[Federal Register Volume 76, Number 107 (Friday, June 3, 2011)]
[Notices]
[Pages 32236-32237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13737]
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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.
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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; [email protected].
William D. Spencer,
Clerk of the Board.
[FR Doc. 2011-13737 Filed 6-2-11; 8:45 am]
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