01-27657. Opportunity To File Amicus Briefs in Gerald Michaud

AGENCY:

Merit Systems Protection Board.

SUMMARY:

The Merit Systems Protection Board has requested an advisory opinion from the Director of the Office of Personnel Management (OPM) concerning the interpretation of regulations promulgated by OPM governing the Reemployment Priority List (RPL) at 5 CFR part 330, subpart B. The Board is providing interested parties with an opportunity to submit amicus briefs on the same questions raised in the request to OPM. The Board's request to OPM is reproduced below:

Pursuant to 5 U.S.C. 1204(e)(1)(A), the members of the Merit Systems Protection Board request that you provide an advisory opinion concerning the interpretation of regulations promulgated by the Office of Personnel Management (OPM).

SUPPLEMENTARY INFORMATION:

This request for an advisory opinion is related to our previous request for an advisory opinion in Sturdy v. Department of the Army, 88 M.S.P.R. 502 (2001). There, we requested an advisory opinion on whether the Board has jurisdiction, under 5 CFR 330.209, over an alleged violation of reemployment priority rights when the employee received a Certification of Expected Separation by reduction in force (RIF) and/or a specific notice of RIF separation but was reassigned in lieu of his expected RIF separation. (For ease of reference, the term “notice of RIF separation” will be used hereinafter to refer to either type of notice.)

In response to our request in Sturdy, OPM's General Counsel provided an advisory opinion stating that separation by RIF is not a jurisdictional requirement for a “reemployment priority rights” appeal under 5 CFR 330.209 because employees are entitled to enroll in the Reemployment Priority List (RPL) as soon as they receive a notice of RIF separation. We deferred to OPM's advisory opinion and held in Sturdy, 88 M.S.P.R. 502, ¶¶ 18-19, that separation by RIF is not a jurisdictional requirement for “reemployment priority rights” appeal.

In Michaud v. Department of the Army, MSPB Docket No. BN-3443-00-0167-I-1, the appellant initially received a notice of RIF separation, but subsequently received an amended RIF notice, informing him of his impending RIF demotion. He was then demoted by RIF pursuant to the amended RIF notice. Michaud alleged in his appeal that his nonselections for positions, including nonselections that occurred after his RIF demotion, violated his reemployment priority rights.

Question To Be Resolved

Michaud raises the question whether an employee who gains RPL eligibility based on his initial receipt of a notice of RIF separation retains his RPL eligibility after his RIF demotion (in lieu of his expected RIF separation), so that the Board has jurisdiction under 5 CFR 330.209 over any nonselections that occurred after his RIF demotion.

The members of the Board request that you provide an advisory opinion on this question and, in doing so, address the issues discussed below, as well as any other issues you deem pertinent.

Issues To Be Considered In Resolving the Question Posed

5 CFR 330.203(d)(2)(ii)

Section 330.203(d)(2)(ii) provides that “an individual is taken off the RPL before the period of eligibility expires when the individual * * * (ii) (r)eceives a career, career-conditional, or excepted appointment without time limit in any agency * * *.” This section appears to broadly provide that an individual's RPL eligibility terminates upon his assignment to any permanent career, career-conditional, or excepted position in any agency, regardless of whether the assignment was by RIF or not, and regardless of whether the assignment was to a higher-, lower- or same-graded position. Thus, as explained further below, § 330.203(d)(2)(ii) could be interpreted as terminating Mr. Michaud's RPL eligibility based on his acceptance of a RIF demotion.

We note in this regard that the term “appointment” in § 330.203(d)(2)(ii) does not appear to be limited to an initial hiring or a re-hiring after a break in service; rather, it appears to be a general term referring to an assignment to a position under particular terms and conditions. See 5 CFR 2.2(a) (“career appointments shall be given to * * *

(e)mployees serving under career appointments at the time of selection”), § 351.501(b)(3) (“Group III includes all employees serving under indefinite appointments, temporary appointments pending establishment of a register, status quo appointments, term appointments, and any other nonstatus nontemporary appointments which meet the definition of provisional appointments contained in §§ 316.401 and 316.403 of this chapter.”); Wenk v. Office of Personnel Management, 21 M.S.P.R. 218, 221-23 (1984). Thus, the term “appointment,” and hence § 330.203(d)(2)(ii), could be interpreted to cover the RIF demotion in Michaud.

5 CFR 330.203(d)(2)(iii), 330.203(d)(2)(ii), 330.206(a)(1) and 330.203(a)(4)

Section 330.203(d)(2)(iii) provides that “an individual is taken off the RPL before the period of eligibility expires when the individual * * * (iii) (d)eclines an offer of career, career-conditional, or excepted appointment without time limit * * * concerning a specific position having a representative rate at least as high, and with the same type of work schedule, as that of the position from which the person was or will be separated.”

Because § 330.203(d)(2)(iii) states that declining a reassignment terminates RPL eligibility, but does not state that declining a demotion terminates RPL eligibility, one may argue based on this section that accepting a demotion does not terminate RPL eligibility. However, § 330.203(d)(2)(iii), on its face, applies to situations when an individual declines a placement offer, and not to situations when an individual accepts a placement offer. As discussed above, when Mr. Michaud accepted a RIF demotion, it could be argued that this constituted the acceptance of an “appointment” which terminated his RPL eligibility under § 330.203(d)(2)(ii).

Thus, when subsections (ii) and (iii) of § 330.203(d)(2) are read together, they could be interpreted to provide individuals a choice between receiving/accepting an offered appointment (at whatever grade and pay) with concurrent termination of RPL eligibility, or declining the offered appointment and taking a chance that a better appointment offer will be forthcoming while remaining on the RPL. These provisions do not appear to allow individuals to accept a placement offer and still remain on the RPL.

On the other hand, § 330.206(a)(1) (“Job consideration”) provides that:

An eligible employee under § 330.203 is entitled to consideration for positions in the commuting area for which qualified and available that are at no higher grade (or equivalent), have no greater promotion potential than the position from which the employee was or will be separated, and have the same type of work schedule. In addition, an employee is entitled to consideration for any higher grade previously held on a nontemporary basis in the competitive service from which the employee was demoted under part 351 of this chapter.

(Emphasis added.)

The italicized language is 5 CFR 330.206(a)(1) arguably suggests that an individual who is demoted by RIF, like Mr. Michaud, remains eligible for the RPL after the RIF demotion. However, § 330.206(a) addresses the types of positions for which an RPL eligible is entitled to be considered; it does not address RPL eligibility, which is set forth in the RPL regulations, at 5 CFR 330.203(a). Further, although § 330.203(a)(4) provides RPL eligibility for employees who have not declined certain types of RIF placements (i.e., positions at the same or higher representative salary with the same work schedule), the eligibility criteria in § 330.203 do not include employees, like Mr. Michaud, who have accepted RIF offers of lower-graded positions.

Thus, the statement in § 330.206(a)(1) that an RPL eligible is “entitled to consideration for any higher grade previously held * * * from which (he) was demoted” by RIF is ambiguous. Was this regulation intended to provide for RPL eligibility after an employee has accepted a RIF demotion?

Federal Personnel Manual (FPM)

The FPM, ch. 330, Subch. 1, Sec. 1-4.b (Feb. 22, 1991), provided that an employee “loses RPL eligibility if he or she is * * * (a)ssigned to a permanent competitive position at any grade in the same or different agency before the RIF separation takes effect” and that “employees who are demoted by RIF action are not eligible for the RPL but may be eligible for priority consideration for their former grade level through other agency programs(.)” This FPM provision, along with many others, was abolished effective December 31, 1993. FPM Sunset Document. It appears, however, that OPM has not changed its interpretation of the RPL regulations since abolishing the FPM. See 60 FR 3055 (Jan. 13, 1995) (when the RPL regulations were last revised, to incorporate some of the sunsetted FPM provisions, OPM noted that “(t)here was particular agreement not to change current policies in the sensitive area of reductions-in-force (RIF) and related reemployment priority lists (RPL)”).

Policy Considerations

The facts in Michaud highlight an anomalous result stemming from the RPL regulations. When an individual (Employee A) initially receives a notice of RIF separation, but is subsequently demoted (as in Michaud) or reassigned (as in Sturdy) in lieu of his initially expected RIF separation, he nevertheless is eligible for the RPL, at least up until the time he accepts the demotion or reassignment. (Whether such employees retain RPL eligibility after they are demoted or reassigned is the central question posed by this request for an advisory opinion). However, when an individual (Employee B) is demoted or reassigned in a RIF, without initially receiving a notice of RIF separation, it appears that he never gains RPL eligibility because receipt of a notice of RIF separation is a requirement under the RPL regulations. See 5 CFR 330.203(a)(3). Employee A's initial receipt of a notice of RIF separation did not result in his actual RIF separation or have any deleterious effect on his employment vis-à-vis Employee B, and yet his receipt of the notice gave him important rights—RPL eligibility and concomitant Board appeal rights—not given to Employee B. It appears arbitrary to differentiate between Employee A and Employee B simply because Employee A happened to have received a notice of RIF separation. however, if the requirement for a notice of separation. However, if the requirement for a notice of separation in § 330.203(a)(3) is interpreted broadly as notice that the employee would be separated from his current position, it appears that employee B would be eligible for the RPL if acceptance of a RIF demotion does not disqualify the employee under the regulations discussed above. What is OPM's view on whether Employee B is eligible for the RPL under its regulations?

Instructions Regarding the Advisory Opinion

The Director is requested to submit her advisory opinion to the Clerk of the Board within 30 days of her receipt of this letter, and to serve copies of her opinion on the parties and their representatives in the above-captioned appeal. (The addresses of the parties and their representatives are set forth below in the “cc” list.)

Right of the Parties to Respond to Director's Opinion

The parties may file any comments on the Director's opinion no later than 30 days from the date of service of her opinion.

DATES:

All briefs in response to this notice shall be filed with the Clerk of the Board on or before December 5, 2001.

ADDRESSES:

All briefs should include the case name and docket number noted above (Gerald Michaud v. Department of the Army, MSPB Docket No. BN-3443-00-0167-I-1) 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.

FOR FURTHER INFORMATION CONTACT:

Shannon McCarthy, Deputy Clerk of the Board, or Matthew Shannon, Counsel to the Clerk, [phone].

Dated: October 29, 2001.

Robert E. Taylor,

Clerk of the Board.