NSPS Delayed as a Result of NFFE and Union Coalition Litigation

(National Federation of Federal Employees)Earlier today, defendants in our lawsuit filed on November 7, 2005 in the District Court for the District of Columbia, Secretary of Defense Rumsfeld and Director Springer of the Office of Personnel Management (OPM), reached agreement on delaying implementation of key provisions in the new Department of Defense (DoD) personnel rules, otherwise known as National Security Personnel System (NSPS).  The delay is directly attributable to this pending litigation thus giving NFFE and sister unions, as well as the government defendants, an opportunity to file appropriate motions and briefs in an effort to address the merits of our claim that certain portions of the NSPS regulations contradict the enabling legislation.  Prior to today’s stipulation filed in court, both DoD and OPM had given notice to Congress of their collective intent to implement the new system within 30 days, which would allow DoD to execute new personnel rules as early as December 1, 2005.  In accord with the government’s stipulation, any labor relations rules and regulations related to mitigation of removal penalties will not take effect until February 1, 2006.  This date is subject to further delay in the event the court agrees with NFFE’s position that NSPS rules related to labor relations and employee appeals are invalid and contrary to law.

The complaint contains three claims:  1)  reviving the claim the D.C. Court recently dismissed, we charge that defendants DoD and OPM violated the law in creating the labor relations system without meaningful collaboration with NFFE and other employee unions; 2) the new labor relations system violates the law by eradicating collective bargaining provisions and agreements at the defendants’ will and vesting review of such decisions, as well as other labor relations decisions, in a non-independent reviewing authority controlled by the Secretary; and 3) the new employee appeals system for conduct and performance-based actions is not “fair treatment  . . . (which)  ensure(s) that employees  . . . are afforded the protections of due process.”  As remedy, we ask that the regulations be enjoined from implementation and that the court compel meaningful discussions between the parties concerning the new labor relations system in accordance with the statute.

Under the terms of today’s stipulation, the government also agreed to refrain from implementing NSPS’ general provisions involving scope of authority and continuing collaboration with employee representatives regarding implementing issuances for the new rules.  No issuances under NSPS will become effective prior to February 1, 2005.

In addition to the substantive delay of portions of NSPS, NFFE and other unions and the government have now agreed to a briefing schedule for the remainder of this case.    Our motion for injunction and summary judgment will be filed next Wednesday, November 23, 2005, with the government’s response and motion to dismiss filed by December 8, 2005.  Responding briefs will follow.  We expect a hearing on the entire case during the week of January 9, 2006.