DODs National Security Personnel System: Statute, Regulations, and Implementation Plans
CRS Report for Congress
DOD’s National Security Personnel System:
Statute, Regulations, and Implementation Plans
Updated March 16, 2006
Barbara L. Schwemle, Coordinator
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
DOD’s National Security Personnel System:
Statute, Regulations, and Implementation Plans
Summary
Title XI of the National Defense Authorization Act for FY2004, P.L. 108-136,
includes provisions on a National Security Personnel System (NSPS) for the
Department of Defense (DOD) and provisions on personnel management that are
applicable government-wide. The law was enacted on November 24, 2003.
Title XI, Subtitle A, of the law authorizes the Secretary of Defense and the
Director of the Office of Personnel Management (OPM) to establish a new human
resources management (HRM) system for DOD’s civilian employees and to jointly
prescribe regulations for the system. The Secretary and the Director are authorized
to establish and adjust a labor relations system and are required to provide a written
description of the proposed personnel system or any adjustments to such system to
the labor organizations representing DOD employees. A collaboration procedure
must be followed by the Secretary, Director, and employee representatives. The
Secretary is authorized to engage in any collaboration activities and collective
bargaining at an organizational level above the level of exclusive recognition. The
Secretary also is authorized to establish an appeals process that provides fair
treatment for DOD employees covered by the NSPS. Regulations applicable to
employee misconduct or performance that fails to meet expectations may not be
prescribed until after the Secretary consults with the Merit Systems Protections Board
(MSPB) and must afford due process protections and conform to public employment
principles of merit and fitness at 5 U.S.C. §3201. A qualifying employee subject to
some severe disciplinary actions may petition the MSPB for review of the
department’s decision. The board could dismiss any petition that does not raise a
substantial question of fact or law and order corrective action only if the board finds
that the department’s personnel decision did not meet some prescribed standards. An
employee adversely affected by a final decision or order of the board could obtain
judicial review. Subtitle C of Title XI includes amendments to the government-wide
policies for the federal employee overtime pay cap, military leave, and Senior
Executive Service pay, and creates a Human Capital Performance Fund to reward the
highest-performing and most valuable employees in an agency.
DOD and OPM jointly published final regulations for the NSPS in the Federal
Register on November 1, 2005. The regulations state that “issuances” to implement
the regulations will be prepared by DOD. Draft versions of the “issuances” are
currently under discussion by the department and labor organizations. A coalition
of federal unions, including the American Federation of Government Employees,
filed a lawsuit in federal district court challenging the final regulations. On February
27, 2006, the court enjoined the regulations because they failed to ensure collective
bargaining rights, did not provide for independent third-party review of labor
relations decisions, and failed to provide a fair process for appealing adverse actions.
DOD said that it will appeal the decision. In early March 2006, DOD stated that the
phased implementation of the new system and its classification, performance
management, compensation, staffing, and workforce shaping components would
begin in April 2006, with some 11,000 employees. This report will be updated to
reflect changes in the status of implementation.
Contents
In troduction ......................................................1
Implementation of Title XI of P.L. 108-136.............................4
Department of Defense National Security Personnel System — Title XI,
Subtitle A, of P.L. 108-136......................................9
Section 9901. Definitions........................................9
Section 9902. Establishment of Human Resources Management System...9
In General................................................9
Requirements for the HRM System............................9
Personnel Management at Defense Laboratories.................12
Limitations Relating to Pay.................................12
Provisions to Ensure Collaboration With Employee Representatives
on National Security Personnel System....................17
Provisions Regarding National Level Bargaining................17
Provisions to Ensure Collaboration With Employee Representatives
on Development of Labor Relations System................18
Provisions Relating to Adverse Actions and Appellate Procedures..21
Provisions Related to Separation and Retirement Incentives.......31
Provisions Relating to Reemployment.........................33
Additional Provisions Relating to Personnel Management.........34
Phase-In ................................................34
Section 9903. Attracting Highly Qualified Experts..................35
Implementation ..........................................36
Section 9904. Special Pay and Benefits for Certain Employees Outside
the United States.........................................37
Impact on Department of Defense Civilian Personnel.................38
Department of Defense Civilian Personnel Generally — Title XI, Subtitle B,
of P.L. 108-136..............................................38
Military Leave for Mobilized Federal Civilian Employees.............38
Extension of Authority for Experimental Personnel Program for Scientific
and Technical Personnel...................................39
Department of Defense Civilian Personnel Generally — Title XI, Subtitle C,
of P.L. 108-136..............................................39
Modification of the Overtime Pay Cap............................39
Implementation ..........................................39
Common Occupational and Health Standards for Differential Payments
as a Consequence of Exposure to Asbestos.....................40
Implementation ..........................................40
Increase in Annual Student Loan Repayment Authority...............41
Implementation ..........................................41
Authorization for Cabinet Secretaries, Secretaries of Military Departments,
and Heads of Executive Agencies to be Paid on a Biweekly Basis...41
Implementation ..........................................41
Senior Executive Service Pay System.............................42
Total Compensation.......................................43
Implementation ..........................................44
Design Elements of Pay-for-Performance Systems in Demonstration
Projects .................................................44
Implementation ..........................................45
Federal Flexible Benefits Plan Administrative Costs.................45
Implementation ..........................................46
Employee Surveys............................................47
Implementation ..........................................47
Human Capital Performance Fund................................47
Implementation ..........................................50
Other Personnel Provisions.........................................51
Contracting For Personal Services................................51
Transfer of Personnel Investigative Functions and Related Personnel
of the Department of Defense...............................51
Key CRS Policy Staff..............................................53
DOD’s National Security Personnel System:
Statute, Regulations, and Implementation
Plans
Introduction
In April 2003, the Department of Defense (DOD) sent a proposal entitled “The
Defense Transformation for the 21st Century Act” to Congress.1 Changes in the
uniformed military personnel and acquisition systems were the principal focus of the
proposal. However, it also recommended changes to the statutory bases for much of
DOD’s civilian personnel system, which covers some 700,000 civilian employees
(about 26% of federal civilian executive branch personnel worldwide).2
On May 22, 2003, the House of Representatives passed H.R. 1588, the National
Defense Authorization Act for FY2004, amended, by a 361 to 68 (Roll No. 221)
vote.3 As reported to the House, H.R. 1588 included provisions at Subtitle A of Title
XI related to government-wide personnel management. The bill also included
provisions for a National Security Personnel System (NSPS) for DOD at Subtitle B.
Many of the provisions had originated in DOD’s April 2003 proposal and had been
included in H.R. 1836, the Civil Service and National Security Personnel
Improvement Act, reported to the House, amended (H.Rept. 108-116, part 1), by the
Committee on Government Reform on May 19, 2003.4 The provisions were added
to H.R. 1588 during Armed Services Committee markup.5 Several additional
amendments were made to the personnel management provisions during House
consideration and passage of H.R. 1588. The Senate version of the defense
1 The text of the DOD proposal can be accessed at [http://www.dod.gov/transformation/],
visited June 10, 2003.
2 An April 1, 2004 letter to DOD employees by David Chu, Under Secretary of Defense for
Personnel and Readiness, and Gordon England, Secretary of the Navy, refers to 700,000
civilian employees to be covered by the National Security Personnel System. Available on
the Internet at [http://www.cpms.osd.mil/nsps/], visited Apr. 27, 2004.
3 H.R. 1588 was introduced by Representative Duncan Hunter, by request, on April 3, 2003,
and was referred to the House Committee on Armed Services. The Committee marked up
the bill on May 9 and May 14, 2003. H.R. 1588 was reported to the House, amended
(H.Rept. 108-106) on May 16, 2003.
4 U.S. Congress, House Committee on Government Reform, Civil Service and National
Security Personnel Improvement Act, report to accompany H.R. 1836, 108th Cong., 1st sess.,
H.Rept. 108-116, part 1 (Washington: GPO, 2003). Hereafter referred to as H.Rept. 108-
5 H.R. 1836 was introduced by Representative Tom Davis on April 29, 2003, and was
referred to the House Committees on Armed Services, Government Reform, and Science.
The Government Reform Committee marked up the bill on May 7, 2003.
authorization bill, S. 1050, as passed by the Senate, amended, on May 22, 2003, on
a 98 to 1 (No. 194) vote, did not include these Title XI personnel management
provisions (but included other personnel provisions at Title XI). On June 4, 2003,
the Senate struck all after the enacting clause and substituted the text of S. 1050 in
H.R. 1588. The Senate then passed H.R. 1588, amended, by voice vote the same
day.6 H.R. 1588, as passed by the Senate, included, at Title XI, personnel provisions
on pay authority for critical positions, the experimental personnel program for
scientific and technical personnel, and personnel investigations that were not
included in the House-passed version of the bill or S. 1166.
Senator Susan Collins, Chairman of the Senate Committee on Governmental
Affairs, introduced S. 1166, the National Security Personnel System Act, on June 2,
2003, and it was referred to the Senate Governmental Affairs Committee. On June
Senators Voinovich and Thomas Carper asked the Comptroller General, David
Walker, to respond to several additional questions. His response, submitted on July
[I]t is critical that agencies or components have in place the human capital
infrastructure and safeguards before implementing new human capital reforms.
This institutional infrastructure includes, at a minimum (1) a human capital
planning process that integrates the agency’s human capital policies, strategies,
and programs with its program mission, goals, and desired outcomes, (2) the
capabilities to develop and implement a new human capital system effectively,
and (3) a modern, effective, credible and, as appropriate, validated performance
appraisal and management system that includes adequate safeguards, such as
reasonable transparency and appropriate accountability mechanisms, to ensure
the fair, effective, and nondiscriminatory implementation of the system.
Although we do not believe that DOD should wait for the full implementation of
the new human capital system at the Department of Homeland Security (DHS),
... we do think that there are important lessons that can be learned from how DHS
is developing its new personnel system. For example, DHS has implemented an
approach that includes a design team of employees from DHS, the Office of
Personnel Management (OPM), and major labor unions. To further involve
employees, DHS has conducted a series of town hall meetings around the country
and held focus groups to further learn of employees’ views and comments ...
DOD ... needs to ensure that employees are involved in order to obtain their ideas
and gain adequate “buy-in” for any related transformational efforts.
[W]e suggest that DOD also be required to link its performance management
system to program and performance goals and desired outcomes.... [This] helps
the organization ensure that its efforts are properly aligned and reinforces the line
of sight between individual performance and organizational success so that an
individual can see how her/his daily responsibilities contribute to results and
outcomes.
6 S. 1050 was introduced by Senator John Warner and reported to the Senate (S.Rept. 108-
the Armed Services Committee marked up the bill.
In our view, it would be preferable to employ a governmentwide approach to
address certain flexibilities that have broad-based application and serious
potential implications for the civil service system .... broad banding, pay for
performance, reemployment, and pension offset waivers. In these situations, it
may be prudent and preferable for Congress to provide such authorities on a
governmentwide basis and in a manner that assures that a sufficient personnel
infrastructure and appropriate safeguards are in place before an agency
implements the new authorities.
Based on our experience, while DOD’s leadership has the intent and the ability
to transform the department, the needed institutional infrastructure is not in place
in a vast majority of DOD organizations.... In the absence of the right
institutional infrastructure, granting additional human capital authorities will
provide little advantage and could actually end up doing damage if the authorities7
are not implemented properly by the respective department or agency.
The Senate Governmental Affairs Committee marked up the bill on June 17,
on a 10 to 1 roll call vote. During the mark-up, the committee agreed to an
amendment offered by Senator Joseph Lieberman to clarify the intent of the bill’s
provisions on collective bargaining and an amendment offered by Senator George
Voinovich to exclude 10 DOD laboratories from the NSPS. Both amendments were
agreed to by voice vote. On September 5, 2003, the committee reported S. 1166 to
the Senate with amendments and without a written report.
Senator Collins, a conferee on the conference committee for H.R. 1588, along
with Senators Voinovich and Carl Levin (an H.R. 1588 conferee), among others,
expressed the hope that the provisions of S. 1166, as amended, would be seriously
considered by the conference as an alternative to the provisions in H.R. 1588 on the
NSPS. On July 14, 2003, Senators Collins, Voinovich, Stevens, and Sununu wrote
a letter to their Senate colleagues expressing their support for, and sharing their views
on, the personnel provisions of S. 1166. They stated that, “[a]s a template for future
governmentwide civilian personnel reform, the personnel provisions in the defense
bill must strike the right balance between promoting a flexible system and protecting
the rights of our constituents who serve in the federal civil service” and that “[w]e
believe that our proposal strikes such a balance.”8 Several provisions that were the
same or similar to S. 1166 were added to H.R. 1588 in conference.
On November 7, 2003, the House agreed to the conference report (H.Rept. 108-
354) accompanying H.R. 1588 on a 362-40, 2 present (Roll No. 617) vote. The
Senate agreed to the conference report on a 95-3 (No. 447) vote on November 12,
7 U.S. General Accounting Office, Posthearing Questions Related to Proposed Department
of Defense (DOD) Human Capital Reform, GAO-03-965R (Washington: July 3, 2003).
8 Letter from Senators Susan Collins, George Voinovich, Ted Stevens, and John Sununu to
Senate colleagues, July 14, 2003. Provided to CRS by the Senate Committee on
Governmental Affairs by facsimile.
This report discusses each of the provisions in Title XI of P.L. 108-136 and
plans to implement the law. 9 For discussion of the background to the provisions and
side-by-side comparisons of the provisions with current law, see CRS General
Distribution Memorandum, Department of Defense Transformation Proposal (Title
I, Subtitle A, Section 101) and H.R. 1588 Conference Report (Title XI, Subtitles
A,B,C): A Side-by-Side Comparison, coordinated by Barbara L. Schwemle; CRS
Report RL31924, Civil Service Reform — H.R. 1836, Homeland Security Act, and
Current Law, by Barbara L. Schwemle and Thomas J. Nicola; and CRS Report
RL31916, Defense Department Original Transformation Proposal: Compared to
Existing Law, by Robert L. Goldich, Gary J. Pagliano, Barbara L. Schwemle, and
Thomas J. Nicola.
Contributors to this report are Richard Best, Valerie Grasso, L. Elaine Halchin,
Fred Kaiser, Jack Maskell, Thomas Nicola, Patrick Purcell, Barbara Schwemle,
Christine Scott, and Jon Shimabukuro.
Implementation of Title XI of P.L. 108-136
The timetable for implementing the NSPS has changed several times.
Discussions on implementation began in January 2004.10 Initially, DOD planned to
publish details of the new system by April 2004, and cover 300,000 civilian DOD
employees under the NSPS by October 1, 2004. In early February 2004, Secretary
of Defense Donald Rumsfeld named then-Navy Secretary and now-Deputy Secretary
of Defense Gordon England as the DOD official responsible for negotiating with11
labor organizations on the personnel reform effort. On April 14, 2004, Secretary
England announced that implementation of the NSPS would be phased in over
several years so that all employees would be covered by the NSPS by October 1,
More specific implementation steps and a revised timetable were announced by12
Secretary England on December 15, 2004, as follows. Civilian DOD employees
9 Sections 1111 (automated personnel management program), 1112 (demonstration project
relating to certain acquisition personnel management), 1114 (restoration of annual leave to
certain DOD employees affected by base closings), and 1115 (employment of certain
civilian faculty members at a Defense institution) of Title XI, Subtitle B, of P.L. 108-136
are beyond the purview of this report.
10 Tim Kauffman, “Union-busting, DOD Style: Work-force Plan Would Slash Unions’
Membership, Influence,” Federal Times, Feb. 16, 2004. Available on the Internet at
[http://www.federaltimes.com/], visited Apr. 27, 2004.
11 The National Security Personnel System Program Executive Office was established in
April 2004, and Secretary England announced on May 24, 2004, that Mary E. Lacey, a
member of the Senior Executive Service, would serve as the program executive officer.
Earlier, on February 13, 2004, OPM Director Kay Coles James named George Nesterczuk
as a senior advisor and announced that he would serve as the lead OPM official on design
of the NSPS.
12 U.S. Department of Defense, Office of the Assistant Secretary of Defense (Public
(continued...)
being converted to the NSPS were to be grouped into three “spirals.” Upwards of
300,000 General Schedule employees from the Army, Navy, Marine Corps, Air
Force, Office of the Secretary of Defense, and other DOD offices who are based in
the United States were to comprise Spiral One. Spiral Two was to consist of all
remaining eligible employees and Spiral Three was to cover employees of the DOD
laboratories if current legislative restrictions covering laboratory employees had been
eliminated. The new system was to be implemented in phases. Spiral One was
scheduled to be implemented in three phases over 18 months beginning around July
2005 and covering some 60,000 employees. Spiral Two was scheduled to begin after
the department had assessed Spiral One and after the Secretary of Defense certified
DOD’s performance management system. Full implementation of the new system
was anticipated anywhere from July 2007 through January 2008. Implementation of
the labor relations component of the new system was anticipated by summer 2005.
On October 26, 2005, DOD announced a further revised implementation
schedule for the NSPS. Key implementation steps were to occur as follows:
!In early FY2006, the labor relations system was to be implemented
across DOD for employees who are currently covered by 5 U.S.C.
Chapter 71, and training in performance management was to begin
for employees, managers and supervisors, and human resources
practitioners.
!In early calendar year 2006, Spiral 1.1 was to be implemented and
cover some 65,000 employees.
!In spring 2006, Spiral 1.2 was to be implemented and cover some
!In fall 2006, Spiral 1.3 was to be implemented and cover some
160,000 employees and the performance cycle was to end for
employees in Spirals 1.1 and 1.2.
!In early calendar year 2007, employees in Spirals 1.1 and 1.2 were
to receive their first pay-for-performance payout.
!In early calendar year 2008, employees in Spiral 1.3 were to receive
their first pay-for-performance payout.13
Another revision to the NSPS implementation schedule was announced by DOD
on January 17, 2006, and updated on February 13, 2006, and March 3, 2006.
Beginning in late April 2006, the classification, performance management,
12 (...continued)
Affairs), DOD Selects First Group for National Security Personnel System, News Release
No. 1286-04, Dec. 15, 2004. Available on the Internet at [http://www.cpms.osd.mil/nsps],
visited Jan. 24, 2005.
13 “National Security Personnel System Fact Sheet,” Oct. 2005, p. 7.
compensation, staffing, and workforce shaping provisions of the new system will be
implemented. Under the revised schedule, the following was established:
!Spiral 1.1 will include the first employees to be covered by the
NSPS, some 11,000 workers in department-wide, Army, Navy, and
Air Force activities.14 The performance rating cycle for these
employees will extend through October 2006, and the first
performance payout will occur in January 2007.
!Spiral 1.2 will begin in October 2006, and Spiral 1.3 will begin in
January 2007. Performance payouts will occur in January 2008.
The DOD agencies that will participate in these Spirals are still to be
determined.
!Spirals 2 and 3 will be formed and commence following certification
of the performance management system.15
Proposed regulations to implement the system were jointly published in the
Federal Register by DOD and OPM on February 14, 2005.16 DOD and OPM
conducted a joint briefing on the proposed regulations on February 10, 2005.17
According to the Defense Department, more than 58,000 comments were submitted
on the proposed regulations. DOD and OPM jointly published the final regulations
in the Federal Register on November 1, 2005.18 The regulations generally express
concepts for the new system rather than details about how it will operate. The
regulations state that “issuances” to implement the regulations will be prepared by
DOD. On November 23, 2005, DOD released the drafts of the “issuances” and, as
of the date of the report, are still under review by the department and labor
organizations. Revised drafts of the “issuances” on performance management and
14 The 11,138 employees in Spiral 1.1 are in the Defense Threat Reduction Agency, the
Defense Information Systems Agency, and the Tricare Management Activity in DOD; the
Civilian Human Resources Activity, the Civilian Personnel Operations Centers, and the
Civilian Personnel Advisory Centers in the Army; the Naval Sea Systems Command
Headquarters and Program Executive Offices, the Office of Civilian Human Resources and
Human Resources Service Centers, the Joint Warfare Analysis Center, the Strategic Systems
Program Office, the Human Performance Center, and the Commander, U.S. Fleet in the
Navy; and the Secretary of the Air Force Manpower/Reserve Affairs, elements of Tinker Air
Force Base, and the Air Force Audit Agency in the Air Force.
15 U.S. Department of Defense, National Security Personnel System, available at
[http://www.cpms .osd.mil/nsps].
16 U.S. Department of Defense and U.S. Office of Personnel Management, “National
Security Personnel System,” Federal Register, vol. 70, no. 29, Feb. 14, 2005, pp. 7551-
17 The transcript of the joint briefings on the proposed and the final regulations are available
on the Internet at [http://www.dod.gov/transcripts/2005], visited Nov. 15, 2005.
18 U.S. Department of Defense and U.S. Office of Personnel Management, “Department of
Defense Human Resources Management and Labor Relations Systems,” Federal Register,
vol. 70, no. 210, Nov. 1, 2005, pp. 66115-66220.
pay pools were released on February 28, 2006, and, likewise, are subject to
continuing collaboration between DOD and the unions.
The process for designing the new personnel system involved Program
Executive Office working groups, which began a nearly two-month process to
develop and evaluate options for the NSPS in late July 2004. Focus groups and town
hall meetings and discussions with union leaders were employed by the working
groups to gather input from employees and stakeholders.19 Other specific
implementation steps are noted below under relevant sections of the law. DOD has
established a website to monitor implementation of the NSPS.20
Prior to the enactment of the provisions authorizing the Department of Defense
to create a new human resources management system, DOD civilians were covered
by the personnel laws codified in Title 5 United States Code on government
organization and employees. Under the authority granted by Title XI of P.L. 108-
136, some 700,000 civilian employees are expected to be covered by the new
National Security Personnel System. The NSPS policies (especially in the areas of
pay, performance management, adverse actions and appeals, and labor management
relations) are more flexible than those under Title 5. During debate prior to the
enactment of P.L. 108-136 and in discussions that have continued since, several
Members of Congress stated that implementation of the NSPS (along with the
Department of Homeland Security’s new HRM system currently being created)
should be monitored as a possible model for amending Title 5 and extending those
provisions to the rest of the federal government’s civilian workforce.
Reflecting the importance of carefully crafting the NSPS, Senators Susan
Collins, Carl Levin, Ted Stevens, John Sununu, and George Voinovich reportedly
sent a letter to Secretary England on March 3, 2004, which stated that
[t]he involvement of the civilian work force in the design of the new National
Security Personnel System is critical to its ultimate acceptance and successful
implementation. Full collaboration with the Office of Personnel Management
and the federal employee unions will assist the department in meeting this critical21
challenge.
A March 12, 2004, letter sent by Senator Daniel Akaka to Secretary of Defense
Donald Rumsfeld urged DOD to issue all proposals on the NSPS in the Federal
Register and not as internal regulations, for reasons of “openness, transparency,
19 According to DOD, 106 focus groups were held throughout the department and included
employees overseas. The groups generated more than 10,000 comments, ideas, and
suggestions. Town hall meetings conducted by the Departments of the Army, Navy, and the
Air Force, and the Defense agencies are listed on the Internet at
[http://www.cpms.osd.mil/nsps/], visited Jan. 24, 2005.
20 See [http://www.cpms.osd.mil/nsps/], visited Jan. 24, 2005.
21 Tim Kauffman, “DOD Personnel Plan Under Fire From Lawmakers, Unions,” Federal
Times, Mar. 8, 2004. Available on the Internet at [http://www.federaltimes.com/], visited
Apr. 27, 2004.
public comment, and scrutiny of the details.”22 Senator Edward Kennedy, in a
December 10, 2004, press release, also emphasized development of the new system
“in the most transparent way possible.” According to the Senator:
Congress gave the Department of Defense the authority to make major personnel
changes affecting 700,000 defense employees, but only with the understanding
that those changes would be made in consultation with representatives of the
employees. It’s appalling that the Bush Administration is ignoring that
understanding by stonewalling the representatives and refusing to let them23
review personnel changes before they are published....
Government Executive reported that Senator Kennedy wrote to Defense
Secretary Donald Rumsfeld and OPM Director Kay Coles James on November 19,
2004, to voice opposition to their refusal to share the details of the new personnel
system with officials of the unions representing DOD employees in advance of the
publication of the regulations in the Federal Register. Reportedly, DOD believes
that do to so would “depart from the intent of the Administrative Procedures Act.”24
In a press release issued on February 10, 2005, Senator Lieberman expressed his
deep disappointment with the personnel rules, stating: “The proposal imposes
excessive limits on collective bargaining ... changes the appeals process to interfere
with employees’ rights to due process ... and ... contains unduly vague and untested
pay and performance provisions.”25
22 Senator Daniel Akaka, Press Release, “Akaka Queries Agencies on Personnel System
Changes,” Mar. 23, 2004. Available on the Internet at [http://akaka.senate.gov], visited Apr.
23 Senator Edward M. Kennedy, Press Release, “Senator Edward M. Kennedy Statement on
Response By Bush Administration on Transparency in National Security Personnel
Regulations,” Dec. 10, 2004. Available on the Internet at [http://kennedy.senate.gov],
visited Jan. 24, 2005.
24 David McGlinchey, “Legislator Says Withholding Pentagon Personnel Plans Violates
Laws,” Government Executive, Nov. 29, 2004, and David McGlinchey, “Back and Forth,”
Government Executive, Dec. 16, 2004. Both are available on the Internet at
[http://www.govexec.com], visited Jan. 24, 2005.
25 “Lieberman Condemns Proposed DOD Personnel Rules,” Press Release, Feb. 10, 2005.
Available on the Internet at [http://hsgac.senate.gov/index.cfm], visited Feb. 14, 2005.
Department of Defense
National Security Personnel System —
Title XI, Subtitle A, of P.L. 108-136
P.L. 108-136 provides the following.26 Section 1101(a)(1) of P.L. 108-136
amends Part III, Subpart I, of Title 5 United States Code by adding a new Chapter 99
entitled Department of Defense (DOD) National Security Personnel System. The
new system covers some 700,000 DOD civilian employees.
Section 9901. Definitions27
This section defines terms for the new chapter. “Director” means the Director
of the Office of Personnel Management (OPM) and “Secretary” means the Secretary
of Defense.
Section 9902. Establishment of
Human Resources Management System28
In General. The new Section 9902(a) of P.L. 108-136 provides that
notwithstanding any other provision of Part III, the Secretary of Defense may, in
regulations prescribed jointly with the OPM Director, establish, and from time to
time adjust, a human resources management (HRM) system, referred to as the
National Security Personnel System (NSPS), for some or all of the organizational or
functional units of DOD.
Requirements for the HRM System. The HRM system must be flexible
and contemporary. The new Section 9902(b) provides that it could not waive,
modify, or otherwise affect:
!the public employment principles of merit and fitness at 5 U.S.C.
§2301, including the principles of hiring based on merit, fair
treatment without regard to political affiliation or other non-merit
considerations, equal pay for equal work, and protection of
employees against reprisal for whistleblowing;
!any provision of 5 U.S.C. §2302, relating to prohibited personnel
practices;
!any provision of law referred to in 5 U.S.C. §2302(b)(1)(8)(9); or
any provision of law implementing any provision of law referred to
26 117 Stat. 1621-1633. U.S. Congress, Conference Committees, 2003, National Defense
Authorization Act for Fiscal Year 2004, conference report to accompany H.R. 1588, 108thst
Cong., 1 sess., H.Rept. 108-354 (Washington: GPO, 2003), pp. 162-163, 171-173, 232-
27 117 Stat. 1621.
28 117 Stat. 1621-1631.
in 5 U.S.C. §2302(b)(1)(8)(9) by providing for equal employment
opportunity through affirmative action; or providing any right or
remedy available to any employee or applicant for employment in
the public service.
Various subparts and chapters of Part III of Title 5 United States Code which
cannot be waived, modified, or otherwise affected in the new HRM system are listed
at the new Section 9902(d) as follows:
Subpart A — General Provisions, including Chapter 21 Definitions;
Chapter 23 Merit System Principles; Chapter 29 Commissions, Oaths,
Records, and Reports;
Subpart B — Employment and Retention, including Chapter 31 Authority
for Employment; Chapter 33 Examination, Selection, and Placement;
Chapter 34 Part-time Career Employment Opportunities; Chapter 35
Retention Preference (RIF), Restoration, and Reemployment;
Subpart E — Attendance and Leave, including Chapter 61 Hours of Work;
Chapter 63 Leave;
Subpart G — Insurance and Annuities, including Chapter 81
Compensation for Work Injuries; Chapters 83 and 84 Retirement; Chapter
85 Unemployment Compensation; Chapter 87 Life Insurance; Chapter 89
Health Insurance; Chapter 90 Long Term Care Insurance;
Subpart H — Access to Criminal History Record Information, including
Chapter 91 for individuals under investigation;
Chapter 41 — Training;
Chapter 45 — Incentive Awards;
Chapter 47 — Personnel Research Programs and Demonstration Projects;
Chapter 55 — Pay Administration, including biweekly and monthly pay
periods and computation of pay, advanced pay, and withholding of taxes
from pay, except that Subchapter V of Chapter 55 on premium pay
(overtime, night, Sunday pay), apart from section 5545b, may be waived
or modified;
Chapter 57 — Travel, Transportation, and Subsistence;
Chapter 59 — Allowances, which includes uniforms, quarters, overseas
differentials;
Chapter 71 — Labor Management and Employee Relations [H.R. 1588, as
passed by the House, did not include this provision];
Chapter 72 — Antidiscrimination, Right to Petition Congress, including
minority recruitment, antidiscrimination on the basis of marital status and
handicapping condition, furnishing information to Congress;
Chapter 73 — Suitability, Security, and Conduct, including security
clearance, political activities (Hatch Act), misconduct (gifts, drugs,
alcohol);
Chapter 79 — Services to Employees, including safety program, protective
clothing and equipment; or
any rule or regulation prescribed under any provision of law referred to in
any of the statements in bullets immediately above.
Other requirements for the HRM system include that it must:
!ensure that employees may organize, bargain collectively as
provided for in the proposed Chapter 99, and participate through
labor organizations of their own choosing in decisions that affect
them, subject to the provisions of the proposed Chapter 99 and any
exclusion from coverage or limitation on negotiability established
pursuant to law;
!not be limited by any specific law or authority under Title 5, or by
any rule or regulation prescribed under Title 5, that is waived in
regulations prescribed under the proposed Chapter 99, subject to the
requirements stated above; and
!include a performance management system. Such a system must
incorporate these elements: adherence to the merit principles of 5
U.S.C. §2301; a fair, credible, and transparent employee
performance appraisal system; a link between the performance
management system and the agency’s strategic plan; and a means for
ensuring employee involvement in the design and implementation
of the system. Other elements the system must incorporate are:
adequate training and retraining for supervisors, managers, and
employees in the implementation and operation of the performance
management system; a process for ensuring ongoing performance
feedback and dialogue between supervisors, managers, and
employees throughout the appraisal period, and setting timetables for
review; effective safeguards to ensure that the management of the
system is fair and equitable and based on employee performance;
and a means for ensuring that adequate agency resources are
allocated for the design, implementation, and administration of the
performance management system; and a pay-for-performance
evaluation system to better link individual pay to performance, and
provide an equitable method for appraising and compensating
employees.
Personnel Management at Defense Laboratories. The NSPS will not
apply with respect to the laboratories listed below before October 1, 2008. It will
apply on or after October 1, 2008, only to the extent that the Secretary determines
that the flexibilities provided by the NSPS are greater than the flexibilities provided
to those laboratories pursuant to section 342 of the National Defense Authorization
Act for Fiscal Year 1995 (P.L.103-337) and section 1101 of the Strom Thurmond
National Defense Authorization Act for Fiscal Year 1999 (5 U.S.C. §3104 note)
respectively. The laboratories covered by this provision (5 U.S.C. §9902(c)) are the
Aviation and Missile Research Development and Engineering Center; the Army
Research Laboratory; the Medical Research and Materiel Command; the Engineer
Research and Development Command; the Communications-Electronics Command;
the Soldier and Biological Chemical Command; the Naval Sea Systems Command
Centers; the Naval Research Laboratory; the Office of Naval Research; and the Air
Force Research Laboratory. (Senator Voinovich offered a similar provision as an
amendment that was agreed to by voice vote by the Senate Governmental Affairs
Committee during mark-up of S. 1166. According to Senator Voinovich’s office, the
amendment continued the authority of the reinvention laboratories to use various
personnel flexibilities that DOD has found to be successful. The NSPS provisions
might reduce these personnel flexibilities at the laboratories if they were to be
included in NSPS said his office. In an article on the Governmental Affairs
Committee mark-up, The Washington Post quoted a DOD official who said that the
provision “while designed to protect existing flexibilities at the labs, would prevent29
the Pentagon from increasing those flexibilities.”
Limitations Relating to Pay. Nothing in Section 9902 constitutes authority
to modify the pay of any employee who serves in an Executive Schedule position.
Except for this provision, the total amount of allowances, differentials, bonuses,
awards, or other similar cash payments paid under Title 5 in a calendar year to any
employee who is paid under 5 U.S.C. §5376 (senior-level pay) or 5383 (Senior
Executive Service pay) or under Title 10 or other comparable pay authority
established for DOD senior executives or equivalent employees may not exceed the
total annual compensation payable to the Vice President ($212,100, as of January
The law provides that to the maximum extent practicable, the rates of
compensation for civilian DOD employees would be adjusted at the same rate, and
in the same proportion, as are rates of compensation for members of the uniformed
services.
To the maximum extent practicable, for FY2004 through FY2008, the overall
amount allocated for compensation of the civilian employees of an organizational or
functional unit of DOD that is included in the NSPS may not be less than the amount
of civilian pay that would have been allocated for compensation of such employees
for such fiscal year if they had not been converted to the NSPS. The amount will be
based on, at a minimum, the number and mix of employees in such organizational or
functional unit prior to the conversion of such employees to the NSPS; and adjusted
29 Stephen Barr, “Senate Committee Backs Plan for Overhaul of Pentagon Pay, Rules,” The
Washington Post, June 18, 2003, p. B2.
for normal step increases and rates of promotion that would have been expected had
such employees remained in their previous pay schedule. (S. 1166 included a similar
provision.)
To the maximum extent practicable, the regulations implementing the NSPS
will provide a formula for calculating the overall amount to be allocated for fiscal
years after FY2008 for compensation of the civilian employees of an organizational
or functional unit of DOD that is included in the NSPS. The formula will ensure that
in the aggregate, employees are not disadvantaged in terms of the overall amount of
pay available as a result of conversion to the NSPS, while providing flexibility to
accommodate changes in the function of the organization, changes in the mix of
employees performing those functions, and other changed circumstances that might
impact pay levels. (S. 1166 included a similar provision.)
The Executive Schedule is the pay system for the heads of federal departments
and agencies. As of January 2006, pay for the five levels of the Executive Schedule
ranges from $133,900 to $183,500. This provision appears to authorize pay, for
individual employees, which could exceed that of the department or agency heads.
Under current law, OPM is required to certify that an agency has an acceptable
performance management system in place before salaries for these employees could
range up to the Vice President’s salary. Since the proposals would not amend 5
U.S.C. §5307, it remains to be determined if OPM certification of the DOD policy
will be required.
Under the new Section 9902(d) in P.L. 108-136, DOD is authorized to make
changes in Title 5 Chapters 43 (Performance Appraisal) and 53 (Pay Rates and
Systems) in establishing the new HRM system. The law does not provide any further
detail on the design and operation of that new pay system.
Implementation of the Law. Several key chapters of Part III of Title 5
United States Code may be waived, modified, or otherwise affected as the new HRM
system is developed. These are:
!Chapter 43 — Performance Appraisal
!Chapter 51 — Position Classification
!Chapter 53 — Pay Rates and Systems
!Chapter 71 — Labor Management and Employee Relations
!Chapter 75 — Adverse Actions30
!Chapter 77 — Appeals
During testimony before the House Subcommittee on Civil Service and Agency
Organization at its April 29, 2003 hearing on the proposed NSPS of the Defensest
Transformation for the 21 Century Act, David Chu discussed DOD’s Best Practices
Initiative. He referred Members of Congress to an April 2, 2003, Federal Register
30 The Chapters 71, 75, and 77 changes are discussed below.
notice for additional details on the types of HRM flexibilities the department is
implementing at its science and technology reinvention laboratories.31
A September 3, 2004, paper by the Program Executive Office working groups
listed (without details) “Potential Options for the National Security Personnel System
Human Resource Management System.” Among the design options identified were
those establishing a pay banding system with broad salary ranges and simplified
criteria and procedures for assigning positions to the bands; developing a market-
sensitive pay system; streamlining and consolidating appointing authorities to
simplify the hiring of external candidates; developing a pay-for-performance system
allowing for progression through a pay band based on performance and/or
contribution; allowing base pay increases for reassignments; and streamlining the
Performance Improvement Plan process.32
As stated above, the proposed regulations to implement the NSPS were
published in the Federal Register on February 14, 2005, and the final regulations
were published on November 1, 2005. Provisions on Classification (Subpart B,
§§9901.201-9901.231), Pay and Pay Administration (Subpart C, §§9901.301-
9901.373), Performance Management (Subpart D, §§9901.401-9901.409), Staffing
and Employment (Subpart E, §§9901.501-9901.516) and Workforce Shaping
(Subpart F, §§9901.601-9901.611) are included in the regulations. Many of the
details that will govern the operation of these areas are currently under discussion by
DOD and the labor organizations. A town hall briefing in March 2006 revealed the
following details, which are subject to continuing collaboration between the
department and the unions.
!Classification. Positions will be grouped into broad pay bands based
on the nature of the work and the competencies required to perform
them. Performance, complexity of the job, and market conditions
will determine the progression of employees through a pay band.
Positions descriptions will be less detailed. Managers will have
flexibility to assign new or different work to employees.
Classification decisions could be appealed. There are expected to be
four career groups — Standard (covers 71% of DOD’s white collar
workforce), Scientific and Engineering (covers 18% of DOD’s white
collar workforce), Investigative and Protective Services (covers 6%
of DOD’s white collar workforce), and Medical (covers 5% of
DOD’s white collar workforce). Table 1 below shows the proposed
31 Statement of David S. C. Chu, Under Secretary of Defense for Personnel and Readiness,
April 29, 2003, p. 5 (unpublished). The best practices were published at U.S. Department
of Defense, “Science and Technology (S&T) Reinvention Laboratory Personnel
Management Demonstration Project; Notice of Amendment of Demonstration Project
Plans,” Federal Register, vol. 68, April 2, 2003, pp. 16119-16142. Information on these
flexibilities appeared in earlier versions of this CRS report and is available from the author.
32 U.S. Department of Defense, NSPS, “Potential Options for the National Security
Personnel System Human Resource Management System,” Sept. 3, 2004. Available on the
Internet at [http://www.cpms.osd.mil/nsps], visited Jan. 24, 2005.
career groups and the pay bands and salary ranges corresponding to
positions under each.
Table 1. Proposed Career Groups, Pay Bands, and Salary
Ranges for the National Security Personnel System
PositionPay Band 1Pay Band 2Pay Band 3Pay Band 4
Standard Career Group
Professional/$25,195 -$38,175 -$74,608 -NA
Analytical $60,049 $85,578 $124,904
Technician/$16,352 -$31,209 -$46,189 -NA
Support $36,509 $54,649 $71,965
Supervisor/$31,209 -$55,360 -$77,793 -NA
Manage r $60,049 $106,186 $124,904
Student$16,352 -NANANA
$60,049
Scientific and Engineering Career Group
Professional$25,195 -$38,175 -$74,608 -NA
$60,049 $85,578 $124,904
Technician/$16,352 -$31,209 -$46,189 -$62,740 -
Support $36,509 $54,649 $71,965 $85,578
Supervisor/$31,209 -$55,360 -$74,608 -NA
Manage r $60,049 $106,186 $124,904
Investigative and Protective Services Career Group
Investigative$25,195 -$38,175 -$74,608 -NA
$60,049 $85,578 $124,904
Fire$16,352 -$31,209 -$46,189 -$62,740 -
Pr otection $36,509 $54,649 $71,965 $101,130
Police/$16,352 -$31,209 -NANA
Security $36,509 $54,649
Guard
Supervisor/$31,209 -$55,360 -$77,793 -NA
Manage r $60,049 $106,186 $124,904
Medical Career Group
Physician/NA$85,000 -$110,000 -NA
Dentist $175,000 $225,000
Professional$25,195 -$38,175 -$74,608 -NA
$60,049 $101,130 $124,904
PositionPay Band 1Pay Band 2Pay Band 3Pay Band 4
Technician/$16,352 -$31,209 -$46,189 -NA
Support $36,509 $54,649 $71,965
Supervisor/$31,209 -$55,360 -$77,793 -$100,000 -
Manage r $60,049 $106,186 $124,904 $200,000
!Performance Management. The system will directly link pay,
performance, and mission accomplishment. It will have five rating
levels — “Unsuccessful,” “Fair,” “Valued Performance,” “Exceeds
Expectations,” and “Role Model.” The performance of employees
will be rated on responsibilities, behaviors, skills, and tasks. An
individual’s technical proficiency, critical thinking, cooperation and
teamwork, communication, customer focus, resource management,
and leadership will be evaluated. Employees who perform at Level
3, “Valued Performance,” Level 4, “Exceeds Expectations,” or Level
5, “Role Model,” will be eligible for a rate range adjustment, a local
market supplement, and performance-based pay. Individuals who
perform at Level 2, “Fair,” will be eligible for a rate range
adjustment and a local market supplement. There will not be any
pay increases for those employees whose performance is rated at
Level 1, “Unsuccessful.”
!Compensation. An employee could receive three types of pay
adjustments — a rate range increase, a local market supplement, and
a raise based on performance. The rate range increase may vary by
pay band. Employees must perform at Level 2, “Fair,” or higher to
receive a rate range increase. The local market supplement will be
included in base pay and will be based on market conditions in a
geographic area or for an occupation. This increase could differ
from one occupation to another within a given area. Employees
must perform at Level 2, “Fair,” or higher to receive a local market
supplement. The performance-based adjustment will be an annual
pay raise or bonus based on job performance. Employees must
perform at Level 3, “Valued Performance,” or higher to receive a
performance-based pay increase. High-performing employees could
receive higher pay raises. The rate ranges and local market
supplements will be reviewed annually. A promotion will result in
a minimum six percent salary increase. Employees will not lose pay
upon converting to the new system. Individuals eligible for a
within-grade increase will receive a pro-rated salary increase.
!Staffing. The hiring process will be streamlined. Qualification
requirements for positions will recognize DOD’s unique mission.
Some occupational categories will have longer probationary periods
for evaluating new employees. Veterans’ preference rights will
apply.
!Workforce Shaping. An employee’s retention standing in a
reduction in force (RIF) will be determined by tenure, veterans’
preference, performance, and seniority. Multiple years of
performance ratings will be used in making RIF determinations.
Two years (104 weeks) of retained pay will be provided to
employees who are displaced.
Provisions to Ensure Collaboration With Employee Representatives
on National Security Personnel System. P.L. 108-136 adds a new section, 5
U.S.C. §9902(f), that requires the Secretary of Defense and the Director of OPM to
provide a written description of the proposed personnel system or adjustments to
such system to the labor organizations representing employees in the department.
The measure uses the term “employee representatives” to describe these
organizations. The employee representatives are given at least 30 calendar days to
review and make recommendations with respect to the proposal, unless extraordinary
circumstances require earlier action. Such recommendations must be given full and
fair consideration by the Secretary and the Director. Section 9902(f)(B)(i) requires
the Secretary and the Director to notify Congress of those parts of the proposal for
which recommendations were made, but not accepted.
Section 9902(f)(B)(ii) requires the Secretary and the Director to meet and confer
with the employee representatives for not less than 30 calendar days to attempt to
reach agreement on whether and how to proceed with those parts of the proposal for
which recommendations were made, but not accepted. At the Secretary’s option, or
if requested by a majority of the employee representatives participating, the Federal
Mediation and Conciliation Service may assist with the discussions. After 30
calendar days following notification and consultation, the Secretary may implement
any or all of the disputed parts of the proposal if it is determined that further
consultation and mediation are unlikely to produce agreement. However, such
implementation may occur only after 30 days following notice to Congress of the
decision to implement the part or parts involved. Implementation may occur
immediately for those parts of the proposal that did not generate recommendations
from the employee representatives, and where the Secretary and the Director accepted
the recommendations of the employee representatives. The Secretary may, at his
discretion, engage in any and all of the collaboration activities at an organizational
level above the level of exclusive recognition.
If a proposal is implemented, the Secretary and the Director must develop a
method for employee representatives to participate in any further planning or
development which might become necessary. In addition, employee representatives
must be given adequate access to information to make participation productive.
Provisions Regarding National Level Bargaining. A new section, 5
U.S.C. §9902(g)(1), allows any personnel system implemented or modified under
Section 9902(f) to include employees from any bargaining unit with respect to which
a labor organization has been accorded exclusive recognition. (A labor organization
is described generally as having been accorded “exclusive recognition” when an
election has occurred (with the labor organization receiving support from a majority
of employees) and the results have been certified by the Federal Labor Relations
Authority (“FLRA”).) For any of these bargaining units, the Secretary is permitted
to bargain at an organizational level above the level of exclusive recognition. The
decision to bargain at a level above the level of exclusive recognition is not subject
to review or to dispute resolution procedures outside the department.
Any bargaining conducted at a level above the level of exclusive recognition is
binding on all subordinate bargaining units and on the department and its
subcomponents; supersedes all other collective bargaining agreements, except as
otherwise determined by the Secretary; is not subject to further negotiations for any
purpose, except as provided for by the Secretary; and is subject to review by an
independent third party only to the extent permitted by the act.
Because organizational bargaining would likely focus on the larger issues
affecting all employees, other topics may not be considered, including concerns that
are significant only to a particular bargaining unit. Proponents of organizational
bargaining, however, contend that such bargaining is more expeditious.
Provisions to Ensure Collaboration With Employee Representatives
on Development of Labor Relations System. Section 9902(d)(2) prevents the
new personnel system from waiving the application of Title 5, Chapter 71 of the
United States Code. Chapter 71 sets forth the labor-management relations structure
for the federal government. At the same time, however, Section 9902(m)(1) states:
“Notwithstanding section 9902(d)(2), the Secretary, together with the Director, may
establish and from time to time adjust a labor relations system for the Department of
Defense to address the unique role that the Department’s civilian workforce plays in
supporting the Department’s national security mission.”
To ensure that there is collaboration between the Secretary, the Director, and
employee representatives, the Secretary is required to implement a process similar
to the one defined for the creation of the NSPS. The Secretary and the Director are
required to give employee representatives and management the opportunity to have
meaningful discussions concerning the development of the new system.
Representatives must be given at least 30 calendar days to review the proposal for the
system and make recommendations with respect to the proposal, unless extraordinary
circumstances require earlier action. Recommendations must be given full and fair
consideration.
Section 9902(m)(3)(B)(i) requires the Secretary and the Director to meet and
confer with the employee representatives for not less than 30 calendar days to attempt
to reach agreement on whether and how to proceed with those parts of the proposal
for which recommendations were made, but not accepted. At the Secretary’s option,
or if requested by a majority of the employee representatives participating, the
Federal Mediation and Conciliation Service may assist with the discussions. After
30 calendar days following consultation and mediation, the Secretary may implement
any or all of the disputed parts of the proposal if it is determined that further
consultation and mediation is unlikely to produce agreement. However, such
implementation may occur only after 30 days following notice to Congress of the
decision to implement the part or parts involved. Implementation may occur
immediately for those parts of the proposal that do not generate recommendations
from the employee representatives, and where the Secretary and the Director have
accepted the recommendations of the employee representatives.
The process for collaboration with the employee representatives must begin no
later than 60 calendar days after the date of enactment. Section 9902(m)(4)
authorizes the Secretary to engage in any and all of the collaboration activities at an
organizational level above the level of exclusive recognition.
The labor relations system developed or adjusted under Section 9902(m) must
provide for the independent third party review of decisions and for determining
which decisions could be reviewed, who would conduct the review, and the standards
to be used during the review. Unless extended or otherwise provided for in law, the
authority to establish, implement, and adjust the labor relations system expires six
years after the date of enactment. At that time, the provisions of Chapter 71 will
apply.
Implementation. On November 7, 2005, following the issuance of final
regulations to establish the NSPS, a coalition of federal unions, including the
American Federation of Government Employees, filed a lawsuit in federal district
court challenging the regulations. On February 27, 2006, the court enjoined the new
regulations on the grounds that they failed to ensure collective bargaining rights, did
not provide for the independent third-party review of labor relations decisions, and
failed to provide a fair process for appealing adverse actions.33 DOD has indicated34
that it will appeal the decision. Despite the court’s actions, this section reviews and
discusses the new regulations.
Subpart I of the regulations defines the department’s labor-relations system.
The regulations provide for a variety of new features that would be unique to DOD.
For example, the regulations establish a new labor relations board that would assume
some of the duties that are performed currently by the FLRA. The regulations would
also expand management rights beyond what currently exists under chapter 71.
The regulations provide for the creation of a National Security Labor Relations
Board (NSLRB) that would do the following: conduct hearings and resolve
complaints of unfair labor practices; resolve issues relating to the scope of bargaining
and the duty to bargain in good faith; resolve disputes concerning requests for
information; resolve exceptions to arbitration awards; resolve negotiation impasses;35
and conduct de novo reviews on all matters within the Board’s jurisdiction. Under
the regulations, the Board could also issue binding department-wide opinions for
matters within its jurisdiction upon request of a department component or a labor
33 American Federation of Government Employees, AFL-CIO v. Rumsfeld, No. CIV. 05-2183
EGS (D.D.C. Feb. 27, 2006).
34 Stephen Barr, “GSA to Trim Through Buyouts and Retirements,” The Washington Post,
Mar. 6, 2006, D04.
35 Department of Defense Human Resources Management and Labor Relations System, 70
Fed. Reg. 66,116, 66,212-13 (Nov. 1, 2005) (to be codified at 5 C.F.R. pt. 9901).
organization.36 Many of these duties are currently performed by the FLRA pursuant
to 5 U.S.C. § 7105.
The regulations contemplate a more limited role for the FLRA. Under the
regulations, the FLRA is authorized to determine the appropriateness of bargaining
units, to supervise or conduct elections to determine whether a labor organization has
been selected as an exclusive representative by a majority of the employees in an
appropriate unit, to resolve disputes regarding the granting of national consultation
rights, and to review specified NSLRB decisions.37
In addition to retaining many of the rights otherwise provided to management
under Title 5, Chapter 71 of the United States Code, department managers are
granted additional rights under the final regulations. For example, management is
given the right “to determine the numbers, types, pay schedules, pay bands and/or
grades of employees or positions assigned to any organizational subdivision, work
project or tour of duty, and the technology, methods, and means of performing
work.”38 Management could also assign employees to meet any operational demand.39
Under the regulations, management is prohibited from bargaining not only over the
exercise of its rights, but over the procedures it would observe in exercising its rights.
Although the regulations require the agency and any exclusive representative in
any appropriate unit to meet and negotiate in good faith for the purpose of arriving
at a collective bargaining agreement, they also indicate that management would have
no obligation to bargain over a change to a condition of employment “unless the
change is otherwise negotiable pursuant to [the] regulations and is foreseeable,
substantial, and significant in terms of both impact and duration on the bargaining
unit, or on those employees in that part of the bargaining unit affected by the
change.”40 The regulations do not identify when a change would be considered
“substantial” and “significant.”
Finally, the regulations provide for the establishment of procedures by the
NSLRB for the “fair, impartial, and expeditious” assignment and disposition of
cases.41 The NSLRB would use a single, integrated process to address disputes and
claims, to the extent practicable. Certain decisions by the NSLRB, including those
36 See Department of Defense Human Resources Management and Labor Relations System,
70 Fed. Reg. at 66,211 (defining the term “component” to mean “an organizational unit so
prescribed and designated by the Secretary in his or her sole and exclusive discretion, such
as, for example, the Office of the Secretary of Defense, a Military Department, a Defense
Agency, or a DoD Field Activity.”).
37 Department of Defense Human Resources Management and Labor Relations System, 70
Fed. Reg. at 66,213.
38 Id.
39 Id.
40 Department of Defense Human Resources Management and Labor Relations System, 70
Fed. Reg. at 66,217.
41 Department of Defense Human Resources Management and Labor Relations System, 70
Fed. Reg. at 66,212.
involving negotiability disputes and arbitral awards, could be reviewed by the FLRA.
Under the regulations, the FLRA would have to accept the findings of fact and
interpretations made by the NSLRB and sustain the NSLRB’s decision unless the
party requesting review could show that the NSLRB’s decision was (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2)
caused by harmful error in the application of the Board’s procedures in arriving at
such a decision; or (3) was unsupported by substantial evidence.42
Provisions Relating to Adverse Actions and Appellate Procedures.43
The new section, 5 U.S.C. §9902(h), of P.L. 108-136 (1) (A) authorizes the Secretary
of Defense to establish an appeals process that must provide employees of DOD
organizational and functional units that are included in the NSPS fair treatment in
any appeals that they bring in decisions relating to their employment; and (B)
mandates that the Secretary, in prescribing regulations for that appeals process, (i)
ensure that these employees are afforded due process protections; and (ii) toward that
end, be required to consult with the Merit Systems Protection Board (MSPB) before
issuing such regulations. (2) Regulations implementing the appeals process may
establish legal standards and procedures for personnel actions, including standards
for applicable relief, to be taken for employee misconduct or performance that fails
to meet expectations. These standards must be consistent with the public
employment principles of merit and fitness set forth in section 2301 of Title 5 of the
United States Code. (3) Legal standards and precedents applied before the effective
date of the new section 9902 of Title 5 by the MSPB and the courts under Chapters
43 (Performance Appraisal), 75 (Adverse Actions) and 77 (Appeals) of Title 5 must
apply to DOD employees included in the NSPS, unless these standards and
precedents are inconsistent with standards established in section 9902.
(4) An employee who (A) is removed, suspended for more than 14 days,
furloughed for 30 days or less, reduced in pay, or reduced in pay band (or comparable
reduction) by a final decision under the appeals process established under paragraph
1; (B) is not serving a probationary period under regulations established under
paragraph (2); and (C) is otherwise eligible to appeal a performance-based or adverse
action under Chapters 43 or 75, as applicable, to the MSPB has the right to petition
the full MSPB for a review of the record of that decision pursuant to regulations
established under paragraph (2). The board is authorized to dismiss any petition that,
in the board’s view, does not raise substantial questions of fact or law. No personnel
action may be stayed and no interim relief may be granted during the pendency of the
board’s review unless specifically ordered by the board.
(5) The board is authorized to order corrective action as it considers appropriate
only if it determines that the department’s decision was (A) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law; (B) obtained without
procedures required by law, rule, or regulation having been followed; or (C)
unsupported by substantial evidence. (6) An employee who is adversely affected by
42 Department of Defense Human Resources Management and Labor Relations System, 70
Fed. Reg. at 66,213.
43 Almost all of the provisions on appellate procedures derive from S. 1166, with a few
changes.
a final order or decision of the MSPB may obtain judicial review of the order or
decision as provided in section 7703. The Secretary of Defense, after notifying the
OPM Director, may obtain judicial review of any board final order or decision under
the same terms and conditions as provided an employee.
(7) Nothing in subsection (h) of the new section 9902 of Title 5 of the United
States Code should be construed to authorize the waiving of any provision of law,
including an appeals provision providing a right or remedy under section 2302(b)(1),
(8), or (9) of Title 5 that is not otherwise waivable under subsection (a) of the new
section 9902. Section 2302(b)(1) makes it a prohibited personnel practice to
discriminate for or against any employee on such bases as race, color, religion, sex,
or national origin, age, handicapping conditions under relevant statutes, or marital
status or political status under any law, rule, or regulation. Section 2302(b)(8)
prohibits personnel actions in reprisal for whistleblowing. Section 2302(b)(9)
prohibits personnel actions in reprisal for such things as exercising any right of
appeal, complaint, or grievance; cooperating with or disclosing information to the
Inspector General or Special Counsel; or refusing to obey an order that would require
an individual to violate a law.
(8) The right of an employee to petition the final decision of DOD on an action
covered by paragraph (4) of section 9902(h) to MSPB, and the right of the board to
review such action or to order corrective action pursuant to paragraph (5), is
provisional for seven years after the date Chapter 99 is enacted, and becomes
permanent unless Congress acts to revise such provisions.
Chapter 77 is one of the chapters of Title 5 that is subject to waiver or
modification by the Secretary of Defense in establishing an HRM system for DOD.
Section 7701 of Title 5 grants employees and applicants for employment a right to
appeal to MSPB any action which is appealable to the board under any law, rule, or
regulation. An appellant has a right to a hearing at which a transcript will be kept
and to be represented by an attorney or other representative.
An agency decision is sustained by the board only if it is supported by
substantial evidence in the case of an action based on unacceptable performance
described in 5 U.S.C. §4303 or a removal from the Senior Executive Service for
failing to be recertified or if it is supported by a preponderance of evidence in any
other case. Notwithstanding these standards, an agency’s decision may not be
sustained, if the employee or applicant for employment (1) shows harmful error in
the application of the agency’s procedures in arriving at its decision; (2) shows that
the decision was based on any prohibited personnel practice described in 5 U.S.C.
§2302; or (3) shows that the decision was not in accordance with law.
Section 7702 of Title 5 prescribes special procedures for any case in which an
employee or applicant who has been affected by an action appeals to the board and
alleges that a basis for the action was discrimination. The board first decides both
the appealable action and the issue of discrimination within 120 days after it is filed.
In any action before an agency which involves an appealable action and
discrimination, the agency must resolve the matter within 120 days. An agency
decision is judicially reviewable unless the employee appeals the matter to the board.
Any decision of the board in an appealable action where discrimination has been
alleged is judicially reviewable as of the date the board issues its decision if an
employee or the applicant does not file a petition for consideration by the Equal
Employment Opportunity Commission. Within 30 days after a petition is filed, the
commission must decide whether to consider the board’s decision. If the commission
decides to consider such a decision, within 60 days it must concur in the board’s
decision or issue a written decision which differs from it. Within 30 days after
receiving a commission decision that differs from the board’s initial decision, the
board must consider the commission’s decision and either concur in whole in it or
reaffirm its initial decision or reaffirm its initial decision with appropriate revisions.
A board decision to concur and adopt in whole a commission decision is judicially
reviewable.
If the board reaffirms its initial decision or reaffirms it with revisions that it
determines appropriate, the matter must immediately be certified to a special panel
comprised of one individual appointed by the President, one board member, and one
commission member. Within 45 days after certification, the special panel is required
to review the record, decide the disputed issues on the basis of the record, and issue
a final decision, which is judicially reviewable. The special panel must refer its
decision to the board, which is required to order the agency involved to take any
appropriate action to carry out the panel’s decision. The panel must permit the
employee or applicant who brought the complaint and the agency to appear before
it to present oral arguments and to present written arguments.
If prescribed time periods for action by an agency, board, or commission are not
met, an employee is entitled to file a civil action in district court under some
antidiscrimination statutes. If an agency does not resolve a matter appealable to the
board where discrimination has been alleged within 120 days, the employee may
appeal the matter to the board. Nothing in section 7702 of Title 5 “Actions Involving
Discrimination” can be construed to affect the right to trial de novo in district court
under named antidiscrimination statutes after a judicially reviewable action.
Under Section 7703 of Title 5, any employee or applicant who is adversely
affected or aggrieved by a final order or decision of the MSPB may obtain judicial
review of the order or decision. Except in cases involving allegations of
discrimination, a petition to review a final board order or decision must be filed with
the United States Court of Appeals for the Federal Circuit within 60 days after the
petitioner received notice of the final order or decision. Cases involving
discrimination must be filed in district court under procedures prescribed in
antidiscrimination statutes within 30 days after the individual filing the case receives
notice of a judicially reviewable action. In any case filed with the Federal Circuit
Court of Appeals, the court is required to hold unlawful and set aside any agency
action, findings, or conclusions found to be (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulations having been followed; or (3) unsupported by
substantial evidence, except that in the case of discrimination brought under named
antidiscrimination statutes, an employee or applicant has a right to have the facts
heard in a trial de novo by a reviewing court.
Implementation. Subpart G of the final regulations on adverse actions
contains procedural requirements for employees who are removed, suspended,
furloughed for 30 days or less, reduced in pay, or reduced in a pay band (or
comparable reduction). DOD may prescribe implementing issuances to carry out the
provisions of the subpart. With respect to any covered category of employee, these
regulations waive and replace relevant subchapters of Chapter 75 “Adverse Actions”
and Chapter 43 “Performance Appraisal” of Title 5 of the United States Code.
Subpart G authorizes the Department to take an adverse action under this
subpart for such cause as will promote the efficiency of the service. It grants to the
Secretary of Defense sole, exclusive, and unreviewable discretion to identify
“mandatory removal offenses” (i.e., those that have a direct and substantial adverse
effect on the Department’s national security mission). These offenses will be
identified in advance in implementing issuances, publicized in notices in the Federal
Register and made known to all employees on a periodic basis, as appropriate,
through means determined by the Secretary. The proposed regulation provided that
mandatory removal offenses would be identified in advance as part of departmental
regulations and that employees would be notified when they are identified. Under
the final and proposed regulation, the Secretary has the sole, exclusive, and
unreviewable discretion to mitigate the removal penalty on his or her own initiative
or at the request of the employee in question and the Secretary’s authority to remove
employees for offenses other than those that the Secretary identifies as mandatory
removal offenses is not limited by the regulation relating to them.
An employee against whom an adverse action is proposed is entitled to (1) a
proposal notice, (2) an opportunity to reply, and (3) a decision notice. The
Department must provide a minimum of 15 days advance written notice of a
proposed adverse action, unless there is reasonable cause to believe that the
employee has committed a crime for which a prison sentence may be imposed, in
which case the advance notice period can be shortened to a minimum of five days.
No proposal notice is required for furlough without pay, such as sudden breakdown
of equipment, acts of God, or sudden emergencies requiring immediate curtailment
of activities.
Covered DOD employees are given a minimum of ten days, which run
concurrently with the notice period, to reply orally and/or in writing. If there is
reasonable cause to believe that the employee has committed a crime for which a
prison sentence may be imposed, however, the Department may be reduced to a
minimum of five days, which run concurrently with the notice period, to reply orally
and/or in writing. No opportunity for reply is necessary for furlough without pay due
to unforeseen circumstances such as acts of God, or sudden emergencies requiring
immediate curtailment of activities.
The opportunity to reply orally does not include the right to a formal hearing
with examination of witnesses. During the opportunity to reply period, an employee
is given a reasonable amount of official time to review evidence and to furnish
affidavits and other documentary evidence if the employee is otherwise in active duty
status.
The Department is required to designate an official to receive the employee’s
written and/or oral response. That official has authority to make or recommend a
final decision on the proposed adverse action. The employee may be represented by
an attorney or other representative of the employee’s choice and at the employee’s
expense, but the Department may disallow a representative under some conditions.
In arriving at its decision on an adverse action, DOD may not consider any
reasons other than those specified in the proposal notice. The Department must
consider any response from the employee and the employee’s representative given
to the designated official during the opportunity to reply period, as well as any
medical documentation furnished in accordance with relevant regulations. The
decision notice must specify in writing the reasons for the decision and advise the
employee of any appeal or grievance rights. To the extent practicable, the
Department must deliver the notice to the employee on or before the effective date
of the action. If the notice cannot be delivered in person, the Department may mail
the notice to the employee’s last known address of record.
The Department is required to keep a record of all relevant documentation
concerning the action for a period of time pursuant to the General Records Schedule
and the Guide to Personnel Recordkeeping. DOD must make the record available for
review by the employee and furnish a copy of the record upon request of the
employee or the Merit Systems Protection Board. The requirements in Subpart G do
not apply to adverse actions proposed prior to the date of an affected employee’s
coverage under the subpart.
Subpart H of the final regulations on appeals implements the provisions of
Section 9902(h) of Title 5 of the United States Code, which establishes the system
for DOD employees to appeal certain adverse actions covered under Subpart G. In
applying existing legal standards and precedents, the Merit Systems Protection Board
(MSPB) is bound by the regulation set forth in Section 9901.107(a)(2)of Title 5 of
the Code of Federal Regulations, which provides that the regulations must be
interpreted in a way that recognizes the critical national security mission of the
Department of Defense and that each provision must be construed to promote the
swift, flexible, effective day-to-day accomplishment of this mission as defined by the
Secretary of Defense.
When a specified category of employees is covered by an appeals system
established under this subpart, these regulations waive the provisions of Section 7701
“Appellate procedures” of Title 5 of the United States Code established for that
category to the extent that they are inconsistent with the subpart. The regulation on
discrimination cases, Section 9901.809 of Title 5 of the Code of Federal Regulations,
modifies the provisions of Section 7702 “Actions involving discrimination” of Title
5 of the United States Code. The appellate procedures specified in Subpart H
supersede those of the MSPB to the extent that the MSPB regulations are inconsistent
with the subpart. MSPB is required to follow the provisions of Subpart H until it
issues conforming regulations, which may not conflict with the DOD regulations.
Appellate procedures in Subpart H, subject to a determination by the Secretary
of Defense, apply to employees in DOD organizational and functional units included
under the National Security Personnel System who appeal removals; suspensions for
more than 14 days, including indefinite suspensions; furloughs of 30 days or less;
reductions in pay; or reductions in a pay band (or comparable reductions), which
constitute appealable adverse actions for the purpose of the subpart, provided that
they are covered by the adverse actions procedures in Subpart G.
The Department of Defense recognizes the value of using alternative dispute
resolution methods such as mediation, an ombudsman, or interest-based problem-
solving to address employee-employer disputes and encourages using alternative
dispute resolution. The methods are subject to collective bargaining under Subpart
I “Labor Management Relations” of the DOD regulations.
A covered DOD employee may appeal an appealable adverse action to the Merit
Systems Protection Board. The employee has a right to be represented by an attorney
or other representative of his or her own choosing. The MSPB is required to refer all
appeals to an administrative judge for adjudication. The administrative judge must
make a decision at the close of the review and provide a copy of the decision to each
party to the appeal and to the Office of Personnel Management. All appeals,
including class appeals, must be filed no later than 20 days after the effective date of
the action being appealed, or no later than 20 days after the date of service of an
adverse action, whichever is later. An initial decision by an administrative judge
must be made no later than 90 days after the date on which the appeal is taken.
An adverse action taken against an employee must be sustained by the MSPB
administrative judge if it is supported by a preponderance of evidence unless the
employee shows by a preponderance of the evidence that (1) there was harmful error
in the application of DOD procedures in arriving at the decision; (2) the decision was
based on any prohibited personnel practice; or (3) the decision was not in accordance
with law. Preponderance of the evidence is defined as the degree of relevant
evidence that a reasonable person, considering the record as a whole, would accept
as sufficient to find that a contested fact is more likely to be true than untrue.
A Board administrative judge must give great deference to DOD’s
determination regarding the penalty imposed. An administrative judge may not
modify the penalty imposed unless it is totally unwarranted in light of all pertinent
circumstances. In evaluating the appropriateness of a penalty, the administrative
judge must give primary consideration to the impact of the sustained misconduct or
poor performance on the Department’s national security mission. In cases of
multiple charges, the third party’s determination in this regard is to be based on the
justification for the penalty as it relates to the sustained charge or charges. When a
penalty is mitigated, the maximum justifiable penalty must be applied. That penalty
is the severest one that is not so disproportionate to the basis for the action as to be
totally unwarranted in light of all pertinent circumstances.
The final regulation changes some aspects of the proposed regulation. It states
that an administrative judge cannot modify a DOD penalty; the proposed regulation
stated that an administrative judge, an arbitrator, or the full MSPB could not modify
one. The final regulation also changes the standard for mitigation. The final
regulation provides that an administrative judge may not modify a penalty imposed
by DOD “unless it is totally unwarranted in light of all pertinent circumstances;” the
proposed regulation said that such a penalty could not be modified unless it is “so
disproportionate to the basis for the action as to be wholly without justification.”
Under the final regulation, like the proposed one, neither the MSPB
administrative judge nor the full MSPB may reverse an action of DOD based on the
way in which the charge is labeled or the conduct is characterized, provided that the
employee is on notice of the facts sufficient to respond to the factual allegations of
the charge. Moreover, neither the MSPB administrative judge nor the full MSPB
may reverse the Department’s action based on the way that a performance
expectation is expressed, provided that the expectation would be clear to a reasonable
person. An employee will not be granted interim relief, nor will an action taken
against an employee be stayed, unless specifically ordered by the full Board after a
final decision by the Department of Defense. Back pay may not be awarded and
attorney fees may not be paid before a Board decision becomes final.
Generally, an administrative judge of the MSPB may require DOD to pay
attorney fees if the employee is the prevailing party and the administrative judge
determines that such payment is warranted in the interest of justice, including any
case in which the Department was engaged in a prohibited personnel practice or any
case in which the agency’s action was clearly without merit. If the employee is the
prevailing party and the decision is based on a finding of discrimination involving a
prohibited personnel practice under 5 U.S.C. section 2302(b)(1), however, payment
of reasonable attorney fees must be in accordance with the standards prescribed in
section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(k).
The final regulation relating to attorney fees is less restrictive than the proposed
regulation. Under the proposed regulation, attorney fees were warranted to a
prevailing party “in the interest of justice,” a phrase defined as “only when the
Department was engaged in a prohibited personnel practice or the Department’s
action was clearly without merit based upon facts known to management when the
action was taken.”
The final regulation, like the proposed regulation, provides that an initial
decision of an administrative judge becomes the Department’s final decision 30 days
after it is issued unless either party files a request for review with MSPB and the
Department concurrently (with service to the other party) within that 30-day period.
The final regulation states that the request must be filed “in accordance. with 5
U.S.C. section 9902(h), MSPB’s regulations, and this subpart [Subpart H
“Appeals”].” It adds that if a party does not submit a request for review within the
time limit, the request will be dismissed as untimely filed unless a good reason for
the delay is shown. The final regulation deletes language in the proposed regulation
which provided that a request for review had to be served on the other party “as
specified by DOD implementing issuances.” Moreover, language in the final
regulation regarding dismissing a request for review as untimely if it was not
submitted within the 30 day period did not appear in the proposed regulation.
Under the final regulation, thirty days after the timely filing of a request for
review, the initial decision of the MSPB administrative judge becomes the
Department’s final, nonprecedential decision, unless notice is served on the parties
and MSPB within that period that the Department will act on the request. When no
such notice is served, MSPB must docket and process a party’s request as a petition
for full Board review in accordance with 5 U.S.C. section 9902(h), MSPB’s
regulations, and this subpart. Timeframes will be established in implementing
issuances for those instances where action is taken on a request for review.
If DOD decides to act on the request for review, the other party to the case is
given 15 days to respond to the request. An extension to the filing period may be
granted for good cause. After receiving a timely response to the request for review,
the Department may (1) remand the matter to the assigned administrative judge for
further adjudication or issue a final DOD decision modifying or reversing that initial
decision or decision after remand; (2) issue a final DOD decision modifying or
reversing the initial decision; or (3) issue a final DOD decision affirming that initial
decision. An administrative judge must make a decision after remand under (1) no
later than 30 days after receiving a remand notice, unless the remand order requires
that a hearing must be held, in which case the decision of the administrative judge
must be made no later than 45 days after receiving the remand order. Decisions on
remand are treated as initial decisions for the purpose of further review.
Any decision issued by the Department after reviewing an initial decision of an
administrative judge is precedential unless the Secretary determines that the DOD
decision is not precedential or the final DOD decision is reversed or modified by the
full Merit Systems Protection Board. Precedential decisions must be published
according to details provided in implementing issuances. The proposed regulation
did not require publishing precedential decisions.
Under the final regulation, any decision following the period for DOD review
is final unless a party to the appeal or the Director of the Office of Personnel
Management petitions the full MSPB for review within 30 days. The Director, after
consulting with the DOD Secretary, may petition the full Board for review if the
Director believes that the decision is erroneous and will have a substantial effect on
a civil service law, rule, regulation, or policy directive. MSPB, for good cause
shown, may extend the filing period.
Upon receiving a final DOD decision, an employee or the Office of Personnel
Management may file a petition for review with the full Board within 30 days in
accordance with 5 U.S.C. section 9902(h), MSPB’s regulations, and this subpart.
The Board may dismiss any petition that, in its opinion, does not raise substantial
questions of fact or law. The full Board may order corrective action only if it
determines that the decision was (1) arbitrary, capricious, and an abuse of discretion,
or otherwise not in accordance with law; (2) obtained without procedures required
by law, rule, or regulation having been followed; or (3) unsupported by substantial
evidence. The final regulation sets out these standards which are prescribed in the
statute at section 9901(h) of of Title 5 of the United States Code. The proposed
regulation did not set them out.
Under the final regulation, upon receipt of a petition for full MSPB review or
a request for review that becomes a petition for review as a result of expiration of the
Department’s review period following an initial decision by an administrative judge,
the other party to the case and/or OPM, as applicable, has 30 days to file a response
to the petition. The full Board is required to act on a petition within 90 days after
receiving a timely response, or the expiration of the response period, as applicable,
in accordance with 5 U.S.C. section 9902(h), MSPB’s regulations, and this subpart.
Section 9902(h) of Title 5 of the United States Code grants an eligible employee
who is removed, suspended for more than 14 days, furloughed for 30 days or less,
reduced in pay, or reduced in a pay band (or comparable reduction) by a final
decision under the appeals process the right to petition the full MSPB for review of
the decision. This subsection also authorizes the Board to dismiss any petition that,
in the view of the Board, does not raise substantial questions of law or fact. No
personnel action can be stayed and no interim relief can be granted during the
pendency of the Board’s review unless specifically ordered by the Board.
The Director of the Office of Personnel Management, after consulting with the
Secretary of Defense, may seek reconsideration by MSPB of a final Board decision.
Reconsideration must be sought within 35 days after the Board’s final order is
served. If the Director seeks reconsideration, the full Board must render its decision
no later than 60 days after receiving a response to OPM’s petition in support of
reconsideration and state reasons for its decision. The 35-day deadline to request
reconsideration did not appear in the proposed regulation.
Failure of MSPB to meet deadlines imposed by provisions relating to an initial
decision by an administrative judge, a decision by the full Board on a petition for
review, and Board reconsideration sought by the Director of OPM does not prejudice
any party to the case and does not form the basis for any legal action by any party.
If the administrative judge or the full Board fails to meet time limits, the full Board
is required to inform the Secretary of Defense in writing of the cause of the delay and
recommend future actions to remedy the problem.
The Secretary of Defense or an employee adversely affected by a final order or
decision of MSPB may seek judicial review under Section 9002(h) of Title 5 of the
United States Code, which authorizes an adversely affected employee and the
Secretary to obtain judicial review as provided in 5 U.S.C. Section 7703 “Judicial
review of decisions of the Merit Systems Protection Board.” Language in the
proposed regulation that authorized the Secretary of Defense to seek reconsideration
by MSPB of a final MSPB decision before seeking judicial review was deleted
because current MSPB rules authorize such a review.
Procedures for appeals of adverse actions to MSPB based on mandatory removal
offenses are the same as for other offenses except that if one or more mandatory
removal offenses is or are sustained, the MSPB administrative judge may not
mitigate the penalty. Only the Secretary of Defense may mitigate the penalty within
the Department. If the administrative judge or full Board sustains an employee’s
appeal based on a finding that the employee did not commit a mandatory removal
offense, a subsequent proposed adverse action (other than a mandatory removal
offense) based in whole or in part on the same or similar evidence is not precluded.
This final regulation differs from the proposed one in that it precludes only an
administrative judge of the MSPB to mitigate a penalty for a mandatory removal
offense; the proposed regulation precluded not only an administrative judge, but also
the full Board from mitigating it. Moreover, the final regulation provides that “only
the Secretary may mitigate the penalty within the Department”; the proposed
regulation did not include the phrase “within the Department.”
In considering any appeal of an action filed under Section 7702 “Actions
involving discrimination” of Title 5 of the United States Code, the Merit Systems
Protection Board is required to apply the provisions of 5 U.S.C. Section 9902
“Establishment of human resources system” and these DOD regulations. In any
appeal of an action filed under 5 U.S.C. Section 7702 that results in a “final
Department decision, if no petition for review of the Department’s decision is filed
with the full Board, and if requested by the appellant, the Department will refer only
the discrimination issue to the full Board for adjudication.” All references in 5 U.S.C.
Section 7702 to 5 U.S.C. Section 7701 “Appellate procedures” are modified to read
Part 9901 “Department of Defense National Security Personnel System” of Title 5
of the Code of Federal Regulations.
This final regulation changed the proposed regulation by adding “final” to
precede “Department decision,” and “and if requested by the appellant” after “if no
petition for review of the Department’s decision is filed with the full Board” to the
proposed regulation. Subpart H does not apply to adverse actions that were proposed
prior to the date of an affected employee’s coverage under this subpart.
Congress authorized DOD and OPM to establish an appeals process that
provides employees with “fair treatment in any appeals that they bring in decisions
relating to their employment.” The process also must “ensure that employees ... are
afforded the protections of due process.” On November 7, 2005, following the
issuance of final regulations to establish the NSPS, a coalition of federal unions,
including the American Federation of Government Employees, filed a lawsuit in
federal district court challenging the regulations. On February 27, 2006, the court
enjoined the new regulations on the grounds that they failed to ensure collective
bargaining rights, did not provide for the independent third-party review of labor
relations decisions, and failed to provide a fair process for appealing adverse
actions.44 DOD has indicated that it will appeal the decision.45 The court held that
the process of appealing adverse actions in the final regulations would fail to provide
employees with “fair treatment” and, therefore, were contrary to authority that had
been granted in the statute.
The following regulations were found to be unfair:
!Regulations that would authorize DOD to reverse a decision of an
administrative judge of the Merit Systems Protection Board if the
department determined that there had been a “material error of fact”
or that the decision had a “direct and substantial impact of the
department’s national security mission.” The court said that, “These
44 American Federation of Government Employees, AFL-CIO v. Rumsfeld, No. CIV. 05-2183
EGS (D.D.C. Feb. 27, 2006).
45 Stephen Barr, “GSA to Trim Through Buyouts and Retirements,” The Washington Post,
Mar. 6, 2006, D04.
regulations, in effect, allow one party to unilaterally modify or
reverse the decision of an independent administrative law judge.”
!A regulation that would prohibit an administrative judge from
modifying a penalty imposed by the department “unless such penalty
is totally unwarranted in light of all circumstances” and required an
administrative judge who did mitigate a penalty to impose the
maximum justifiable one. The court quoted from an court decision
which held that final regulations of the Department of Homeland
Security exceeded statutory authority to say that this DOD
regulation, like a similar one for DHS, would “put the thumbs of the
agencies down hard on the scales of justice in [the agencies’] favor.”
!A regulation that would permit the Secretary “in his or her sole,
exclusive and unreviewable discretion” to place an employee in an
alternative position or on an excused absence if the Secretary
determined that the employee’s return ordered by the Merit Systems
Protection Board would be “impracticable or unduly disruptive to
the work environment.” The court found that there was no basis in
the statute for this authority and conflicted with a statutory
requirement that no interim relief could be granted except by the
board.
!A regulation that would authorize the Secretary “in his sole,
exclusive, and unreviewable discretion” to “identify offenses
[known as mandatory removal offenses] that have a direct and
substantial impact on the department’s national security mission.”
An employee deemed to have committed one of these offenses
would be removed from employment. The court said that although
the statute granted the department the discretionary authority to
establish an appeals process, any process that it established had to
provide employees with fair treatment and that this regulation failed
to do so.
Provisions Related to Separation and Retirement Incentives. Under
current law, a federal agency that is restructuring or downsizing can, with the
approval of OPM, offer voluntary early retirement to employees in specific
occupational groups, organizational units, or geographic locations who are age 50 or
older and have at least 20 years of service, or who are any age and have at least 25
years of service. Also with the approval of OPM, a federal agency may offer
voluntary separation incentive payments of up to $25,000 to employees who retire
or resign. The full amount must be repaid if individual is re-employed by the federal
government within five years.
P.L. 108-136 creates a new Section 9902(i) of Title 5 that authorizes the
Secretary of Defense, without review by OPM, to establish a program within DOD
under which employees may be eligible for early retirement, offered separation
incentive pay to separate from service voluntarily, or both. The authority may be
used to reduce the number of personnel employed by DOD or to restructure the
workforce to meet mission objectives without reducing the overall number of
personnel. It is in addition to, and notwithstanding, any other authorities established
by law or regulation for such programs.
The Secretary may not authorize the payment of voluntary separation incentive
pay (VSIP) to more than 25,000 employees in any fiscal year, except that employees
who receive VSIP as a result of a closure or realignment of a military installation
under the Defense Base Closure and Realignment Act of 1990 (Title XXIX of P.L.
101-510) will not be included in that number. The Secretary must prepare a report
each fiscal year setting forth the number of employees who received such pay as a
result of a closure or realignment of a military base and submit it to the Senate
Committees on Armed Services and Governmental Affairs and the House
Committees on Armed Services and Government Reform.
“Employee” means a DOD employee serving under an appointment without
time limitation. The term does not include (1) a reemployed annuitant under 5
U.S.C. Subchapter III, Chapters 83 or 84, or another retirement system for federal
employees; (2) an employee having a disability on the basis of which he or she is or
would be eligible for disability retirement; or (3) for purposes of eligibility for
separation incentives, an employee who has received a decision notice of involuntary
separation for misconduct or unacceptable performance.
An employee who is at least 50 years of age and has completed 20 years of
service, or has at least 25 years of service, could, pursuant to regulations promulgated
under this section, apply and be retired from DOD and receive benefits in accordance
with Chapters 83 or 84 if he or she has been employed continuously within DOD for
more than 30 days before the date on which the determination to conduct a reduction
or restructuring within one or more DOD components is approved.
Separation pay will be paid in a lump sum or in installments and will be equal
to the lesser of (1) an amount equal to the amount the employee would be entitled to
receive under 5 U.S.C. 5595(c), if the employee were entitled to payment; or (2)
$25,000. Separation pay is not a basis for payment, and is not included in the
computation, of any other type of government benefit. It will not be taken into
account to determine the amount of any severance pay to which an individual could
be entitled under 5 U.S.C. 5595, based on any other separation. If paid in
installments, separation pay will cease to be paid upon the recipient’s acceptance of
federal employment, or commencement of work under a personal services contract.
An employee who receives separation pay may not be reemployed by DOD for
a 12-month period beginning on the effective date of the employee’s separation,
unless this prohibition is waived by the Secretary on a case-by-case basis. An
employee who receives separation pay on the basis of a separation occurring on or
after the enactment date of the Federal Workforce Restructuring Act of 1994 (P.L.
103-236) and accepts employment with the federal government, or who commences
work through a personal services contract with the United States within five years
after the date of the separation on which payment of the separation pay is based,
would be required to repay the entire amount of the separation pay to DOD. If the
employment is with an executive agency other than DOD, the OPM Director could,
at the request of the agency head, waive the repayment if the individual involved
possesses unique abilities and is the only qualified applicant available for the
position. If the employment is within DOD, the Secretary could waive the repayment
if the individual involved is the only qualified applicant available for the position.
If the employment is with an entity in the legislative branch, or with the judicial
branch, the head of the entity or the appointing official, or the Director of the
Administrative Office of the U.S. Courts, could waive the repayment if the individual
involved possesses unique abilities and is the only qualified applicant available for
the position.
Under this program, early retirement and separation pay may be offered only
pursuant to regulations established by the Secretary, subject to such limitations or
conditions as the Secretary may require.
Implementation. The Deputy Under Secretary of Defense for Civilian
Personnel Policy, Ginger Groeber, issued a memorandum to implement the voluntary
separation incentive payments (buyouts) and the voluntary early retirement
provisions on December 30, 2004. Buyouts are limited to 25,000 employees
annually. For FY2004, the Army, Navy, Air Force, and Defense agencies were
allocated 7,722; 7,135; 5,873; and 4,270 buyouts, respectively. Voluntary early
retirements are not limited. To be eligible for a buyout, an individual must have been
employed by DOD for a continuous period of at least 12 months. According to the
DOD guidance, members of the Senior Executive Service and employees above GS-
15 are not eligible for buyouts or early retirement unless the Principal Deputy Under
Secretary of Defense for Personnel and Readiness approves the action to avoid a46
reduction in force or to restructure the workforce.
Provisions Relating to Reemployment. Under current law, a retired
federal employee who is re-employed by the federal government may not receive a
federal retirement annuity and a federal salary simultaneously. Sections 8344 (Civil
Service Retirement System (CSRS)) and 8468 (Federal Employees’ Retirement
System (FERS)) of Title 5 provide that if a retired federal employee who is receiving
an annuity from the Civil Service Retirement and Disability Fund is re-employed by
a federal agency, an amount equal to the annuity shall be deducted from his or her
pay. If re-employment lasts more than one year, the individual will be eligible for a
supplemental annuity for the period of re-employment when he or she retires.
P.L. 108-136 creates a new Section 9902(j) of Title 5 that provides that if a
retired federal employee who is receiving an annuity from the Civil Service
Retirement and Disability Fund were to be employed by DOD, his or her annuity
would continue. The employee would not accrue additional credit under either CSRS
or FERS during this period of re-employment.
Implementation. On March 18, 2004, the Under Secretary of Defense for
Personnel and Readiness, David Chu, issued a memorandum to implement the
reemployment provisions. According to Mr. Chu, “This critical hiring flexibility will
help address the challenges of ‘retirement-driven talent drain’ as our current
46 U.S. Department of Defense, Office of the Under Secretary of Defense for Personnel and
Readiness, “National Security Personnel System — Voluntary Separation Incentive Pay
(VSIP) and Voluntary Early Retirement Authority (VERA) Policy,” Dec. 30, 2003.
generation of dedicated civil servants become eligible to retire.” Under the DOD
guidance, annuitants may be reemployed:
In positions that are hard-to-fill as evidenced by historically high turnover, a
severe shortage of candidates or other significant recruiting difficulty; or
positions that are critical to the accomplishment of the organization’s mission;
or to complete a specific project or initiative;
[If they] have unique or specialized skills, or unusual qualifications not generally
available; or
For not more than 2087 hours (e.g., one year full time, or two years part time) to
mentor less experienced employees and/or to provide continuity during critical47
organizational transitions. Extensions beyond 2087 hours are not authorized.
The next-level manager or supervisor must certify in writing that one or more
of the above conditions exists if a retiree seeks to return to the same or a substantially
similar position as the one from which he or she retired. If less than 90 days has
elapsed between the retirement and the reemployment, the certification must indicate
that retention options were considered and offered to the employee before retirement.
The DOD guidance covers annuitants who are rehired after November 23, 2004. The
Deputy Under Secretary of Defense for Civilian Personnel Policy will monitor the
use of the reemployment authority and may establish reporting requirements.
Additional Provisions Relating to Personnel Management.
Notwithstanding Section 9902(d), the Secretary of Defense, in establishing and
implementing the NSPS, is not limited by any provision of Title 5 or any rule or
regulation prescribed under Title 5 in establishing and implementing regulations
relating to —
(A) the methods of establishing qualification requirements for, recruitment for,
and appointments to positions;
(B) the methods of assigning, reassigning, detailing, transferring, or promoting
employees; and
(C) the methods of reducing overall agency staff and grade levels, except that
performance, veterans’ preference, tenure of employment, length of service, and
such other factors as the Secretary considers necessary and appropriate must be
considered in decisions to realign or reorganize the Department’s workforce.
In implementing this subsection, the Secretary must comply with 5 U.S.C.
§2302(b)(11), regarding veterans’ preference requirements.
Phase-In. The Secretary may apply the NSPS to an organizational or
functional unit that includes up to 300,000 civilian DOD employees and to an
organizational or functional unit that includes more than 300,000 civilian DOD
employees, if the Secretary determines that the department has in place a
performance management system that meets the criteria specified. (S. 1166 included
a similar phase-in provision.)
47 U.S. Department of Defense, Under Secretary of Defense for Personnel and Readiness,
“Employment of Annuitants,” Mar. 18, 2004.
Section 9903. Attracting Highly Qualified Experts48
The new Section 9903 authorizes the Secretary of Defense to carry out a
program in order to attract highly qualified experts in needed occupations, as
determined by him. Under the program, the Secretary may appoint personnel from
outside the civil service and uniformed services (as such terms are defined in 5
U.S.C. §2101) to positions in DOD without regard to any provision of Title 5
governing the appointment of employees to positions in DOD. The Secretary also
may prescribe the rates of basic pay for positions to which employees are appointed
at rates not in excess of the maximum rate of basic pay authorized for senior-level
positions under 5 U.S.C. §5376 (Executive Schedule (EX) Level IV, $143,000 as of
January 2006), as increased by locality-based comparability payments (total cannot
exceed EX level III, $152,000 as of January 2006), notwithstanding any provision of
Title 5 governing the rates of pay or classification of employees in the executive
branch. The Secretary may pay any employee appointed under this section payments
in addition to basic pay within the limits applicable to the employee as discussed
below.
The service of an employee under an appointment made pursuant to this section
may not exceed five years. The Secretary may, however, in the case of a particular
employee, extend the period to which service is limited by up to one additional year
if he determines that such action is necessary to promote DOD’s national security
missions.
The total amount of the additional payments paid to an employee under this
section for any 12-month period may not exceed the lesser of $50,000 in FY2004,
or an amount equal to 50% of the employee’s annual rate of basic pay. The $50,000
may be adjusted annually thereafter by the Secretary, with a percentage increase
equal to one-half of one percentage points less than the percentage by which the
Employment Cost Index (ECI), published quarterly by the Bureau of Labor Statistics,
for the base quarter of the year before the preceding calendar year exceeds the ECI
for the base quarter of the second year before the preceding calendar year. “Base
quarter” has the same meaning given at 5 U.S.C. §5302(3).
An employee appointed under this section is not eligible for any bonus,
monetary award, or other monetary incentive for service except for payments
authorized under this section. Notwithstanding any other provision of this subsection
or of 5 U.S.C. §5307, no additional payments may be paid to an employee in any
calendar year, if, or to the extent that, the employee’s total annual compensation will
exceed the maximum amount of total annual compensation payable to the Vice
President ($212,100, as of January 2006).
The number of highly qualified experts appointed and retained by the Secretary
may not exceed 2,500 at any time. (Under S. 1166, the limitation would have been
48 117 Stat. 1632-1633.
In the event that the Secretary terminates this program, the following will occur.
In the case of an employee who on the day before the termination of the program is
serving in a position pursuant to an appointment under this section, the termination
of the program does not affect the employee’s employment in that position before the
expiration of the lesser of the period for which the employee was appointed or the
period to which the employee’s service is limited, including any extension made
under this section before the termination of the program. The rate of basic pay
prescribed for the position may not be reduced as long as the employee continues to
serve in the position without a break in service.
The committee report which accompanied H.R. 1836 stated that “[t]he authority
[in this provision] is consistent with that now available to the Defense Advanced
Research Projects Agency and Military Departments for hiring scientists and
engi neers.”49
Implementation. DOD issued guidance to implement the provision on highly
qualified experts on February 27, 2004. The guidance identifies such an expert as:
an individual possessing uncommon, special knowledges or skills in a particular
occupational field beyond the usual range of expertise, who is regarded by others
as an authority or practitioner of unusual competence and skill. The expert
knowledge or skills are generally not available within the Department and are
needed to satisfy an emerging and relatively short-term, non-permanent50
requirement.
The hiring authority cannot be used to provide temporary employment in
anticipation of permanent employment, to provide services that are readily available
with DOD or another federal agency, to perform continuing DOD functions, to
bypass or undermine personnel ceilings or pay limitations, to aid in influencing or
enacting legislation, to give former federal employees preferential treatment, to do
work performed by regular employees, or to fill in during staff shortages.51
49 H.Rept. 108-116, Part 1, p. 33. This provision in H.R. 1588, as passed by the House of
Representatives, was Sec. 102(a) of H.R. 1836, as reported.
50 U.S. Department of Defense, Under Secretary of Defense for Personnel and Readiness,
Memorandum for Secretaries of the Military Departments, “Employment of Highly
Qualified Experts,” Feb. 27, 2004.
51 Ibid.
Basic pay for experts would be determined according to such factors as:
!Labor market conditions;
!Type of position;
!Location of position;
!Work schedule;
!Level of independence in establishing work objectives;
!Working conditions;
!Organizational needs;
!Personal qualifications;
!Type of degree;
!Personal recommendations;
!Experience (recency, relevance);
!Budget considerations;
!Organizational equity/pay considerations; and
!Mission impact of work assignments.52
An expert’s pay may be increased because of an “exceptional level of
accomplishment related to projects, programs, or tasks that contribute to the
Department or Component strategic mission.”53
The Defense Civilian Personnel Data System will be used to record the
employment of highly qualified experts. Written documentation must be maintained
and must include the criteria for the appointment and the factors and criteria used to
set and increase pay and to provide additional payments. The records must be
retained for three years after an employee is terminated.54
Section 9904. Special Pay and Benefits for
Certain Employees Outside the United States55
The new Section 9904 of P.L. 108-136 authorizes the Secretary of Defense to
provide allowances and benefits to certain civilian DOD employees assigned to
activities outside the United States, as determined by the Secretary to be in support
of DOD activities abroad hazardous to life or health or so specialized because of
security requirements as to be clearly distinguishable from normal government
employment. Such allowances and benefits will be comparable to those provided by
the Secretary of State to members of the Foreign Service under Chapter 9 of Title I
of the Foreign Service Act of 1980 or any other provision of law; or comparable to
those provided by the Director of Central Intelligence to personnel of the Central
Intelligence Agency (CIA). Special retirement accrual benefits and disability that are
in the same manner provided for by the CIA Retirement Act and in Section 18 of the
CIA Act of 1949 also will be provided.
52 Ibid.
53 Ibid.
54 Ibid.
55 117 Stat. 1633.
Impact on Department of Defense Civilian Personnel
Section 1101(b) of P.L. 108-136 provides that any exercise of authority under
the proposed new Chapter 99, including under any system established under that
chapter, must be in conformance with the requirements of this subsection. No other
provision of this act or of any amendment made by this act may be construed or
applied in a manner so as to limit, supersede, or otherwise affect the provisions of
this section, except to the extent that it does so by specific reference to this section.
Department of Defense Civilian Personnel
Generally — Title XI, Subtitle B, of P.L. 108-136
Military Leave for Mobilized Federal Civilian Employees56
Section 1113 of P.L. 108-136 amends 5 U.S.C. §6323 to authorize military
leave for an individual who performs full-time military service as a result of a call or
order to active duty in support of a contingency operation.57 Under military leave, the
individual receives leave without loss of, or reduction in, pay, leave to which he or
she is otherwise entitled, credit for time or service, or performance or efficiency
rating, for up to 22 workdays in a calendar year. The provision applies to military
service performed on or after the act’s enactment date, November 24, 2003.
The committee report accompanying H.R. 1836 explained the need for the
provision:
This section would help Federal civilian employees whose military pay is less
than their Federal civilian salary “transition” to military service by allowing them
to receive 22 additional workdays of military leave when mobilized. Such leave
would help alleviate the difference in pay for the first month of service by
enabling them to receive the difference between their Federal civilian pay and
their military pay. Current law only entitles Reserve component members to the58
additional military leave.
56 117 Stat. 1635.
57 Contingency operation is defined as a military operation that is designated by the
Secretary of Defense as an operation in which members of the armed forces are or may
become involved in military actions, operations, or hostilities against an enemy of the
United States or against an opposing military force. It also could be a military operation that
results in the call or order to, or retention on, active duty of members of the uniformed
services during a war or during a national emergency declared by the President or Congress.
58 H.Rept. 108-116, part 1, p. 34. The language in H.R. 1588, as passed by the House of
Representatives, is identical to the language in Sec. 203 of H.R. 1836, as reported.
Extension of Authority for Experimental Personnel
Program for Scientific and Technical Personnel59
Section 1116 amends Subsection (e)(1) of Section 1101 of the Strom Thurmond
National Defense Authorization Act for FY1999 (P.L. 105-261; 112 Stat. 2139; 5
U.S.C. §3104 note) to extend the experimental personnel program for scientific and
technical personnel until September 30, 2008 (the annual report will be required in
Subtitle B of Title XI of P.L. 108-136 also includes provisions on an automated
personnel management program, the demonstration project relating to certain
acquisition personnel management, restoration of annual leave to certain DOD
employees affected by base closings, and employment of certain civilian faculty
members at a Defense institution, which are beyond the purview of this report.
Department of Defense Civilian Personnel
Generally — Title XI, Subtitle C, of P.L. 108-136
The provisions at Subtitle C of Title XI of P.L. 108-136 apply to federal civilian
employees government-wide.
Modification of the Overtime Pay Cap60
Section 1121 amends 5 U.S.C. §5542(a)(2) which covers the computation of
overtime rates of pay. It provides that such an employee will receive overtime at a
rate which will be the greater of one and one-half times the hourly rate for GS-10,
step 1, or his or her hourly rate of basic pay. The law previously in effect provided
that an employee whose basic pay rate exceeded GS-10, step 1 (including any locality
pay or special pay rate) received overtime at a rate of one and one-half times the
hourly rate for GS-10, step 1 (150% of GS-10, step 1).
For employees whose regular pay is greater than the 150% of GS-10, step 1 cap,
the law previously in effect resulted in overtime pay at a rate less than their regular
hourly rate. P.L. 108-136 addresses this circumstance and the situation in which
managers and supervisors, whose overtime rate is capped at 150% of GS-10, step 1,
receive less compensation for overtime work than employees who are subordinate to
them. The Congressional Budget Office (CBO) determined that the provision would61
affect employees above GS-12, step 5.
Implementation. OPM advised agencies to ensure that proper overtime
payments were being made as of November 24, 2003, the law’s enactment date.
59 117 Stat. 1636.
60 117 Stat. 1636.
61 H.Rept. 108-116, part 1, p. 54.
Final regulations to implement the provision were published by OPM in the Federal
Register on May 13, 2004, and became effective on the same day.62
Common Occupational and Health Standards for Differential
Payments as a Consequence of Exposure to Asbestos63
Section 1122 amends 5 U.S.C. §5343(c)(4), which authorizes blue-collar
employees to receive pay differentials for unusually severe working conditions or
unusually severe hazards, and 5 U.S.C. §5545(d), which authorizes pay differentials
for unusual physical hardship or hazard for General Schedule (GS) employees. The
amendment provides that pay differentials for any hardship or hazard related to
asbestos will be determined by applying occupational safety and health standards
consistent with the permissible exposure limit promulgated by the Secretary of Labor
under the Occupational Safety and Health Act of 1970. Subject to any vested
constitutional property rights, any administrative or judicial determination after the
act’s enactment date concerning backpay for a differential under 5 U.S.C.
§5343(c)(4) or 5545(d) will be based on occupational safety and health standards
under the Occupational Safety and Health Act of 1970.
The Congressional Budget Office (CBO) explained the provision in its cost
estimate for H.R. 1836. According to CBO, the provision provides that
federal wage-grade employees would be subject to the same standards as general
schedule employees when determining eligibility for environmental differential
pay (EDF) due to exposure to asbestos. Under current law, general schedule
employees are entitled to 8 percent hazard differential pay [HDP] if they are
exposed to asbestos that exceeds the permissible exposure limits established by
OSHA. The current EDP standard for wage-grade employees entitles them to the
same 8 percent of pay but does not set an objective measure for determining the
level of asbestos exposure necessary to qualify for EDP. In several instances
when wage-grade employees have sought back pay for EDP, arbitrators have
found in favor of the employees when asbestos levels were below those64
consistent with OSHA standards.
Implementation. According to OPM, administrative or judicial
determinations concerning EDP or HDP for asbestos exposure must be based on the
OSHA permissible exposure limits for asbestos as of November 24, 2003. OPM
regulations on HDP for GS employees include this requirement. The personnel
agency will update the EDP regulations for wage employees to include the
requirement.
62 U.S. Office of Personnel Management, “Pay Administration (General),” Federal Register,
May 13, 2004, vol. 69, no. 93, pp. 26475-26476.
63 117 Stat. 1636-1637.
64 H.Rept. 108-116, part 1, pp. 53-54. The language in H.R. 1588, as passed by the House
of Representatives, is identical to the language in Sec. 204 of H.R. 1836, as reported. The
complete Congressional Budget Office cost estimate is at pp. 51-58 of H.Rept. 108-116, part
Increase in Annual Student Loan Repayment Authority65
Section 1123 amends 5 U.S.C. §5379(b)(2)(A) to provide that student loan
repayments to an employee may not exceed $10,000 in any calendar year, replacing
the up to $6,000 per calendar year that the current law allows. The provision became
effective on January 1, 2004.
Given the increasingly larger burdens of debt that graduates are assuming, this
provision could provide additional flexibility to managers and agencies wanting to
offer student loan repayments to their employees. Federal agencies have said that
they would need additional appropriations to fund such incentives as student loan
repayments.
Implementation. OPM issued regulations to implement the program on April66
Authorization for Cabinet Secretaries, Secretaries of
Military Departments, and Heads of Executive Agencies
to be Paid on a Biweekly Basis67
Section 1124 “allow[s] cabinet secretaries, secretaries of military departments
and heads of executive agencies to be paid bi-weekly like most Federal employees.
This proposal save[s] time and cost resources by relieving civilian pay and disbursing
operations from having to utilize special manual procedures to accommodate these68
personnel.”
Section 5504 of Title 5 is modified by consolidating the definition of employee
for the purpose of the section so that the same groups are covered by the requirement
for a bi-weekly pay period and by the methods for converting annual rates of pay into
hourly, daily, weekly, or biweekly rates. Currently “employee” is defined under each
of these provisions and both exclude groups of people excluded from the definitions
of employees in 5 U.S.C. §5541 on premium pay. P.L. 108-136 continues that
exclusion, but adds a provision that an agency could elect to have excluded
employees be paid on the bi-weekly basis. It should be noted that under the current
provisions, employees in the judicial branch are covered under the conversion
language, but are not included in the language of this provision. It is not known if
that omission was by intent or if the latitude for discretionary inclusion was assumed
to apply to that class of employee.
Implementation. The provision became effective on the first day of the first
applicable pay period beginning on or after November 24, 2003, which was
65 117 Stat. 1637.
66 U.S. Office of Personnel Management, “Repayment of Student Loans,” Federal Register,
Apr. 20, 2004, vol. 69, no. 76, p. 21039.
67 117 Stat. 1637-1638.
68 H.Rept. 108-116, part 1, p. 35. The language in H.R. 1588, as passed by the House of
Representatives, is identical to the language in Sec. 206 of H.R. 1836, as reported.
November 30, 2003, for most officials and employees. OPM published proposed
regulations to implement the provision in the Federal Register on October 7, 2004.69
Senior Executive Service Pay System70
Section 1125(a), which amended portions of 5 U.S.C. §§ 5304, 5382, and 5383,
effected changes to basic pay and locality pay for members of the Senior Executive
Service (SES), and individuals in certain other positions. OPM issued the final rule
to establish the new pay system, and to implement a higher cap on aggregate
compensation for senior executives, in December 2004.71 Significant changes for the
SES included the replacement of six pay rates or levels (ES-1 through ES-6) with one
broad pay range; an increase in the cap on base pay from Executive Schedule level
IV (EX-IV) to EX-III; the addition of a second, higher cap on base pay, EX-II, for
agencies whose SES performance appraisal systems have been certified by the OPM,
with the concurrence of OMB; and the elimination of locality pay.72 Each senior
executive is to be paid at one of the rates within the broad pay range based on
individual performance, contribution to the agency’s performance, or both.
Previously, 5 U.S.C. § 5382 required the establishment of at least five rates of basic
pay, and each senior executive was paid at one of the rates. For agencies whose
appraisal systems have not been certified, the cap on SES base pay in 2006 is
$152,000 (EX-III). (Previously, the cap would have been $143,000 (EX-IV).) For
agencies who have received certification, the cap on base pay in 2006 is $165,200
(EX-II). Demonstrating that the design and implementation of its performance
appraisal systems make “meaningful distinctions based on relative performance” is
crucial to an agency’s application for certification.73 (An agency may have more than
one performance appraisal system for senior employees.)
Instituting a pay band and shifting the cap on basic pay from level IV to level
III (or level II for agencies with certified appraisal systems) will help to ease pay
compression, at least temporarily, within the SES. Many believe this provision has
the potential for interjecting more accountability into the SES. Others are concerned
that in an effort to develop and apply a performance appraisal system that is based
on meaningful distinctions, agencies might create and impose a forced distribution
of performance ratings.
69 U.S. Office of Personnel Management, “Computation of Pay for Biweekly Pay Periods,”
Federal Register, Oct. 7, 2004, vol. 69, no. 194, pp. 60097-60098.
70 117 Stat. 1638-1640.
71 U.S. Office of Personnel Management, “Senior Executive Service Pay and Performance
Awards; Aggregate Limitation on Pay,” Federal Register, vol. 69, no. 233, Dec. 6, 2004, pp.
72 See, CRS Report RL33128, Senior Executive Service Pay for Performance System, by L.
Elaine Halchin.
73 U.S. Office of Personnel Management and U.S. Office of Management and Budget,
“Executive Performance and Accountability,” Federal Register, vol. 69, no. 145, July 29,
“Certification of Performance Appraisal Systems for Senior Employees,” memorandum,
July 26, 2004, available at [http://www.opm.gov/oca/compmemo], visited Jan. 11, 2005.
In addition to positions in the SES, positions in the Federal Bureau of
Investigation (FBI) and Drug Enforcement Administration (DEA) SES, and positions
in a system equivalent to the SES, as determined by the President’s Pay Agent, are
no longer eligible for locality pay. Considering the changes made to the caps on
basic pay, which resulted in the establishment of caps at levels II and III of the
Executive Schedule, the elimination of locality pay might be viewed as a practical
matter. However, senior executives employed by an agency whose performance
appraisal system is not certified could be adversely affected by the loss of locality
pay.
Total Compensation. The performance appraisal certification process was
established by another statute, the Homeland Security Act of 2002 (P.L. 107-296;
116 Stat. 2135, at 2297), which also shifted the cap on total compensation. For
senior executives subject to a performance appraisal system that has not been
certified by OPM, the cap on total compensation remains EX-I ($183,500 in 2006).
For individuals subject to a certified appraisal system, the cap has shifted upward to
the Vice President’s salary, which is $212,100 in 2006. The significance of this
change has to do with timing. For senior executives with certified appraisal systems,
they are more likely to receive all of their compensation in one year instead of having
some payments deferred to the following year (which is what occurs when an
individual’s total compensation exceeds the applicable cap).
Under Section 1125(c), the amendments made by this section took effect on the
first date of the first pay period that began on or after January 1, 2004 (which was
January 11 for most senior executives).74 Section 1125(c) also ensures that a senior
executive’s basic rate of pay will not be reduced, as a result of changes effected by
Section 1125(a), during the first year after enactment. For the purpose of ensuring
that an individual’s rate of basic pay is not reduced, a senior executive’s rate of basic
pay will equal the rate of basic pay and the locality pay he or she was being paid on
the date of enactment of this legislation. Section 1125(c) noted that any reference in
law to a rate of basic pay above the minimum level and below the maximum level
payable to senior executives will be considered a reference to the rate of pay for
Executive Schedule level IV.75
Post-Employment Restrictions76
Section 1125(b) applies the post-employment conflict of interest provision
commonly known as the one-year “cooling off” period (18 U.S.C. §207(c)(1)) to (in
addition to those paid on the Executive Schedule) those not paid on the Executive
74 Sec. 1125(b) addresses post-employment restrictions generally, and is addressed in
another section of this report.
75 See U.S. Office of Personnel Management, Memorandum For Heads of Departments and
Agencies, “New Performance-Based Pay System for the Senior Executive Service,” Dec.
16, 2003; U.S. Office of Personnel Management, Memorandum For Heads of Executive
Departments and Agencies, “Conversion to New SES Performance-Based Pay System,” Jan.
9, 2004; and U.S. Office of Personnel Management, “Senior Executive Service Pay and
Performance Awards,” Federal Register, vol. 69, Jan. 13, 2004, pp. 2048-2052.
76 117 Stat. 1639-1640.
Schedule but who are compensated at a rate of pay equal to, or greater than, 86.5%
of the rate of basic pay for level II of the Executive Schedule ($165,200 in 2006, so
$142,898), or, for two years after the enactment of this act, those persons who would
have been covered by the restriction the day before the act was passed (those
compensated at a base rate of pay equal to or greater than a level 5 for the SES). The
provision amends 18 U.S.C. §207(c)(2)(A)(ii).77 The post-employment restrictions,
according to OPM,
require that for one year after service in a covered position ends, no former
employee may knowingly make, with the intent to influence, any communication
to or appearance before an employee of a department or agency in which he or
she served in any capacity during the one-year period prior to ending service in
that position, if that communication or appearance is made on behalf of any other
person (except the United States) in connection with any matter concerning
which he or she seeks official action by that employee. Employees ... also are
subject to 18 U.S.C. §207(f), which imposes additional restrictions on
representing, aiding, or advising certain foreign entities with the intent to
influence any officer or employee of any department or agency of the United78
States.
Implementation. OPM published interim regulations to implement the
provision in the Federal Register on October 15, 2004.79 The regulations became
effective on the first day of the first applicable pay period beginning on or after
October 15, 2004. According to OPM, with the January 2004 implementation of the
new Senior Executive Service (SES) performance-based pay system “the vast
majority of SES members are now subject to the post-employment restrictions.”80
Design Elements of Pay-for-Performance Systems
in Demonstration Projects81
Section 1126 amends 5 U.S.C. Chapter 47 which covers the conduct of
personnel research programs and demonstration projects. The provision specifies
certain elements that must be present in a demonstration project’s pay-for-
performance system. The eight elements are as follows:
!adherence to merit system principles under 5 U.S.C. §2301;
!a fair, credible, and transparent employee performance appraisal
system;
77 See U.S. Office of Personnel Management, Memorandum For Heads of Executive
Departments and Agencies, “Notification of Changes in Post-Employment Restrictions
Coverage for Members of the Senior Executive Service (SES),” Jan. 6, 2004.
78 U.S. Office of Personnel Management, “Notification of Post-Employment Restrictions,”
Federal Register, Oct. 15, 2004, vol. 69, no. 199, p. 61143.
79 Ibid., pp. 61143-61144.
80 Ibid., p. 61143.
81 117 Stat. 1640.
!a link between elements of the pay-for-performance system, the
employee performance appraisal system, and the agency’s strategic
plan;
!a means for ensuring employee involvement in the design and
implementation of the system;
!adequate training and retraining for supervisors, managers, and
employees in the implementation and operation of the pay-for-
performance system;
!a process for ensuring ongoing performance feedback and dialogue
between supervisors, managers, and employees throughout the
appraisal period, and setting timetables for review;
!effective safeguards to ensure that the management of the system is
fair and equitable and based on employee performance; and
!a means for ensuring that adequate agency resources are allocated
for the design, implementation, and administration of the pay-for-
performance system.
These eight elements address longstanding concerns expressed by employees,
their unions, and representatives about the pay-for-performance component of
demonstration projects.
Implementation. In its semiannual regulatory agenda published in the
Federal Register on December 13, 2004, OPM states that it will issue “proposed
regulations to position agencies to operate pay-for-performance by having in place
performance appraisal systems for covered employees that are capable of making82
performance distinctions to support these pay systems.” The agenda anticipates
final action by June 2005.
Federal Flexible Benefits Plan Administrative Costs83
Section 1127 prohibits federal agencies that offer flexible spending accounts
(FSAs) from imposing fees on employees to defray their administrative costs. It also
requires agencies to forward to OPM (or an entity it designates) amounts to offset
these costs. OPM is required to submit to the House Committee on Government
Reform and the Senate Committee on Governmental Affairs, no later than March 31,
2004, reports on the administrative costs associated with the government-wide FSA
program for FY2003 and the projected administrative costs for each of the five fiscal
years thereafter. At the end of each of the first three calendar years in which an
agency offers FSAs, the agency will be required to submit a report to the Office of
Management and Budget (OMB) on the employment tax savings from the accounts
(i.e., the Social Security and Medicare taxes they otherwise would have had to pay),
net of administrative fees paid.
Employees in most federal agencies were given an FSA option starting in July
82 U.S. Office of Personnel Management, “Semiannual Regulatory Agenda,” Federal
Register, Dec. 13, 2004, vol. 69, no. 238, p. 74010.
83 117 Stat. 1640-1641.
health care or dependent care expenses in exchange for receiving lower pay. (Section
5525 of Title 5 provides that agency heads may establish procedures under which
employees are permitted to make allotments and assignments out of their pay for
such purposes as the agency head considers appropriate.) For example, employees
might elect to reduce their pay by $50 each pay period in exchange for having $1,300
(i.e., $50 x 26 pay periods in a year) placed in their health care FSA. When they
incur unreimbursed health care expenses (e.g., copayments and deductibles, or dental
expenditures not covered by insurance) they would be reimbursed from their account.
FSA reimbursements are exempt from federal income and employment taxes as well
as state income taxes; thus, employees electing to participate can save on taxes they
otherwise would have incurred had they instead used take-home pay for the expenses.
Information about the federal FSAs can be found at [https://www.fsafeds.com/
fsafeds/ i ndex . asp] .
FSAs involve administrative costs, particularly for determining the eligibility
of submitted claims. OPM, which has contracted with SHPS, Inc., to administer the
FSAs, originally intended to have participating employees pay $4 a month for their
health care FSA and 1.5% annually of the amount set aside for their dependent care
FSA. Shortly before the program started, OPM gave agencies the option of
absorbing administrative expenses themselves, and most have done so. P.L. 108-136
requires participating agencies to pay the administrative costs and prohibits the
government from charging fees to employees.
One argument for having employees pay FSA administrative costs is that they
are the principal beneficiaries; if the government were to pay, the cost might be
partially borne by employees without FSAs or by other programs or even taxpayers
generally. However, imposing fees on employees could discourage participation.
Few private sector or other employers impose FSA fees on participants; most pay for
the administrative costs out of their employment tax savings.
Implementation. As directed in P.L. 108-136, OPM reported to Congress in
April 2004 on “the cost of administrative fees agencies will pay to cover employees
enrolled in a flexible spending account.” The report showed that 117,950 employees
opened a health-care FSA and 18,178 employees opened a dependent-care FSA in
2004. OPM projected that more than 283,000 employees would have health-care
FSAs and 43,627 would have dependent-care FSAs by 2007. A January 2005 news
release by OPM reported that 157,000 employees are participating in the FSA84
program for 2005. In the April 2004 report, administrative fees were projected to
be $5.6 million for health-care FSAs and $980,000 for dependent-care FSAs in 2004
and were expected to total nearly $80 million for health-care FSAs, dependent-care
FSAs, or both through 2007. According to OPM: “Employees benefit because
untaxed contributions from their salaries are deposited into their FSA accounts, and
the lower employee taxable income translates into agencies paying out less in Social
84 U.S. Office of Personnel Management, “Enrollment in Flexible Spending Account
Program Increases by 25 Percent,” Jan. 10, 2005. Available on the Internet at
[http://www.opm.gov], visited Jan. 11, 2005.
Security and Medicare taxes ... because agencies pay less in taxes, they more than
recover the cost of paying FSA administrative fees.”85
Employee Surveys86
Section 1128 mandates annual surveys of employees by federal executive
departments, government corporations, and independent establishments. OPM will
issue regulations prescribing survey questions that will appear on all agency surveys
so as to allow a comparison of results across agencies. Questions unique to an
agency also may be included on the survey. The surveys will address leadership and
management practices that contribute to agency performance. Employee satisfaction
with leadership policies and practices, work environment, rewards and recognition
for professional accomplishment and personal contributions to achieving
organizational mission, opportunity for professional development and growth, and
opportunity to contribute to achieving organizational mission also will be surveyed.
Agency results will be available to the public. They also will be posted on the
respective agency’s website unless the agency head determines that doing so would
jeopardize or negatively affect national security.
From time to time, OPM has conducted surveys of federal employees, but the
surveys authorized by this provision would be conducted by agencies and particularly
focus on their leadership and performance and employee contribution to agency
mission. The provision does not mandate any remedial actions that an agency might
want to take once the survey results are known. As to not posting survey results for
reasons of national security, the term “national security” is not defined. OPM could
address this issue in its regulations to implement the program which are anticipated
in 2004.
Implementation. OPM’s semiannual regulatory agenda published in the
Federal Register on December 13, 2004, indicates that the regulations on employee87
surveys were withdrawn as an agenda item on November 5, 2004. No further
information was provided.
Human Capital Performance Fund88
Section 1129 amends Part III, Subpart D of Title 5 United States Code by
adding a new Chapter 54 entitled Human Capital Performance Fund. The legislation
states that the purpose of the provision is to promote greater performance in the
85 U.S. Office of Personnel Management, “OPM Reports to Congress on Agency Payments
of Flexible Spending Account Fees,” Apr. 23, 2004. Available on the Internet at
[http://www.opm.gov], visited Apr. 27, 2004. See also, Stephen Barr, “Agencies, Workers
Benefit From Availability of Flexible Spending Accounts,” The Washington Post, Apr. 27,
86 117 Stat. 1641.
87 U.S. Office of Personnel Management, “Semiannual Regulatory Agenda,” Federal
Register, Dec. 13, 2004, vol. 69, no. 238, p. 74030.
88 117 Stat. 1641-1645.
federal government. According to the law, the fund will reward the highest
performing and most valuable employees in an agency and offer federal managers a
new tool for recognizing employee performance that is critical to an agency achieving
its mission.
Organizations eligible for consideration to participate in the fund are executive
departments, government corporations, and independent agencies. The Government
Accountability Office is not covered by the chapter. The fund may be used to reward
General Schedule, Foreign Service, and Veterans Health Administration employees;
prevailing rate employees; and employees included by OPM following review of
plans submitted by agencies seeking to participate in the fund. Executive Schedule
(or comparable rate) employees; SES members; administrative law judges; contract
appeals board members; administrative appeals judges; and individuals in positions
which are excepted from the competitive service because of their confidential, policy-
determining, policy-making, or policy-advocating character are not eligible to receive
payments from the fund.
OPM will administer the fund which is authorized a $500,000,000 appropriation
for FY2004.89 Such sums as may be necessary to carry out the provision are
authorized for each subsequent fiscal year. In the first year of implementation, up to
10% of any appropriation will be available to participating agencies to train
supervisors, managers, and other individuals involved in the appraisal process on
using performance management systems to make meaningful distinctions in
employee performance and on using the fund.
Agencies seeking to participate in the fund will submit plans to OPM for
approval. The plans must incorporate the following elements:
!adherence to merit principles under 5 U.S.C. §2301;
!a fair, credible, and transparent performance appraisal system;
!a link between the pay-for-performance system, the employee
performance appraisal system, and the agency’s strategic plan;
!a means for ensuring employee involvement in the design and
implementation of the system;
!adequate training and retraining for supervisors, managers, and
employees in the implementation and operation of the pay-for-
performance system;
!a process for ensuring ongoing performance feedback and dialogue
between supervisors, managers, and employees throughout the
appraisal period, and setting timetables for review;
89 P.L. 108-199, the Consolidated Appropriations Act for FY2004, enacted on January 23,
2004 (118 Stat. 339) provides an appropriation of $1 million for the Human Capital
Performance Fund. Obligation or transfer of the funding was contingent upon the enactment
of the legislation to establish the fund within OPM. Funds shall not be obligated or
transferred to any federal agency until the OPM director notifies and receives prior approval
from the relevant subcommittees of jurisdiction of the Committees on Appropriations of
OPM approval of an agency’s performance pay plan. Such amounts as determined by the
OPM Director may be transferred to federal agencies to carry out the purposes of the fund.
!effective safeguards to ensure that the management of the system is
fair and equitable and based on employee performance; and
!a means for ensuring that adequate agency resources are allocated
for the design, implementation, and administration of the pay-for-
performance system.
An agency will receive an allocation of monies from the fund once OPM, in
consultation with the Chief Human Capital Officers Council, reviews and approves
its plan.90 After the reduction for training (discussed above), 90% of the remaining
amount of any appropriation to the fund may be allocated to the agencies. An
agency’s prorated distribution may not exceed its prorated share of executive branch
payroll. (Agencies will provide OPM with necessary payroll information.) If OPM
were not to allocate an agency’s full prorated share, the remaining amount will be
available for distribution to other agencies.
After the reduction for training, 10% of the remaining amount of any
appropriation to the fund as well as the amount of an agency’s prorated share not
distributed because of the agency’s failure to submit a satisfactory plan, will be
allocated among agencies with exceptionally high-quality plans. Such agencies will
be eligible to receive a distribution in addition to their full prorated distribution.
Agencies, in accordance with their approved plans, may make human capital
performance payments to employees based on exceptional performance contributing
to the achievement of the agency mission. In any year, the number of employees in
an agency receiving payments may not be more than the number equal to 15% of the
agency’s average total civilian full-time and part-time permanent employment for the
previous fiscal year. A payment may not exceed 10% of the employee’s basic pay
rate. The employee’s aggregate pay (basic, locality pay, human capital performance
pay) may not exceed Executive Level IV ($143,000 in 2006).
A human capital performance payment will be in addition to annual pay
adjustments and locality-based comparability payments. Such payments will be
considered basic pay for purposes of Civil Service Retirement System, Federal
Employees’ Retirement System, life insurance, and for such other purposes (other
than adverse actions) which OPM determines by regulation. Information on
payments made and the use of monies from the fund will be provided by the agencies
to OPM as specified.
Initially, agencies will use monies from the fund to make the human capital
performance payments. In subsequent years, continued financing of previously
awarded payments will be derived from other agency funds available for salaries and
expenses. Under current law (5 U.S.C. §5335) agencies pay periodic within-grade
increases to employees performing at an acceptable level of competence.
Presumably, funds for such within-grade increases could be used to pay human
capital performance payments. Monies from the fund may not be used for new
90 The Chief Human Capital Officers Council would include an evaluation of the
formulation and implementation of agency performance management systems in its annual
report to Congress.
positions, for other performance-related payments, or for recruitment or retention
incentives.
OPM will issue regulations to implement the new Chapter 54 provisions. Those
regulations must include criteria governing the following:
!an agency’s plan;
!allocation of monies from the fund to the agencies;
!the nature, extent, duration, and adjustment of, and approval
processes for, payments to employees;
!the relationship of agency performance management systems to the
Human Capital Performance Fund;
!training of supervisors, managers, and other individuals involved in
the process of making performance distinctions; and
!the circumstances under which funds could be allocated by OPM to
an agency in amounts below or in excess of the agency’s pro rated
share.
The Human Capital Performance Fund was proposed by President George Bush
in his FY2004 budget. According to the budget, the fund “is designed to create
performance-driven pay systems for employees and reinforce the value of employee
performance management systems.”91 The effectiveness of agency performance
management systems and whether the performance ratings would be determined
according to preconceived ideas of how the ratings would be arrayed across the
particular rating categories are among the concerns expressed by federal employees
and their unions and representatives. Other concerns are that the fund could take
monies away from the already reduced locality-based comparability payments and
that the performance award amounts would be so small as to not serve as an
incentive.
Implementation. OPM’s semiannual regulatory agenda published in the
Federal Register on December 13, 2004, indicates that the agency plans to issue an
interim final rule implementing the Human Capital Performance Fund, but also92
indicates that the timetable for publishing the rule is yet to be determined. The
Consolidated Appropriations Act for FY2005, P.L. 108-447, does not provide an
appropriation for the fund.
91 U.S. Executive Office of the President, Office of Management and Budget, Budget of the
United States Government Fiscal Year 2004 Appendix (Washington: GPO, 2003, p. 973).
92 U.S. Office of Personnel Management, “Semiannual Regulatory Agenda,” Federal
Register, Dec. 13, 2004, vol. 69, no. 238, p. 74028.
Other Personnel Provisions
Contracting For Personal Services93
Title VIII, Subtitle D, Section 841, of P.L. 108-136 amends 10 U.S.C. §129(b)
by adding a new subsection that authorizes the Secretary to enter into personal
services contracts if the personal services (1) are to be provided by individuals
outside the United States, regardless of their nationality, and are determined by the
Secretary to be necessary and appropriate for supporting the activities and programs
of DOD outside the United States; (2) directly support the mission of a defense
intelligence component or counterintelligence organization of DOD; or (3) directly
support the mission of the special operations command of DOD. The contracting
officer for a personal services contract under this subsection is responsible for
insuring that (1) the services to be procured are urgent or unique; and (2) it would be
impracticable for DOD to obtain such services by other means. The requirements of
Transfer of Personnel Investigative Functions
and Related Personnel of the Department of Defense94
Title IX, Section 906, of P.L. 108-136 authorized the transfer of the personnel
security investigations functions and associated personnel from the Department of95
Defense Security Service (DSS) to the Office of Personnel Management (OPM).
OPM now has responsibility for approximately 90% of all personnel security
investigations (PSIs). This development has also been affected by the subsequent
Intelligence Reform and Terrorism Prevention Act of 2004 (Title III, P.L. 108-458),
which called for a consolidated and improved personnel investigative system.
The functional transfer from DOD had to be accepted by both the Secretary of
Defense and the Director of OPM, as the law required. In addition, the move of DSS
investigative personnel to OPM was mandatory, while the transfer of support
personnel remained at the discretion of the Secretary and the Director. The transfer
was also made contingent on the Director, in coordination with the Secretary, to
review all functions performed at the time of the transfer by DSS and make a “written
determination regarding whether each such function is inherently governmental or
is otherwise inappropriate for performance by contractor personnel.” Such functions
may not be contracted to private contractors unless and until the Director makes a
written determination that these are not inherently governmental or otherwise not
inappropriate for contractor performance. If so decided, the contracting is governed
by the requirements of OMB Circular A-76. On November 22, 2004, the DOD and
OPM announced the transfer of the function, along with 1,850 staff, from DSS to
OPM. On February 15, 2005, OPM announced the selection of 12 managers for key
leadership positions in the personnel security investigations program. According to
OPM, “Beginning February 20, the transfer [of DSS’ personnel security
93 117 Stat. 1552.
94 117 Stat. 1561-1563.
95 This provision was Section 1104 in H.R. 1588, as passed by the House.
investigations program to OPM] will establish OPM as the single source for federal
national security background and suitability investigative services for more than 90
percent of the federal government.”96
The Intelligence Reform Act added several new requirements to the clearance
process, which affected OPM. Designed to expedite, simplify, and standardize the
process, the Intelligence Reform Act also called upon the President to designate a
single executive branch agency to be responsible for security clearance investigations
and directed the head of OPM to establish and operate an integrated, secure database
on security clearances. In response, the Office of Management and Budget, along
with OPM, developed a plan to accomplish these goals, in part by setting priorities
among requests and emphasizing reciprocity among federal agencies in accepting
previous PSI results.97 The plan also consolidated responsibility for operating the
investigative process system in OPM.
96 U.S. Office of Personnel Management, “OPM Announces Selections of Investigations
Management Team,” News Release, Feb. 15. 2005. Available on the Internet at
[http://www.opm.gov], visited Feb. 16, 2005.
97 OMB and OPM, Plan for Improving the Personnel Security Clearance Process, Nov.
Key CRS Policy Staff
Area of ExpertiseNamePhone
Contracting for Personal Services,Richard Best7-7607
Intelligence Agencies
Contracting for Personal ServicesValerie Grasso7-7617
Senior Executive ServiceL. Elaine Halchin7-0646
Personnel InvestigationsFred Kaiser7-8682
Post-Employment RestrictionsJack H. Maskell7-6972
Appellate ProceduresThomas J. Nicola7-5004
Retirement and Re-employment;Patrick J. Purcell7-7571
Employment of Older Americans
Civil ServiceBarbara L. Schwemle7-8655
Flexible Spending AccountsChristine A. Scott7-7366
Labor Management and EmployeeJon O. Shimabukuro7-7990
Relations