Merit Systems Protection Board 2011 – Federal Register Recent Federal Regulation Documents
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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the Board) is amending its rules of practice and procedure to clarify procedures regarding the issuance and citation of nonprecedential Orders.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?
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