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.