Merit Systems Protection Board.
The Merit Systems Protection Board is providing interested parties with an opportunity to submit amicus briefs on whether the Board has jurisdiction to review an individual right of action (IRA) appeal from an employee, former employee, or applicant for employment of the International Boundary and Water Commission.
The appellant in
This appeal raises the question of whether the Board has appellate jurisdiction to review an IRA appeal from an employee, former employee, or applicant for employment of the International Boundary and Water Commission.
Title 5 of the United States Code, section 1221(a) provides that an employee, former employee, or applicant for employment may, with respect to any personnel action taken, or proposed to be taken * * * as a result of a prohibited personnel practice described in section 2302(b)(8), seek corrective action from the Merit Systems Protection Board. Section 2302(a)(2)(A) defines “personnel action” as various types of employment-related actions “with respect to an employee in, or applicant for, a covered position in an agency.” Section 2302(2)(C) in turn defines an “agency” to mean, inter alia, “an Executive agency.” For purposes of title 5, “Executive agency” means an Executive department, a Government corporation, and an independent establishment. 5 U.S.C. 105. An “independent establishment” means, inter alia, an establishment in the executive branch “which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment.” 5 U.S.C. 104.
The appellant in this case argues that the U.S. Section of the International Boundary and Water Commission is “entirely a creature of the United States,” operates as a separate federal agency, is an “independent establishment” within the meaning of 5 U.S.C. 104, and is not subject to international control. In contrast, the administrative judge found that the International Boundary and Water Commission is a subdivision of an “international organization” under 22 U.S.C. 277, 288.
Finally, we note that the U.S. Court of Appeals for the Federal Circuit and the Merit Systems Protection Board have not questioned IRA jurisdiction over the International Boundary and Water Commission in previous decisions. See,
All briefs in response to this notice shall be filed with the Clerk of the Board on or before November 25, 2005.
All briefs shall include the case name and docket number noted above (
Matthew Shannon, Deputy Clerk of the Board, or Melissa Jurgens, Counsel to the Clerk, at (202) 653–7200.