[Federal Register Volume 76, Number 107 (Friday, June 3, 2011)]
[Notices]
[Pages 32236-32237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13737]


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MERIT SYSTEMS PROTECTION BOARD

[MSPB Docket Numbers SF-3330-09-0570-B-1 and SF-3330-09-0725-B-1.]


Merit Systems Protection Board (MSPB or Board) Provides Notice of 
Opportunity To File Amicus Briefs in the Matter of Michael B. Graves v. 
Department of Veterans Affairs

AGENCY: Merit Systems Protection Board.

ACTION: Notice.

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SUMMARY: In Graves v. Department of Veterans Affairs, 114 M.S.P.R. 245 
(2010), and Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209 
(2010), which involved appeals filed under the Veterans Employment 
Opportunities Act of 1998 (VEOA), the Board held that the agency's use 
of veterans' preference status as a ``tie-breaker'' in making 
selections for excepted service ``hybrid'' positions under 38 U.S.C. 
7401(3), which includes the Medical Records Technician (MRT) positions 
at issue in these cases, was inadequate, and that the agency must 
comply with the competitive service veterans' preference requirements 
set forth in title 5 of the United States Code. The Board reasoned that 
although title 5 provisions such as those relating to veterans' 
preference rights do not apply to appointments listed under 38 U.S.C. 
7401(1) (physicians, dentists, etc.) because those appointments are 
made ``without regard to civil-service requirements,'' ``hybrid'' 
employees retain many title 5 rights, including the adverse action and 
reduction in force (RIF) rights mentioned in 38 U.S.C. 7403(f)(3). The 
Board noted that section 7403(f)(2) provides that ``[i]n using such 
authority to appoint individuals to such positions, the Secretary shall 
apply the principles of preference for the hiring of veterans and other 
persons established in subchapter I of chapter 33 of title 5,'' and 
that section 7403(f)(3) provides that ``the applicability of the 
principles of preference referred to in paragraph (2) * * * shall be 
resolved under the provisions of title 5 as though such individuals had 
been appointed under that title.'' Based on its reading of these two 
provisions, the Board concluded that title 5 competitive service 
veterans' preference requirements apply to appointments made to 38 
U.S.C. 7401(3) positions such as MRTs. The Board also suggested in 
Graves, 114 M.S.P.R. 209, ]] 12-15, that the agency violated veterans' 
preference requirements set forth in the Office of Personnel 
Management's Delegated Examining Operations Handbook and VetGuide, and 
that corrective action was therefore warranted.
    The Graves cases are now before the Board on petition for review 
after remand. The agency has raised several arguments regarding the 
above findings. The agency asserts that 38 U.S.C. 7403(f)(3) does not 
address the appointment of individuals because its plain language 
refers multiple times to individuals who have already been appointed. 
Thus, the agency contends that the Board's decisions do not give effect 
to the word ``appointed'' in section 7403(f)(3), and under the 
statutory construction maxim noscitur a sociis (a word is defined by 
the company it keeps), the reference in section 7403(f)(3) to ``matters 
relating to * * * the applicability of the principles of preference 
referred to in paragraph (2)'' should mean matters relating to 
veterans' preference principles that apply to individuals who have 
already been appointed, like ``matters relating to'' adverse actions, 
RIFs, part-time employees, disciplinary actions, and grievance 
procedures. The agency also contends that the legislative history for 5 
U.S.C. 7403(f)(2)-(3) indicates that a Senate committee specifically 
intended for the agency to apply a tie-breaker principle to ``hybrid'' 
applicants, and that Congress did not intend to require the agency to 
apply title 5 rights to applicants for employment. The agency further 
asserts that in 1984 it provided notice in the Federal Register that it 
would be implementing the ``principles of preference'' requirement in 
the statute through an internal circular that called for the use of the 
``tie-breaker'' principle that has been in effect from 1984 through the 
Board's decisions in Graves.
    We also note that while section 7403(f)(2) calls for applying ``the 
principles of preference for the hiring of veterans and other persons 
established in subchapter I of chapter 33 of title 5,'' such 
application appears to relate to the use of ``such authority,'' i.e., 
the ``authority'' mentioned in 38 U.S.C. 7403(a), which in turn calls 
for appointments to be made ``without regard to civil-service 
requirements.'' See Scarnati v. Department of Veterans Affairs, 344 
F.3d 1246, 1248 (Fed. Cir. 2003) (under 38 U.S.C. 7403(a), title 5 
provisions, including those regarding veterans' preference rights, do 
not apply to appointments made ``without regard to civil service 
requirements''). Further, deference is generally given to an agency's 
consistent, long-standing regulatory interpretation of an ambiguous 
statute as long as it is reasonable, Rosete v. Office of Personnel 
Management, 48 F.3d 514, 518-19 (Fed. Cir. 1995), and Congress is 
presumed to be aware of an administrative or judicial interpretation of 
a statute and to adopt

[[Page 32237]]

that interpretation when it adopts a new law incorporating sections of 
a prior law without change, Fitzgerald v. Department of Defense, 80 
M.S.P.R. 1, 14 (1998).
    The Graves cases thus present the following legal issues: (1) Does 
38 U.S.C. 7403(f)(2) require the agency to apply title 5 veterans' 
preference provisions, including but not limited to 5 U.S.C. 3305(b) 
and 5 CFR 332.311(a), which the Board found the agency violated in not 
accepting the appellant's late-filed application, see Graves, 114 
M.S.P.R. 245, ]] 12-15, in filling ``hybrid'' positions under 38 U.S.C. 
7401(3); (2) does the legislative history for the applicable statutory 
provisions offer guidance regarding how those provisions should be 
interpreted; (3) are the Delegated Examining Operations Handbook and 
VetGuide ``statute[s] or regulation[s]'' relating to veterans' 
preference within the meaning of 5 U.S.C. 3330a(a)(1)(A), such that a 
violation of a provision in those documents would constitute a 
violation under VEOA; (4) does the law of the case doctrine apply to 
the Board's rulings in these cases; and (5) if so, is there a basis for 
finding that the ``clearly erroneous'' exception to that doctrine has 
been met? In addition, we note that the resolution of the above issues 
may affect whether the Board has jurisdiction over VEOA appeals filed 
by ``hybrid'' applicants.
    Interested parties may submit amicus briefs or other comments on 
these issues no later than June 30, 2011. Amicus briefs must be filed 
with the Clerk of the Board. Briefs shall not exceed 30 pages in 
length. The text shall be double-spaced, except for quotations and 
footnotes, and the briefs shall be on 8\1/2\ by 11 inch paper with one 
inch margins on all four sides.

DATES: All briefs submitted in response to this notice shall be filed 
with the Clerk of the Board on or before June 30, 2011.

ADDRESSES: All briefs shall be captioned ``Michael B. Graves v. 
Department of Veterans Affairs'' 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, Office of the Clerk 
of the Board, Merit Systems Protection Board, 1615 M Street, NW., 
Washington, DC 20419; (202) 653-7200; [email protected].

William D. Spencer,
Clerk of the Board.
[FR Doc. 2011-13737 Filed 6-2-11; 8:45 am]
BILLING CODE 7400-01-P