| Comment Number: | OL-10503362 |
| Received: | 3/5/2005 8:50:52 AM |
| 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:
Appeals This subpart would establish a labyrinthine process for appealing adverse actions. Adverse actions would continue to be appealed to MSPB administrative judges, but the judge’s decision could then be appealed to DOD, whose decision could then be appealed to MSPB headquarters, whose decision could then be appealed to the Federal Circuit. The employer therefore gets four guaranteed opportunities to have its decision upheld, as opposed to two guaranteed opportunities under current law. There is no indication as to who in DOD will review MSPB judges’ decisions and the standards in this subpart would seem to allow that person or persons to disagree with the judge for almost any reason. And, throughout this whole ordeal the employee remains out of work, since “interim relief” cannot be granted until the appeal reaches MSPB headquarters. Prompt adjudication of appeals is a worthy goal. However, there is a difference between promptness and excessive speed. Under the new regulations, MSPB judges would have only 90 days to issue a decision. Naturally, the regulations put no limit on how long the employer can take to investigate and gather evidence before proposing adverse action. Yet somehow the employee is expected to be able to complete his own investigation, complete discovery, identify and prepare all witnesses and complete his legal research in less than 90 days. As a practical matter, the employee will be allotted no more than a month for these tasks. The reason is that it usually takes 30 days for the agency to submit its appeal file to MSPB and no MSPB judge is going to allow a hearing to be held any later than one month before he has to issue a decision. This subpart would also allow MSPB judges to issue “summary judgment,” meaning a decision without a hearing. We’ve seen how this works at EEOC, with federal agencies bombarding mostly pro se complainants with legal documents they can’t even understand much less reply to. Allowing a decision without a hearing is, in our opinion, unconstitutional. The Constitution assures that any public employee who can be removed only for good cause has a right to a hearing. There is another constitutional problem in this subpart. It states that an adverse action may not be reversed based on the way the charge is labeled as long as the employee has been informed of the facts in sufficient detail to respond. The stated goal is to overrule the “Nazelrod” case. In that case, an agency charged an employee with theft. The employee admitted he took $10 from an envelope but said he put it back later. The court, unsurprisingly, said the employee was not guilty of theft if he did not intend to keep the $10. The notion that a public employer must prove what it alleges in the proposal letter is so fundamental that it is required by due process. If an employee has been charged with theft, falsification or insubordination and is not guilty of those charges, the action against him cannot be sustained. If the employer does not want to be required to prove those charges, it is free to select any other charges it likes. The proposed regulations would also sharply narrow the grounds on which MSPB could mitigate a penalty, thus rejecting the “Douglas factors” which have been universally applied at MSPB and by arbitrators for a generation. The comments accompanying the new regulations say that the “Douglas” decision “has meant that MSPB has exercised considerable latitude in modifying agency penalties.” What planet have you been living on the last 25 years? The MSPB has always been highly deferential to agency penalty selection. Their most recent annual report to Congress is typical: in FY 2003, MSPB affirmed 80% of all agency actions and mitigated penalties in only 3% of appeals. In DOD, MSPB affirmed 88% of agency actions and mitigated penalties in 2.9% of appeals. My God, what kind of deference do you think you need? If you’re looking for MSPB to agree with you 95-100% of the time, that’s not deference that’s abdication. Under the proposed regulations, the only basis for mitigating a penalty would be that it is “so disproportionate to the basis for the action as to be wholly without justification.” The facts that the employee has 25 years of service, no prior discipline, an excellent performance record, the offense was inadvertent, the supervisor had personal animosity for him, everyone else who committed the same offense got less discipline—none of these things would justify mitigating the penalty. It is a mystery to us how it promotes the efficiency of the service for an agency to reserve the right to impose grossly unreasonable penalties on its employees. The proposed regulations also attempt to ensure that employees who are successful in appealing adverse actions do not recover attorney’s fees. The effort federal agencies devote to trying to make sure that attorney’s fees are not awarded is astounding. Federal employees are often unable to find attorneys. Attorneys represent appellants in less than half of all MSPB appeals. Moreover, the MSPB sustains agency actions over 80 percent of the time. Certainly fee awards cannot be an economic burden on the agencies. The MSPB’s most recent annual report says that exactly 7 (yes, 7) DOD employees got their adverse actions reversed or mitigated at MSPB in FY 2003. The hostility to fee awards seems to spring from a belief that they are intended to punish the agency. The proposed regulations confirm this, by narrowing the basis for recovering attorney’s fees to those situations where the agency’s action was clearly without merit based on the facts known to management at the time the action was taken. The purpose of a fee award is not to punish the agency but to encourage qualified attorneys to represent federal employees on meritorious cases. If the personnel action is unjustified, the employee should not have to bear the cost of clearing his name and his record. What the employer knew or did not know at the time it took the action, or whether it was acting out of malice or bad faith, should not be the key factors in whether the employee can be reimbursed for his attorney’s fees. What if the employee is simply innocent? The employer accused him of misconduct and thought its evidence and its witnesses would prove the accusation, but they didn’t. It is not in the interest of justice to make that employee foot the bill for the employer’s mistake. The proposed regulations would also lead to protracted fact-finding by MSPB judges on what agency management did or did not know at the time it took the action. Another objection to narrowing the basis for recovering attorney’s fees is that it is not permitted by the law. One of the “non-waivable” sections of the law is 5 USC 5596, the Backpay Act. This requires an award of attorney’s fees if the standards established under 5 USC 7701 are met. Those standards are not as narrow as the proposed regulation, and those standards include the standards developed by the MSPB over the years in the “Allen factors.” The proposed regulations attempt to circumvent this fact by providing, in section 9901.107(b)(2), that the reference in 5 USC 5596 to the standards for attorney’s fees in 5 USC 7701 is considered to be a reference to a modified 5 USC 7701 consistent with the NSPS regulations. DOD can do a lot of things, but you can’t change a statute. Only Congress can do this. If a statute cannot be waived, then parts of another statute that are incorporated into the first statute cannot be waived either.