Arlington, VA 22201
Hon. William D. Spencer
Merit Systems Protection Board
1615 M Street NW
Washington DC 20419
Re: Special Panel: Alvara v. DHS
Dear Mr. Spencer:
In the matter of the Alvara Panel, I enclose for filing the original with six copies of an Amicus Brief and a motion for leave to file.
Thank you for your consideration
Yours very Truly
DEPARTMENT OF HOMELAND SECURITY
MSPB DA 0752 10 0223 E 1
MOTION FOR LEAVE TO SUBMIT AMICUS BRIEF
BRIEF OF AMICUS CURIAE PETER BROIDA
TO SPECIAL PANEL
I. MOTION FOR LEAVE TO SUBMIT AMICUS BRIEF
Peter Broida moves the Special Panel for permission to file this amicus brief pursuant to 5 CFR 1201.34.
Mr. Alvara's counsel, Gary Gilbert, advises Mr. Broida that Mr. Alvara consents to this motion.
Agency counsel, Lamont D. Nahrgang, was requested by email on August 27, 2014, to state if the Agency objects to an amicus brief, but no response has yet been received.
A. INTEREST OF AMICUS IN THE APPEAL AND RELEVANCE OF THE BRIEF
Peter Broida is a practitioner before the Board and its reviewing court, author of materials concerning Board practice, and lecturer on Board law and practice. His interest is in informed and fair administration of Board procedures. This brief relates to the propriety of the grounds invoked by the Board to certify the case for Special Panel consideration.
II. BRIEF OF AMICUS
A. SUMMARY OF ARGUMENT
The Special Panel is convened to resolve controlling conflicts of civil rights and civil service law arising in appeals within Board jurisdiction. The Board's decision, before and after the EEOC decision in Alvara's appeal, involves only issues of reasonable accommodation, not civil service law, rule, regulation, or policy directive. The Board improperly forced Special Panel consideration by characterizing as a civil service issue a legal issue within the EEOC's purview as primary interpreter of the Rehabilitation Act.
1. The Special Panel Exists Only to Resolve Conflicts of Civil Rights and Civil Service Law Arising in Appeals Within Board Jurisdiction.
Under 5 USC 7702(c), the Board may refer to the Special Panel a case earlier considered by the Commission, inter alia:
(2)to the extent that the Board finds that, as a matter of law,
(A) the Commission decision constitutes an incorrect interpretation of any provision of any civil service law, rule, regulation or policy directive.
A threshold, jurisdictional issue, is whether the Board's Alvara decision found as a matter of law that the Commission decision incorrectly applied civil service law, rule, regulation or policy directive.
2. The Board Did Not Identify Any Provision of Civil Service Law, Rule, Regulation or Policy Directive That Controlled the Outcome of Alvara's Appeal.
Alvara's case involved an affirmative defense: the agency's failure to accommodate sleep apnea through modification of shift and overtime requirements. For the Board to require Special Panel consideration, it had to identify some bar to that adjustment compelled by civil service law, rule, regulation or policy directive.
The opening paragraph of the Board's analysis belies the predicate of the Special Panel referral, 2014 MSPB 63, ¶ 8:
The EEOC decision, to which we are asked to defer, is unreasonable both from a legal and a management/operational perspective. At its core, the EEOC decision fundamentally addresses not an interpretation of discrimination law, but rather an agency's ability to determine the essential functions of any given position, in this case, a law enforcement officer position.
Special Panel referral is not justified by management or operational perspectives—whatever they may be.
The only "law" cited by The Board, id. at ¶ 13, are the retirement laws describing the types of positions qualifying for law enforcement officers' early retirement:
5 USC 8331(20) ("law enforcement officer" means an employee, the duties of whose position are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States, including an employee engaged in this activity who is transferred to a supervisory or administrative position.")
5 USC 8401(17) (primary duties: (I) the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States, or (II) the protection of officials of the United States against threats to personal safety; and (ii) are sufficiently rigorous that employment opportunities should be limited to young and physically vigorous individuals, as determined by the Director considering the recommendations of the employing agency)
5 USC 3307 (agency discretion to set minimum and maximum ages for LEOs).
These laws have nothing to do with determination of shifts or assignment of overtime. The statutes do not set, contrary to what the Board implies, essential functions of positions. The statutes do no more than set basic requirements for early retirement. Agencies decide what it takes by way of qualifications to be, e.g., a DEA, FBI, OIG, or Customs agent. Those are agency-specific determinations not dictated by civil service law, rule, regulation or policy directive. Broadly-stated management rights of agencies under 5 USC 7106 do not turn every disagreement by the Board with EEOC's application of civil rights laws into a dispute subject to Special Panel consideration through construction of Section 7106 as a civil service law. The Board neither identifies nor implies the existence of any affirmative source of law—decisional, statutory, or regulatory—conflicting with the Commission's primary role in the interpretation of the Rehabilitation Act.
No policy directive is identified by the Board as infringed by the EEOC's Alvara analysis. Although the Board speaks broadly of duties assigned to law enforcement personnel, the Board does not posit that a position description rises to the level of a policy directive. What are examples of policy directives? Examples comprise: Presidential Policy Directive/PPD 19, Protecting Whistleblowers with Access to Classified Information (October 10, 2012); or, more to the point, EEOC Directives found at http://www.eeoc.gov/federal/directives/
As to what civil service law exists in Board decisions precluding the accommodation sought by Alvara, it is impossible to guess (since the Board cites none), but as to OPM directives precluding such accommodations, none can be found in its principal issuances on the subject:
OPM Handbook on Alternative Work Schedules
Negotiating Flexible and Compressed Work Schedules
See Solomon v. Vilsack, ___F.3d___ (D.C. Cir. 8/15/2014) (applying OPM guidance in the context of the Rehabilitation Act to a federal employee's EEO complaint).
Alvara, and other litigants before the Board, cannot be expected to guess at the Board's intent, "to fence with a phantom, raising arguments with himself merely for the exercise of countering those arguments." In re Tariela, 1 MSPR 119, 1 MSPB 116 (1979). "Though not impossible, it is difficult to prove a necessary and nonobvious element of a case without even stating it." Jacobs v. Dept. of Justice, 35 F.3d 1543 (Fed. Cir. 1994).
3. Because the Alvara Decision Requires Application of the Rehabilitation Act and Associated Accommodative Responsibilities under EEOC Cases and Directives, the Board Improperly Forced Special Panel Consideration by Characterizing as a Civil Service Issue a Legal Issue Within the EEOC's Purview as Primary Interpreter of the Rehabilitation Act.
The parties briefs will address the application of EEO law to Alvara's appeal. But the analysis of that law is properly the province of EEOC following initial review by the Board. The Special Panel is not established as a second-level reviewer of EEOC through a forced referral to the Panel from the Board when there is no dispositive civil service law, rule, regulation or policy directive. "No matter how vigorously this controversy is characterized as something else, it is, at bottom, an argument about how the EEOC has interpreted discrimination law." Boots v. USPS, 100 MSPR 513, 514—25 (Spec. Pan. 2005); see Ignacio v. USPS, 30 MSPR 471, 476 (Spec. Pan. 1986) (MSPB not to force review of EEOC decision by unwarranted reliance on 5 USC 7702(c)(2) when the dispute is over accommodation), followed, Nuanez v. Dept. of Treasury, 32 MSPR 144, 147 (1987), Holley v. DHHS, 50 MSPR 271, 273 (1991), Boots v. USPS, 100 MSPR 513, 521, 522 (2005). The Board's ipse dixit of the primacy of civil service law does not trump reasoned analysis of the Commission's decision.
Amicus recommends that the Panel direct the Board to accept the EEOC's decision.
I certify service of this motion and brief on August 28, 2014, by fax and email pdf upon:
Gary M. Gilbert, and Julie E. Rook, for Mr. Alvara 301-608-0881 (fax)
Lamont D. Nahrgang, and Peter Arcuri, for DHHS 915-599 0227 (fax)
and by mail upon:
11340 Ardelle Ave.
El Paso, TX 79936
Peter B. Broida