[Federal Register Volume 67, Number 42 (Monday, March 4, 2002)]
[Notices]
[Page 9790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4974]


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MERIT SYSTEMS PROTECTION BOARD


Opportunity to File Amicus Briefs in Charles F. Thomson v. 
Department of Transportation, MSPB Docket No. AT-0752-01-0566-I-1

AGENCY: Merit Systems Protection Board.

ACTION: The Merit Systems Protection Board is providing interested 
parties with an opportunity to submit amicus briefs on whether the 
Board has appellate jurisdiction to review a final agency decision on 
an adverse action where the actual effective date of the action (here, 
the date when the employee would no longer be employed by the agency) 
has been stayed to allow exhaustion of administrative appeals (such as 
an appeal to the Board) pursuant to a collective bargaining agreement.

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SUMMARY:

Background

    The appellant in Thomson v. Department of Transportation, MSPB 
Docket No. AT-0752-01-0566-I-1, received a letter on April 18, 2001, 
from the manager of the facility where he was employed removing him 
from his Air Traffic Control Specialist position for misconduct 
effective April 27, 2001. In the notice of removal, the agency informed 
the appellant that he could grieve the removal through the negotiated 
grievance procedure or appeal the matter to the Board. Citing the 
collective bargaining agreement between the agency and the National Air 
Traffic Controllers Association, an Association representative 
requested that the appellant be allowed to exhaust his appeal rights 
before the removal became effective. The relevant collective bargaining 
agreement provision states that the agency may allow an employee 
``subject to removal or a suspension of more than fourteen (14) days 
the opportunity to exhaust all appeal rights available under this 
Agreement before the suspension or removal becomes effective.'' 
Statutory appeal rights to the Board are available under the agreement. 
In a May 7, 2001 letter, the deciding official in the appellant's 
removal approved the Association's request and stayed the appellant's 
removal. It is undisputed that the appellant remains in a pay and duty 
status.
    Through his representative, the appellant filed an appeal of his 
removal. After allowing for argument from the parties, the 
administrative judge dismissed the appeal for lack of jurisdiction, 
reasoning that the appellant's removal had not been effected. The 
appellant has filed a petition for review arguing that the Board has 
jurisdiction over his appeal. The agency has responded in opposition to 
the petition.

Question To Be Resolved

    This appeal raises the question of whether the Board has appellate 
jurisdiction to review an otherwise appealable action which has been 
subject to a final agency decision which, however, has been stayed 
pursuant to the terms of a collective bargaining agreement that allows 
the employee to exhaust administrative appeals, such as an appeal to 
the Board, before the adverse action becomes effective.

Issues To Be Considered In Resolving The Question Posed

    Title 5 of the United States Code, section 1204(h), states that 
``[t]he Board shall not issue advisory opinions,'' and title 5 of the 
United States Code, section 7513(d) provides that ``an employee against 
whom an action is taken under this section is entitled to appeal to the 
Merit Systems Protection Board under section 7701 of this title.'' 
(Emphasis supplied.) These statutes raise the question of whether an 
adverse action ``is taken'' when a final decision is made or when the 
action actually is effectuated (for example, the date when the employee 
no longer is employed by the agency), and whether a Board decision on a 
final, but not yet effectuated, adverse action constitutes a prohibited 
advisory opinion.
    Also relevant to the question raised in this appeal is the decision 
of the United States Court of Appeals for the District of Columbia 
Circuit in National Treasury Employees Union v. Federal Labor Relations 
Authority, 712 F.2d 669 (D.C. Cir. 1983). While the Board is not bound 
by decisions of the District of Columbia Circuit Court, the Board can 
look to such decisions for guidance. In National Treasury Employees 
Union, the court found that the Federal Labor Relations Authority 
erroneously reasoned in a negotiability decision that the Board lacked 
jurisdiction over an adverse action where the execution of the adverse 
action had been delayed under the terms of a collective bargaining 
agreement. The court concluded that the Customs Bureau was required to 
negotiate over a collective bargaining agreement provision similar to 
the one at issue here because the Board had jurisdiction over final, 
but not yet effected, actions.
    Finally, the Board advises interested parties about the practice of 
the U.S. Postal Service where, pursuant to a collective bargaining 
agreement, the agency places employees in a non-pay, non-duty status 
after a removal action, even though the individual remains on the 
agency's rolls. The Board has considered this practice of placing 
employees in a non-pay, non-duty status, while still on the agency's 
rolls, and has held that it may exercise jurisdiction over such adverse 
actions by the Postal Service. See Benjamin v. U.S. Postal Service, 29 
M.S.P.R. 555, 556-57 (1986); see also Anderson v. U.S. Postal Service, 
67 M.S.P.R. 455, 457 (1995). Whether there is a distinction between 
allowing an employee to exhaust administrative appeals before the 
adverse action actually is effectuated and the practice of the U.S. 
Postal Service is one of the issues the Board will consider in 
addressing the question posed above.

DATE: All briefs in response to this notice shall be filed with the 
Clerk of the Board on or before March 22, 2002.

ADDRESSES: All briefs shall include the case name and docket number 
noted above (Thomson v. Department of Transportation, MSPB Docket No. 
AT-0752-01-0566-I-1) and be entitled ``Amicus Brief.'' Briefs should be 
filed with the Office of the Clerk, Merit Systems Protection Board, 
1615 M St., NW., Washington, DC 20419. Because of possible mail delays 
caused by the closure of the Brentwood Mail facility, respondents are 
encouraged to file by facsimile transmittal at (202) 653-7130.

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

    Dated: February 26, 2002.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 02-4974 Filed 3-1-02; 8:45 am]
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