Federal Manager's Daily Report

The recently enacted Defense Department budget bill that

allows DoD to create an internal appeals system leaves open

many questions regarding what effect the change will have on

managers who take personnel actions and then must defend

them against a challenge by the aggrieved employee.

The measure requires DoD to provide “the protections of due

process” and says that implementing rules “may establish

legal standards and procedures for personnel actions,

including standards for applicable relief.”

Though DoD has not defined exactly what the system will

look like, one potential precedent is a similar arrangement

at the Federal Aviation Administration involving a

three-member review panel. That system similarly was

designed to speed up and simplify appeals, but both

employees and management soon signaled their dissatisfaction,

in part because the decisions did not set the same type of

precedent for other personnel actions that Merit Systems

Protection Board rulings set.

That left both sides confused about what disciplinary

action was allowable and what type of proof had to be

provided to justify management decisions; it also caused

issues to be litigated reapeatedly. Congress later amended

the law to allow employees the choice of using that system

or the standard MSPB route.