05-21388. Opportunity To File Amicus Briefs in William A. Wilcox

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.

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 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 [phone].

FOR FURTHER INFORMATION CONTACT:

Matthew Shannon, Deputy Clerk of the Board, or Melissa Jurgens, Counsel to the Clerk, at [phone].

Dated: October 20, 2005.

Bentley M. Roberts, Jr.,

Clerk of the Board.