On November 24, President Bush signed legislation granting the Department of Defense (DoD) the authority to begin setting up the National Security Personnel System. The relevant section of the United States Code covering personnel issues will be at 5 U.S.C. Sect. 99.
The legislation among other things allows DoD to set up an internal system for adjudicating employee appeals of disciplinary decisions rather than having employees appeal disciplinary actions to the Merit Systems Protection Board and have their case heard before an administrative judge. The employees will, however, be able to appeal the DoD’s decision to the three-member Board for a review of the record. The legislation creating the Homeland Security Department gave DHS the same opportunity to set up its own disciplinary system.
The MSPB was established in 1978 under the Civil Service Reform Act to allow employees to appeal adverse agency actions to an independent entity. MSPB decisions uphold agency disciplinary actions approximately 80 percent of the time. In performance cases, the percentage is even higher. In addition, decisions appealed to the federal courts have been upheld in the vast majority of cases. Despite this, there appears to be a perception in the present administration that the system is overly sympathetic to employees.
However, giving federal employees internal appeal rights, instead of to an independent entity, has failed in the past. In 1996, Congress took away Federal Aviation Administration employees’ MSPB appeal rights. The FAA created an internal system, but after allegations of abuse and numerous complaints, Congress reinstated full MSPB appeal rights to FAA employees in 2000.
What the new system will mean for the hundreds of thousands of DoD civil service employees, and the Homeland Security employees, will not be clear for a long time. DHS is still working on issuing draft regulations more than a year after the law giving it that authority was passed. It is expected that it will take a lengthy period before DoD will be able to issue its proposed regulations. Further information will be provided as developments occur.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **