Broadened Agency Discretion under the Civil Service Reform Act of 1978.

摘要

Agency discretion has been generally broadened in taking adverse action. The agency may choose to proceed under Chapter 43 or Chapter 75, and, in security clearance matters, will have almost complete discretion if due process concerns are adhered to. Performance standards remain a dynamic and flexible area. The agency must ensure that the standard is validly established and communicated, and be prepared to defend a larger number of claims relating to be objectivity and attainability, particularly given the increase of Board and court decisions in this area. Yet the performance appraisal system remains evolutionary in nature, and, with increased agency experience in developing and applying standards, valid grievances may possibly decline. During this evolutionary period, the Board and Federal Circuit Court, in interpreting the Civil Service Reform Act, have established some fairly firm guideposts for both the agency and employee to follow, albeit the Lovshin decision should remain open to criticism for its failure to defer to the Board expertise expressed in Gende v. Department of Justice, Bureau of Prisons.