What’s to Be Gained By a New DOD Employee Appeal System?

The author asks what is to be gained with a proposed new employee appeal system.


S. Clemons

The author, who is writing under a pseudonym, is a 32-year DOD HR professional with extensive experience with the various federal appeal processes, as a management representative in hearings and as a manager of HR functions.

Call me a cynic, but I see the development of the Department of Defense National Security Personnel System as quickly deteriorating as it moves through the political meat grinder. It has been proudly touted by DOD HR officials as the answer to providing Defense managers more flexibility to manage and respond quickly to changes in world events. There’s little doubt that current personnel laws and regulations do limit a manager’s ability to make rapid changes in all be the most dire emergencies. It’s a laudable goal to provide managers more flexible tools. But I have little expectation that, if NSPS sees the light of the legislative day at all, it will have much positive impact on the ability of managers to manage.

One only need look at the Civil Service Reform Act of 1978. A ballyhooed feature of that legislation was that it would make it easier to fire poorly performing federal civil servants. Claims were made by the CSRA’s promoters that only a few incompetent civil servants were being fired each year and that the CSRA would change that. The reality was that hundreds of civil servants were fired every year, but primarily for misconduct which was manifested as poor performance. That hasn’t changed much in the 25 years since the passage of the CSRA, because most HR professionals will tell you that the CSRA didn’t really make it significantly easier to fire somebody for incompetence.

The CSRA also gave us the Merit Systems Protection Board. One obvious change the creation of the MSPB produced was a more legalistic approach to appeals. I don’t recall that being a goal of the CSRA. What had previously been relatively informal hearings conducted by the Federal Employee Appeals Authority (the FEAA), which were usually conducted at the employer’s worksite by non-attorney hearing examiners, became much more formal under the MSPB and are now conducted in courtroom-like settings at often distant locations, presided over by “judges.” Again, I very much doubt that these were the “reforms” envisioned by the authors of the CSRA.

So now DOD wants, as part of its NSPS, a new DOD appeals authority of some type to replace the MSPB for DOD employee appeals. One must ask, to what end? I can only see a couple of reasons DOD might want to do this. First, they may hope to get decisions more favorable to management. The second, more politically acceptable, goal may be to speed up the process. Neither of these goals seem likely to be met by a new DOD appeals board, at least as envisioned in the Senate version of the NSPS, which provides for an appeal to the MSPB for employees dissatisfied with the decision of the new DOD appeal body.

Let’s first examine the issue of the quality of the current MSPB decisions. The statistics show that, depending on the agency involved, the MSPB sustains 90 to 95% of management’s actions. While that’s not 100% support of management, that’s a pretty supportive record. The Senate version of the NSPS proposal currently on the table would permit MSPB review of the DOD appeal board decision. This would mean that the DOD officials making the appeal decisions would have to apply the same standards for their decisions that MSPB judges currently use, or face reversal. If they’re going to apply the same standards and case law as the MSPB judges, why would the result be any different, much less “better?” It would seem that, at best, it would just be a DOD duplication of the existing system. If anything, this just creates yet another level of review at an increased cost to DOD.

The second question is, do we really need these decisions any faster? I am assuming that the MSPB judges do their best to crank out decisions. My experience over the last 25 years is that MSPB appeals move with relative dispatch. When compared to the EEOC, where hearing requests molder for years at a time, MSPB moves with bureaucratic lightning speed. Why would DOD judges be any faster? If DOD hires more of them, which would be one way to speed things up, this would clearly to increase the cost of hearings to the government, and particularly DOD. I don’t recall any of the managers I’ve dealt with over the last 25 years who have complained that the MSPB decisions are just too darn slow. I suspect that appellants would like to see fast decisions, but I very much doubt that’s what’s driving the DOD proposal.

So what does DOD hope to gain from creating their own appeal system? I wish I knew. I’m afraid that, like the CSRA and other politically generated “reforms,” they sound good as a political sound bite. But the devil is in the details. This one looks like just more bureaucracy, It appears it will, at best, have no particular benefit and, at worst, increase costs and be slower than the current process. I’d like to see the officials working on the NSPS spend their political capital on something that has some hope of improving our system. I sincerely hope I overlooked a significant feature of DOD’s plan that will make this proposal make sense.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47