NSPS References


Federal Register: Part III DoD OPM NSPS Proposed Rule (May 22, 2008)
Federal Register entry of Proposed Rule ("Enabling regulations" for NSPS) - search for "National Security Personnel System", and open hit for 14 February 2005

Federal Register entry of Proposed Rule ("Enabling regulations" for NSPS) - search for "National Security Personnel System", and open hit for 14 February 2005

Public Law 110-181 (made NSPS possible) (pdf - This document may not be saveable, and is too long to print out entirely. Search for "National Security Personnel System" and print the pages 344, 349-357 ("TITLE XI--CIVILIAN PERSONNEL MATTERS". You can also use Adobe Reader to search it for key words, such as "National Security Personnel System")

Public Law 108-136 (made NSPS possible) (pdf - This document is not saveable, and is too long to print out entirely. Search for "National Security Personnel System" and print the pages 117 STAT. 1621 through 1645 ("TITLE XI--CIVILIAN PERSONNEL MATTERS". You can also use Adobe Reader to search it for key words, such as "fair", "due process", etc.)

5 USC 31: Authority for Employment
5 USC 33: Examination, Selection, and Placement
5 USC 35: Retention Preference, Voluntary Separation Incentive Payments, Restoration, and Reemployment
5 USC 43: Performance Appraisal
5 USC 51: Classification
5 USC 53: Pay Rates and Systems
5 USC 55: Pay Administration
5 USC 59: Allowances
5 USC 71: Labor Management Relations
5 USC 73: Suitability, Security, and Conduct
5 USC 75: Adverse Actions
5 USC 77: Appeals

King v. Nazelrod, 43 F.3d 663(from OPM -- search for "Nazelrod"): In July 1996, OPM sought reconsideration of the Board's final decision, arguing that the decision would have a substantial impact upon the civil service system because of the inherent conflict between this decision and the court's holding in King v. Nazelrod, 43 F. 3d. 663 (Fed. Cir. 1994). OPM stated that the Crouse decision (as this case was captioned before the Board) allowed the MSPB to recharacterize the charge brought by the agency whereas the Nazelrod decision stood for the proposition that an agency must prove what is actually charged rather than attempting to prove other charges that might be construed from the specifications. The Board rejected OPM's arguments, finding that it was appropriate for the judge to recharacterize the charge.

U.S. Dep't of Treasury, U.S. Customs Service v. FLRA, 43 F.3d 682 (1994, DC Circuit) (from Findlaw -- search for "682"): which held that courts of appeals have jurisdiction to review the FLRA's determination of its own jurisdiction. (from OPM -- search for "682"): It should be noted that the scope of the NGP is broader than the scope of bargaining. Although, e.g., a proposal inconsistent with a law or a Governmentwide regulation is nonnegotiable, alleged misapplications of laws or Governmentwide regulations relating to conditions of employment, with a few exceptions and qualifications, can be grieved under the NGP. Regarding grievances alleging misapplication of laws, in Treasury, Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 12/30/94), the court held that the NGP can't be used to enforce laws that only incidentally affect employee working conditions. Regarding Governmentwide regulations, in Department of Treasury, IRS v. FLRA, et al, 996 F.2d 1246 (D.C. Cir. 1993), the court held that alleged violations of OMB Circular A-76 can't be grieved under the NGP because the Circular prohibited such grievances.

Mudge v. U.S., 308 F.3d 1220 (Fed. Cir. 2002) (not found)

Carter v. Gibbs, 909 F.2d 1452(Fed. Cir. 1990) (from OPM - search for "Gibbs"): The U.S. Court of Appeals for the Federal Circuit has determined that if a person filing a claim was a bargaining unit member during any part of the complaint period, the unit was covered by a CBA, and the agreement did not explicitly exclude the issues being reviewed by OPM from its negotiated grievance procedure (NGP), then the person's administrative avenue of redress is limited to the NGP. Carter v. Gibbs, 909 F.2d 1452, 1545-55 (Fed. Cir. 1990).... OPM cannot take jurisdiction over the claim of Federal employees that are or were subject to a negotiated grievance procedure under a collective bargaining agreement between the employee's agency and labor union, unless that matter is or was specifically excluded from the agreement's grievance procedure. This is because the courts have found that Congress intended that such a grievance procedure is to be the exclusive remedy for matters not excluded from the grievance process. Carter v. Gibbs, 909 F.2d 1452, 1454-55 (Fed. Cir. 1990) (en banc), cert. Denied, 498 U.S. 811 (1990), construing therein the provision in the Civil Service Reform Act codified at 5 U.S.C. 7121(a). That Act mandates that the grievance procedures in negotiated collective bargaining agreements be the exclusive remedy for matters covered by the agreements. Accord, Paul D. Bills, et al., B260475 (June 13, 1995); Cecil E. Riggs, et al., 71 Comp. Gen. 374 (1992). According, OPM cannot assert jurisdiction over, or issue a decision concerning, this matter. overruled http://www.opm.gov/lmr/sc/146/146_3.asp,

Douglas v. Vetrans Administration, 5 MSPR 289 (1981) (from MSPB -- search on "Douglas"): In Douglas, the Board held that it would review an imposed penalty to insure that the agency conscientiously considered the relevant factors in choosing the penalty and struck a responsible balance within tolerable limits of reasonableness. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). When not all of the charges are sustained, the Board will consider carefully whether the sustained charges merited the penalty imposed by the agency. Id. at 308. The Board will not disturb an agency's action and will accord deference to it if it is the maximum reasonable penalty which may be imposed after giving consideration to all the relevant factors, including whether the agency has indicated that it would not have taken a lesser sanction for the sustained charges. See Capito v. Veterans Administration, 39 M.S.P.R. 289, 292 (1988), aff'd, 889 F.2d 1099 (Fed. Cir. 1989) (Table), modified by Devall, slip op. at 17.

E.O. 12988, Civil Justice Reform (Clinton, 1996)

E.O. 13132, Federalism (Clinton, 1999)

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This page was last updated on 19 June 2008