[Federal Register Volume 89, Number 77 (Friday, April 19, 2024)]
[Notices]
[Pages 28816-28817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08353]


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MERIT SYSTEMS PROTECTION BOARD


Notice of Opportunity To File Amicus Briefs

AGENCY: Merit Systems Protection Board.

ACTION: Notice.

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    The Merit Systems Protection Board (MSPB or the Board) announces 
the opportunity to file amicus briefs in the matter of Mary Reese v. 
Department of the Navy, MSPB Docket No. DC-1221-21-0203-W-1, currently 
pending before the Board on petition for review. The Reese appeal 
presents a question regarding the scope of 5 U.S.C. 2302(b)(9)(C), 
which prohibits reprisal for ``cooperating with or disclosing 
information to the Inspector General (or any other component 
responsible for internal investigation or review) of an agency, or the 
Special Counsel, in accordance with applicable provisions of law.'' 
Given the limited precedent addressing the types of activities covered 
or excluded from section 2302(b)(9)(C), the Board is seeking the input 
of interested parties, including the Office of Special Counsel.

DATES: All briefs submitted in response to this notice must be received 
by the Clerk of the Board on or before May 20, 2024.

ADDRESSES: Briefs must be submitted to Gina K. Grippando, Clerk of the 
Board, Merit Systems Protection Board, by email to [email protected]; by 
mail to Clerk of the Board, Merit Systems Protection Board, 1615 M 
Street NW, Washington, DC 20419; or by fax to (202) 653-7130.

FOR FURTHER INFORMATION CONTACT: Gina K. Grippando, Clerk of the Board, 
Merit Systems Protection Board, 1615 M Street NW, Washington, DC 20419; 
phone: (202) 653-7200; fax: (202) 653-7130; email: [email protected].

SUPPLEMENTARY INFORMATION: The Board has thus far issued limited 
precedent addressing the types of activities covered or excluded from 
section 5 U.S.C. 2302(b)(9)(C). Because the Reese appeal may present an 
opportunity to do so, the Board is seeking input from interested 
parties about the proper interpretation and application of the 
provision.
    The first question of law presented in Reese is whether an 
employee's informal complaints of a climate of sexual harassment made 
to her supervisors and others (but not through the equal employment 
opportunity process) on behalf of herself and other employees might 
constitute ``the exercise of any appeal, complaint, or grievance right 
granted by any law, rule or regulation'' so as to be covered by section 
2302(b)(9)(A), and thus precluding coverage under section 
2302(b)(9)(C). In the context of an employee's formal administrative 
grievance, the Board has found that such actions are covered by section 
2302(b)(9)(A) rather than section 2302(b)(9)(C). McCray v. Department 
of the Army, 2023 MSPB 10, ]] 26-29. However, the Board has limited 
precedent otherwise analyzing the type of appeal, complaint, or 
grievance covered under section 2302(b)(9)(A). See Marcell v. 
Department of Veterans Affairs, 2022 MSPB 33, ] 6 (finding that an 
employee's request for FMLA leave and a OWCP claim did not fall under 
section 2302(b)(9)(A) because neither constituted an initial step 
toward taking legal action against the agency for the perceived 
violation of the employee's rights).
    The second question of law presented in Reese concerns whether 
activity that falls within the protections of title VII may also be 
protected by section 2302(b)(9)(C). The U.S. Court of Appeals for the 
Federal Circuit has held that disclosures of violations of 
antidiscrimination laws made in equal employment opportunity (EEO) 
complaints, which are protected under antiretaliation provisions 
specific to the EEO process, are excluded from the protections of 5 
U.S.C. 2302(b)(8). Spruill v. Merit Systems Protection Board, 978 F.2d 
679, 692 (Fed. Cir. 1992). The court has also affirmed a Board 
decision, Edwards v. Department of Labor, 2022 MSPB 9, which held that 
verbal complaints of discrimination to supervisors are similarly 
excluded from the protections of 5 U.S.C. 2302(b)(8), Edwards v. Merit 
Systems Protection Board, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. 
July 7, 2023). The question is whether the court's reasoning extends to 
5 U.S.C. 2302(b)(9)(C).
    The third question of law presented in Reese is whether the 
language of section 2302(b)(9)(C), ``cooperating with or disclosing 
information to the Inspector General (or any other component 
responsible for internal investigation or review) of an agency, or the 
Special Counsel, in accordance with applicable provisions of law,'' 
encompasses (1) an informal discussion with someone from the kind of 
agency component that might conduct investigations or (2) a formal 
interview with someone who is appointed as a fact finder but is not 
otherwise part of a formal investigatory office or component within an 
agency. The Board has recognized that the scope of this statutory 
language is not defined elsewhere in the statute or in the associated 
legislative history. McCray, 2023 MSPB 10, ] 27.

Required Format for Briefs

    All briefs shall be captioned ``Mary Reese v. Department of the 
Navy'' and entitled ``Amicus Brief.'' Only one copy of the brief need 
be submitted. The

[[Page 28817]]

Board encourages interested persons or organizations to submit amicus 
briefs as attachments to email sent to [email protected]. An email should 
contain a subject line indicating that the submission contains an 
amicus brief in the Reese case. Any commonly used word processing 
format or PDF format is acceptable; text formats are preferable to 
image formats. Briefs shall not exceed 30 pages in length and the text 
must be formatted as double-spaced, except for quotations and 
footnotes, on 8\1/2\ by 11 inch paper with one inch margins on all four 
sides. Regardless of the method used for submitting briefs, all 
submissions will be posted, without change, to MSPB's website 
(www.mspb.gov) and will include any personal information you provide. 
Therefore, submitting this information makes it public.

Gina K. Grippando,
Clerk of the Board.
[FR Doc. 2024-08353 Filed 4-18-24; 8:45 am]
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