[Federal Register Volume 62, Number 115 (Monday, June 16, 1997)]
[Notices]
[Pages 32663-32664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15652]
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MERIT SYSTEMS PROTECTION BOARD
Opportunity to File Amicus Briefs in Fitzgerald et al. versus
Department of Defense, MSPB Docket No. PH-0842-94-0200-B-1
AGENCY: Merit Systems Protection Board.
ACTION: The Merit Systems Protection Board is providing interested
parties with an opportunity to submit amicus briefs on the following
issues: (1) Whether the Board has jurisdiction over an appeal from a
final agency decision denying an employee law enforcement officer (LEO)
retirement coverage where the employee made no request for such
coverage in accordance with 5 CFR 842.807(a); and (2) whether 5 CFR
842.804(c), which creates a rebuttable presumption that an agency
head's denial of LEO retirement coverage is correct where a formal,
written request is not filed within six months after entering a
position or after any significant change in the position, is invalid,
unreasonable, or violates due process.
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SUMMARY:
Issue 1
In these consolidated appeals, the appellants, who are covered by
the Federal Employees' Retirement System (FERS), 5 U.S.C. chapter 84,
did not request a determination of their LEO status. Rather, the agency
issued a final decision on its own initiative finding that the
appellants' positions were not covered by the special retirement
provisions of FERS, and providing the appellants with notice of a right
to appeal to the Board.
Under 5 CFR 842.807(a), ``[t]he final decision of an agency denying
an individual's request for approval of a position as a rigorous,
secondary, or air traffic controller position made under 5 CFR
842.804(c) may be appealed to the * * * Board under procedures
prescribed by the Board.'' In adopting this regulation, the Office of
Personnel Management (OPM) indicated that it was amending the section
``to clarify that * * * only agency denial decisions made in response
to individual requests under Sec. 842.804(c) are subject to appeal * *
*.'' 57 FR 32,685, 32,689 (July 23, 1992).
The Board has generally interpreted section 842.807(a) as requiring
that an employee who is covered by FERS first formally request a
determination on LEO coverage from his or her agency before appealing
the agency's LEO determination to the Board. See, e.g., Fitzgerald
versus Department of Defense, 70 M.S.P.R. 152, 155 (1996). The Board,
however, is reconsidering this interpretation where, as in these cases,
the agency has already issued a final decision on its own initiative.
In this regard, the Board notes that under 5 U.S.C. 8461(e)(1), an
administrative action or order affecting the rights or interests of an
individual under the provisions of chapter 84 administered by OPM may
be appealed to the Board.
The Board is inviting interested parties to submit amicus briefs
addressing whether an employee request is a jurisdictional requirement
where the agency has issued a final decision on its own initiative.
Issue 2
The Board has interpreted 5 CFR 842.804(c) as an additional
restriction on its jurisdiction over FERS LEO matters. See, e.g.,
DeVitto versus Department of Transportation, 64 M.S.P.R. 354, 357-58
(1994). Section 842.804(c) provides that if an employee is in a
position not subject to the higher LEO withholding rate, and the
employee does not, within six months after entering the position or
after any significant change in the position, formally and in writing
seek a determination from the employing agency that his or her position
is properly covered by the higher withholding rate, the agency head's
determination that the service was not so covered at the time of the
service is presumed to be correct. The presumption may be rebutted by a
preponderance of the evidence that the employee was unaware of his or
her status or was prevented by cause beyond his or her control from
requesting that the official status be changed when the service was
performed. Thus, under DeVitto, if a request for LEO coverage is not
made within the time limit set forth in the regulation and neither of
the circumstances specified in the regulation is present, an appeal of
the agency's denial of LEO coverage must be dismissed for lack of
jurisdiction.
The appellants and amicus curiae National Treasury Employees Union
argue that section 842.804(c) is invalid because it is contrary to
statute and congressional intent. The appellants and amicus curiae
assert that the statutory scheme grants special retirement coverage for
LEOs, contains no deadlines for challenging adverse agency
determinations as to employee status, and provides that an
administrative action or order affecting the rights or interests of an
individual under the provisions of chapter 84 maybe appealed to the
Board under procedures prescribed by the Board.'' 5 U.S.C.
Sec. 8461(e)(1). Thus, they contend that the Board's jurisdiction to
review the merits of agency head determinations is not qualified by any
statutory obligation to presume the correctness of those
determinations. Alternatively, they assert that section 842.804(c) is
entitled to no deference because it is an arbitrary and unreasonable
exercise of OPM's regulatory authority and violates the constitutional
guarantees of due process.
The agency, by contrast, argues that the statute is silent on the
matters covered in section 842.804(c), and that the section,
promulgated pursuant to OPM's authority to prescribe regulations to
carry out 5 U.S.C. chapter 84, is a time limit that is not arbitrary,
capricious, or contrary to statute because it furthers the intent of
the statute to provide LEO retirement coverage when a determination can
be made that entitlement to coverage exists. The agency contends that
it would be difficult to make these determinations based on the
evidence required if employees could wait twenty years, until they
believed they were eligible to retire, to request LEO retirement
coverage.
The Board is inviting interested parties to submit amicus briefs
addressing whether 5 CFR 842.804(c) is
[[Page 32664]]
invalid, unreasonable, or violates due process. Resolution of this
issue may depend, in part, on how section 842.804(c) should be
interpreted, i.e., as jurisdictional, see DeVitto, 64 M.S.P.R. at 357,
as a rule affecting the Board's analysis of the appellants' burden of
proof on the merits, or as a timeliness requirement couched in
jurisdictional and/or merits language.
DATES: All briefs in response to this notice shall be filed with the
Clerk of the Board on or before July 11, 1997.
ADDRESSES: All briefs shall include the case name and docket number
noted above (Fitzgerald et al. versus Department of Defense, MSPB
Docket No. PH-0842-94-0200-B-1) and be entitled ``Amicus Brief.''
Briefs should be filed with the Office of the Clerk, Merit Systems
Protection Board, 1120 Vermont Avenue, NW., Washington, DC 20419.
FOR FURTHER INFORMATION CONTACT:
Shannon McCarthy, Deputy Clerk of the Board, or Matthew Shannon,
Counsel to the Clerk, (202) 653-7200.
Dated: June 10, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-15652 Filed 6-13-97; 8:45 am]
BILLING CODE 7400-01-M
