[Federal Register Volume 70, Number 206 (Wednesday, October 26, 2005)]
[Notices]
[Pages 61845-61846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21388]


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MERIT SYSTEMS PROTECTION BOARD

[MSPB Docket No. DA-1221-05-0320-W-1]


Opportunity To File Amicus Briefs in William A. Wilcox v. 
International Boundary and Water Commission

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 jurisdiction to review an individual right of action (IRA) 
appeal from an employee, former employee, or applicant for employment 
of the International Boundary and Water Commission.

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SUMMARY:

Background

    The appellant in Wilcox v. International Boundary and Water 
Commission, MSPB Docket No. DA-1221-05-0320-W-1, filed an IRA appeal 
alleging that the agency retaliated against him for protected 
disclosures he made while employed as Legal Advisor/General Counsel, 
GG-15, with the agency. The administrative judge dismissed the appeal 
for lack of jurisdiction. She found that the U.S. Section of the agency 
is a subdivision of an international organization and that its hiring 
authority derives from a 1944 Treaty, not from the provisions of U.S.C. 
Title 5. She found that the right to bring an IRA appeal derives from 5 
U.S.C. 1221(a). She thus concluded that the appellant was not an 
employee entitled

[[Page 61846]]

to file an IRA appeal. The appellant has filed a petition for review 
arguing that the Board has jurisdiction over his appeal. The agency has 
filed a response opposing the petition.

Question To Be Resolved

    This appeal raises the question of whether the Board has appellate 
jurisdiction to review an IRA appeal from an employee, former employee, 
or applicant for employment of the International Boundary and Water 
Commission.

Issues To Be Considered in Resolving the Question Posed

    Title 5 of the United States Code, 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 * * * as 
a result of a prohibited personnel practice described in section 
2302(b)(8), seek corrective action from the Merit Systems Protection 
Board. Section 2302(a)(2)(A) defines ``personnel action'' as various 
types of employment-related actions ``with respect to an employee in, 
or applicant for, a covered position in an agency.'' Section 2302(2)(C) 
in turn defines an ``agency'' to mean, inter alia, ``an Executive 
agency.'' For purposes of title 5, ``Executive agency'' means an 
Executive department, a Government corporation, and an independent 
establishment. 5 U.S.C. 105. An ``independent establishment'' means, 
inter alia, an establishment in the executive branch ``which is not an 
Executive department, military department, Government corporation, or 
part thereof, or part of an independent establishment.'' 5 U.S.C. 104.
    The appellant in this case argues that the U.S. Section of the 
International Boundary and Water Commission is ``entirely a creature of 
the United States,'' operates as a separate federal agency, is an 
``independent establishment'' within the meaning of 5 U.S.C. 104, and 
is not subject to international control. In contrast, the 
administrative judge found that the International Boundary and Water 
Commission is a subdivision of an ``international organization'' under 
22 U.S.C. 277, 288.
    Finally, we note that the U.S. Court of Appeals for the Federal 
Circuit and the Merit Systems Protection Board have not questioned IRA 
jurisdiction over the International Boundary and Water Commission in 
previous decisions. See, e.g., Mestan v. International Boundary and 
Water Commission, 95 Fed. Appx. 1012 (Fed. Cir. 2004) (non-
precedential); White v. International Boundary and Water Commission, 59 
M.S.P.R. 62 (1993).

DATES: All briefs in response to this notice shall be filed with the 
Clerk of the Board on or before November 25, 2005.

ADDRESSES: All briefs shall include the case name and docket number 
noted above (Wilcox v. International Boundary and Water Commission) 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. Respondents are encouraged to file by facsimile 
transmittal at (202) 653-7130.

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

    Dated: October 20, 2005.
Bentley M. Roberts, Jr.,
Clerk of the Board.
[FR Doc. 05-21388 Filed 10-25-05; 8:45 am]
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