| Comment Number: | OL-10512219 |
| Received: | 3/16/2005 11:52:57 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(k)(8): There is no statutory authority for DOD to perform this type of review. While maintaining that DOD is using the services of MSPB, essentially, DOD is setting up a duplicative and parallel review structure. This allows DOD to second guess the MSPB at every turn. With another layer of review, the entire process will be delayed. An internal DOD review process will be very expensive and will waste tax payer money. The proposed regulations address the Request for Review (RFR) process and how decisions will become final or “precedential”. DOD/OPM should delete the language concerning this entire process. The language involving the DOD designation of precedential decisions is confusing and beyond the scope of authority granted to DOD/OPM by the statute. DOD has not specified the significance of cases being deemed precedential. Additionally, no details have been supplied as to whether these decisions will be published and whether they will be made available. Transparency of decisions is crucial to the fairness of an appeals system and this section lacks transparency. DOD/OPM take the opportunity in the proposed regulations to change the standards used in the administrative review of adverse actions because DOD/OPM believe the standards are too high. To say the standards are too high is inaccurate. The APA standards are the widely recognized and traditionally used standards. Established Supreme Court case law provides a deferential consideration to administrative agencies with an expertise in making these types of decisions. Additionally, DOD does not say what standard will be applied. DOD/OPM are obliged to set forth a clear understandable statement of such standards. DOD/OPM maintain that these regulations do not give DOD unlimited authority, despite DOD’s need for review authority over MSPB AJ decisions. These regulations however do give DOD unlimited authority because it can file a request for review in any case, with no articulated standard as a basis of review. These actions can be totally subjective and arbitrary and undermine the credibility of the MSPB.