2024-08353. Notice of Opportunity To File Amicus Briefs

AGENCY:

Merit Systems Protection Board.

ACTION:

Notice.

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 [e-mail]; by mail to Clerk of the Board, Merit Systems Protection Board, 1615 M Street NW, Washington, DC 20419; or by fax to [phone].

FOR FURTHER INFORMATION CONTACT:

Gina K. Grippando, Clerk of the Board, Merit Systems Protection Board, 1615 M Street NW, Washington, DC 20419; phone: [phone]; fax: [phone]; email: [e-mail].

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 Board encourages interested persons or organizations to submit amicus briefs as attachments to email sent to [e-mail]. 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.