[Federal Register Volume 76, Number 9 (Thursday, January 13, 2011)]
[Notices]
[Pages 2422-2423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-633]


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MERIT SYSTEMS PROTECTION BOARD


Merit Systems Protection Board (MSPB) Provides Notice of 
Opportunity To File Amicus Briefs in the Matter of Jeffrey Denton v. 
Department of Agriculture, MSPB Docket Number DC-3330-09-0696-I-1

AGENCY: Merit Systems Protection Board.

ACTION: Notice.

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SUMMARY: Pursuant to 5 U.S.C. 1204(e)(1)(A), the MSPB has requested an 
advisory opinion from the Director of the Office of Personnel 
Management (OPM) concerning an appeal currently pending before the 
Board, Jeffrey Denton v. Department of Agriculture, MSPB Docket Number 
DC-3330-09-0696-I-1. The MSPB is also providing an opportunity to other 
interested parties to file amicus briefs concerning the appeal. The 
legal questions set forth in the Denton appeal, which were posed in the 
request for an advisory opinion to the Director of OPM, are set forth 
below.
    The agency employs the appellant in the position of Animal Health 
Program Assistant, GS-5. The agency announced the position of 
Veterinary Program Assistant (``VPA''), GS-0303-5/6/7, under both case 
exam (announcement 24VS-2009-0130) and merit promotion (announcement 
6VS-2009-0132) procedures. The appellant applied under both vacancy 
announcements and submitted his DD-214, showing his eligibility for 
veterans' preference. The appellant made the certificate at the GS-7 
level on the case exam announcement. The maximum score an applicant 
could receive was 100, except when veterans' preference points were 
added. The appellant had 10 points added to his score of 99.68 to 
reflect his veterans' preference, and he was thus listed on the top of 
the certificate of 6 candidates with a score of 109.68 as ``CPS,'' 
which is a 30% or more disabled veteran. The appellant also made the 
GS-6 level on the merit promotion certificate, and he was referred to 
the selecting official. The agency made no selection from either the 
case exam or merit promotion certificate. Rather, the agency cancelled 
both vacancy announcements and filled the VPA position through an 
alternative hiring authority, the Student Career Experience Program 
(SCEP).
    The appellant filed a complaint with the Department of Labor (DOL) 
alleging that his rights to veterans' preference as a 30% disabled 
veteran were violated because the agency filled the position through 
SCEP instead of filling the position from either the merit promotion or 
case exam certificate. The DOL informed the appellant that it had 
completed its investigation into the appellant's claim and had 
determined that the evidence did not support a finding that the 
appellant's veterans' preference rights were violated. The DOL provided 
the appellant with notice of appeal rights to the MSPB.
    After exhausting his remedy with DOL, the appellant timely filed an 
appeal with the MSPB pursuant to the Veterans Employment Opportunities 
Act (VEOA) alleging that his veterans' preference rights were violated 
when the agency used SCEP to fill the VPA position and did not select 
him for that position. The appellant essentially argued that the agency 
had engaged in a sham. The assigned administrative judge determined 
that the MSPB has VEOA jurisdiction over the appeal, but issued an 
initial decision on the merits finding that the appellant did not 
establish a VEOA violation.
    The appellant filed a petition for review with the MSPB challenging 
the initial decision of the administrative judge. This appeal raises 
significant issues regarding whether the agency's use of SCEP 
improperly circumvented the competitive examination process, allowing 
the agency to avoid its obligations regarding veterans' preference and 
a veteran's right to compete for positions. The material issues are 
similar in many respects to the issues raised regarding the Federal 
Career Intern Program (FCIP) in the MSPB's recent decisions in the 
appeals of Dean v. Office of Personnel Management, AT-3330-10-0534-I-1 
and Evans v. Department of Veterans Affairs, AT-3330-09-0953-I-1, 2010 
MSPB 213 (November 2, 2010). The Board determined that appellants Dean 
and Evans had established the FCIP program as conducted violated their 
veterans' preference rights because FCIP was inconsistent with 5 U.S.C. 
3302(1) by: (1) Allowing agencies to invoke an appointing authority 
reserved for positions for which it is not practicable to hold a 
competitive examination after holding a competitive examination 
yielding highly-qualified preference-eligible candidates; and (2) not 
requiring agencies to justify placement of positions in the excepted 
service.
    The SCEP program is covered by OPM's regulations at 5 CFR 
213.3202(b) and is authorized by Executive Order 12015 (as amended by 
Executive Order 13024). The FCIP positions are also Schedule B, 
excepted-service positions but are addressed at 5 CFR 213.3202(o) and 
Executive Order 13162. The SCEP allows agencies to hire students 
currently enrolled in specified educational programs in Schedule B, 
excepted-service positions, and noncompetitively convert them to term, 
career or career-conditional appointments upon satisfactory completion 
of the educational program and accumulation of 640 hours of agency work 
experience.
    Questions to be resolved:
    1. Does the SCEP program violate veterans' preference rights 
because it allows agencies to invoke an appointing authority reserved 
for positions for which it is not practicable to hold a competitive 
examination after holding a competitive examination yielding highly-
qualified preference-eligible candidates?
    2. Does the SCEP program violate veterans' preference rights 
because it does not require agencies to justify placement of positions 
in Schedule B of the excepted service?
    3. What impact, if any, does the Executive Order dated December 27, 
2010, entitled ``Recruiting and Hiring Students and Recent Graduates,'' 
have on the appellant's appeal or any other appeals based on the SCEP 
hiring

[[Page 2423]]

occurring before Executive Order 12015 is revoked?

DATES: All briefs submitted in response to this notice shall be filed 
with the Clerk of the Board on or before February 7, 2011.

ADDRESSES: All briefs shall be captioned ``Jeffrey Denton v. Department 
of Agriculture,'' and entitled ``Amicus Brief.'' Only one copy of the 
brief need be submitted. Briefs must be filed with the Office of the 
Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., 
Washington, DC 20419.

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

William D. Spencer,
Clerk of the Board.
[FR Doc. 2011-633 Filed 1-12-11; 8:45 am]
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