Intelligence Law School - Course 1: Lesson 4.7.2 Title 5: Chapter 5: Administrative Procedure, Open Government, and Internal Oversight [HTML-Only]


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LESSON 4: STATUTORY LAW


4.7 General Management Statutes (U.S. Code Titles 5 and 44)


4.7.2 Title 5: Chapter 5: Administrative Procedure, Open Government, and Internal Oversight


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4.7.2 Title 5: Chapter 5: Administrative Procedure, Open Government, and Internal Oversight

4.7.2.1 Title 5 Generally

Many of the most important general management statutes are codified in Title 5 of the U.S. Code, which deals with Government Organization and Employees.[1]

 

4.7.2.2 Administrative Procedure

Ø  The Administrative Procedure Act of 1946: Title 5 contains the Administrative Procedure Act of 1946 (“the APA”), which is a critically important general management statute for all agencies in the federal government.

o   The APA contains the procedures federal agencies must follow when engaging in certain types of agency action.

o   The act breaks down all agency action into two general categories:[2]

§  Rulemaking;[3] and

§  Adjudication.[4]

o   The act also distinguishes between formal and informal versions of both rulemaking and adjudication.[5]

o   We discuss rulemaking and adjudication at length in the next section on administrative law.

 

4.7.2.3 Open Government

Ø  Open Government Statutes: Title 5 also contains open government statutes that are relevant to intelligence agencies:[6]

o   Freedom of Information Act of 1966: The Freedom of Information Act is codified in Title 5, Chapter 5.[7] 

o   The Privacy Act (1974): The Privacy Act of 1974 is also codified in Title 5, Chapter 5 of the U.S. Code

o   The Government in the Sunshine Act of 1976: The Government in the Sunshine Act of 1976 is also codified in Title 5, Chapter 5.

 

4.7.2.4 Government Ethics and Internal Oversight

Ø  Government Ethics and Internal Oversight Statutes: Title 5 also contains some important pre- and post-Watergate government ethics and oversight statutes designed to improve administrative governance through enhanced transparency, accountability, and oversight.

o   The Federal Advisory Committee Act of 1972;[8]

o   The Government in the Sunshine Act of 1976;[9]

o   The Ethics in Government Act of 1978;[10] and

o   The Inspector General Act of 1978.[11]

§  This statute lays out the various powers[12] and duties[13] of the various Inspectors General charged with overseeing federal agencies.

 

4.7.2.5 Federal Civil Service

Ø  Federal Civil Service Statutes: In addition to government ethics and internal oversight statutes, Title 5 also contains most of the statutes related to the Federal Civil Service, most notably the Civil Service Reform Act of 1978.[14]

o   Post-9/11 Civil Service Reform at the DoD, DHS, and TSA: It also includes the new provisions related to DoD and DHS. After 9/11, Congress enacted reforms giving the Department of Defense and Department of Homeland Security special authority to create human resources management systems outside of the standard civil service framework.[15]

§  This gives the Secretary of Defense and Secretary of Homeland Security more power over hiring and firing employees within their agencies as well as greater control over the procedural safeguards that protect employee rights during agency adjudications affecting them.[16]

§  Both these reforms are codified in Title 5 of the U.S. Code:

·         The DHS provisions are codified as Chapter 97 of Title 5;[17] and

·         The DOD provisions are codified as Chapter 99.[18]

 

Footnotes

[1] See Congressional Research Serv., General Management Laws: A Compendium, § VII(A), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Title 5 of the United States Code is the codification of laws on government organization and employees. It is divided into three parts.  Part I, entitled “The Agencies Generally,” includes seven chapters that cover the organization of departments, agencies, independent establishments, and government corporations; the powers of departments and agencies; administrative procedure; regulatory functions; judicial review; congressional review of agency rulemaking; and executive reorganization.  “Civil Service Functions and Responsibilities” are the subject of Title 5’s Part II, which includes four chapters on the Office of Personnel Management; the Merit Systems Protection Board, and the Office of Special Counsel; special authorities (rules, regulations, and investigations); and political activities of certain state and local employees. Part III, entitled “Employees,” presents the various policies related to management of the federal workforce.  It is divided into nine subparts: Subpart A, “General Provisions,” includes chapters on definitions for terms used in Title 5 and merit system principles; Subpart B, “Employment and Retention,” includes chapters on examination, selection, and placement and retention and reemployment; Subpart C, “Employee Performance,” includes chapters on training and performance appraisal; Subpart D, “Pay and Allowances,” includes chapters on classification and pay rates and systems; Subpart E, “Attendance and Leave,” includes chapters on hours of work and leave; Subpart F, “Labor-Management and Employee Relations,” includes chapters on labor-management relations and adverse actions; Subpart G, “Insurance and Annuities,” includes chapters on retirement and health insurance; Subpart H, “Access to Criminal History Record Information,” covers access to criminal history records for national security and other purposes; and Subpart I, “Miscellaneous,” includes chapters on personnel flexibilities for the Internal Revenue Service, a human resources management system for the Department of Homeland Security, and the National Security Personnel System for the Department of Defense.”) (internal footnotes omitted).

[2] See Congressional Research Serv., General Management Laws: A Compendium, § I(B), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“The act imposes on agencies certain requirements for two modes of agency decision making: rulemaking and adjudication.  In general, the term agency refers to any authority of the government of the United States, whether or not it is within, or subject to review by, another agency. Congress, the courts, and the governments of territories, possessions, and the District of Columbia are excluded.”).

[3] See Congressional Research Serv., General Management Laws: A Compendium, § I(B), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Section 553 sets the requirements for informal rulemaking (also known as notice and comment rulemaking).  An agency must publish a notice of proposed rulemaking in the Federal Register, afford interested persons an opportunity to participate in the proceeding through the submission of written comments or, at the discretion of the agency, by oral presentation, and when consideration of the matter is completed, incorporate in the rules adopted “a concise general statement of their basis and purpose” (5 U.S.C. § 553(c)).  A final rule must be published in the Federal Register “not less than 30 days before its effective date” (5 U.S.C. § 553(d)).  Interested persons have a right to petition for the issuance, amendment or repeal of a rule (5 U.S.C. § 553(e)).  Although the APA does not specify a minimum period for public comment, at least 30 days have been traditionally allotted.  More recently, Executive Order 12866 has prescribed that covered agencies allow at least 60 days.  Agencies are free to grant additional procedural rights, and Congress has at times particularized requirements for certain agencies or programs. The APA also provides for formal rulemaking, a procedure employed when rules are required by statute to be made on the record after an opportunity for agency hearing.  Essentially, this procedure requires that the agency issue its rule after the kind of trial-type hearings procedures normally reserved for adjudicatory orders”).

[4] See Congressional Research Serv., General Management Laws: A Compendium, § I(B), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Sections 554, 556, and 557 apply to formal adjudications (i.e., cases for which an adjudicatory proceeding is required by statute to be determined on the record after an agency proceeding).  Sections 556 and 557 spell out the specific procedures to be utilized in formal adjudication.  In brief, a trial type hearing must be held, presided over by members of the agency or an administrative law judge (ALJ).  Section 556 prescribes the duties of ALJs, the allocation of burden of proof, and parties’ rights to cross-examination.  Section 557 provides that an ALJ must issue an initial decision, which becomes the agency’s final decision if not appealed. The record must show the ruling on each finding, conclusion, or exception raised. Ex parte communications relevant to the merits of a pending formal agency proceeding are prohibited.”).

[5] See Congressional Research Serv., General Management Laws: A Compendium, § I(B), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“The structure of the APA is shaped around the distinction between rulemaking and adjudication, with different schemes of procedural requirements prescribed for each. Rulemaking is agency action that formulates the future conduct of persons, through the development and issuance of an agency statement designed to implement, interpret, or prescribe law or policy.  It is essentially legislative in nature because of its future general applicability and its concern for policy considerations. Adjudication, on the other hand, is concerned with determination of past and present rights and liabilities.  The result of an adjudicative proceeding is the issuance of an order. Beyond the distinction between rulemaking and adjudication, the APA subdivides each of these categories of agency action into formal and informal proceedings. Whether a particular rulemaking or adjudicatory proceeding is considered to be “formal” depends on whether the proceeding is required by statute to be “on the record after opportunity for an agency hearing” (5 U.S.C. § 553(c), § 554(a)).  The act prescribes elaborate procedures for both formal rulemaking and formal adjudication, and relatively minimal procedures for informal rulemaking. Virtually no procedures are prescribed by the APA for the remaining category of informal adjudication, which is by far the most prevalent form of governmental action.”).

[6] Effective open government statutes are a relatively new innovation in administrative governance in the United States. For the first 150 years of our government, government employees were allowed to operate in virtually complete secrecy from the American public as a result of a pervasive broad interpretation of a 1789 statute called the Housekeeping Act. Congress tried to rectify this with open government provisions in the Administrative Procedure Act of 1946, but the provisions weren’t well drafted and interpretations of its requirements allowed the culture of government secrecy to persist for another 20 years. Starting in 1966, Congress began passing open government laws that achieved real change. These provisions are still in force today, and are embodied in 4 statutes all codified in Title 5. See Wendy R. Ginsberg & Harold C. Relyea, Congressional Research Serv., Access to Government Information In the United States (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/97-71_8-31-2009.pdf (“Throughout the first 150 years of the federal government, access to government information does not appear to have been a major issue for the federal branches or the public. There were a few instances during this period when the President, for reasons of maintaining the constitutional independence and equality of his branch, vigorously resisted attempts by Congress and the courts to obtain executive records. Furthermore, during this same era, an active federal public printing program was established and effectively developed, making government documents more accessible. Following World War II, some information was available from certain federal departments and agencies. The public availability of records held by the executive branch was limited by narrow interpretation of the housekeeping statute of 1789 (5 U.S.C. § 301), which authorized the heads of departments to prescribe regulations regarding the custody, use, and preservation of the records, papers, and property of their entity. Prevailing law tolerated this state of affairs, offering citizens no clear avenue of access to agency information. Moreover, a provision of the Administrative Procedure Act of 1946 (5 U.S.C. § 551) indicated that matters of official record should be available to the public, but added that an agency could restrict access to its documents “for good cause found” or “in the public interest.” These discretionary authorities were relied upon to restrict the accessibility of unpublished agency records and documents. In response, some congressional panels began examining information access issues and seeking responsive legislative solutions. Among these legislative responses was the creation of the four following statutes: the Freedom of Information Act (1966), the Federal Advisory Committee Act (1972), the Privacy Act (1974), and the Sunshine in Government Act (1976).”).

[7] See Congressional Research Serv., General Management Laws: A Compendium, § I(E), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“The Freedom of Information (FOI) Act was originally adopted by Congress in 1966 (80 Stat. 250) and was codified in 1967 (81 Stat. 54; 5 U.S.C. § 552), when it also became operative law. As enacted, the FOI Act replaced the public information section of the Administrative Procedure Act (APA) (60 Stat. 237), which was found to be ineffective in providing the public with a means of access to unpublished records of federal departments and agencies.  Subsection (a) of the FOI Act reiterated the requirements of the APA public information section that certain operational information — e.g., organization descriptions, delegations of final authority, and substantive rules of general policy — be published in the Federal Register. Subsection (b) statutorily established a presumptive right of access by any person — individual or corporate, regardless of nationality — to identifiable, existing, unpublished records of federal departments and agencies without having to demonstrate a need or even a reason for such a request.  Subsection (b)(1)-(9) lists nine categories of information that may be exempted from the rule of disclosure.  The burden of proof for withholding material sought by the public was placed upon the government.  Denials of requests could be appealed to the head of the agency holding the sought records, and ultimately pursued in federal district court.  The law specifies the direct costs which agencies may recover when responding to requests for records.”).

[8] Federal Advisory Committee Act of 1972 (FACA), 5 U.S.C. § Appx., 86 Stat. 700. See also Congressional Research Serv., General Management Laws: A Compendium, § I(G), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Congress formally acknowledged the merits of using advisory committees to obtain expert views drawn from business, academic, government, and other interests when it enacted the Federal Advisory Committee Act (FACA) in 1972 (5 U.S.C. Appendix; 86 Stat. 700). The legislative history pertaining to FACA reveals that Congress had two major concerns about advisory committees before 1972.  The first concern was that the public perceived many advisory committees as duplicative and inefficient, and otherwise lacking adequate controls or oversight.  The second concern was the widespread belief that advisory committees did not adequately represent the public interest, and that committee meetings were too often closed to the public. Congressional enactment of FACA established the first requirements for the management and oversight of federal advisory committees to ensure impartial and relevant expertise.  As required by FACA, the General Services Administration (GSA) administers and provides management guidelines for advisory committees. GSA also submits an annual report to the President and Congress, based on the information provided by the federal agencies concerning the meetings, costs, and membership of advisory committees.” […] “FACA requires that the advice provided by advisory committees be objective and accessible to the public.  Each advisory committee meeting is presumptively open to the public, with certain exceptions.  Adequate notice of meetings must be published in advance in the Federal Register. Subject to the requirements of the Freedom of Information Act, all papers, records, and minutes of meetings must be made available for public inspection. FACA contains guidelines for membership, mandating that any legislation establishing an advisory committee be “fairly balanced in terms of the points of view represented and the functions to be performed,” and that the committee’s recommendations not be inappropriately influenced by the appointing authority or by any special interest. Each advisory committee must file a charter containing its mandate and duties, frequency of meetings, membership, and the agency to which, or official to whom, the committee reports.  The act requires the Library of Congress to maintain a depository of committee reports, papers, and charters.  Pursuant to FACA, each advisory committee goes out of existence after two years unless its charter is renewed or is otherwise prescribed by statute.”).

[9] The Government in the Sunshine Act of 1976, 5 U.S.C. § 552b, 90 Stat. 1241; see also Congressional Research Serv., General Management Laws: A Compendium, § I(H), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“The Government in the Sunshine Act (90 Stat. 1241; 5 U.S.C. § 552b) was initially enacted in 1976.  It requires collegially headed federal executive agencies whose members are appointed by the President with the advice and consent of the Senate to hold certain meetings in public.  The act applies to meetings during which deliberations determine, or result in the joint conduct or disposition of, official agency business.  The act applies to more than 45 federal collegial bodies, consisting primarily of independent regulatory boards and commissions having from three to seven members.  The statute specifies 10 exceptions to its rule of openness that may be invoked by the agencies.  Any doubt as to whether a meeting should be open or closed, however, is to be resolved in favor of an open meeting, according to the act’s legislative history.  Decisions to close a meeting are subject to judicial review.” […] “The major provisions of the Sunshine Act include (1) a presumption of open meetings; (2) public notice of an agency meeting, indicating the time, location, subject of the meeting, whether the meeting is open or closed, and the name and telephone number of the official designated to respond to requests for information about the meeting; (3) 10 exemptions by which an agency may close a portion or all of a meeting and withhold information; (4) procedures an agency is to follow when closing a meeting, which include a majority vote of the members and certification by the general counsel that the meeting may properly be closed; and (5) judicial review of an agency’s action to close a meeting. A meeting may be closed if it involves: (1) national security matters that are specifically authorized by an executive order to be protected and are properly classified; (2) internal personnel rules and practices; (3) matters specifically exempted from disclosure by statute; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) formal censure or accusation of a crime; (6) clearly unwarranted invasion of personal privacy; (7) law enforcement investigatory records or information; (8) information contained in, or related to, reports used by agencies responsible for the regulation or supervision of financial institutions; (9) information whose premature disclosure would: (a) lead to financial speculation or significantly endanger a financial institution; or (b) significantly frustrate a proposed agency action; or (10) issuance of a subpoena or other related judicial matter.”).

[10] Ethics in Government Act of 1978, 92 Stat. 1824, 5 U.S.C. Appx; See also Congressional Research Serv., General Management Laws: A Compendium, § VII(B), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Passage of the Ethics in Government Act of 1978 (92 Stat. 1824; 5 U.S.C. App.) culminated years of efforts to provide uniform financial disclosure requirements for key officers of the federal government.  These efforts gathered momentum in the 1970s, following the Watergate scandal; revelations of impropriety by a number of government officials; polls showing a lack of confidence in public officials; and publication in 1976 of the recommendations of the President’s Commission on Executive, Legislative, and Judicial Salaries, which recommended salary increases for top government officials, as well as ethical reforms, including annual public financial disclosure reports. Major provisions of the act established (1) annual public financial disclosure requirements, (2) an Office of Special Prosecutor (subsequently called the Independent Counsel) to investigate allegations of wrongdoing by top officials in the executive branch, (3) the Office of Government Ethics to monitor executive branch financial disclosure reports and potential conflicts of interest, and (4) the Office of Senate Legal Counsel.”).

[11] Inspector General Act of 1978, 92 Stat. 1101-1109; see also Inspector General Act Amendments of 1988, 102 Stat. 2515-2530; see also generally Congressional Research Serv., General Management Laws: A Compendium, § II(A), II. Strategic Planning, Performance Measurement, and Program Evaluation, A. Inspector General Act of 1978, RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Statutory offices of inspector general (OIGs) consolidate responsibility for auditing and investigations within a federal department, agency, or other organization.  Established by law as permanent, independent, nonpartisan, and objective units, the OIGs are designed to combat waste, fraud, and abuse (5 U.S.C. Appendix).  The early establishments occurred in the wake of major financial and management scandals, first in 1976 in the Department of Health, Education and Welfare — now Health and Human Services (90 Stat. 2429) — and in 1978 in the General Services Administration (GSA). This later episode paved the way for OIGs in GSA and 11 other departments and agencies (92 Stat. 1101).  Such offices now exist in nearly 60 federal establishments and entities, including all cabinet departments and the largest federal agencies, as well as many boards, commissions, government corporations, and foundations.”) (internal footnotes omitted).

[12] For a list of the statutory authority possessed by Inspectors General, see Congressional Research Serv., General Management Laws: A Compendium, § II(A), II. Strategic Planning, Performance Measurement, and Program Evaluation, A. Inspector General Act of 1978, RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Authority [of Inspectors General]. In order to carry out the purposes of the law, Congress has granted the inspectors general broad authority.  Section 6 of the codified legislation authorizes the IGs, among other things: to conduct audits and investigations and make reports relating to the administration of programs and operations; to have access to all records, reports, audits, reviews, documents, papers, recommendations, or other materials which relate to programs and operations with respect to which the IG has responsibilities under the enactment; to request assistance from other federal, state, and local government agencies; to issue subpoenas for the production of all information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence necessary to perform the IG’s functions; to administer to or take from any person an oath, affirmation, or affidavit; to have direct and prompt access to the agency head; to select, appoint, and employ officers and employees in order to carry out the functions, powers, and duties of the office of the inspector general; to obtain the services of experts and consultants on a temporary or intermittent basis, as authorized by 5 U.S.C. § 3109; and to enter into contracts and other arrangements for audits, studies, and other services with public agencies as well as private persons, and to make such payments as may be necessary to carry out the law.

The scope of the IGs’ investigative authority is seen further in the range of matters the IG may investigate stemming from an employee complaint or disclosure of information. The inspector general is authorized to receive and investigate complaints or information from an employee concerning the possible existence of an activity constituting a violation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to the public health and safety.  In such instances, the inspector general shall not disclose the identity of the employee without the employee’s consent, unless the IG determines that such disclosure is unavoidable during the course of the investigation. The law also prohibits any reprisals against employees who properly make complaints or disclose information to the IG.

Inspectors general in the federal establishments now have independent law enforcement authority in law (P.L. 107-296).  Previously, the criminal investigators in these OIGs had acquired such powers in several different ways: through existing offices that have been transferred to the OIG; through statutory grants affecting specific agencies and jurisdictions; and through special deputation by the U.S. Marshals Service in the Department of Justice.  These grants and the attendant processes, however, were seen as cumbersome and time-consuming as well as being limited in scope and duration; the result was an unequal set of powers among OIGs.

Notwithstanding these broad powers, inspectors general are not authorized to take corrective action or institute changes themselves.  Indeed, the 1978 act specifically prohibits the transfer “of program operating responsibilities” to an inspector general.

[13] For a list of the various duties of Inspectors General, see Congressional Research Serv., General Management Laws: A Compendium, § II(A), II. Strategic Planning, Performance Measurement, and Program Evaluation, A. Inspector General Act of 1978, RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Duties [of Inspectors General]. Following the act’s broad mandates, each inspector general is required to perform specific duties in order to achieve the goals of detecting and preventing waste, fraud, and abuse. These duties illustrate the IG’s unique role within the agency and the broad grant of authority delegated by Congress.  The IGs are expected to: provide policy direction for, and conduct, supervise, and coordinate audits and investigations; review existing and proposed legislation and regulations relating to programs and operations; make recommendations in the reports concerning the impact of the laws; recommend policies for, and conduct, supervise, or coordinate other relevant activities of the establishment; recommend policies for, and conduct, supervise, or coordinate relationships with federal agencies, with state and local agencies, and with nongovernmental entities with regard to identifying and prosecuting participants in fraud or abuse; and report expeditiously to the Attorney General whenever an inspector general has reasonable grounds to believe that there has been a violation of federal criminal law.”).

[14] Civil Service Reform Act (CSRA) of 1978, 92 Stat. 1111; see also generally Congressional Research Serv., General Management Laws: A Compendium, § VII(A), Human Resources Management and Ethics, Title 5: The Federal Civil Service, RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Twenty years of effort to establish a civil service for the executive branch of the federal government that was based on law and featured competitive examinations, relative security of tenure, and political neutrality culminated with enactment of the Pendleton Act of 1883. The act established the Civil Service Commission, which continued with largely the same mandate until 1978, when the Office of Personnel Management (OPM) was created in its stead. Although over the years many statutes (including those listed above) have been enacted to, among other things, expand the civil service, regulate political activities, classify and grade federal jobs, and set pay rates or establish mechanisms for pay setting, none so changed the original character of the civil service as did the Civil Service Reform Act (CSRA) of 1978 (92 Stat. 1111). In addition to creating OPM, the CSRA of 1978 established the Office of Special Counsel (OSC), the Merit Systems Protection Board (MSPB), and the Federal Labor Relations Authority (FLRA) as independent organizations charged with protecting the merit system and adjudicating disputes between agencies and employees.  The law also created a Senior Executive Service (SES) to enable department and agency heads to be assisted by experienced managers, some of whom were career civil servants and others of whom were political appointees, who could be moved to fill positions as assignments required. For the first time, authority for labor-management relations within the federal government was established in statute. Finally, personnel research programs and demonstration projects were authorized as a means for experimenting with various HRM policies, including pay and classification of jobs.”) (internal footnotes omitted).

[15] See Congressional Research Serv., General Management Laws: A Compendium, § VII(A), Human Resources Management and Ethics, Title 5: The Federal Civil Service, RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“In the wake of 9-11, however, new requirements for the federal government’s HRM system have been stated by the White House and OPM. According to the President, the nation’s efforts to fight terrorism require a system that is modern and flexible and puts the right people in the right place at the right time.  In practice, this has been translated into law as authority for separate HRM systems for the Transportation Security Administration and the Departments of Homeland Security (DHS) and Defense (DOD) that provide the respective department heads with considerable discretion to establish their particular systems outside of many of the current Title 5 policies. [Citing “For the Transportation Security Administration (TSA), see P.L. 107-71, 115 Stat. 597; for the Department of Homeland Security (DHS), see P.L. 107-296, 116 Stat. 2229; and for the Department of Defense (DOD), see P.L. 108-136, 117 Stat. 1621. The TSA authority is codified in Title 49 of the United States Code. The DHS authority is codified as Chapter 97, and the DOD authority is codified as Chapter 99 in Title 5 of the United States Code.”]”) (most internal footnotes omitted).

[16] See Congressional Research Serv., General Management Laws: A Compendium, § VII(A), Human Resources Management and Ethics, Title 5: The Federal Civil Service, RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“In practice, this has been translated into law as authority for separate HRM systems for the Transportation Security Administration and the Departments of Homeland Security (DHS) and Defense (DOD) that provide the respective department heads with considerable discretion to establish their particular systems outside of many of the current Title 5 policies. Depending on how they are implemented, the DHS and DOD changes arguably could rival the CSRA of 1978 for impact on the civil service. Both of the newly created systems at DHS and DOD have been described by the White House and some Members of Congress as demonstration projects whose various features could ultimately be applied to executive branch employees government-wide.  Currently, the systems are authorized in separate chapters of Title 5 (Chapter 97 covers DHS and Chapter 99 covers DOD), and their implementation is expected to occur over several years.  Whether the features of one or both of the new systems are determined to be applicable to other federal agencies, or whether individual agencies continue to seek congressional approval for their own personnel flexibilities (a National Aeronautics and Space Administration proposal is currently pending in the 108th Congress), it seems likely that Congress will need to reconsider Title 5 (and the accompanying Title 5 Code of Federal Regulations that compiles the implementing regulations) as the Chapters 97 and 99 provisions are fully implemented.”) (internal footnotes omitted).

[17] Homeland Security Act of 2002, P.L. 107-296; 116 Stat. 2229.

[18] National Defense Authorization Act for FY2004, P.L. 108-136, 117 Stat. 1621.

 


© 2012 David Alan Jordan. All rights reserved.