| Comment Number: | OL-10501629 |
| Received: | 2/27/2005 1:50:00 PM |
| Subject: | Notice of Proposed Rulemaking, Request for Comment |
| Title: | National Security Personnel System |
| CFR Citation: | 5 CFR Chapter XCIX and Part 9901 |
| No Attachments |
Comments:
Comments concerning - Federal Register: February 14, 2005 (Volume 70, Number 29) Proposed Rules: FR Document 05-2582/NSPS (National Security Personnel System) Page 7566: "Indeed, the proposal to retain MSPB administrative judges was predicated on the results of that dialogue." There was no dialogue. The reason only a vestige of MSPB authority remains is that Congress pressured DoD. "Such an assessment will be undertaken by DoD and OPM after the Department has accumulated sufficient experience under NSPS." That should read, "Until DoD and NSPSLRB has cherry-picked enough cases to call them precedents." "At the same time, these regulations propose new substantive standards that MSPB will apply to DoD cases to improve the appeals process and accommodate and support the agency's critical national security mission." MSPB, under these regulations, shall do what DoD decides it will do. "However, we concluded that the potential advantages of creating an internal DoD appeals board--greater efficiency of decision-making and deference to agency mission and operations, among them--could be achieved if MSPB administrative judges were retained as the initial adjudicators for adverse actions but with substantive and significant procedural modifications." MSPB was retained because Congressional oversight put pressure on DoD. "Modifying or reversing an initial MSPB AJ decision or an MSPB AJ decision on remand where the Department determines that (1) the decision has a direct and substantial adverse impact on the Department's national security mission, ..." Where is the independent review if MSPB can be overriden at DoD whim? "In such cases, the final Department decision is precedential unless otherwise determined by the Department or reversed or modified by the full MSPB. " Again, cherry-picking cases that DoD wants as precedents. "These regulations provide that the Department may review an initial MSPB AJ decision, and correct such decision as appropriate by applying a standard that provides for meaningful corrective action and preserves statutory requirements of fairness and due process." If DoD can override MSPB on a whim, there is no independent review of DoD personnel policies and there are no checks and balances. The opportunity for abuse is rife. "Therefore, as previously described, these regulations limit the Department's review to those initial MSPB AJ decisions for which either party has timely filed a request for review, and the authority to issue a final Department decision that modifies or reverses an initial MSPB AJ decision is limited by specific criteria set forth in these regulations." As above, if there is no independence of MSPB then true due process is lost.