Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Notices 2913 

foreign law enforcement officials to 

request that the Bureau of Alcohol, 

Tobacco, Firearms and Explosives (ATF) 

trace firearms used or suspected to have 

been used in crimes. 

5. An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: An estimated 6,103 

respondents will take 6 minutes to 

complete the survey. 

6. An estimate of the total public 

burden (in hours) associated with the 

collection: The estimated annual public 

burden associated with this collection is 

34,448 hours. 

If additional information is required 

contact: Jerri Murray, Department 

Clearance Officer, United States 

Department of Justice, Justice 

Management Division, Policy and 

Planning Staff, Two Constitution 

Square, 145 N Street NE., Room 3E– 

405B, Washington, DC 20530. 

Dated: January 12, 2016. 

Jerri Murray, 

Department Clearance Officer for PRA, U.S. 

Department of Justice. 

[FR Doc. 2016–00805 Filed 1–15–16; 8:45 am] 

BILLING CODE 4410–FY–P 

MERIT SYSTEMS PROTECTION 

BOARD 

Notice of Opportunity To File Amicus 

Briefs 

AGENCY: Merit Systems Protection 

Board. 

ACTION: Notice. 

SUMMARY: The Merit Systems Protection 

Board (MSPB or the Board) announces 

the opportunity to file amicus briefs in 

the matter of Mark Abernathy v. 

Department of the Army, MSPB Docket 

No. DC–1221–14–0364–W–1, currently 

pending before the Board on petition for 

review. Additional information 

concerning the question on which the 

Board invites amicus briefing in 

Abernathy and the required format and 

length of amicus briefs can be found in 

the Supplementary Information below. 

DATES: All briefs submitted in response 

to this notice must be received by the 

Clerk of the Board on or before February 

9, 2016. 

ADDRESSES: All briefs shall be captioned 

‘‘Mark Abernathy v. Department of the 

Army’’ and entitled ‘‘Amicus Brief.’’ 

Only one copy of the brief need be 

submitted. The Board encourages 

interested parties to submit amicus 

briefs as attachments to electronic mail 

addressed to mspb@mspb.gov. An email 

should contain a subject line indicating 

that the submission contains an amicus 

brief in the Abernathy case. Any 

commonly-used word processing format 

or PDF format is acceptable; text formats 

are preferable to image formats. Briefs 

may also be filed with William D. 

Spencer, Clerk of the Board, Merit 

Systems Protection Board, 1615 M 

Street NW., Washington, DC 20419; Fax 

(202) 653–7130. 

FOR FURTHER INFORMATION CONTACT: 

Molly Leckey, Office of the Clerk of the 

Board, Merit Systems Protection Board, 

1615 M Street NW., Washington, DC 

20419; (202) 653–7200; mspb@

mspb.gov. 

SUPPLEMENTARY INFORMATION: The 

administrative judge in Abernathy 

dismissed the individual right of action 

(IRA) appeal for lack of jurisdiction, 

finding that the appellant did not make 

a protected disclosure because, when he 

made the disclosure, he was neither an 

‘‘employee’’ nor an ‘‘applicant,’’ but 

rather, a Federal contractor. Of 

particular relevance in Abernathy is the 

jurisdictional question of whether, 

under the Whistleblower Protection Act 

of 1989 (WPA), as amended by the 

Whistleblower Protection Enhancement 

Act of 2012 (WPEA), both the disclosure 

and the subject matter of the disclosure 

must have occurred after the individual 

who is seeking corrective action in an 

IRA appeal became an applicant or 

employee. 

The Board believes that some 

ambiguity may exist in the language of 

the statute regarding who is covered by 

the WPA and WPEA. A starting point 

for statutory interpretation is the words 

of the statute itself, which must be 

examined to determine Congress’s 

intent and purpose. In construing 

statutes, their provisions should not be 

read in isolation; rather, each statute’s 

section should be construed in 

connection with every other section so 

as to produce a harmonious whole. Yee 

v. Department of the Navy, 121 M.S.P.R. 

686 (2014). Because the WPA and 

WPEA are remedial legislation, the 

Board will interpret their provisions 

liberally to embrace all cases fairly 

within their scope, so as to effectuate 

the purpose of the Acts. See Fishbein v. 

Department of Health & Human 

Services, 102 M.S.P.R. 4 (2006). We now 

turn to the two statutory provisions in 

question. 

The Board has jurisdiction over 

whistleblower claims filed pursuant to 5 

U.S.C. 1221(a), as amended by WPEA 

§ 101(b)(1)(A). 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, against such employee, former 

employee, or applicant for employment, as a 

result of a prohibited personnel practice 

described in section 2302(b)(8) . . . seek 

corrective action from [the Board]. 

5 U.S.C. § 1221(a) (emphasis added). 

Section 2302(b)(8) prohibits any 

employee who has authority to take, 

direct others to take, recommend, or 

approve any personnel action to: 

(8) take or fail to take, or threaten to take 

or fail to take, a personnel action with respect 

to any employee or applicant for employment 

because of— 

(A) any disclosure of information by an 

employee or applicant which the employee 

or applicant reasonably believes evidences— 

(i) any violation of any law, rule, or 

regulation, or 

(ii) gross mismanagement, a gross waste of 

funds, an abuse of authority, or a substantial 

and specific danger to public health or safety, 

if such disclosure is not specifically 

prohibited by law and if such information is 

not specifically required by Executive order 

to be kept secret in the interest of national 

defense or the conduct of foreign affairs; or 

(B) any disclosure to the Special Counsel, 

or to the Inspector General of an agency or 

another employee designated by the head of 

the agency to receive such disclosures, of 

information which the employee or applicant 

reasonably believes evidences— 

(i) any violation (other than a violation of 

this section) of any law, rule, or regulation, 

or 

(ii) gross mismanagement, a gross waste of 

funds, an abuse of authority, or a substantial 

and specific danger to public health or 

safety[.] 

5 U.S.C. § 2302(b)(8) (emphasis added). 

The Board has held that, in 

whistleblower retaliation claims, 5 

U.S.C. 1221(a) and 2302(b)(8) should be 

read together. See Schmittling v. 

Department of the Army, 92 M.S.P.R. 

572 (2002). In construing section 

1221(a) with section 2302(b)(8), it is 

possibly unclear if a request for 

corrective action under the WPA must 

concern only actions that occurred 

while the individual was an employee 

or applicant for employment. In other 

words, it is possibly uncertain whether, 

to constitute a disclosure ‘‘by an 

employee or applicant,’’ the disclosure 

of information described in section 

2302(b)(8)(A), as well as the subject 

matter of the disclosure, must have 

transpired after—and not before—the 

individual seeking corrective action 

became ‘‘an employee’’ or ‘‘an applicant 

for employment.’’ 

The U.S. Court of Appeals for the 

Federal Circuit (Federal Circuit) 

addressed this question in three 

nonprecedential decisions, all of which 

were decided before the enactment of 

the WPEA. See Nasuti v. Merit Systems 

Protection Board, 376 F. App’x 29 (Fed. 

Cir. 2010) (per curiam) (finding that an 


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2914 Federal Register / Vol. 81, No. 11 / Tuesday, January 19, 2016 / Notices 

individual who was a former employee 

when the alleged personnel action and 

disclosure occurred could not bring a 

claim under the WPA); Guzman v. 

Office of Personnel Management, 53 F. 

App’x 927 (Fed. Cir. 2002) (per curiam) 

(construing the language of sections 

1221(a) and 2302(b)(8) as permitting a 

former employee to bring a claim under 

the WPA ‘‘only as to disclosures made 

. . . during the period that the 

complainant was an employee or 

applicant’’); Amarille v. Office of 

Personnel Management, 28 F. App’x 931 

(Fed. Cir. 2001) (concluding that the 

Board lacked jurisdiction over an IRA 

appeal filed by a former employee 

because, during the relevant time in 

question, he was neither an employee 

nor applicant for Federal employment). 

The Board may follow the Federal 

Circuit’s nonprecedential decisions, to 

the extent that the Board finds them 

persuasive. 

The Board, prior to the WPEA’s 

enactment, also issued decisions ruling 

on the question being examined here. 

See Weed v. Social Security 

Administration, 113 M.S.P.R. 221 (2010) 

(finding that the appellant, who was 

working for the Federal Government 

when he filed his Office of Special 

Counsel complaint and when the 

personnel actions in dispute took place, 

was an ‘‘employee’’ protected by the 

statute, even though he was working at 

a different Federal agency than the one 

that took the personnel actions; 

alternatively, finding that a 

whistleblower need not be ‘‘an 

employee, an applicant for employment 

or a former employee at the time he 

made his protected disclosures’’); Pasley 

v. Department of the Treasury, 109 

M.S.P.R. 105 (2008) (concluding that the 

termination of a former Federal 

employee by a private sector employer 

taken in retaliation for his protected 

disclosures during Federal Government 

employment did not meet the definition 

of a ‘‘personnel action’’ under the 

WPA); Greenup v. Department of 

Agriculture, 106 M.S.P.R. 202 (2007) 

(determining that the appellant lacked 

standing to challenge personnel actions 

taken against her while she was a 

county employee, but that she later was 

covered by the WPA after she resigned 

from her county job and applied, but 

was not selected, for a Federal position). 

In light of the relevant statutory 

language, it could be argued that an 

individual seeking protection under the 

WPA and WPEA must have been either 

an employee or an applicant at the time 

of both the disclosure and the subject 

matter of the disclosure. Adkins v. 

Office of Personnel Management, 104 

M.S.P.R. 233 (2006) (reasoning that, 

where the language of a statute is clear, 

it controls, absent an express indication 

of an intent to the contrary), aff’d, 525 

F.3d 1363 (Fed. Cir. 2008). 

In analyzing this question, the Board 

also wishes to receive comments that 

substantively compare and contrast the 

statutory language in the WPA and 

WPEA regarding the standing of 

individuals who are ‘‘employees,’’ 

‘‘former employees,’’ and ‘‘applicants 

for employment,’’ with the analogous, 

yet more expansive, standing 

requirement language under the 

Uniformed Services Employment and 

Reemployment Rights Act of 1994 

(codified at 38 U.S.C. 4301–4333) which 

provides, in relevant part, that ‘‘a 

person may submit a complaint against 

a Federal executive agency or the 

Office,’’ 38 U.S.C. 4324(b) (emphasis 

added); see Silva v. Department of 

Homeland Security, 112 M.S.P.R. 362 

(2009). 

Finally, the Board is seeking 

comments that address what, if any, 

effect the question presented here might 

have on other Federal whistleblower 

and anti-retaliation laws. This would 

include the Department of Defense 

Authorization Act of 1987, which 

specifically bans defense contractors 

and subcontractors from retaliating 

against employees in reprisal for 

disclosing to specified entities 

information about alleged gross 

mismanagement or a substantial and 

specific danger to public health or 

safety. See 10 U.S.C. 2409(a). Interested 

individuals or organizations may submit 

amicus briefs or other comments on the 

question presented in Abernathy no 

later than February 9, 2016. Amicus 

briefs must be filed with the Clerk of the 

Board. Briefs shall not exceed 30 pages 

in length. The text shall be doublespaced, except for quotations and 

footnotes, and the briefs shall be on 8 

1⁄2 by 11 inch paper with one inch 

margins on all four sides. All amicus 

briefs received will be posted on the 

Board’s public Web site at 

www.mspb.gov/SignificantCases after 

February 9, 2016. 

William D. Spencer, 

Clerk of the Board. 

[FR Doc. 2016–00875 Filed 1–15–16; 8:45 am] 

BILLING CODE 7400–01–P 

NATIONAL ARCHIVES AND RECORDS 

ADMINISTRATION 

[NARA–2016–012] 

Agency Information Collection 

Activities: Proposed Collection; 

Comment Request 

AGENCY: National Archives and Records 

Administration (NARA). 

ACTION: Notice. 

SUMMARY: NARA gives public notice 

that it proposes to request extension of 

Identification Card Request, NA Form 

6006, which will be used by NARA 

employees, on-site contractors, 

volunteers, Foundation members, 

Interns, and others in order to obtain a 

NARA Identification Card. We invite 

you to comment on these proposed 

information collections pursuant to the 

Paperwork Reduction Act of 1995. 

DATES: We must receive written 

comments on or before March 21, 2016. 

ADDRESSES: Send comments to 

Paperwork Reduction Act Comments 

(ISSD), Room 4400; National Archives 

and Records Administration; 8601 

Adelphi Road; College Park, MD 20740– 

6001, fax them to 301–713–7409, or 

email them to tamee.fechhelm@

nara.gov. 

FOR FURTHER INFORMATION CONTACT: 

Contact Tamee Fechhelm by telephone 

at 301–837–1694 or fax at 301–713– 

7409 with requests for additional 

information or copies of the proposed 

information collections and supporting 

statements. 

SUPPLEMENTARY INFORMATION: Pursuant 

to the Paperwork Reduction Act of 1995 

(Pub. L. 104–13), NARA invites the 

public and other Federal agencies to 

comment on proposed information 

collections. The comments and 

suggestions should address one or more 

of the following points: (a) whether the 

proposed information collection is 

necessary for NARA to properly perform 

its functions; (b) NARA’s estimate of the 

burden of the proposed information 

collection and its accuracy; (c) ways 

NARA could enhance the quality, 

utility, and clarity of the information it 

collects; (d) ways NARA could 

minimize the burden on respondents of 

collecting the information, including 

through information technology; and (e) 

whether this collection affects small 

businesses. We will summarize any 

comments you submit and include the 

summary in our request for Office of 

Management and Budget (OMB) 

approval. All comments will become a 

matter of public record. In this notice, 

NARA solicits comments concerning the 

following information collections: 


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