[Federal Register Volume 66, Number 214 (Monday, November 5, 2001)]
[Notices]
[Pages 55959-55961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27657]


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MERIT SYSTEMS PROTECTION BOARD


Opportunity To File Amicus Briefs in Gerald Michaud v. Department 
of the Army, MSPB Docket No. BN-3443-00-0167-I-1

AGENCY: Merit Systems Protection Board.
SUMMARY: The Merit Systems Protection Board has requested an advisory 
opinion from the Director of the Office of Personnel Management (OPM) 
concerning the interpretation of regulations promulgated by OPM 
governing the Reemployment Priority List (RPL) at 5 CFR part 330, 
subpart B. The Board is providing interested parties with an 
opportunity to submit amicus briefs on the same questions raised in the 
request to OPM. The Board's request to OPM is reproduced below:
    Pursuant to 5 U.S.C. 1204(e)(1)(A), the members of the Merit 
Systems Protection Board request that you provide an advisory opinion 
concerning the interpretation of regulations promulgated by the Office 
of Personnel Management (OPM).

SUPPLEMENTARY INFORMATION: This request for an advisory opinion is 
related to our previous request for an advisory opinion in Sturdy v. 
Department of the Army, 88 M.S.P.R. 502 (2001). There, we requested an 
advisory opinion on whether the Board has jurisdiction, under 5 CFR 
330.209, over an alleged violation of reemployment priority rights when 
the employee received a Certification of Expected Separation by 
reduction in force (RIF) and/or a specific notice of RIF separation but 
was reassigned in lieu of his expected RIF separation. (For ease of 
reference, the term ``notice of RIF separation'' will be used 
hereinafter to refer to either type of notice.)
    In response to our request in Sturdy, OPM's General Counsel 
provided an advisory opinion stating that separation by RIF is not a 
jurisdictional requirement for a ``reemployment priority rights'' 
appeal under 5 CFR 330.209 because employees are entitled to enroll in 
the Reemployment Priority List (RPL) as soon as they receive a notice 
of RIF separation. We deferred to OPM's advisory opinion and held in 
Sturdy, 88 M.S.P.R. 502, Paras. 18-19, that separation by RIF is not a 
jurisdictional requirement for ``reemployment priority rights'' appeal.
    In Michaud v. Department of the Army, MSPB Docket No. BN-3443-00-
0167-I-1, the appellant initially received a notice of RIF separation, 
but subsequently received an amended RIF

[[Page 55960]]

notice, informing him of his impending RIF demotion. He was then 
demoted by RIF pursuant to the amended RIF notice. Michaud alleged in 
his appeal that his nonselections for positions, including 
nonselections that occurred after his RIF demotion, violated his 
reemployment priority rights.

Question To Be Resolved

    Michaud raises the question whether an employee who gains RPL 
eligibility based on his initial receipt of a notice of RIF separation 
retains his RPL eligibility after his RIF demotion (in lieu of his 
expected RIF separation), so that the Board has jurisdiction under 5 
CFR 330.209 over any nonselections that occurred after his RIF 
demotion.
    The members of the Board request that you provide an advisory 
opinion on this question and, in doing so, address the issues discussed 
below, as well as any other issues you deem pertinent.

Issues To Be Considered In Resolving the Question Posed

    5 CFR 330.203(d)(2)(ii)
    Section 330.203(d)(2)(ii) provides that ``an individual is taken 
off the RPL before the period of eligibility expires when the 
individual * * * (ii) (r)eceives a career, career-conditional, or 
excepted appointment without time limit in any agency * * *.'' This 
section appears to broadly provide that an individual's RPL eligibility 
terminates upon his assignment to any permanent career, career-
conditional, or excepted position in any agency, regardless of whether 
the assignment was by RIF or not, and regardless of whether the 
assignment was to a higher-, lower- or same-graded position. Thus, as 
explained further below, Sec. 330.203(d)(2)(ii) could be interpreted as 
terminating Mr. Michaud's RPL eligibility based on his acceptance of a 
RIF demotion.
    We note in this regard that the term ``appointment'' in 
Sec. 330.203(d)(2)(ii) does not appear to be limited to an initial 
hiring or a re-hiring after a break in service; rather, it appears to 
be a general term referring to an assignment to a position under 
particular terms and conditions. See 5 CFR 2.2(a) (``career 
appointments shall be given to * * *
    (e)mployees serving under career appointments at the time of 
selection''), Sec. 351.501(b)(3) (``Group III includes all employees 
serving under indefinite appointments, temporary appointments pending 
establishment of a register, status quo appointments, term 
appointments, and any other nonstatus nontemporary appointments which 
meet the definition of provisional appointments contained in 
Secs. 316.401 and 316.403 of this chapter.''); Wenk v. Office of 
Personnel Management, 21 M.S.P.R. 218, 221-23 (1984). Thus, the term 
``appointment,'' and hence Sec. 330.203(d)(2)(ii), could be interpreted 
to cover the RIF demotion in Michaud.
    5 CFR 330.203(d)(2)(iii), 330.203(d)(2)(ii), 330.206(a)(1) and 
330.203(a)(4)
    Section 330.203(d)(2)(iii) provides that ``an individual is taken 
off the RPL before the period of eligibility expires when the 
individual * * * (iii) (d)eclines an offer of career, career-
conditional, or excepted appointment without time limit * * * 
concerning a specific position having a representative rate at least as 
high, and with the same type of work schedule, as that of the position 
from which the person was or will be separated.''
    Because Sec. 330.203(d)(2)(iii) states that declining a 
reassignment terminates RPL eligibility, but does not state that 
declining a demotion terminates RPL eligibility, one may argue based on 
this section that accepting a demotion does not terminate RPL 
eligibility. However, Sec. 330.203(d)(2)(iii), on its face, applies to 
situations when an individual declines a placement offer, and not to 
situations when an individual accepts a placement offer. As discussed 
above, when Mr. Michaud accepted a RIF demotion, it could be argued 
that this constituted the acceptance of an ``appointment'' which 
terminated his RPL eligibility under Sec. 330.203(d)(2)(ii).
    Thus, when subsections (ii) and (iii) of Sec. 330.203(d)(2) are 
read together, they could be interpreted to provide individuals a 
choice between receiving/accepting an offered appointment (at whatever 
grade and pay) with concurrent termination of RPL eligibility, or 
declining the offered appointment and taking a chance that a better 
appointment offer will be forthcoming while remaining on the RPL. These 
provisions do not appear to allow individuals to accept a placement 
offer and still remain on the RPL.
    On the other hand, Sec. 330.206(a)(1) (``Job consideration'') 
provides that:

    An eligible employee under Sec. 330.203 is entitled to 
consideration for positions in the commuting area for which 
qualified and available that are at no higher grade (or equivalent), 
have no greater promotion potential than the position from which the 
employee was or will be separated, and have the same type of work 
schedule. In addition, an employee is entitled to consideration for 
any higher grade previously held on a nontemporary basis in the 
competitive service from which the employee was demoted under part 
351 of this chapter.

(Emphasis added.)
    The italicized language is 5 CFR 330.206(a)(1) arguably suggests 
that an individual who is demoted by RIF, like Mr. Michaud, remains 
eligible for the RPL after the RIF demotion. However, Sec. 330.206(a) 
addresses the types of positions for which an RPL eligible is entitled 
to be considered; it does not address RPL eligibility, which is set 
forth in the RPL regulations, at 5 CFR 330.203(a). Further, although 
Sec. 330.203(a)(4) provides RPL eligibility for employees who have not 
declined certain types of RIF placements (i.e., positions at the same 
or higher representative salary with the same work schedule), the 
eligibility criteria in Sec. 330.203 do not include employees, like Mr. 
Michaud, who have accepted RIF offers of lower-graded positions.
    Thus, the statement in Sec. 330.206(a)(1) that an RPL eligible is 
``entitled to consideration for any higher grade previously held * * * 
from which (he) was demoted'' by RIF is ambiguous. Was this regulation 
intended to provide for RPL eligibility after an employee has accepted 
a RIF demotion?

Federal Personnel Manual (FPM)

    The FPM, ch. 330, Subch. 1, Sec. 1-4.b (Feb. 22, 1991), provided 
that an employee ``loses RPL eligibility if he or she is * * * 
(a)ssigned to a permanent competitive position at any grade in the same 
or different agency before the RIF separation takes effect'' and that 
``employees who are demoted by RIF action are not eligible for the RPL 
but may be eligible for priority consideration for their former grade 
level through other agency programs(.)'' This FPM provision, along with 
many others, was abolished effective December 31, 1993. FPM Sunset 
Document. It appears, however, that OPM has not changed its 
interpretation of the RPL regulations since abolishing the FPM. See 60 
FR 3055 (Jan. 13, 1995) (when the RPL regulations were last revised, to 
incorporate some of the sunsetted FPM provisions, OPM noted that 
``(t)here was particular agreement not to change current policies in 
the sensitive area of reductions-in-force (RIF) and related 
reemployment priority lists (RPL)'').

Policy Considerations

    The facts in Michaud highlight an anomalous result stemming from 
the RPL regulations. When an individual (Employee A) initially receives 
a notice of RIF separation, but is subsequently demoted (as in Michaud) 
or reassigned (as in Sturdy) in lieu of his initially expected RIF 
separation, he nevertheless is eligible for the RPL, at least up until 
the time he accepts the demotion or reassignment. (Whether such 
employees retain RPL eligibility

[[Page 55961]]

after they are demoted or reassigned is the central question posed by 
this request for an advisory opinion). However, when an individual 
(Employee B) is demoted or reassigned in a RIF, without initially 
receiving a notice of RIF separation, it appears that he never gains 
RPL eligibility because receipt of a notice of RIF separation is a 
requirement under the RPL regulations. See 5 CFR 330.203(a)(3). 
Employee A's initial receipt of a notice of RIF separation did not 
result in his actual RIF separation or have any deleterious effect on 
his employment vis-a-vis Employee B, and yet his receipt of the notice 
gave him important rights--RPL eligibility and concomitant Board appeal 
rights--not given to Employee B. It appears arbitrary to differentiate 
between Employee A and Employee B simply because Employee A happened to 
have received a notice of RIF separation. however, if the requirement 
for a notice of separation. However, if the requirement for a notice of 
separation in Sec. 330.203(a)(3) is interpreted broadly as notice that 
the employee would be separated from his current position, it appears 
that employee B would be eligible for the RPL if acceptance of a RIF 
demotion does not disqualify the employee under the regulations 
discussed above. What is OPM's view on whether Employee B is eligible 
for the RPL under its regulations?

Instructions Regarding the Advisory Opinion

    The Director is requested to submit her advisory opinion to the 
Clerk of the Board within 30 days of her receipt of this letter, and to 
serve copies of her opinion on the parties and their representatives in 
the above-captioned appeal. (The addresses of the parties and their 
representatives are set forth below in the ``cc'' list.)

Right of the Parties to Respond to Director's Opinion

    The parties may file any comments on the Director's opinion no 
later than 30 days from the date of service of her opinion.

DATES: All briefs in response to this notice shall be filed with the 
Clerk of the Board on or before December 5, 2001.

ADDRESSES: All briefs should include the case name and docket number 
noted above (Gerald Michaud v. Department of the Army, MSPB Docket No. 
BN-3443-00-0167-I-1) and be entitled ``Amicus Brief.'' Briefs should be 
filed with the Office of the Clerk, Merit Systems Protection Board, 
1615 M Street, 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: October 29, 2001.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 01-27657 Filed 11-2-01; 8:45 am]
BILLING CODE 7400-01-M