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H.Ser. 103-19, Hearing Concerning Reauthorization of the Merit Systems Protection Board (Subcommittee on the Civil Service)(August 3, 1993)

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pp. 25-27 p. 31 p. 32 pp. 43-44 pp. 47-48 p. 61

Id. at p. 25-27 (J. Keener):

In addition to the need to strengthen due process rights, we offer the following additional suggestions for improving the mission of the Board:
First, the Board must move away from its formality and its haste to dismiss cases due to technicalities, as the process is supposed to be one of informal adjudication. We also suggest that the Board exert greater effort to educate representatives and appellants concerning Board procedures and case law. The ability to get a fair hearing should not be dependent upon obtaining specialized counsel.
Second, hearing officials must be commended for their rapid turnaround of cases, appeals to the Board members can stagnate for years. Congress intended the Merit Systems Protection Board to render decisions expeditiously and in a reasonable time.
Third, the Board must encourage quality opinions with detailed factual and legal findings. This will help to improve the credibility of the Board.
Fourth, we encourage the Board to strengthen its discovery procedures. Hearing officials must provide reasoned dismissals of requested evidence or witnesses.
Fifth, we strongly approve of recent attempts to increase the rate of settlement. The Board must assure that all hearing officers, officials, clearly spell out the terms of the settlement to the parties and strongly enforce all of its provisions.

The National Federation of Federal Employees wishes success to the Chairman ....

(J. Keener statement):

We are all well informed about the extensive problems with the Office of Special Counsel. Many federal sector practitioners consider the office ineffective and some have called for its abolishment. The MSPB is also in need of reform. The Board and its staff must ensure both the appearance as well as the reality of due process and impartiality. The record shows that appellants lost approximately 80 percent of all cases, with some regions reaching above 90 percent. ...
A close review of Board decisions reveals that the Board apparently views its mission to be that of correcting arbitrary management action rather than providing for due process. Practitioner and writer Peter Broida described well the predicament employees face when they appear before the Board facing removal for poor performance.
When it comes to performance actions, the deference [to the agency] is almost complete. The agency defines the actionable conduct and the tenure of employees by its complete authority to establish performance standards. Once the standards have been set, the agency need only submit substantial evidence, that is a minimal amount of evidence to demonstrate that one standard has not been met. With that minimal showing, the selection of the penalty is at the complete discretion of the agency. The Board acts like an appellate court rather than a trial court. The problem is that in our judicial system appellate courts defer to trial courts because the law and the jurists are neutral. Agencies that define and judge misconduct and poor performance and then defend (or prosecute) their actions before the Board are not neutral; the institution to which deference is given has committed its resources to enduring the decision to impose discipline, once made, is supported and upheld.

Id. at p. 31 (J. Ruch statement)

The Board has little credibility with the practicing bar, because for all practical purposes it has no pattern of enforcing even the principles behind discovery rules in the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Agencies regularly refuse to produce requested documents or deposition witnesses, because they know they can with impunity. Through fact pleading, the Board even requires whistleblowers to prove their protected activity status as a precondition to begin discovery. Normally discovery is a vehicle to develop that evidence.
MSPB factfinders should be elevated to Administrative Law Judges under 5 USC 3105, with corresponding increases in qualifications requirements. Currently, Board decisions are adjudicated by officials in the hybrid status of "Administrative Judge," which institutionalizes the Board as a second class forum for resolving merit system disputes. The reduced status also deprives MSPB adjudicators of potential for judicial independence under the Administrative Law Judges Corps Act past last session by the House Judiciary Committee. This recommendation is particularly important if Congress locks in permanent authorization for the Board. At a minimum the Board's factfinders should have credentials and stature comparable to those normally found in the administrative law system.

Id. at p. 32 (J. Ruch testimony).

MR. McCLOSKEY: Has this happened with MSPB requests?
MR. RUCH: Not with MSPB requests. These are employees' requests to produce documents that are made before an administrative judge and they are not enforced. And to sort of compound that problem, we often have cases where the employee is asked by the administrative judge in fact pleadings, to basically demonstrate his case before allowing discovery. That is like telling someone to go build a house before they will be issued hammers and nails.
By enforcing discovery, you can empower the employee to not only prove their case but to call the agency's bluff, to demonstrate what it is that he is blowing the whistle about, and your rate of settlement will go up.
MR. McCLOSKEY: What is the legal status of the MSPB now to enforce discovery? I am sure you are getting to that. Just a matter of their discretion.
MR. RUCH: It is a matter of their discretion. It is a matter that is addressed statutorily in the Senate bill. They would like in the Senate bill, the last session, is [sic] try to take some discretion out and try to make them more closely comport to Federal Rules of Civil Procedure.

Id. at p. 43-44 (P. Broida testimony).

MR. McCLOSKEY: Are they more likely to stonewall someone representing himself pro se?
MR. BROIDA: Yes, yes. And that is the problem. As I mentioned in my statement, the real difficulty with the Board practice comes with the pro se appellant. And it is really not a question of whether they receive their costs back. It is a question of whether they know what the law is.
The Board law has become exceedingly complex, made so in large part by the MSPB. For example, the Board adheres to the doctrine that if you have a request to an administrative judge, and the administrative [p. 44] judge declines that request, you are supposed to protect your position with the Board by filing or raising an exception with the Board.
Well, nobody knows about that except those people who write textbooks or practice before the Board all the time. The pro se appellant will never know it and then if the exception isn't filed, and this is a throwback to the days before the Federal Rules of Civil Procedures, when exceptions were allowed, why, then you can't preserve your point for review by the MSPB. That is just one minor, although extraordinary, example of how the Board complicates matters with its own case law.
So the problem becomes the Board says to its administrative judges, you are to help the pro se appellant, but you are not to be an advocate for the appellant. And the administrative judges have a great deal of difficulty with that, because, after all, on the other side of the table is an experienced agency advocate who is quick to suggest the possibility of bias if there seems to be undue assistance to that pro se appellant.
It is a big problem. There are a lot of pro se appellants who may or may not have good cases but those cases are not being heard by the Board because of procedural faults by these appellants. I think that is the most unfortunate aspect of Board practice.

Id. at pp. 47-48 (prepared statement of AJ Jackson and AJ Markuns).

My name is Pamela Jackson. I am an administrative judge in the Atlanta regional office of the Merit Systems Protection Board. I am not here to speak on behalf of my employing agency, but here to speak on behalf of the administrative judges represented by the Merit Systems Protection Board Professional Association. I have been an administrative judge in the Atlanta regional office since 1989 and previously served as a litigator for the Federal Labor Relations Authority.
As you consider the board's reauthorization, I urge you to grant the administrative judges of the MSPB stronger decisional independence by converting the administrative judge position to that of administrative law judge, such as that proposed by HR-1889, so that we may enjoy the protections afforded by the protections afforded by [sic] the Administrative Procedures Act.
As you may know, the corps of seasoned administrative judges at the Merit Systems Protection Board now consists of 60 judges nationwide-over 34 percent of whom are women and 21% of whom are minority. We are all highly qualified attorneys and meet OPM's eligibility qualifications for ALJ. Most board judges are at the GS-15 level, have more than ten years of hearings or other legal experience and regularly attend judicial training courses. Including courses at the National Judicial College. [sic] We are not concerned about having our eligibility qualifications evaluated by OPM or any other body established for such purpose. Many of us are presently on OPM's ALJ register or have recently applied.
Our primary concern is that of decisional independence. Two thirds of the federal work force have appeal rights to the board. The subject matter of our cases is diverse involving, among other things, whistleblower appeals, sexual harassment claims, drug testing issues, and handicap discrimination. In addition to misconduct cases, we are called upon to determine whether employees have performed acceptably in positions ranging from chemist to air traffic controller and from custodian to physician. Given the nature of the cases we decide, the question arises whether judges deciding these issues, which involve substantial numbers of Federal employees, should have the same protections afforded those judges who decide, for example, entitlement to Social Security benefits or labor issues. We think the answer to that question is yes and urge you to conclude the same.
My name is John Markuns. I am an administrative judge in the Boston regional office of the Merit Systems Protection Board. Like Judge Jackson, I am not here to speak on behalf of my employing agency but here to speak on behalf of the administrative judges represented by the Merit Systems Protection Board Professional Association. I have been employed by the MSPB as an impartial adjudicator for over 13 years. Prior to my employment by the Board, I served in the late 1970's as the Washington DC general counsel to the National Association of Government Employees. I have thus been afforded a unique perspective during my legal career. I have not only observed and participated in the process leading to the civil service reforms of 1978, but have observed and participated in the struggle to make those reforms work. Like Judge Jackson, I would like to emphasize that genuine decisional independence is our primary concern. We believe that this change will prove to be another significant civil service reform.
Reauthorizing a more impartial and effective MSPB will send a strong message to the Federal work force that in reinventing Government, change will be implemented fairly and employees' due process rights will not be lost. It will also help stabilize the current administrative judge corps during a time that new and complex challenges confront the board.
Affording Federal employees the Administrative Procedures Act (APA) guarantee that appeals be assigned in rotation to decisionally independent judges can only strengthen employee confidence in the fairness, impartiality and integrity of the hearing process. Extending APA guarantees to the appeals process will also allow MSPB to further test alternative dispute resolution or "ADR" as a cost-effective way of coping with a rising caseload of complex cases. Correcting the imbalance between MSPB administrative judge and ALJ compensation methods may also stem the loss of experienced administrative judges to the ALJ ranks and enhance the career development of all those working in the evolving area of employment law.
Case assignment by rotation is an elemental principle at the core of the Administrative Procedures Act. This policy precludes case assignments based on extrajudicial considerations or the perceived leanings of individual judges. The ban on performance-based pay raises to judges is another fundamental and equally important principle which has always been at the core of the APA. This prohibition allows judges to focus solely on the record evidence, legal precedent and arguments of the parties in rendering a decision, free from concern that this decision will affect his or her pay. Presently, neither of these two important APA protections are afforded Federal employees in MSPB proceedings. There are no limits on agency discretion to assign cases and pay raises are directly linked to annual appraisals rating the quality, number and speed of decisions. Extending APA guarantees to appeals by Federal employees and especially by whistleblowers is essential before the protections of legislation such as the Whistleblower Protection Act can be fully realized.
I am sure that members of the subcommittee are aware that whistleblower appeals and, more recently, sexual harassment cases, present some of the most controversial and difficult legal proceedings found within Government. With the possible reform of the Hatch Act, new controversies and disputes may be just over the horizon. While MSPB is a bipartisan independent agency, it remains within the executive branch of government.
When controversial cases arise with the accompanying public scrutiny, those responsible for the operation and mission of the agency may become especially concerned about the impact of a controversial decision on their own careers. So long as extrajudicial controls such as pay ratings and recommendations are allowed to exist, MSPB judges will never be truly free to focus, no matter how hard we try, only on the record evidence, legal precedent and arguments of the parties in rendering a decision. In the back of our minds will always be a concern whether those supervisors responsible for our ratings will approve or disapprove of our actions. Hopefully, we have and will continue to discount these concerns. But we respectfully suggest that extending APA protection to MSPB administrative judges will largely alleviate if not eliminate this unnecessary tension in the adjudicatory system. Just as importantly, it will be a clear and unambiguous sign to the Federal workforce that fairness and impartiality is foremost in our minds. Simply put, to do our best work in deciding these cases, we need the additional insulation which APA protections can provide.

Id. at p. 61 (AJ Markuns).

Mr. Chairman, parenthetically, in a response to your earlier question about the rating system, I would like to read into the record, for example, one criteria that is written directly into the judge's performance standards, and that we are subject to in our annual performance ratings. And traditionally these ratings have been used to award us a cash awards [sic] on an annual basis in January of each year. ...

In our performance standards, we have among the elements an element of quality of decisions. And one of the criteria set forth in that rating standard is whether we appropriately recognize and consider relevant facts, evidence and authority bearing on issues.

I am reading, I am reading directly from our rating. Our regional directors are required to rate us on our performance on every case in which we render a decision, applying, among other things, that standard.

There is a second level supervisor in Washington who also applies that standard. As I tried to point out in our written statement, we will continue to have a concern every time we render a decision, in the back of our minds, whether we are in--we and our supervisors have a meeting of minds on how we are issuing our decisions.

Now, we hope that we are discounting these concerns as we make our decisions, but it is always there. And the APA does provide a framework to protect judges so that they can render independent decisions, by separating pay from ratings.

Mr. McCLOSKEY: Mr. Markuns, at what point are they rating you on these decisions? Do you get rated as you go, sometimes like cases in progress?

AJ MARKUNS: Yes. Well, we have a midyear review, then we have an annual rating. However, even under the new position descriptions that we have been recently assigned to, regional directors are still required to conduct a pre-issuance review in complex cases, which means that before we actually sign our decision, we [p. 62] have to bring the file into the regional director's office for his or her review.