2010-10988. The Merit Systems Protection Board (MSPB) is Providing Notice of the Opportunity to File Amicus Briefs in the Matter of Larry L. Evans v. Department of Veterans Affairs, MSPB Docket Number AT-3330-09-0953-I-1.

AGENCY:

Merit Systems Protection Board.

ACTION:

Notice.

SUMMARY:

Mr. Evans is a preference eligible veteran who has filed an appeal with the MSPB alleging that the agency violated his rights under the Veterans Employment Opportunities Act of 1998 (VEOA) when it failed to select him for a position. The issues raised in this matter concern the interplay of the Federal Career Intern Program (FCIP) with VEOA. The FCIP was established in 2000 by Executive Order 13,162 “to provide for the recruitment and selection of exceptional employees for careers in the public sector,” to attract exceptional individuals with “diverse professional experiences, academic training and competencies” to the Federal workforce,” and “to prepare them for careers in analyzing and implementing public programs.” Exec. Order 13, 162; see Scull v. Department of Homeland Security, 113 M.S.P.R. 287, ¶ 6 (2010).

Appointments under the FCIP are to positions in Schedule B of the excepted service and are not to exceed 2 years, unless extended by the agency, with the concurrence of the Office of Personnel Management (OPM), for up to 1 additional year. Scull, 113 M.S.P.R. 287, ¶ 6; 5 CFR 213.3202(o)(1)-(2). Upon successful completion of the internship, the agency may effect the intern's noncompetitive conversion to a career or career-conditional appointment in the competitive service. Scull, 113 M.S.P.R. 287, ¶ 6; 5 CFR 213.3202(o)(6)(i).

Evans presents the following legal issues: (1) Is 5 U.S.C. 3302(1) a “statute * * * relating to veterans' preference” on which a claim under VEOA may be based? See 5 U.S.C. 3330a(1)(A); (2) if so, may OPM delegate to other executive agencies the authority to except positions from the competitive service under 5 U.S.C. 3302(1)?; and (3) if that the answers to (1) and (2) are “yes,” what must an agency do to justify the use of the FCIP to fill a vacant position, considering the requirement of 5 U.S.C. § 3302(1) that exceptions to the competitive service be “necessary” so as to provide for “conditions of good administration”? See Weed v. Social Security Administration, 112 M.S.P.R. 323, ¶¶ 16-18 (2009) (describing the legal issues concerning use of the FCIP and 5 U.S.C. 3302(1)).

Interested parties may submit amicus briefs or other comments on this issue no later than June 11, 2010. Amicus briefs must be filed with the Clerk of the Board. Briefs shall not exceed 15 pages in length. The text shall be double-spaced, except for quotations and footnotes, and the briefs shall be on 81/2 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 11, 2010.

ADDRESSES:

All briefs shall be captioned “Larry L. Evans 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, [phone].

Dated: May 4, 2010.

William D. Spencer,

Clerk of the Board.