| Comment Number: | OL-10511251 |
| Received: | 3/16/2005 2:43:46 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:
9901.715: Include a provision that extensions "for cause" may/shall be granted to allow an employee to reply. In many cases 15 calendar days is not enough for an employee to prepare an adequate reply to charges against them. Alternatively extend the reply period to 30 calendar days. 9901.807 h1 (Payment of Attorney Fees) This proposed section permits fees only when a finding of a prohibited personnel practice is made or the Department'saction was clearly without merit based on the facts AS KNOWN to management (emphasis added). Currently, attorney fees can be awarded based on facts that were NOT KNOWN to management at the time the action was initiated. (Emphasis added). Recommend this be deleted since it essentially removes the burden on management to engage in adequate fact-finding prior to issuing an adverse action. Currently management is under a duty to investigate and consider all known facts even if not initially readily apparent prior to initiating an adverse action. A "know or should have known" standard should apply. 9901.807 K(3)(iii) Motion to Request Additional Discovery. Additional discovery will only be granted if the party shows "necessity" or "good cause" for it. The problem is "necessity" and "good cause" are very elastic standards subject to the interpretations of individual judges deciding on the motions. Recommend that this be deleted in its entirety or that each party be allowed one additional request for discovery after the first initial discovery request, with any subsequent requests to apply the "necessity" and "good cause" standard. In effect, each party would have the ability to submit two sets each of interrogatories, requests for production, and requests for admissions. 9901.807 K(6) Delete the requirement for MSPB Judges to apply the "maximum justifiable penalty." This requirement is inherently offensive to notions of equity and justice and needlessly hamstrings a Judge's ability to fashion equitable remedies.