Board Appeal Form which expired on March 31, 2012. This ICR is necessary for individuals who file appeals with MSPB. The form serves as a guide to appellants in providing all needed information. The MSPB is requesting Emergency Reinstatement approval from OMB by November 9, 2012. The MSPB Appeal Form (Form 185) has been revised. At this time, MSPB is requesting public comments on Form 185, which is available for review on MSPB's Web site at https:// www.mspb.gov.
Privacy Act of 1974; Amendment of Privacy Act System of Records
The Merit Systems Protection Board (MSPB) is issuing public notice of its intent to amend a Government-wide system of records that it maintains subject to the Privacy Act of 1974 (5 U.S.C. 552a). MSPB/ GOVT-1, ``Appeals and Case Records,'' is being amended to reflect that its location is in the Office of the Clerk of the Board. Also, the purpose(s) under the authority for maintenance of the system was amended to reflect that these records may be used to document and adjudicate appeals and other matters arising under the Board's appellate and original jurisdiction; locate appeal documents and files, physical or electronic; provide statistical data for reports, staff productivity, and other management functions; and provide information to support other statutory functions of the Board, such as studies of the civil service under 5 U.S.C. 1204(a)(3), and review of regulations of the Office of Personnel Management (OPM) under 5 U.S.C. 1204(f), and reporting under 5 U.S.C. 1206. The MSPB is also adding a routine use: release to the public, including via the agency's Web site following issuance of a decision. MSPB/GOVT-1
Practices and Procedures
The Merit Systems Protection Board (MSPB or the Board), following an internal review of MSPB regulations, publication of a proposed rule, and consideration of comments received in response to the proposed rule, hereby amends its rules of practice and procedure in order to improve and update the MSPB's adjudicatory processes.
Agency Information Collection Activities; Proposed Collection
In compliance with the Paperwork Reduction Act (PRA), the U.S. Merit Systems Protection Board (MSPB) is submitting a request for a three-year extension of an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. This ICR describes the nature of the information collection and its estimated burden and cost.
Membership of the Merit Systems Protection Board's Performance Review Board
Notice is hereby given of the members of the Merit Systems Protection Board's Performance Review Board.
Practices and Procedures
The Merit Systems Protection Board (MSPB or the Board), following an internal review of MSPB regulations and after consideration of comments received from MSPB stakeholders, is proposing to amend its rules of practice and procedure in order to improve and update the MSPB's adjudicatory processes.
Agency Information Collection Activities; Proposed Collection
In compliance with the Paperwork Reduction Act (PRA), the U.S. Merit Systems Protection Board (MSPB) announces that it is planning to submit a request for a three-year extension of an Information Collection Request (ICR) to the Office of Management and Budget (OMB). Before submitting this ICR to OMB for review and approval, MSPB is soliciting comments on specific aspects of the proposed information collection as described below.
Privacy Act; Termination of Three Systems of Records
The Merit Systems Protection Board (MSPB) is terminating the following Systems of Records: MSPB/Internal 5, ``Workload and Assignment Tracking System;'' MSPB/Internal 7, ``Administrative Data System;'' and MSPB/Central 1, ``Assignment and Correspondence Tracking System.'' They are no longer in use.
Oral Argument
Notice is hereby given of the scheduling of oral argument in the matters of: James C. Latham v. U.S. Postal Service, MSPB Docket Number DA-0353-10-0408-I-1; Ruby N. Turner v. U.S. Postal Service, MSPB Docket Number SF-0353-10-0329-I-1; Arleather Reaves v. U.S. Postal Service, MSPB Docket Number CH-0353-10-0823-I-1; Cynthia E. Lundy v. U.S. Postal Service; MSPB Docket Number AT-0353-11-0369-I-1; and Marcella Albright v. U.S. Postal Service, MSPB Docket Number DC-0752- 11-0196-I-1. Date and Time: Tuesday, December 13, 2011, at 10 a.m. Place: The United States Court of Appeals for the Federal Circuit, Room 201, 717 Madison Place, NW., Washington DC. Status: Open.
Mandatory Electronic Filing for Agencies and Attorneys at Washington Regional Office and Denver Field Office
This rule informs the public that the U.S. Merit Systems Protection Board (MSPB or Board) is launching a pilot program under which the Washington Regional Office (WRO) and Denver Field Office (DEFO) will require all pleadings filed by agencies and attorneys who represent appellants in MSPB proceedings to be electronically filed (e- filed). This requirement will apply to all pleadings except those containing classified information or Sensitive Security Information (SSI) in all adjudicatory proceedings before the Board. Any agency or appellant's attorney who believes e-filing would create an undue burden may request an exemption from the administrative judge; however, requests will generally be considered only for pleadings that include scanned material, for example, not documents prepared and saved in a word processing program, and will be granted only when supported by a specific and detailed explanation, such as when the submission of a voluminous amount of scanned documents would create a hardship for a party.
Practices and Procedures
The Merit Systems Protection Board (MSPB or the Board) is amending its rules of practice and procedure to clarify procedures regarding the issuance and citation of nonprecedential Orders.
Notice of Opportunity To File Amicus Briefs
These cases involve employees who were required to have security clearances and were indefinitely suspended from their positions pending determinations concerning whether their security clearances should be revoked. The Board has recognized that, under certain circumstances, an agency may indefinitely suspend an employee based upon the suspension of access to classified information or pending the agency's investigation regarding that access, where the access is a condition of employment. See, e.g., Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, ] 13 (2010); Jones v. Department of the Navy, 48 M.S.P.R. 680, 682, 689, aff'd as modified on recons., 51 M.S.P.R. 607 (1991), aff'd, 978 F.2d 1223 (Fed. Cir. 1992). On appeal of such an action, the Board lacks the authority to review the merits of the agency's decision to suspend an employee's access to classified material. Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988). The Board may determine, however, whether the agency afforded an employee minimum due process with respect to the employee's constitutionally protected property interest in employment. See, e.g., Johnson v. Department of the Navy, 62 M.S.P.R. 487, 490-91 (1994); Kriner v. Department of the Navy, 61 M.S.P.R. 526, 531-35 (1994). In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985), the Court held that an agency's failure to provide a tenured public employee with an opportunity to present a response, either in person or in writing, to an appealable agency action that deprives him of his property right in his employment constitutes an abridgement of his constitutional right to minimum due process of law, i.e., prior notice and an opportunity to respond. In Gilbert v. Homar, 520 U.S. 924 (1997), the Court explained, in a case involving the suspension of a state employee, how its due process analysis would apply to discipline short of termination. The Board may also review whether the agency provided the employee with the procedural protections set forth in 5 U.S.C. 7513 in taking an action. Egan, 484 U.S. at 530; see also Cheney v. Department of Justice, 479 F.3d 1343, 1344-45 (Fed. Cir. 2007); King v. Alston, 75 F.3d 657, 661-63 (Fed. Cir. 1996). The Board applies a harmful error analysis in considering statutory violations. See, e.g., Ward v. U.S. Postal Service, 634 F.3d 1274, 1282 (Fed. Cir. 2011); Handy v. U.S. Postal Service, 754 F.3d 335, 337-38 (Fed. Cir. 1985). The cases thus present the following legal issues: (1) Should the Board apply the balancing test set forth in Homar, 520 U.S. 924, in determining whether an agency violates an employee's constitutional right to due process in indefinitely suspending him or her pending a security clearance determination; (2) If so, does that right include the right to have a deciding official who has the authority to change the outcome of the proposed indefinite suspension; (3) If the Board finds that an agency did not violate an employee's constitutional right to due process in this regard, how should the Board analyze whether the agency committed harmful procedural error in light of the restrictions set forth in Egan, 484 U.S. 518, on the Board's authority to analyze the merits of an agency's security clearance determination. Interested parties may submit amicus briefs or other comments on these issues no later than October 19, 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.
Notice of Opportunity To File Amicus Briefs
The Board announces the opportunity to file amicus briefs in
Public Availability of the Merit Systems Protection Board's FY 2010 Service Contract Inventory
The Merit Systems Protection Board (MSPB) is publishing this notice to advise the public of the availability of its FY 2010 Service Contract Inventory as required by Section 743 of Division C of the Consolidated Appropriations Act of 2010 (Pub. L. 111-117). This inventory provides information on service contract actions over $25,000 awarded in FY 2010. The inventory was developed in accordance with guidance issued on November 5, 2010 by the Office of Management and Budget's Office of Federal Procurement Policy (OFPP). The OFPP's guidance is available at: https://www.whitehouse.gov/sites/default/ files/omb/procurement/memo/service-contract-inventories-guida nce- 11052010.pdf. The MSPB's inventory is posted on its Web site at https:// www.mspb.gov/contact/contracting.htm.
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
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 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.
Membership of the Merit Systems Protection Board's Performance Review Board
Notice is hereby given of the members of the Merit Systems Protection Board's Performance Review Board.
Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, the Merit Systems Protection Board (MSPB) has submitted a Generic Information Collection Request (Generic ICR): ``Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery'' to OMB for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.).
Practices and Procedures, Board Meetings
The Merit Systems Protection Board (MSPB or the Board) is amending its open meeting regulations to ensure consistency with the Government in the Sunshine Act.
Merit Systems Protection Board (MSPB) Provides Notice of Opportunity To File Amicus Briefs in the Matter of Jeffrey Denton v. Department of Agriculture, MSPB Docket Number DC-3330-09-0696-I-1
Pursuant to 5 U.S.C. 1204(e)(1)(A), the MSPB has requested an advisory opinion from the Director of the Office of Personnel Management (OPM) concerning an appeal currently pending before the Board, Jeffrey Denton v. Department of Agriculture, MSPB Docket Number DC-3330-09-0696-I-1. The MSPB is also providing an opportunity to other interested parties to file amicus briefs concerning the appeal. The legal questions set forth in the Denton appeal, which were posed in the request for an advisory opinion to the Director of OPM, are set forth below. The agency employs the appellant in the position of Animal Health Program Assistant, GS-5. The agency announced the position of Veterinary Program Assistant (``VPA''), GS-0303-5/6/7, under both case exam (announcement 24VS-2009-0130) and merit promotion (announcement 6VS-2009-0132) procedures. The appellant applied under both vacancy announcements and submitted his DD-214, showing his eligibility for veterans' preference. The appellant made the certificate at the GS-7 level on the case exam announcement. The maximum score an applicant could receive was 100, except when veterans' preference points were added. The appellant had 10 points added to his score of 99.68 to reflect his veterans' preference, and he was thus listed on the top of the certificate of 6 candidates with a score of 109.68 as ``CPS,'' which is a 30% or more disabled veteran. The appellant also made the GS-6 level on the merit promotion certificate, and he was referred to the selecting official. The agency made no selection from either the case exam or merit promotion certificate. Rather, the agency cancelled both vacancy announcements and filled the VPA position through an alternative hiring authority, the Student Career Experience Program (SCEP). The appellant filed a complaint with the Department of Labor (DOL) alleging that his rights to veterans' preference as a 30% disabled veteran were violated because the agency filled the position through SCEP instead of filling the position from either the merit promotion or case exam certificate. The DOL informed the appellant that it had completed its investigation into the appellant's claim and had determined that the evidence did not support a finding that the appellant's veterans' preference rights were violated. The DOL provided the appellant with notice of appeal rights to the MSPB. After exhausting his remedy with DOL, the appellant timely filed an appeal with the MSPB pursuant to the Veterans Employment Opportunities Act (VEOA) alleging that his veterans' preference rights were violated when the agency used SCEP to fill the VPA position and did not select him for that position. The appellant essentially argued that the agency had engaged in a sham. The assigned administrative judge determined that the MSPB has VEOA jurisdiction over the appeal, but issued an initial decision on the merits finding that the appellant did not establish a VEOA violation. The appellant filed a petition for review with the MSPB challenging the initial decision of the administrative judge. This appeal raises significant issues regarding whether the agency's use of SCEP improperly circumvented the competitive examination process, allowing the agency to avoid its obligations regarding veterans' preference and a veteran's right to compete for positions. The material issues are similar in many respects to the issues raised regarding the Federal Career Intern Program (FCIP) in the MSPB's recent decisions in the appeals of Dean v. Office of Personnel Management, AT-3330-10-0534-I-1 and Evans v. Department of Veterans Affairs, AT-3330-09-0953-I-1, 2010 MSPB 213 (November 2, 2010). The Board determined that appellants Dean and Evans had established the FCIP program as conducted violated their veterans' preference rights because FCIP was inconsistent with 5 U.S.C. 3302(1) by: (1) Allowing agencies to invoke an appointing authority reserved for positions for which it is not practicable to hold a competitive examination after holding a competitive examination yielding highly-qualified preference-eligible candidates; and (2) not requiring agencies to justify placement of positions in the excepted service. The SCEP program is covered by OPM's regulations at 5 CFR 213.3202(b) and is authorized by Executive Order 12015 (as amended by Executive Order 13024). The FCIP positions are also Schedule B, excepted-service positions but are addressed at 5 CFR 213.3202(o) and Executive Order 13162. The SCEP allows agencies to hire students currently enrolled in specified educational programs in Schedule B, excepted-service positions, and noncompetitively convert them to term, career or career-conditional appointments upon satisfactory completion of the educational program and accumulation of 640 hours of agency work experience. Questions to be resolved: 1. Does the SCEP program violate veterans' preference rights because it allows agencies to invoke an appointing authority reserved for positions for which it is not practicable to hold a competitive examination after holding a competitive examination yielding highly- qualified preference-eligible candidates? 2. Does the SCEP program violate veterans' preference rights because it does not require agencies to justify placement of positions in Schedule B of the excepted service? 3. What impact, if any, does the Executive Order dated December 27, 2010, entitled ``Recruiting and Hiring Students and Recent Graduates,'' have on the appellant's appeal or any other appeals based on the SCEP hiring occurring before Executive Order 12015 is revoked?
Sunshine Act Meeting
Notice is hereby given of the scheduling of a Sunshine Act Meeting on the proposed 2011-2013 research agenda of the Merit Systems Protection Board's Office of Policy and Evaluation.
Practices and Procedures, Board Meetings
The Merit Systems Protection Board (MSPB or the Board) is proposing to amend its open meeting regulations at 5 CFR 1206.7 to ensure consistency with the Government in Sunshine Act.
Oral Argument
Notice is hereby given of the scheduling of oral argument in the matters of: Hyginus U. Aguzie v. Office of Personnel Management, MSPB Docket Number DC-0731-09-0261-R-1; Jenee Ella Hunt-O'Neal v. Office of Personnel Management, MSPB Docket Number AT-0731-09-0240-I-1; James A. Scott v. Office of Personnel Management, MSPB Docket Number CH-0731-09-0578-I-1; and Holley C. Barnes v. Office of Personnel Management, MSPB Docket Number DC-0731-09-0260-R-1. Date and Time: Monday, October 18, 2010, at 10 a.m. Place: The United States Court of Appeals for the Federal Circuit, Room 201, 717 Madison Place, NW., Washington DC. Status: Open.
Practices and Procedures
The Merit Systems Protection Board (MSPB or the Board) is amending its practices and procedures regulations to make clear that the Board may, in its discretion, include discussion of issues raised in an appeal in a nonprecedential Final Order.
Oral Argument
Notice is hereby given of the scheduling of oral argument in the matters of Rhonda K. Conyers v. Department of Defense, MSPB Docket No. CH-0752-09-0925-I-1, and Devon H. Northover v. Department of Defense, MSPB Docket No. AT-0752-10-0184-I-1.
Hyginus U. Aguzie v. Office of Personnel Management
The Merit Systems Protection Board (MSPB) is providing notice of an extension of time in which parties may file amicus briefs in the matter of Hyginus U. Aguzie v. Office of Personnel Management, MSPB Docket Number DC-0731-09-0261-R-1.
The Merit Systems Protection Board (MSPB) is Providing Notice of the Opportunity to File Amicus Briefs in the Matter of Larry L. Evans v. Department of Veterans Affairs, MSPB Docket Number AT-3330-09-0953-I-1.
Mr. Evans is a preference eligible veteran who has filed an appeal with the MSPB alleging that the agency violated his rights under the Veterans Employment Opportunities Act of 1998 (VEOA) when it failed to select him for a position. The issues raised in this matter concern the interplay of the Federal Career Intern Program (FCIP) with VEOA. The FCIP was established in 2000 by Executive Order 13,162 ``to provide for the recruitment and selection of exceptional employees for careers in the public sector,'' to attract exceptional individuals with ``diverse professional experiences, academic training and competencies'' to the Federal workforce,'' and ``to prepare them for careers in analyzing and implementing public programs.'' Exec. Order 13, 162; see Scull v. Department of Homeland Security, 113 M.S.P.R. 287, ] 6 (2010).
Publication of Open Government Directive
On April 7, 2010, the U.S. Merit Systems Protection Board (MSPB or Board) published MSPB's Open Government Plan pursuant to direction set forth in President Obama's January 21, 2009, Memorandum on Transparency and Open Government, and the Office of Management and Budget's (OMB) December 8, 2009, Open Government Directive. The MSPB is hereby requesting public comment on MSPB's Open Government Plan.
The Merit Systems Protection Board (MSPB) Is Providing Notice of the Opportunity To File Amicus Briefs in the Matter of Hyginus U. Aguzie v. Office of Personnel Management, MSPB Docket Number DC-0731-09-0261-R-1
Aguzie and several other cases pending before the Board present the following legal issue: When the Office of Personnel Management (OPM) directs an agency to separate a tenured employee for suitability reasons, must the Board consider a subsequent appeal under 5 CFR part 731 as contemplated therein, or should the Board instead consider the appeal under 5 U.S.C. Chapter 75, given that the scope of a Chapter 75 appeal is broader than a part 731 appeal and that OPM generally lacks authority to issue regulations limiting statutory rights?
The Merit Systems Protection Board (MSPB) is Providing Notice of the Opportunity to File Amicus Briefs in the Matters of Conyers v. Department of Defense, Docket No. CH-0752-09-0925-I-1, and Northover v. Department of Defense, Docket No. AT-0752-10-0184-I-1
On January 25, 2010, the MSPB published in the Federal Register (see 75 FR 3939) a Notice of the opportunity to file amicus briefs in the matter of Crumpler v. Department of Defense, MSPB Docket Number DC-0752-09-0033-R-1, 2009 MSPB 233. Although the Crumpler case is now settled, the legal issue raised in that matter and noted in the January 25 Federal Register notice remains unresolved. The cases of Conyers v. Department of Defense, Docket No. CH-0752-09-0925-I-1, and Northover v. Department of Defense, Docket No. AT-0752-10-0184-I-1, involve the same legal issue.
Merit Systems Protection Board (MSPB) Provides Notice of Opportunity To File Amicus Briefs
Pursuant to 5 U.S.C. 7521 and 5 CFR 1201.131, the Merit Systems Protection Board (MSPB) is providing notice of the opportunity to file amicus briefs in the matter of Stella Crumpler v. Department of Defense, MSPB Docket Number DC-0752-09-0033-R-1, 2009 MSPB 233. Crumpler raises the question of whether, pursuant to 5 CFR Part 732, National Security Position, the rule in Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), limiting the scope of MSPB review of a removal decision based on the revocation of a security clearance also applies to a removal from a ``non-critical sensitive'' position due to the employee having been denied continued eligibility for employment in a sensitive position.
Membership of the Merit Systems Protection Board's Senior Executive Service; Performance Review Board
Notice is hereby given of the members of the Performance Review Board.
MSPB Practices and Procedures; Department of Homeland Security Human Resources Management System
The Merit Systems Protection Board (``MSPB'') has decided to remove its DHS-specific regulations that concern the processing and adjudication of appeals filed under the DHS Human Resources Management System to conform with Department of Homeland Security regulations.
Agency Information Collection Activities; Proposed Collection
In compliance with the Paperwork Reduction Act (PRA, 44 U.S.C. 3501) the U.S. Merit Systems Protection Board (MSPB) has forwarded an information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval. This is a new information collection activity. This ICR describes the nature of the information collection and its estimated burden and cost.
Agency Information Collection Activities; Proposed Collection
The U.S. Merit Systems Protection Board (MSPB) is requesting approval from the Office of Management and Budget (OMB) to conduct a new information collection activity. Before submitting the Information Collection Request (ICR) to OMB for review and approval, MSPB is soliciting comments on aspects of the proposed information collection including the public reporting burden in compliance with the Paperwork Reduction Act (PRA). In this regard we are soliciting comments on the public reporting burden. The reporting burden for the collection of information on this form is estimated to average 20 minutes per respondent, including time for reviewing instructions and completing the survey. In addition, the MSPB invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of MSPB's functions, including whether the information will have practical utility; (2) the accuracy of MSPB's estimate of burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Agency Information Collection Activities; Proposed Collection
In compliance with the Paperwork Reduction Act (PRA), the U.S. Merit Systems Protection Board (MSPB) announces that it is planning to submit a request for a three-year extension of an Information Collection Request (ICR) to the Office of Management and Budget (OMB). Before submitting this ICR to OMB for review and approval, MSPB is soliciting comments on specific aspects of its information collection activities as described below.
Agency Information Collection Activities; Proposed Collection
In compliance with the Paperwork Reduction Act (PRA), the U.S. Merit Systems Protection Board (MSPB) announces that an Information Collection Request (ICR) is to be forwarded to the Office of Management and Budget (OMB) for review and approval in accordance with the procedures prescribed in 5 CFR 1320.12. This is a request for a new collection. The ICR describes the nature of the information collection and its estimated burden and cost. On March 6, 2008 (Federal Register Volume 73, Number 45, page 12220), MSPB sought comments on this ICR pursuant to 5 CFR 1320.8(d). MSPB received only one comment.
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