Comment Number: OL-10501650
Received: 2/27/2005 2:12:25 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 7593: "(b)(1)" There are no protections against DoD mistakes, bad faith, etc. "(c)(1)" ["... the Department determines, in its sole, exclusive, and unreviewable discretion, ...."] There are no precedents, checks and balances, nor reviews to protect employees. "(d)" Since there are no standards, but what DoD asserts, then by what standard is the employee subject? All DoD wishes is to avoid having to follow decades of laws, regulations, and legal jurisprudence. Since we have already seen what DoD does without oversight (Abu Gharib, etc.), we certainly know what will happen here. "(3) The parties may seek discovery regarding any matter that is relevant to any of their claims or defenses. However, by motion, either party may seek to limit such discovery because the burden or expense of providing the material outweighs its benefit, or because the material sought is privileged, not relevant, unreasonably cumulative or duplicative, or can be secured from some other source that is more convenient, less burdensome, or less expensive." DoD will tell parties opposite that they may use FOIA. This will, of course, delay the matter past DoD/NSPS set deadlines and the employee will be out of luck. "(6) The Department's determination regarding the penalty imposed will be given great deference. An arbitrator, AJ, or the full MSPB may not modify the penalty imposed by the Department unless such penalty is so disproportionate to the basis for the action as to be wholly without justification. In cases of multiple charges, the third party's determination in this regard is based on the justification for the penalty as it relates to the sustained charge(s). When a penalty is mitigated, the maximum justifiable penalty must be applied. The maximum justifiable penalty is the severest penalty that is not so disproportionate to the basis for the action as to be wholly without justification. If the adverse action is based on an MRO, the penalty may only be mitigated as prescribed in Sec. 9901.808." This is a violation of basis due process. The burden is on the employee not DoD.