81 FR 2913 - Notice of Opportunity To File Amicus Briefs

MERIT SYSTEMS PROTECTION BOARD

Federal Register Volume 81, Issue 11 (January 19, 2016)

The Merit Systems Protection Board (MSPB or the Board) announces the opportunity to file amicus briefs in the matter of Mark Abernathy v. Department of the Army, MSPB Docket No. DC-1221-14-0364-W- 1, currently pending before the Board on petition for review. Additional information concerning the question on which the Board invites amicus briefing in Abernathy and the required format and length of amicus briefs can be found in the Supplementary Information below.

[Federal Register Volume 81, Number 11 (Tuesday, January 19, 2016)]
[Notices]
[Pages 2913-2914]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-00875]


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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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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) 
announces the opportunity to file amicus briefs in the matter of Mark 
Abernathy v. Department of the Army, MSPB Docket No. DC-1221-14-0364-W-
1, currently pending before the Board on petition for review. 
Additional information concerning the question on which the Board 
invites amicus briefing in Abernathy and the required format and length 
of amicus briefs can be found in the Supplementary Information below.

DATES: All briefs submitted in response to this notice must be received 
by the Clerk of the Board on or before February 9, 2016.

ADDRESSES: All briefs shall be captioned ``Mark Abernathy v. Department 
of the Army'' and entitled ``Amicus Brief.'' Only one copy of the brief 
need be submitted. The Board encourages interested parties to submit 
amicus briefs as attachments to electronic mail addressed to 
[email protected]. An email should contain a subject line indicating that 
the submission contains an amicus brief in the Abernathy case. Any 
commonly-used word processing format or PDF format is acceptable; text 
formats are preferable to image formats. Briefs may also be filed with 
William D. Spencer, Clerk of the Board, Merit Systems Protection Board, 
1615 M Street NW., Washington, DC 20419; Fax (202) 653-7130.

FOR FURTHER INFORMATION CONTACT: Molly Leckey, Office of the Clerk of 
the Board, Merit Systems Protection Board, 1615 M Street NW., 
Washington, DC 20419; (202) 653-7200; [email protected].

SUPPLEMENTARY INFORMATION: The administrative judge in Abernathy 
dismissed the individual right of action (IRA) appeal for lack of 
jurisdiction, finding that the appellant did not make a protected 
disclosure because, when he made the disclosure, he was neither an 
``employee'' nor an ``applicant,'' but rather, a Federal contractor. Of 
particular relevance in Abernathy is the jurisdictional question of 
whether, under the Whistleblower Protection Act of 1989 (WPA), as 
amended by the Whistleblower Protection Enhancement Act of 2012 (WPEA), 
both the disclosure and the subject matter of the disclosure must have 
occurred after the individual who is seeking corrective action in an 
IRA appeal became an applicant or employee.
    The Board believes that some ambiguity may exist in the language of 
the statute regarding who is covered by the WPA and WPEA. A starting 
point for statutory interpretation is the words of the statute itself, 
which must be examined to determine Congress's intent and purpose. In 
construing statutes, their provisions should not be read in isolation; 
rather, each statute's section should be construed in connection with 
every other section so as to produce a harmonious whole. Yee v. 
Department of the Navy, 121 M.S.P.R. 686 (2014). Because the WPA and 
WPEA are remedial legislation, the Board will interpret their 
provisions liberally to embrace all cases fairly within their scope, so 
as to effectuate the purpose of the Acts. See Fishbein v. Department of 
Health & Human Services, 102 M.S.P.R. 4 (2006). We now turn to the two 
statutory provisions in question.
    The Board has jurisdiction over whistleblower claims filed pursuant 
to 5 U.S.C. 1221(a), as amended by WPEA Sec.  101(b)(1)(A). Section 
1221(a) provides that:

an employee, former employee, or applicant for employment may, with 
respect to any personnel action taken, or proposed to be taken, 
against such employee, former employee, or applicant for employment, 
as a result of a prohibited personnel practice described in section 
2302(b)(8) . . . seek corrective action from [the Board].

5 U.S.C. Sec.  1221(a) (emphasis added).

    Section 2302(b)(8) prohibits any employee who has authority to 
take, direct others to take, recommend, or approve any personnel action 
to:

    (8) take or fail to take, or threaten to take or fail to take, a 
personnel action with respect to any employee or applicant for 
employment because of--
    (A) any disclosure of information by an employee or applicant 
which the employee or applicant reasonably believes evidences--
    (i) any violation of any law, rule, or regulation, or
    (ii) gross mismanagement, a gross waste of funds, an abuse of 
authority, or a substantial and specific danger to public health or 
safety, if such disclosure is not specifically prohibited by law and 
if such information is not specifically required by Executive order 
to be kept secret in the interest of national defense or the conduct 
of foreign affairs; or
    (B) any disclosure to the Special Counsel, or to the Inspector 
General of an agency or another employee designated by the head of 
the agency to receive such disclosures, of information which the 
employee or applicant reasonably believes evidences--
    (i) any violation (other than a violation of this section) of 
any law, rule, or regulation, or
    (ii) gross mismanagement, a gross waste of funds, an abuse of 
authority, or a substantial and specific danger to public health or 
safety[.]

5 U.S.C. Sec.  2302(b)(8) (emphasis added).

    The Board has held that, in whistleblower retaliation claims, 5 
U.S.C. 1221(a) and 2302(b)(8) should be read together. See Schmittling 
v. Department of the Army, 92 M.S.P.R. 572 (2002). In construing 
section 1221(a) with section 2302(b)(8), it is possibly unclear if a 
request for corrective action under the WPA must concern only actions 
that occurred while the individual was an employee or applicant for 
employment. In other words, it is possibly uncertain whether, to 
constitute a disclosure ``by an employee or applicant,'' the disclosure 
of information described in section 2302(b)(8)(A), as well as the 
subject matter of the disclosure, must have transpired after--and not 
before--the individual seeking corrective action became ``an employee'' 
or ``an applicant for employment.''
    The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) 
addressed this question in three nonprecedential decisions, all of 
which were decided before the enactment of the WPEA. See Nasuti v. 
Merit Systems Protection Board, 376 F. App'x 29 (Fed. Cir. 2010) (per 
curiam) (finding that an

[[Page 2914]]

individual who was a former employee when the alleged personnel action 
and disclosure occurred could not bring a claim under the WPA); Guzman 
v. Office of Personnel Management, 53 F. App'x 927 (Fed. Cir. 2002) 
(per curiam) (construing the language of sections 1221(a) and 
2302(b)(8) as permitting a former employee to bring a claim under the 
WPA ``only as to disclosures made . . . during the period that the 
complainant was an employee or applicant''); Amarille v. Office of 
Personnel Management, 28 F. App'x 931 (Fed. Cir. 2001) (concluding that 
the Board lacked jurisdiction over an IRA appeal filed by a former 
employee because, during the relevant time in question, he was neither 
an employee nor applicant for Federal employment). The Board may follow 
the Federal Circuit's nonprecedential decisions, to the extent that the 
Board finds them persuasive.
    The Board, prior to the WPEA's enactment, also issued decisions 
ruling on the question being examined here. See Weed v. Social Security 
Administration, 113 M.S.P.R. 221 (2010) (finding that the appellant, 
who was working for the Federal Government when he filed his Office of 
Special Counsel complaint and when the personnel actions in dispute 
took place, was an ``employee'' protected by the statute, even though 
he was working at a different Federal agency than the one that took the 
personnel actions; alternatively, finding that a whistleblower need not 
be ``an employee, an applicant for employment or a former employee at 
the time he made his protected disclosures''); Pasley v. Department of 
the Treasury, 109 M.S.P.R. 105 (2008) (concluding that the termination 
of a former Federal employee by a private sector employer taken in 
retaliation for his protected disclosures during Federal Government 
employment did not meet the definition of a ``personnel action'' under 
the WPA); Greenup v. Department of Agriculture, 106 M.S.P.R. 202 (2007) 
(determining that the appellant lacked standing to challenge personnel 
actions taken against her while she was a county employee, but that she 
later was covered by the WPA after she resigned from her county job and 
applied, but was not selected, for a Federal position).
    In light of the relevant statutory language, it could be argued 
that an individual seeking protection under the WPA and WPEA must have 
been either an employee or an applicant at the time of both the 
disclosure and the subject matter of the disclosure. Adkins v. Office 
of Personnel Management, 104 M.S.P.R. 233 (2006) (reasoning that, where 
the language of a statute is clear, it controls, absent an express 
indication of an intent to the contrary), aff'd, 525 F.3d 1363 (Fed. 
Cir. 2008).
    In analyzing this question, the Board also wishes to receive 
comments that substantively compare and contrast the statutory language 
in the WPA and WPEA regarding the standing of individuals who are 
``employees,'' ``former employees,'' and ``applicants for employment,'' 
with the analogous, yet more expansive, standing requirement language 
under the Uniformed Services Employment and Reemployment Rights Act of 
1994 (codified at 38 U.S.C. 4301-4333) which provides, in relevant 
part, that ``a person may submit a complaint against a Federal 
executive agency or the Office,'' 38 U.S.C. 4324(b) (emphasis added); 
see Silva v. Department of Homeland Security, 112 M.S.P.R. 362 (2009).
    Finally, the Board is seeking comments that address what, if any, 
effect the question presented here might have on other Federal 
whistleblower and anti-retaliation laws. This would include the 
Department of Defense Authorization Act of 1987, which specifically 
bans defense contractors and subcontractors from retaliating against 
employees in reprisal for disclosing to specified entities information 
about alleged gross mismanagement or a substantial and specific danger 
to public health or safety. See 10 U.S.C. 2409(a). Interested 
individuals or organizations may submit amicus briefs or other comments 
on the question presented in Abernathy no later than February 9, 2016. 
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 public Web site at www.mspb.gov/SignificantCases after February 9, 2016.

William D. Spencer,
Clerk of the Board.
[FR Doc. 2016-00875 Filed 1-15-16; 8:45 am]
 BILLING CODE 7400-01-P