| Comment Number: | OL-10510511 |
| Received: | 3/16/2005 10:14:35 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:
9901.807(k)(8)(9)--Appellate Procedures The procedure allowing DOD to reverse or modify the MSPB AJ's initial decision, essentially anytime DOD chooses, will create the appearance of a sham procedure and cuts against DOD's stated wish to expeditiously process employee appeals. The use of the MSPB AJs as third party neutrals is a good thing; keeping the process in house would provide little confidence for employees subjected to adverse actions and other employees observing the process. However, allowing DOD to reverse or modify an initial AJ decision anytime DOD believes there "has been a material error of fact," "there is new and material evidence," or when DOD "determines that the inital AJ decision has a direct and substantial adverse impact on [DOD's] national security mission or is based on an erroneous" lega interpretation"essentially authorizes DOD to reverse an AJ anytime DOD disagrees with the result. This defeats the purpose of having MSPB judges decide employee appeals (an objective decision by a neutral) and creates a significant appearance unfairness to the parties involved and other employees. Delegating to MSPB AJs the authority to issue final DOD decisions, and giving DOD an RFR right, would maintain the integrity of the process and be sufficient protection for DOD' s interests, especially since interim relief or stay of personnel actions are not available to employees at the AJ level as a remedy and the regs provide other significant limits on MSPB authority and time limits for processing an RFR by the full MSPB. In addition, even though DOD has only 30 days to notify parties it will act on a RFR, there is no time limit for DOD to modify or reverse an initial AJ decision.