[Federal Register Volume 62, Number 115 (Monday, June 16, 1997)]
[Notices]
[Pages 32663-32664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15652]


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MERIT SYSTEMS PROTECTION BOARD


Opportunity to File Amicus Briefs in Fitzgerald et al. versus 
Department of Defense, MSPB Docket No. PH-0842-94-0200-B-1

AGENCY: Merit Systems Protection Board.

ACTION: The Merit Systems Protection Board is providing interested 
parties with an opportunity to submit amicus briefs on the following 
issues: (1) Whether the Board has jurisdiction over an appeal from a 
final agency decision denying an employee law enforcement officer (LEO) 
retirement coverage where the employee made no request for such 
coverage in accordance with 5 CFR 842.807(a); and (2) whether 5 CFR 
842.804(c), which creates a rebuttable presumption that an agency 
head's denial of LEO retirement coverage is correct where a formal, 
written request is not filed within six months after entering a 
position or after any significant change in the position, is invalid, 
unreasonable, or violates due process.

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SUMMARY: 

Issue 1

    In these consolidated appeals, the appellants, who are covered by 
the Federal Employees' Retirement System (FERS), 5 U.S.C. chapter 84, 
did not request a determination of their LEO status. Rather, the agency 
issued a final decision on its own initiative finding that the 
appellants' positions were not covered by the special retirement 
provisions of FERS, and providing the appellants with notice of a right 
to appeal to the Board.
    Under 5 CFR 842.807(a), ``[t]he final decision of an agency denying 
an individual's request for approval of a position as a rigorous, 
secondary, or air traffic controller position made under 5 CFR 
842.804(c) may be appealed to the * * * Board under procedures 
prescribed by the Board.'' In adopting this regulation, the Office of 
Personnel Management (OPM) indicated that it was amending the section 
``to clarify that * * * only agency denial decisions made in response 
to individual requests under Sec. 842.804(c) are subject to appeal * * 
*.'' 57 FR 32,685, 32,689 (July 23, 1992).
    The Board has generally interpreted section 842.807(a) as requiring 
that an employee who is covered by FERS first formally request a 
determination on LEO coverage from his or her agency before appealing 
the agency's LEO determination to the Board. See, e.g., Fitzgerald 
versus Department of Defense, 70 M.S.P.R. 152, 155 (1996). The Board, 
however, is reconsidering this interpretation where, as in these cases, 
the agency has already issued a final decision on its own initiative. 
In this regard, the Board notes that under 5 U.S.C. 8461(e)(1), an 
administrative action or order affecting the rights or interests of an 
individual under the provisions of chapter 84 administered by OPM may 
be appealed to the Board.
    The Board is inviting interested parties to submit amicus briefs 
addressing whether an employee request is a jurisdictional requirement 
where the agency has issued a final decision on its own initiative.

Issue 2

    The Board has interpreted 5 CFR 842.804(c) as an additional 
restriction on its jurisdiction over FERS LEO matters. See, e.g., 
DeVitto versus Department of Transportation, 64 M.S.P.R. 354, 357-58 
(1994). Section 842.804(c) provides that if an employee is in a 
position not subject to the higher LEO withholding rate, and the 
employee does not, within six months after entering the position or 
after any significant change in the position, formally and in writing 
seek a determination from the employing agency that his or her position 
is properly covered by the higher withholding rate, the agency head's 
determination that the service was not so covered at the time of the 
service is presumed to be correct. The presumption may be rebutted by a 
preponderance of the evidence that the employee was unaware of his or 
her status or was prevented by cause beyond his or her control from 
requesting that the official status be changed when the service was 
performed. Thus, under DeVitto, if a request for LEO coverage is not 
made within the time limit set forth in the regulation and neither of 
the circumstances specified in the regulation is present, an appeal of 
the agency's denial of LEO coverage must be dismissed for lack of 
jurisdiction.
    The appellants and amicus curiae National Treasury Employees Union 
argue that section 842.804(c) is invalid because it is contrary to 
statute and congressional intent. The appellants and amicus curiae 
assert that the statutory scheme grants special retirement coverage for 
LEOs, contains no deadlines for challenging adverse agency 
determinations as to employee status, and provides that an 
administrative action or order affecting the rights or interests of an 
individual under the provisions of chapter 84 maybe appealed to the 
Board under procedures prescribed by the Board.'' 5 U.S.C. 
Sec. 8461(e)(1). Thus, they contend that the Board's jurisdiction to 
review the merits of agency head determinations is not qualified by any 
statutory obligation to presume the correctness of those 
determinations. Alternatively, they assert that section 842.804(c) is 
entitled to no deference because it is an arbitrary and unreasonable 
exercise of OPM's regulatory authority and violates the constitutional 
guarantees of due process.
    The agency, by contrast, argues that the statute is silent on the 
matters covered in section 842.804(c), and that the section, 
promulgated pursuant to OPM's authority to prescribe regulations to 
carry out 5 U.S.C. chapter 84, is a time limit that is not arbitrary, 
capricious, or contrary to statute because it furthers the intent of 
the statute to provide LEO retirement coverage when a determination can 
be made that entitlement to coverage exists. The agency contends that 
it would be difficult to make these determinations based on the 
evidence required if employees could wait twenty years, until they 
believed they were eligible to retire, to request LEO retirement 
coverage.
    The Board is inviting interested parties to submit amicus briefs 
addressing whether 5 CFR 842.804(c) is

[[Page 32664]]

invalid, unreasonable, or violates due process. Resolution of this 
issue may depend, in part, on how section 842.804(c) should be 
interpreted, i.e., as jurisdictional, see DeVitto, 64 M.S.P.R. at 357, 
as a rule affecting the Board's analysis of the appellants' burden of 
proof on the merits, or as a timeliness requirement couched in 
jurisdictional and/or merits language.

DATES: All briefs in response to this notice shall be filed with the 
Clerk of the Board on or before July 11, 1997.

ADDRESSES: All briefs shall include the case name and docket number 
noted above (Fitzgerald et al. versus Department of Defense, MSPB 
Docket No. PH-0842-94-0200-B-1) and be entitled ``Amicus Brief.'' 
Briefs should be filed with the Office of the Clerk, Merit Systems 
Protection Board, 1120 Vermont Avenue, NW., Washington, DC 20419.

FOR FURTHER INFORMATION CONTACT:
Shannon McCarthy, Deputy Clerk of the Board, or Matthew Shannon, 
Counsel to the Clerk, (202) 653-7200.

    Dated: June 10, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-15652 Filed 6-13-97; 8:45 am]
BILLING CODE 7400-01-M