The recently published DHS proposed regulations (Federal Register, Vol. 69, No. 34, 2/20/04) limit employee appeal rights for adverse actions and performance-based actions. These appeals are now merged in an expedited appeal procedure that only requires proof by substantial evidence, not a preponderance of the evidence as was used for adverse actions, for all actions under Subpart G of the proposed rules. There is also a requirement for deference to OPM and DHS in their interpretation of the regulations, the Homeland Security Act, and civil service law. The time limits for responding to proposed actions and appeals are also reduced which will make it more difficult for employees to reply and prove their innocence at DHS hearings. Furthermore, performance-based actions will no longer require an opportunity for the employee to improve his or her performance.
Under the proposed regulations, employee will be entitled to a minimum of 15 days’ advance notice as opposed to the current 30 days and only five days for mandatory removal offenses which have yet to be defined. Employees will only be given a minimum of 5 days to respond orally and/or in writing to the proposed charges. After a final decision has been issued, appeals may be filed with the MSPB within 20 days after the effective date of the action except for mandatory removal offenses which may only be appealed to a DHS Panel. Administrative Judges (AJs) will no longer be allowed to reverse charges based on the way the charge is labeled or the conduct is characterized, written discovery and depositions are more limited, summary judgment is encouraged, and settlement negotiations may not take place if opposed by either party.
The penalty selected by the DHS may not be reduced or modified, and initial decisions must be issued by AJs within 90 days. If fewer than all of the charges are sustained, the AJ or the Panel must direct DHS to promptly determine whether the penalty is still appropriate based on the sustained charge(s). Then a party may appeal to the Merit Systems Protection Board (MSPB) which must issue a decision within 60 days after the filing of an opposition if OPM files a petition for reconsideration. Attorney fees are limited to when an action is reversed in its entirety and only if the MSPB determines the action constituted a prohibited personnel practice, was taken in bad faith, or is without any basis in fact and law. There is also judicial review of any final MSPB order or decision.
Overall, the proposed regulations will severely diminish DHS employees’ rights as presently provided by Title V of the U.S. Code. In addition to the more limited appeal rights, the proposed regulations will eliminate the option of using arbitration for the adjudication of adverse actions. Due to the controversial nature of these proposed regulations, it is expect that there will be significant comments and attempts at revision before they are issued in final form.
** This information is provided by the attorneys at
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