| Comment Number: | OL-10512201 |
| Received: | 3/16/2005 11:36:48 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:
SUBPART H: APPEALS. Section 9901.807 (h): I object to the proposal to reduce an employee's current right to recover reasonable attorney fees in MSPB cases. Currently, reasonable fees can be ordered if the employees is the prevailing party and the MSPB determines that payment of fees by the agency is in the interest of justice, including any case in which a prohibited personnel practice was committed or any case in which the agency action was clearly without merit. DOD/OPM propose to limit an employee's ability to recover fees to cases where MSPB determines the action constituted a prohibited personnel practice, was taken in bad faith, or the Department’s action was clearly without merit based upon facts known to management when the action was taken. Through this proposed regulation, DOD provides itself with an ever present excuse that there were facts it was not aware of to avoid payment of reasonable attorney fees. DOD reserves great authority to itself under these proposed regulations and if there are facts not known to management in an investigation it will most likely be because DOD representatives failed to take the time to fully investigate. As a national security agency DOD has unfettered access to information and detailed procedures and extensive resources to collect the information. The proposal's effect will be to chill the willingness of employees to exercise their rights to appeal unjust agency decisions. It will also serve as a disincentive for representatives to initiate meritorious class actions or multi-employee consolidated actions. The result will be uneconomical, piecemeal litigation before the MSPB.