Merit System Protection Board - Submitted for the Record

7/12/2007

Committee On Government Reform

The National Treasury Employees Union, the largest independent federal sector union representing more than 150,000 federal employees in 31 agencies and departments, welcomes this opportunity to offer its views on the effectiveness of the Merit Systems Protection Board (MSPB) and the Office of Special Counsel (OSC), as this Subcommittee considers reauthorization of those agencies. As outlined below, NTEU has some concerns that it urges this Subcommittee to consider, and to direct the agencies to address, at this critical juncture.

The Merit Systems Protection Board

1. The mission of the MSPB--to protect Federal merit systems and the rights of individuals within those systems--is critical. The merit principles and individual employee rights have come under attack, particularly in the last five years as this Administration attempts to short-circuit established principles and protections. Ostensibly offered in the name of “civil service reform,” the Administration’s proposed curtailing of due process protections centers today on employees of the Department of Homeland Security and the Department of Defense but threatens employees government-wide. Although justified in the name of national security, this misguided “reform” effort in fact undermines that goal by threatening the foundations of a strong, nonpartisan, professional career civil service: fair and equitable treatment in hiring, pay, promotion, and retention; protection against arbitrary action, favoritism, or discrimination based on other nonmerit factors, and safeguards against reprisals for whistleblowing and other lawful acts.

We need the MSPB to step up to its responsibility to assure that these fundamental merit principles are honored in practice, as well as in theory. As it works with DHS and DoD to develop an expedited employee appeals system, the MSPB must insist that the regulations promulgated by those agencies preserve minimum due process standards. At the same time, it must make sure that the artificial time frames for action on DHS and DoD appeals do not have a negative impact on the handling of its cases from other government agencies. Finally, it must provide timely and critically important independent review of the operation of the DHS and DoD personnel systems as they are implemented, pursuant to its statutory authority under 5 U.S.C. § 1204(a)(3) to conduct special studies and report to the President and to Congress “as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.”

2. NTEU notes that the MSPB has issued a number of significant special studies over the last few years. Unfortunately, they have not always been timely or sufficiently firm in their recommendations for corrective action of identified problems.

For example, it was not until September 2006 that the MSPB issued a report on “Navigating the Probationary Period After Van Wersch and McCormick.” Those two Federal Circuit decisions, which interpreted key statutory language on when an individual is considered to have full procedural and appeal rights, regardless of probationary status, issued in 1999 and 2002, respectively. In the report, the MSPB provided guidance on the application of the principles established in these cases. It also took the Office of Personnel Management to task for failing to modify and correct regulations on the appeal rights of affected employees that were inconsistent with those decisions. As the MSPB correctly pointed out, “[r]etaining out-of-date information in a Government regulation can confuse agencies, managers, and employees,” leading agencies to mislead employees concerning their statutorily mandated due process rights. While this complaint was appropriate (and perhaps effective, for OPM finally issued proposed new regulations in May 2007), it was far from timely. Moreover, a somewhat earlier report on The Probationary Period, issued in August 2005, mentioned the change in the interpretation of the applicable legal principles without recommending a correction of corresponding OPM regulations.

Another report issued in September 2005 addressed the Federal Career Intern Program (FCIP) under the heading “Building a High-Quality Workforce.” The FCIP program was created as a limited, special focus hiring program to provide formally-structured 2-year training and development “internships” as a strategic tool to target recruitment of “exceptional” individuals for the Federal workforce. As implemented in many agencies, however, it has replaced competitive service hiring entirely even though civil service law (5 U.S.C. §3302) permits departures from the use of competitive procedures only where “necessary” for “conditions of good administration.”

In its report, the MSPB examined the dramatic increase in the number of hires under the FCIP from 2001 through 2004, correctly predicting that “it could become the hiring method of choice when filling entry-level professional and administrative jobs.” It recognized that the intern program had expanded well beyond the original intent of its framers and was well on its way to replacing the statutorily prescribed competitive hiring process. It further correctly identified the possibility that “hiring could become a closed system where agencies can literally handpick the people who they want to recruit and limit those who can apply.” It cautioned that the lack of comprehensive recruiting tools and “over-reliance” on campus visits and career fairs, without job posting, can create “at least an appearance of preferential treatment to certain groups of individuals.”

Despite these findings concerning the displacement of the competitive hiring process and the potential for abuse, the report still described the FCIP as having an “auspicious” beginning. This failure to deal firmly and critically with a major threat to the competitive service is highly troubling.

NTEU’s concern with respect to these studies is not so much with the MSPB’s factual investigation as with its conclusions and recommendations. NTEU submits that it is not enough to caution agencies, as in the case of the FCIP study, to be “extremely mindful and observant of the merit principles and the rules of equal opportunity and veterans’ preference” to avoid “unwittingly” violating these principles. Given the extreme vulnerability of a program with “few eligibility and procedural requirements,” sterner measures than bland and toothless recommendations are necessary. It is the MSPB’s statutory responsibility to propose statutory and regulatory changes when it identifies, as it did, a burgeoning means for circumventing and supplanting competitive hiring procedures.

3. NTEU will address only one of the legislative changes sought by the MSPB to its statutory authority: a modification of 5 U.S.C. § 7701(a)(1), which grants appellants the right to a hearing. The MSPB proposes to amend this by adding a new provision, Section 1204(b)(3), to permit any member or employee of the Board or administrative law judge to grant a motion for summary judgment when it has been determined that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Summary judgment, the MSPB has explained to this Subcommittee, would preclude relitigation not only as to the claim alleged in the original case but also as to any other claim that could have been asserted on the basis of the same facts presented to the Board.

NTEU strongly opposes this proposed elimination of the right to a hearing because of the unacceptably high risk of prejudice to employees without experienced legal representation. Employees would be highly vulnerable to the premature dismissal of their inartfully pled claims. That dismissal would then bar them from bringing any new claims based on the same facts. This Draconian outcome is not justified by the articulated benefits: increased efficiency of the adjudicatory process.

NTEU was unable to determine the precise number of MSPB cases where employees have represented themselves. A LEXIS search of the MSPB database for “pro se” revealed “more than 3000 cases,” the maximum that can be listed; a more limited search for “pro se appellant” turned up 264 “hits.” Perhaps the MSPB can offer more precise statistics. But, it is common knowledge that employees often proceed pro se, and many others are represented by co-workers, relatives, or friends. Those who have legal representation may not be able to find lawyers experienced in the arcane requirements of MSPB practice. For all of these individuals, a hearing may be the best (or only) way to assure that all relevant defenses and affirmative arguments are identified and explored.

Particularly in the case of pro se appellants, but also in the case of those with inexperienced representatives, the pleadings may not be framed clearly or meet all procedural and substantive requirements. Testimony may emerge at the hearing that establishes a meritorious argument that was obscured in the filings. The MSPB caselaw and Judges’ Handbook acknowledge this, by specifying that judges should give greater latitude to pro se appellants in questioning witnesses and in giving testimony, and that judges should provide information to assist appellants during the hearings, as well as in prehearing conferences and orders. Elimination of the hearing eliminates the possibility that a dispute over a material fact could surface during the hearing or that a genuine issue of law could be identified in this forum.

The summary judgment procedure is undeniably an efficient alternative for disposing of cases, but NTEU believes that it is one that comes at an unacceptably high price. Dismissing cases without a full airing will not contribute either to justice or to the necessary perception by employees that they have had a full and fair opportunity to be heard, even if their claims are ultimately dismissed.

Finally, NTEU notes that the MSPB has indicated that, if granted summary judgment authority, it intends to use that authority “sparingly.” Such facile assurances are not reassuring, for there would be no way to hold these or future Board members to their present intentions. There would be no means to challenge the granting of a motion for summary judgment if the requirements were met on the face of inartfully drafted pleadings. If the Board were given the requested statutory authority, litigants before it would be entitled to expect their motions for summary judgment to be granted if they met the statutory requirements.

The Office of Special Counsel

NTEU routinely advises the employees it represents not to pursue whistleblower retaliation complaints or any other prohibited personnel practice claims with the Office of Special Counsel; instead, it recommends pursuit of other remedial options. NTEU does so because OSC’s credibility as a protector of the merit system is at an all-time low. This disheartening state of affairs is due to the controversy that swirls perpetually around the current Special Counsel; the mass departure of experienced career staff during his tenure; and the significant drop in the last several years in the number of cases in which OSC has secured relief for injured employees. The drop in the number of employees obtaining relief has occurred at the same time that OSC has increased the number of cases processed, as part of its much-vaunted “backlog reduction” effort.

An examination of statistics compiled from OSC’s annual reports for FY 2002 to FY 2006 as well as other public sources shows a dramatic drop in the number of “favorable” (i.e., corrective) actions in prohibited personnel practice (PPP) cases:

FY 2002 126 favorable actions in PPP cases

1704 number of PPP cases processed and closed

or 7.4%

FY 2003

115 favorable actions in PPP cases

1732 number of PPP cases processed and closed

or 6.6%

FY 2004 80 favorable actions in PPP cases

2093 number of PPP cases processed and closed

or 3.8%

FY 2005 45 favorable actions in PPP cases

1774 number of PPP cases processed and closed

or 2.5%

FY 2006 50 favorable actions in PPP cases

1930 number of PPP cases processed and closed

or 2.6%

The current Special Counsel has frequently observed that “justice delayed is justice denied.” That adage, however, rings hollow when, in the end, no justice at all is delivered. That is precisely the result that occurs when reducing processing times takes precedence over conducting thorough investigations and pursuing meritorious cases.

NTEU thanks the Subcommittee for this opportunity to submit its views on the current operation of the MSPB and the OSC.