December 27, 2007
President signs $516 billion omnibus spending bill
Source: GovExec.com
By Alyssa Rosenberg
President Bush signed the $516 billion omnibus spending bill covering 11 of 12 fiscal 2008 spending bills on Wednesday, setting a 3.5 percent average civilian employee pay increase, boosting retirement benefits for Customs and Border Protection officers and enhancing the ability of federal employees to compete for their jobs against private firms.
Federal employee groups praised the legislation, passed by the House on Dec. 17, saying it provided important protections to federal employees.
"These important provisions ensure that federal agencies can be competitive with the private sector in the battle to recruit and retain in public service talented, dedicated women and men," said National Treasury Employees Union President Colleen Kelley.
The International Federation of Professional and Technical Engineers said spending levels imposed by the administration were inadequate, but praised Congress for preserving NASA's budget and clarifying that fees from the H-1B visa program must be directed toward training U.S. scientists and engineers.
"We can be comforted by the fact that Congress is working diligently to minimize any long-term harm to our government and economy from the failed policies of the past seven years," said IFPTE President Gregory Junemann. "We all await a soon-to-be-realized changing of the guard when America's many budgetary problems, along with those issues important to American workers, can once again be properly addressed through good-faith political dialogue."
American Federation of Government Employees President John Gage praised a provision of the omnibus bill, sponsored by Sen. Hillary Rodham Clinton, D-N.Y., that requires the government to rehire Federal Protective Service agents and hailed a move to cut funding for the Homeland Security Department's new personnel system. He also called attention to the section of the legislation that set the conditions for job competitions.
"AFGE also applauds Congress for making significant reforms to the privatization process, including the exclusion of health care and retirement costs from the contracting out cost comparison process in all non- Defense Department agencies, the establishment of appeal rights for all federal employees, the prohibition against the Office of Management and Budget from telling agencies to conduct privatization studies, and the creation of a pilot project to track the cost of service contracts and the number of employees working to carry them out," the union said.
In a statement announcing he had signed the bill, President Bush said he would continue to call for restrictions on government spending.
"There is still more to be done to rein in spending," Bush said. "In February I will submit my budget proposal for fiscal 2009, which will once again restrain spending, keep taxes low, and continue us on a path toward a balanced budget."
December 28, 2007
Bush declares pocket veto of defense authorization bill
By Ben Feller, Associated Press
CRAWFORD, Texas (AP) -- President Bush on Friday used a "pocket veto" to reject a sweeping defense bill because he dislikes a provision that would expose the Iraqi government to expensive lawsuits seeking damages from the Saddam Hussein era.
In a statement, Bush said the legislation "would imperil billions of dollars of Iraqi assets at a crucial juncture in that nation's reconstruction efforts."
The president's objections were focused on a provision deep within legislation that sets defense policy for the coming year and approves $696 billion in spending, including $189 billion for the wars in Iraq and Afghanistan. Also in the legislation were improved veterans benefits and tighter oversight of contractors and weapons programs.
The pocket veto means that troops will get a 3 percent raise Jan. 1 instead of the 3.5 percent authorized by the bill.
Bush's decision to use a pocket veto, announced while vacationing at his Texas ranch, means the legislation will die at midnight Dec. 31. This tactic for killing a bill can be used only when Congress is not in session.
The House last week adjourned until Jan. 15; the Senate returns a week later but has been holding brief, often seconds-long pro forma sessions every two or three days to prevent Bush from making appointments that otherwise would need Senate approval.
Brendan Daly, spokesman for House Speaker Nancy Pelosi, D-Calif., said, "The House rejects any assertion that the White House has the authority to do a pocket veto."
When adjourning before Christmas, the House instructed the House clerk to accept any communications - such as veto messages - from the White House during the monthlong break.
A Democratic congressional aide pointed out that a pocket veto cannot be overridden by Congress and allows Bush to distance himself from the rejection of a major Pentagon bill in a time of war.
In a message to Congress, the president said he was sending the bill and his outline of objections to the House clerk "to avoid unnecessary litigation about the non-enactment of the bill that results from my withholding approval, and to leave no doubt that the bill is being vetoed."
Democratic aides said they have not ruled out any legislative options, including dropping the language on lawsuits against Iraq and sending the rest of the bill back to Bush.
The sponsor of the contested provision, Sen. Frank Lautenberg, D-N.J., said the provision would allow "American victims of terror to hold perpetrators accountable - plain and simple."
Senate Republican Leader Mitch McConnell of Kentucky called on lawmakers to "move rapidly to fix this section" when Congress returns in January so that the underlying bill can be signed.
Democratic congressional leaders complained that Bush's move was a last-minute stunt because he had never indicated his intention to veto the bill.
Bush aides said they had signaled concern about the controversial provision for weeks, although there had been no formal veto threat. They said their concern grew urgent recently after a legal review and feedback from U.S. diplomats in Iraq and Iraqi leaders.
The disputed section of the bill would reshape Iraq's immunity to lawsuits, exposing the new government to litigation in U.S. courts stemming from treatment of Americans in Iraq during Saddam's reign. Even cases that had once been rejected could be refiled.
Bush's aides warned of a dire scenario - a rush of litigation that could freeze tens of billions of dollars in Iraqi assets being held in U.S. banks. Money at the heart of the Iraqi rebuilding effort would be tied up in court, potentially halting the very stabilization efforts that could get U.S. troops home faster, the aides said.
Yet Democrats fumed that Bush could have worked out the technical fix sooner if he had wanted, without rejecting an entire bill that contains extra help and money for troops.
White House spokesman Scott Stanzel said the administration will work with Congress to get the additional pay raise approved and retroactive to Jan. 1 under a reworked bill. He said the bulk of the raise for the troops -- 3 percent -- is slated to go into effect anyway.
December 27, 2007
President signs $516 billion omnibus spending bill
Source; Govexec.com
By Alyssa Rosenberg
President Bush signed the $516 billion omnibus spending bill covering 11 of 12 fiscal 2008 spending bills on Wednesday, setting a 3.5 percent average civilian employee pay increase, boosting retirement benefits for Customs and Border Protection officers and enhancing the ability of federal employees to compete for their jobs against private firms.
Federal employee groups praised the legislation, passed by the House on Dec. 17, saying it provided important protections to federal employees.
"These important provisions ensure that federal agencies can be competitive with the private sector in the battle to recruit and retain in public service talented, dedicated women and men," said National Treasury Employees Union President Colleen Kelley.
The International Federation of Professional and Technical Engineers said spending levels imposed by the administration were inadequate, but praised Congress for preserving NASA's budget and clarifying that fees from the H-1B visa program must be directed toward training U.S. scientists and engineers.
"We can be comforted by the fact that Congress is working diligently to minimize any long-term harm to our government and economy from the failed policies of the past seven years," said IFPTE President Gregory Junemann. "We all await a soon-to-be-realized changing of the guard when America's many budgetary problems, along with those issues important to American workers, can once again be properly addressed through good-faith political dialogue."
American Federation of Government Employees President John Gage praised a provision of the omnibus bill, sponsored by Sen. Hillary Rodham Clinton, D-N.Y., that requires the government to rehire Federal Protective Service agents and hailed a move to cut funding for the Homeland Security Department's new personnel system. He also called attention to the section of the legislation that set the conditions for job competitions.
"AFGE also applauds Congress for making significant reforms to the privatization process, including the exclusion of health care and retirement costs from the contracting out cost comparison process in all non- Defense Department agencies, the establishment of appeal rights for all federal employees, the prohibition against the Office of Management and Budget from telling agencies to conduct privatization studies, and the creation of a pilot project to track the cost of service contracts and the number of employees working to carry them out," the union said.
In a statement announcing he had signed the bill, President Bush said he would continue to call for restrictions on government spending.
"There is still more to be done to rein in spending," Bush said. "In February I will submit my budget proposal for fiscal 2009, which will once again restrain spending, keep taxes low, and continue us on a path toward a balanced budget."
December 19, 2007
Backlog of Social Security disability claims likely to grow
By Elizabeth Newell
Source: GovExec.com
While Congress approved additional funding to help the Social Security Administration address a growing backlog of disability claims amid budget battles, experts say other steps are needed.
SSA's Office of Disability Adjudication and Review is struggling to tackle nearly 750,000 pending requests for disability hearings, and the agency as a whole is expecting the number of workers receiving retirement benefits to increase by 13 million over the next 10 years. More than 40 organizations petitioned House appropriators to provide SSA the funds to deal with its growing burden.
"Citizens will be contacting SSA at a time when the agency is closing an increasing number of its field offices because it does not have the funding necessary to keep the offices adequately staffed and the doors open," the petition stated.
Congress eventually gave SSA an additional $150 million over the president's requested $9.6 billion to deal with administrative expenses. This increase, a feat in this year's particularly contentious appropriations environment, will help the agency slow the backlog, but experts say it won't fix the problem overnight.
"One year of an increase in funding over the president's budget request after seven years of underfunding is not going to stop the problem," said Jessica Klement, government affairs director for the Federal Managers Association. "But you can do what you can do with $150 million. It's not going to be perfect, but it will help."
Jim Allsup, a disability claims expert and president of Allsup Inc., a company on Belleville, Ill., that helps people file claims, is urging SSA to give applicants options. Allsup said his company has seen a 168 percent increase in business during the last five years as a result of the exploding backlog.
"This is a complicated process and individuals who apply for benefits without representation are more likely to have their claims denied," said Jim Allsup, president and chief executive officer.
On Wednesday, the company issued a list of the top 10 tips for claims applicants to break through the backlog; the list included everything from checking eligibility to preparing an accurate and full medical record to meeting deadlines.
"The tips were exactly what we would recommend for people filing for benefits and, in essence, what the Social Security Administration would recommend," Klement said. She noted that one of the primary reasons applicants encounter long wait times is they have submitted outdated medical records and the SSA has to wait for more complete records.
Klement says the backlog cannot be eliminated entirely, and the goal is to minimize it so applicants do not wait hundreds of days for a ruling. Current wait times for an applicant filing an appeal after an initial claim has been denied average 524 days.
"Any dent you can make in that is a success," she noted.
December 18, 2007
AFGE Kicks Off Anti-Furlough Campaign
The American Federation of Government Employees (AFGE) is urging members to send letters to Secretary of Defense Robert Gates asking him to forgo plans to furlough 100,000 military civilian employees in February if Congress doesn’t approve the funding the administration wants. The labor union, which represents 200,000 civilian defense employees, kicked off the letter-writing campaign Dec. 11 on its Web site with pre-addressed postcards to Gates that members can download and send. AFGE questioned whether DoD really needs the $178 billion in emergency war funding by mid-December since Congress has already approved $460 billion for Fiscal Year 2008 defense spending. The labor union said the furloughs were unnecessary and was sharply critical of the timing of the intended mid-February layoffs. “This planned announcement comes just in time for the holidays,” the union said in a statement. “It is heartless to treat the thousands of civilian defense employees so callously, many of whom are themselves veterans, and have bravely served this country in previous battles.”
December 11, 2007
AFGE APPLAUDS CONGRESS FOR CONTRACTING OUT REFORMS
Defense Authorization Bill provides new protections for federal employees
(Washington)—“AFGE thanks the conferees to the FY08 Defense Authorization Bill for including several bipartisan reforms long sought by this unions’ activists,” declared AFGE National President John Gage. “Moreover, several of these reforms, although included in the Department of Defense (DoD) bill, benefit all federal employees; others, although specific to DoD employees, lay the foundation for government-wide reforms.”
Section 322: Health care and retirement costs would be excluded from the DoD contracting out cost comparison process. Competitions could focus on who could do the job better, as opposed to whether contractors could get an unfair advantage by shortchanging their employees on benefits.
Section 323: The revised OMB Circular A-76 requires federal employees—but not contractors—to be reviewed at the end of their performance periods, automatically. This provision would leave that determination to DoD officials.
Section 324: The Under Secretary of Defense for Personnel and Readiness would be required to publish guidelines for insourcing new work and contracted out work to ensure that federal employees have opportunities to perform such work on a regular basis. Special consideration is given for contracted out work that is actually inherently governmental, poorly performed, or was given to contractors without competition, along with new work that is similar to work previously performed by federal employees or closely associated with inherently governmental work. In such instances, the OMB Circular A-76 process would not be required. An inventory would be used to ensure that DoD is actively reviewing contracts for work that is appropriate for insourcing. The Inspector General would be assigned to ensure compliance with this new insourcing section.
Section 325: The Office of Management and Budget (OMB) would be prohibited from requiring or directing DoD to begin, continue, or complete a privatization review. Similarly, DoD would be prohibited from beginning, continuing, or completing a privatization review because of a requirement or direction from OMB. The Inspector General would be assigned to ensure compliance with this new prohibition.
Section 326: Federal employees in all agencies would finally have the opportunity to appeal contracting out decisions to the Government Accountability Office, a right contractors have long enjoyed.
Section 327: Federal employees in non-DoD agencies would have a permanent and rigorous right to compete before their work—for functions involving more than ten employees—is converted to contractor performance. The safeguards and Congressional notification would be stronger than those currently afforded non-DoD federal employees. The competition process for non-DoD employees would be identical to the process already in place for DoD employees.
“AFGE is very grateful to Chairmen Ike Skelton and Carl Levin and Readiness Chairmen Solomon Ortiz and Daniel Akaka,” said Gage. “We are obviously very grateful as well to our champions on the House side—Representatives Nancy Boyda, Gene Taylor, Elijah Cummings, Chris Van Hollen and Carol Shea-Porter—as well as the Senate side—Senators Edward Kennedy, Barbara Mikulski, Joe Lieberman, and Claire McCaskill. And, obviously, without a lot of bipartisan support from a host of other lawmakers, both Republican and Democratic, this accomplishment would never have happened. Finally, it should be noted that we have worked with lawmakers to attempt to ensure that provisions similar to Sections 322, 325, 326, and 327 would be included in the government-wide FY08 Financial Services Appropriations Bill.”
December 10, 2007
Compromise On Pentagon Pay System, Union Rights
By Stephen Barr
It's a compromise aimed at ending four years of controversy.
House-Senate negotiators unveiled legislation Friday that would restore collective bargaining rights to unions at the Defense Department, permit the Pentagon to go forward with new pay rules and perhaps ease the angst of many Defense employees.
The legislation would modify significant parts of the National Security Personnel System, a Bush administration effort that sought to sharply curb union rights at Defense and to more rigorously link annual pay raises of civilian employees to job-performance ratings.
The measure would guarantee that NSPS employees receive 60 percent of the annual pay raise that most other government workers get. The remaining 40 percent would be used for performance-related salary increases, allocated according to an employee's job rating.
The proposal may disrupt the Pentagon's plans for NSPS raises in January.
Under current rules, the defense secretary has had the discretion to set raises, and the Pentagon has announced plans to phase out across-the-board increases to employees covered by the new system.
For 2008, NSPS employees were scheduled to receive 50 percent of the government-wide raise, with the rest of their salary increase linked to job ratings. In subsequent years, all raises would be determined by job performance.
That announcement had created some anxiety for Defense employees, who, like many other federal employees, see the annual raise provided by Congress as a cost-of-living adjustment and worried that their pay might not keep pace with workers elsewhere in the government.
According to the legislation, performance payments would be paid as raises, not bonuses. The distinction is important to some employees, because bonuses do not count toward pension credits. NSPS employees also would be eligible for locality pay.
The legislation is part of the fiscal 2008 defense bill that authorizes weapons programs for the military and would provide the armed forces with a 3.5 percent pay raise next year. The House and Senate will probably vote on the bill this week and send it on to the president.
Administration officials declined to comment on the proposed NSPS modifications, saying they were studying the measure. Congressional aides said the NSPS changes have bipartisan support and predicted acceptance by the White House.
The House and Senate Armed Services committees write the authorization bill and typically do not spend much time on civil service issues. But that was not the case this year.
At various times, several lawmakers and their aides have played key roles in shaping the compromise on the NSPS, union spokesmen said. They included Carl M. Levin (D-Mich.), chairman of the Senate Armed Services Committee; Ike Skelton (D-Mo.), chairman of the House Armed Services Committee; Sens. Daniel K. Akaka (D-Hawaii) and Susan Collins (R-Maine); and Reps. Solomon P. Ortiz (D-Tex.), Walter B. Jones (R-N.C.), Chris Van Hollen (D-Md.), Jay Inslee (D-Wash.), and Tom Allen (D-Maine).
As originally envisioned, the NSPS would have covered about 700,000 Defense employees and represented one of the biggest changes in federal pay and workplace rules since the 1978 Civil Service Reform Act.
But the Bush administration initiative quickly angered labor leaders, who formed a coalition of 36 Defense unions to stop the new system, especially rules that they said would gut union rights and undermine employee rights to challenge major disciplinary actions, such as suspensions and firings.
The unions filed a lawsuit challenging the new workplace rules for Defense and cranked up a lobbying campaign to bring their concerns before Congress. After Democrats took control of Congress, the unions stepped up efforts to win a legislative repeal of the NSPS.
The legislation would place labor relations and employee appeals back under regular civil service law. Unions would be able to negotiate binding contracts on the same scope of issues as elsewhere in government. It would permit Defense employees to appeal major disciplinary actions to the Merit Systems Protection Board, an independent agency that rules in disputes between employees and agencies.
The legislation would permit the unions and the Pentagon to agree to "national level bargaining," where department-wide policies could be settled in talks that might be attended by as many as 46 unions. It also permits unions to bargain over the implementation of new rules at the local level.
The House-Senate negotiators also reduced the number of employees eligible for the NSPS by excluding blue-collar workers and exempting employees at Defense laboratories through 2011. Both groups already work under special pay systems.
Labor leaders who have objected to the NSPS thanked lawmakers for restoring union rights.
John Gage, president of the American Federation of Government Employees, called the legislation "an acceptable compromise." Gregory J. Junemann, president of the International Federation of Professional and Technical Engineers, said "the workers at DoD can finally see the light at the end of the tunnel." Ron Ault, president of the Metal Trades Department of the AFL-CIO, said his lawyers were studying the compromise but that it appeared to be "an early Christmas present from this Congress."
The Pentagon, however, did not lose its key priority -- the creation of a performance-based pay system and the ability to continue phasing in the pay system.
The NSPS currently covers about 130,000 nonunion Defense employees, and another 55,000 are lined up to enter the system in the spring. If the department chooses, it remains able to start talks with labor leaders to bring unionized workers into the system.
The measure would not permit unions to bargain over pay. It would deny pay raises to Defense employees with a job rating of "unacceptable," one of the Pentagon's goals.
"We want them to do collective bargaining, but we want to give the department a fair chance to show that pay for performance can work," one congressional aide said. "The ball is in their court."
December 7, 2007
Conferees move to scale back Pentagon personnel changes
By Brittany R. Ballenstedt bballenstedt@govexec.com
House and Senate conferees on Thursday passed authorizing legislation that would restore the collective bargaining and appeal rights of employees under the Defense Department's new personnel system.
The final version of the fiscal 2008 Defense authorization bill, which went to conference committee in October, includes language that would restore collective bargaining and appeal rights under the National Security Personnel System. It also would exempt all wage-grade employees from NSPS.
"The conferees for the Defense authorization bill have addressed the numerous inequities in labor relations and employee rights that were created by the department's regulations establishing NSPS," said John Gage, president of the American Federation of Government Employees.
Federal labor unions have been pressuring Congress to restore the rights, especially after a three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled in May that the department has the authority to limit rights through November 2009. In the meantime, AFGE has been weighing an appeal of that ruling to the Supreme Court.
"While we did not get everything we asked for [in the bill], it is an acceptable compromise to the members represented by AFGE," Gage said.
Last month, the Supreme Court extended AFGE's deadline for filing an appeal, giving the union until Jan. 7, 2008. Other unions representing Defense employees are skeptical about the appeal, noting that an unfavorable ruling could set a broad precedent that could hinder the ability to negotiate in the federal sector.
Still, AFGE General Counsel Mark Roth told Government Executive last month that should Congress pass authorizing language that would restore collective bargaining and appeal rights, an appeal to the high court likely would be unnecessary.
"If [passage of the bill] occurs prior to Jan. 7, we will likely have no reason to file," Roth said. "If it does not happen, we will proceed with the petition."
Asked Friday if the provisions in the final bill would override a Supreme Court appeal, AFGE would not specify. The legislation still must be approved by the full House and Senate, after which it would move to the president's desk.
"Our general counsel probably will wait until the legislation is signed by President Bush before making that determination," said Enid Doggett, a spokeswoman for AFGE.
NSPS officials said Friday that they are pleased to see the language of the bill. "We are currently analyzing the information to better understand how it will allow us to move forward," said Tara Landis, a spokeswoman for NSPS
December 5, 2007
Furlough threat hangs above Defense employees
By Megan Scully CongressDaily
Source: GovExec.com
It won't feel much like Christmas for more than 100,000 Defense Department civilian employees who might get furlough notices in their stockings this year.
The threatened layoffs are part of the Pentagon's widespread public campaign to prevent any further delay in appropriating money for combat operations in Iraq and Afghanistan. But some former government insiders and lawmakers say the Bush administration is merely resorting to scare tactics to persuade Congress to expedite approval of the money.
The military is, in effect, already trying to pay out of pocket for a war that is costing more than $10 billion a month. Congress is not expected to pass the wartime supplemental spending bill until after it reconvenes in January, forcing Pentagon planners to work budgetary magic to keep money for the war flowing.
Skeptics argue that the Defense Department, which has an already approved $459.6 billion for its regular spending accounts this year, has more wiggle room in its budget to pay for the war than officials are letting on.
"I've been to this movie a lot of times," said Gordon Adams, deputy Office of Management and Budget director for national security programs in the Clinton administration. "I've even played a bit part." The Pentagon's warnings amount to a "giant game of political chicken," he added. "It's just kind of sad they're doing it on the back of the civil servants."
Adams and Lawrence Korb, a senior fellow at the Center for American Progress and the Pentagon's personnel chief during the Reagan administration, both said they think civilian layoffs and other drastic measures are not necessary -- for the time being, at least.
These former officials recommend transferring funds from other Defense accounts, including money tagged for the other military services, to cover war costs until a supplemental spending bill is enacted.
Those money moves include dipping into the other services' working capital funds, umbrella accounts that pay for commercial and industrial activities.
The department also could transfer the financial responsibility for cross-service wartime logistics and other contracts from the Army to the other services.
Adams estimates that those steps, which do not require congressional approval, could free up almost another $8 billion for the war -- which could delay the need for layoff notices (required 60 days in advance of any actual layoffs) until well after the holidays.
The Defense Department's statements in recent weeks are "really exaggerating what may happen and trying to scare people," Korb said. "I think it's really, really playing on people's fears, given the situation."
On Monday, Senate Majority Leader Harry Reid, D-Nev., dismissed the warnings as "hype" from the White House. "The president's spin machine is going," he added.
Also Monday, eight lawmakers -- including two Republicans -- from Virginia, Maryland and Washington, D.C., told Defense Secretary Robert Gates in a letter that they "adamantly disagree" with furloughing civilian employees.
"We believe that the Army and DOD possess budgetary procedures and have statutory authority to avoid furloughs and termination of contracts well into 2008," added the lawmakers, whose districts include many federal employees.
These lawmakers estimated that budgetary maneuvers could free up money for operations until mid-April, two months later than the Pentagon says, "thereby delaying the need for furloughs farther into the next calendar year, by which time supplemental funds may be enacted."
But senior Defense officials questioned the lawmakers' calculations, stressing that fund transfers would only buy the department a few weeks, not months.
The temporary relief is not worth the heartburn and second-degree budgetary effects they would cause, they said.
"It does not do enough to solve the problem to be even worth all the pain and the effort," said one of them.
Part of the problem is that the Pentagon has only a very limited pool of funding in its annual budget from which to draw to pay for ongoing operations.
The Army, which bears the brunt of the war costs, plans to tap into its operations and maintenance accounts, which total $27 billion, to pay for the war.
The service also plans to use $800 million in the Army's working capital fund and has requested $3.7 billion in reprogramming authority from other military accounts -- the maximum amount allowed by law.
Army officials have said that all that funding will dry up by Feb. 23, 2008. "There is just so much restriction and micromanagement [of the Defense budget] that what it's done is it's changed the mentality of how the department does things," said Dov Zakheim, a former Pentagon comptroller in the Bush administration.
Congress has long been "persnickety" about moving money from one account to another, raising questions about whether they would allow the Defense Department to reprogram more funding than the $3.7 billion now allowed under law, Zakheim added.
But one senior Defense official warned that giving the Pentagon more transfer authority would make planning for the third and fourth quarters of the fiscal year difficult.
This official also argued that "little gimmicks" are not going to solve the military's problems. In short, the official said, the department needs an enacted war spending bill. "It's like trying to refill one of these drought-starved lakes with a bucket," the official added.
December 03, 2007
Commentary: Regulations strip DHS employee appeal rights
By JOHN P. MAHONEY and PETER J. JEFFREY
Recently, the Merit Systems Protection Board quietly adopted interim regulations governing disciplinary appeals by Homeland Security Department employees. This is the latest move by the Bush administration to strip DHS employees of traditional job protections.
Following federal court scrutiny of DHS’ 2005 personnel regulations, which eliminated crucial federal job protections, the administration quietly took its planned changes out of the hands of DHS, perhaps to avoid further court scrutiny, and had MSPB issue the same changes. However, changing the agency that issued the regulations does not change the fact that they remain unjust.
Specifically, the DHS secretary may now remove an employee for what are called “mandatory removal offenses,” as defined by the secretary of Homeland Secretary. Also, the secretary has sole discretion to mitigate the removal penalty in such cases. Employees can appeal to a newly created Homeland Security Department Mandatory Review Panel appointed by the secretary, which cannot reduce the removal penalty. An employee may request that MSPB review the Homeland Security Department’s final decision. But MSPB must accept the findings of fact and interpretations made by the department’s mandatory review panel in most instances. MSPB must also take action on the appeal within 30 days, which is vastly shorter than MSPB’s current 120-day guideline for deciding initial appeals. If it doesn’t, the board will be deemed to have denied the request for review. Also, an employee cannot seek a judicial review of a mandatory review panel decision unless he first sought MSPB review of the case within 15 days of the panel’s decision, which is half the time currently allotted to federal employees to file MSPB appeals.
It appears from the MSPB’s interim regulations the board has no authority to mitigate a mandatory removal penalty. Rather, it can only find that an employee did not commit a mandatory removal offense by determining that the panel’s decision was arbitrary, capricious, an abuse of discretion, not in accordance with law, caused by a harmful error, or unsupported by substantial evidence. These are exceedingly difficult standards for an employee to prove.
Additionally, under the new regulations, once an employee files an MSPB appeal, he has vastly reduced rights to discover evidence possessed by the Homeland Security Department to prove he has been treated unjustly.
Moreover, under MSPB’s regulations, DHS employees no longer have a guaranteed right to an MSPB hearing to present whatever evidence they manage to discover. A hearing had been a statutory right for nearly 30 years. Now, MSPB judges will be allowed to issue decisions without a hearing.
Finally, if the employee gets a MSPB hearing, the interim regulations severely limit MSPB’s authority to reduce unduly harsh disciplinary penalties. Now, only if the judge finds the penalty imposed is so disproportionate as to be “wholly without justification” will the judge be able to modify the penalty taken by DHS. It is unclear what that standard means in practice. It seems more onerous than the “beyond a reasonable doubt” standard needed to convict someone of murder. Moreover, when a penalty is reduced, MSPB has the discretion only to reduce the penalty to “the maximum justifiable penalty,” as opposed to the “reasonable penalty,” as required by past MSPB law. That change has enormous negative implications on the value of appealing a disciplinary action to MSPB.
All federal employees need to understand these profound changes in civil service law, regardless of whether they work for DHS. The administration has been working on similar regulations to cover other federal employees. As a federal employee, if you don’t like the way the civil service is being dismantled, you need to convince Congress and the president to do things differently. We don’t understand what Homeland Security Department employees, who risk their lives every day to protect the government from terrorist attack, did to deserve such harsh treatment by that same government.
John P. Mahoney is a founding partner and director of litigation of Mahoney & Mahoney LLP, a Washington law firm specializing in federal labor, employment and personnel law. Peter J. Jeffrey is the firm’s senior associate and a former American Federation of Government Employees Bargaining Council president.
