Notice2024-08353
Notice of Opportunity To File Amicus Briefs
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 19, 2024
Issuing agencies
Merit Systems Protection Board
Full Text
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<title>Federal Register, Volume 89 Issue 77 (Friday, April 19, 2024)</title>
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[Federal Register Volume 89, Number 77 (Friday, April 19, 2024)]
[Notices]
[Pages 28816-28817]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08353]
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MERIT SYSTEMS PROTECTION BOARD
Notice of Opportunity To File Amicus Briefs
AGENCY: Merit Systems Protection Board.
ACTION: Notice.
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The Merit Systems Protection Board (MSPB or the Board) announces
the opportunity to file amicus briefs in the matter of Mary Reese v.
Department of the Navy, MSPB Docket No. DC-1221-21-0203-W-1, currently
pending before the Board on petition for review. The Reese appeal
presents a question regarding the scope of 5 U.S.C. 2302(b)(9)(C),
which prohibits reprisal for ``cooperating with or disclosing
information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the
Special Counsel, in accordance with applicable provisions of law.''
Given the limited precedent addressing the types of activities covered
or excluded from section 2302(b)(9)(C), the Board is seeking the input
of interested parties, including the Office of Special Counsel.
DATES: All briefs submitted in response to this notice must be received
by the Clerk of the Board on or before May 20, 2024.
ADDRESSES: Briefs must be submitted to Gina K. Grippando, Clerk of the
Board, Merit Systems Protection Board, by email to <a href="/cdn-cgi/l/email-protection#5b36282b391b36282b39753c342d"><span class="__cf_email__" data-cfemail="f8958b889ab8958b889ad69f978e">[email protected]</span></a>; by
mail to Clerk of the Board, Merit Systems Protection Board, 1615 M
Street NW, Washington, DC 20419; or by fax to (202) 653-7130.
FOR FURTHER INFORMATION CONTACT: Gina K. Grippando, Clerk of the Board,
Merit Systems Protection Board, 1615 M Street NW, Washington, DC 20419;
phone: (202) 653-7200; fax: (202) 653-7130; email: <a href="/cdn-cgi/l/email-protection#c2afb1b2a082afb1b2a0eca5adb4"><span class="__cf_email__" data-cfemail="d1bca2a1b391bca2a1b3ffb6bea7">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: The Board has thus far issued limited
precedent addressing the types of activities covered or excluded from
section 5 U.S.C. 2302(b)(9)(C). Because the Reese appeal may present an
opportunity to do so, the Board is seeking input from interested
parties about the proper interpretation and application of the
provision.
The first question of law presented in Reese is whether an
employee's informal complaints of a climate of sexual harassment made
to her supervisors and others (but not through the equal employment
opportunity process) on behalf of herself and other employees might
constitute ``the exercise of any appeal, complaint, or grievance right
granted by any law, rule or regulation'' so as to be covered by section
2302(b)(9)(A), and thus precluding coverage under section
2302(b)(9)(C). In the context of an employee's formal administrative
grievance, the Board has found that such actions are covered by section
2302(b)(9)(A) rather than section 2302(b)(9)(C). McCray v. Department
of the Army, 2023 MSPB 10, ]] 26-29. However, the Board has limited
precedent otherwise analyzing the type of appeal, complaint, or
grievance covered under section 2302(b)(9)(A). See Marcell v.
Department of Veterans Affairs, 2022 MSPB 33, ] 6 (finding that an
employee's request for FMLA leave and a OWCP claim did not fall under
section 2302(b)(9)(A) because neither constituted an initial step
toward taking legal action against the agency for the perceived
violation of the employee's rights).
The second question of law presented in Reese concerns whether
activity that falls within the protections of title VII may also be
protected by section 2302(b)(9)(C). The U.S. Court of Appeals for the
Federal Circuit has held that disclosures of violations of
antidiscrimination laws made in equal employment opportunity (EEO)
complaints, which are protected under antiretaliation provisions
specific to the EEO process, are excluded from the protections of 5
U.S.C. 2302(b)(8). Spruill v. Merit Systems Protection Board, 978 F.2d
679, 692 (Fed. Cir. 1992). The court has also affirmed a Board
decision, Edwards v. Department of Labor, 2022 MSPB 9, which held that
verbal complaints of discrimination to supervisors are similarly
excluded from the protections of 5 U.S.C. 2302(b)(8), Edwards v. Merit
Systems Protection Board, No. 2022-1967, 2023 WL 4398002 (Fed. Cir.
July 7, 2023). The question is whether the court's reasoning extends to
5 U.S.C. 2302(b)(9)(C).
The third question of law presented in Reese is whether the
language of section 2302(b)(9)(C), ``cooperating with or disclosing
information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the
Special Counsel, in accordance with applicable provisions of law,''
encompasses (1) an informal discussion with someone from the kind of
agency component that might conduct investigations or (2) a formal
interview with someone who is appointed as a fact finder but is not
otherwise part of a formal investigatory office or component within an
agency. The Board has recognized that the scope of this statutory
language is not defined elsewhere in the statute or in the associated
legislative history. McCray, 2023 MSPB 10, ] 27.
Required Format for Briefs
All briefs shall be captioned ``Mary Reese v. Department of the
Navy'' and entitled ``Amicus Brief.'' Only one copy of the brief need
be submitted. The
[[Page 28817]]
Board encourages interested persons or organizations to submit amicus
briefs as attachments to email sent to <a href="/cdn-cgi/l/email-protection#3e534d4e5c7e534d4e5c10595148"><span class="__cf_email__" data-cfemail="ff928c8f9dbf928c8f9dd1989089">[email protected]</span></a>. An email should
contain a subject line indicating that the submission contains an
amicus brief in the Reese case. Any commonly used word processing
format or PDF format is acceptable; text formats are preferable to
image formats. Briefs shall not exceed 30 pages in length and the text
must be formatted as double-spaced, except for quotations and
footnotes, on 8\1/2\ by 11 inch paper with one inch margins on all four
sides. Regardless of the method used for submitting briefs, all
submissions will be posted, without change, to MSPB's website
(<a href="http://www.mspb.gov">www.mspb.gov</a>) and will include any personal information you provide.
Therefore, submitting this information makes it public.
Gina K. Grippando,
Clerk of the Board.
[FR Doc. 2024-08353 Filed 4-18-24; 8:45 am]
BILLING CODE 7400-01-P
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