[Senate Hearing 108-590]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-590

                     NOMINATIONS OF NEIL McPHIE AND
                            BARBARA J. SAPIN

=======================================================================


                                HEARING

                               before the


                              COMMITTEE ON
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                                 ON THE

 NOMINATIONS OF NEIL McPHIE, TO BE CHAIRMAN, MERIT SYSTEMS PROTECTION 
 BOARD, AND BARBARA J. SAPIN, TO BE A MEMBER, MERIT SYSTEMS PROTECTION 
                                 BOARD

                               __________

                             JULY 19, 2004

                               __________

      Printed for the use of the Committee on Governmental Affairs



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                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                   SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska                  JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio            CARL LEVIN, Michigan
NORM COLEMAN, Minnesota              DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania          RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah              THOMAS R. CARPER, Deleware
PETER G. FITZGERALD, Illinois        MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire        FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama           MARK PRYOR, Arkansas
           Michael D. Bopp, Staff Director and Chief Counsel
                    Johanna L. Hardy, Senior Counsel
       Michael J. Russell, Staff Director, Financial Management,
          the Budget, and International Security Subcommittee
      Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Nanci E. Langley, Minority Deputy Staff Director, Financial Management,
          the Budget, and International Security Subcommittee
           Jennifer E. Hamilton, Minority Research Assistant
                      Amy B. Newhouse, Chief Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Fitzgerald...........................................     1

                               WITNESSES
                         Monday, July 19, 2004

Neil McPhie, to be Chairman, Merit Systems Protection Board......     3
Barbara J. Sapin, to be a Member, Merit Systems Protection Board.     4

                     Alphabetical List of Witnesses

McPhie, Neil:
    Testimony....................................................     3
    Prepared statement...........................................    11
    Biographical and professional information requested of 
      nominees...................................................    13
    Pre-hearing questionnaire and responses submitted for the 
      Record for the nomination hearing held May 15, 2003 of Mr. 
      McPhie to be a Member......................................    23
    Pre-hearing questionnaire and responses submitted for the 
      Record from Senator Akaka for the nomination hearing held 
      May 15, 2003 for the nomination of Mr. McPhie to be a 
      Member.....................................................    37
    Pre-hearing questionnaire and responses submitted for the 
      Record for the nomination of Mr. McPhie to be Chairman.....    41
Sapin, Barbara J.:
    Testimony....................................................     4
    Prepared statement...........................................    78
    Biographical and professional information requested of 
      nominees...................................................    79
    Pre-hearing questionnaire and responses for the Record.......    86

 
            NOMINATIONS OF NEIL McPHIE AND BARBARA J. SAPIN

                              ----------                              


                         MONDAY, JULY 19, 2004

                                       U.S. Senate,
                         Committee on Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:34 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Peter G. 
Fitzgerald, presiding.
    Present: Senator Fitzgerald.

            OPENING STATEMENT OF SENATOR FITZGERALD

    Senator Fitzgerald. This Committee will come to order. 
Today, the Governmental Affairs Committee will consider the 
nominations of Neil McPhie to be Chairman of the Merit Systems 
Protection Board and Barbara J. Sapin to be a member of the 
Merit Systems Protection Board.
    I would like to welcome Mr. McPhie back before this 
Committee. I was just recollecting his last appearance before 
this Committee was in May 2003, I believe, and it was over in 
the Capitol Building, and I was in between stacked votes. I 
remember that distinctly. And welcome, Ms. Sapin, before this 
Committee for the first time. The President has selected you 
for important positions in our government, and I congratulate 
you both of your nominations.
    Mr. McPhie and Ms. Sapin have filed responses to the 
Committee's biographical and financial questionnaire, answered 
prehearing questions submitted by the Committee, and had their 
financial statements reviewed by the Office of Government 
Ethics. Without objection, this information will be made part 
of the hearing record, with the exception of the financial 
data, which are on file and available for public inspection in 
the Committee offices.
    In addition, I have personally reviewed the FBI background 
investigation reports on each of the nominees.
    Neil McPhie was nominated by President Bush to be a member 
of the Merit Systems Protection Board on July 9, 2002, and was 
renominated on January 7, 2003, when he began serving as senior 
attorney to the Board. The President appointed Mr. McPhie as a 
member of the Board on April 23, 2003. Prior to joining the 
Board, Mr. McPhie served as a trial and appellate attorney for 
the Equal Employment Opportunity Commission, as an Assistant 
Attorney General for the Commonwealth of Virginia, and as the 
Executive Director of the Virginia Department of Employment 
Dispute Resolution. Mr. McPhie earned his J.D. degree from the 
Georgetown University Law Center and a B.A. degree in economics 
from Howard University.
    Barbara Sapin currently serves as general counsel to the 
National Abortion Federation in Washington, DC, a position she 
has held since April 2002. Ms. Sapin previously served on the 
Merit Systems Protection Board as its Vice Chairman from 
January to December 2001. She also served as general counsel 
and labor counsel for the American Nurses Association and as an 
attorney with the National Labor Relations Board. Ms. Sapin 
earned her J.D. from Catholic University School of Law and her 
B.A. in psychology from Boston University.
    The Merit Systems Protection Board serves as the guardian 
of Federal merit systems principles. The Board was created in 
1978 as part of a comprehensive reform of the civil service, 
including statutory protections for Federal employees to 
encourage disclosure of waste, fraud, abuse, and illegal 
activity. In this area, the Board plays a critical role in 
protecting the rights of whistleblowers.
    Over the years, whistleblowers have presented some of the 
most compelling evidence of government abuse and fiscal 
mismanagement, saving the taxpayers hundreds of millions of 
dollars. I am pleased to be an original cosponsor of S. 2628, 
the Federal Employee Protection of Disclosures Act, that 
Senator Akaka and Chairman Collins introduced earlier this 
month. This bill would strengthen the current whistleblower 
laws and provide added protection to those Federal employees 
who expose waste, fraud, and abuse. I look forward to working 
with Senator Akaka and our Committee colleagues on this 
important legislative initiative.
    At this point, I would like to swear in the nominees. Our 
Committee rules require that all witnesses at nomination 
hearings give their testimony under oath, and so at this time, 
I would ask both of you to please stand and raise your right 
hand. Do you solemnly swear to tell the truth, the whole truth, 
and nothing but the truth, so help you, God?
    Mr. McPhie. I do.
    Ms. Sapin. I do.
    Senator Fitzgerald. Thank you. You may be seated.
    Before we begin with opening statements, I would ask 
whether either of you would like to introduce any special 
guests who are here today. Mr. McPhie?
    Mr. McPhie. If I may defer to Ms. Sapin?
    Senator Fitzgerald. OK. Ms. Sapin, do you have some special 
guests you would like to introduce?
    Ms. Sapin. I would like to introduce my family: My father, 
George Sapin, who flew in from Cleveland today; my sister, 
Linda Sapin; and my nephew, Sean Peacock. I would also like to 
recognize my mother, Shirley Sapin, who was unable to make the 
trip to Washington.
    Senator Fitzgerald. Well, that is wonderful.
    Ms. Sapin. And I also want to thank all my friends who came 
today. They are sitting behind me.
    Senator Fitzgerald. Well, that is terrific. It is great to 
have some supporters here, and to the family, congratulations.
    How old is your nephew?
    Ms. Sapin. He is 12.
    Senator Fitzgerald. That is my son's age. Are you going 
into the seventh grade?
    Ms. Sapin. Yes, he is.
    Senator Fitzgerald. Oh, that is great. Good to see you 
here.
    Mr. McPhie.
    Mr. McPhie. Yes, sir. I want to introduce my wife, Regina, 
she is right here, and my two kids who were here the last time 
but could not be here this time.
    Senator Fitzgerald. Yes.
    Mr. McPhie. But I told them I would tell them everything 
that happens.
    Senator Fitzgerald. Oh, that is great, yes.
    Mr. McPhie. That is Abigail and Sidney. And there are folks 
from the agency, MSPB, that I appreciate took the time out, and 
let me, if I may, introduce them, please.
    Senator Fitzgerald. Absolutely.
    Mr. McPhie. There is Bill Atkinson. He is my Chief of 
Staff. Tracey Watkins, she is my senior Adviser. And there is 
Rosalyn Wilcots, who is the Legislative Counsel at MSPB. And 
then there is our General Counsel, Marty Schneider. They helped 
prepare me so I can look good in front of this----
    Senator Fitzgerald. And answer my tough questions.
    Mr. McPhie. Yes, sir. And then there is Rachel Leonard, who 
is an attorney at the MSPB. Oh, yes, and there is my good 
friend, Will Cardoza, who is also an attorney at the MSPB. Will 
volunteered to be my photographer today.
    Senator Fitzgerald. Where is Will? There is Will. OK. That 
is terrific. Anybody else?
    Mr. McPhie. I think I have covered them all.
    Senator Fitzgerald. Well, that is great. It is good to see 
that you both have some family and supporters here.
    At this point, I would like you to go ahead and give your 
introductory statements, and, Mr. McPhie, we would begin with 
you. In the interest of time, we ask that you limit your 
statements to no more than 10 minutes, and we will include your 
full statement in the hearing record.
    So, Mr. McPhie, you may proceed.

  TESTIMONY OF NEIL McPHIE,\1\ TO BE CHAIRMAN, MERIT SYSTEMS 
                        PROTECTION BOARD

    Mr. McPhie. I will not read the statement, which is already 
in the record, but I will just simply highlight some important 
points.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. McPhie appears in the Appendix on 
page 11.
     Biographical and professional information appears in the Appendix 
on page 13.
     Pre-hearing questionnaire and responses submitted for the Record 
for the nomination hearing held May 15, 2003 of Mr. McPhie to be a 
Member appears in the Appendix on page 23.
     Pre-hearing questionnaire and responses submitted for the Record 
from Senator Akaka for the nomination hearing held May 15, 2003 for the 
nomination of Mr. McPhie to be a Member appears in the Appendix on page 
37.
     Pre-hearing questionnaire and responses submitted for the Record 
for the nomination of Mr. McPhie to be Chairman appears in the Appendix 
on page 41.
---------------------------------------------------------------------------
    I thank you and I thank the Committee, and the staff, for 
making this hearing possible. I want to thank the President for 
appointing me to this important position. And I want to thank 
MSPB for being the decent agency that it is.
    The agency has not had a full complement of Board members 
for a while now, and they deserve a full complement. I do 
believe that if it is the Senate's wish to confirm Ms. Sapin 
and myself--and I hope it is--it would provide the agency with 
two persons who will be there for some time and, therefore, 
begin the task of long-term planning.
    It is important, I believe, because the MSPB and what it 
does is more important today, I would venture, than when it was 
created in 1978. Today, we are in the midst of change in the 
way government operates. We have DOD change; we have Department 
of Homeland Security changes. Those two agencies account for at 
least 20 percent of the MSPB case work.
    Some have begun to question the role of the MSPB, and I 
would assure you during my term I will be an ardent defender of 
the importance of this agency. It is a small agency, but it 
does a really good job. And it is real important for Federal 
employees to have such an agency at this point.
    So I am grateful to be here. I am happy, but I am more 
happy that MSPB's interest is finally being taken care of.
    There are some other things that I have highlighted, and I 
will just stand by what I said in the opening statement, and 
without further ado, I will pass the mike over to my colleague.
    Oh, one other thing if I may. I am sorry. I want to tell 
you that I am delighted to work with Ms. Sapin. When I heard of 
her nomination, we met. We had a delightful lunch. We talked. 
We shared views and so on. And I don't know that I could have 
found a better person to conduct the important work of the 
Board. I am the Chairman, but I am also inclusive in my 
management style, and I am looking forward to having Barbara 
Sapin's views be represented throughout the MSPB. Thank you 
very much, sir.
    Senator Fitzgerald. Thank you. Ms. Sapin.

TESTIMONY OF BARBARA J. SAPIN,\1\ TO BE A MEMBER, MERIT SYSTEMS 
                        PROTECTION BOARD

    Ms. Sapin. Thank you very much. That is very nice.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Sapin appears in the Appendix on 
page 78.
     Biographical and professional information appears in the Appendix 
on page 79.
     Pre-hearing questionnaire and responses for the Record appears in 
the Appendix on page 86.
---------------------------------------------------------------------------
    To save the Committee time, I have submitted a prepared 
statement that I hope can be placed into the record.
    Senator Fitzgerald. Absolutely.
    Ms. Sapin. Thank you. I really want to say how honored I am 
to have been nominated as a member of the Merit Systems 
Protection Board and to be appearing before this Committee 
today. As you know, it was my privilege to serve as the Vice 
Chairman of the MSPB during 2001 and work with the dedicated 
staff of that agency. If I am confirmed, I will do everything 
that I can to honor their accomplishments by committing to work 
with Chairman McPhie and Board Member Marshall to promote the 
goals of the agency.
    I just want to also echo the sentiments of Mr. McPhie about 
the agency and the experience that I had there. It is one of 
the finest agencies--I have worked in several agencies in the 
government, and it is one of the finest that I have ever worked 
with.
    I welcome the opportunity to serve as a member of the Merit 
Systems Protection Board and look forward to the challenges 
presented by that position. Thank you very much.
    Senator Fitzgerald. Thank you.
    We are going to start the first round of questions for the 
nominees by asking you questions jointly, and if you could both 
respond, these are standard questions.
    Is there anything that you are aware of in your background 
which might present a conflict of interest with the duties of 
the office to which you have been nominated?
    Mr. McPhie. No, sir.
    Ms. Sapin. No, sir, there is not.
    Senator Fitzgerald. Do you know of anything, personal or 
otherwise, that would in any way prevent you from fully and 
honorably discharging the responsibilities of the office to 
which you have been nominated?
    Mr. McPhie. No, sir.
    Ms. Sapin. No, Senator.
    Senator Fitzgerald. Do you agree without reservation to 
respond to any reasonable summons to appear and testify before 
any duly constituted committee of Congress, if you are 
confirmed?
    Mr. McPhie. Yes, sir.
    Ms. Sapin. Yes, I do.
    Senator Fitzgerald. You are sure about that? Sometimes they 
change their mind when they get confirmed in the 
administration. [Laughter.]
    Well, that is good. I appreciate that. Those questions are 
standard, and we ask all witnesses about that.
    Mr. McPhie, what is your view of the role of Chairman of 
the MSPB? And how have your experiences as Acting Chairman and 
Board member influenced your view?
    Mr. McPhie. Well, as the chairperson, I, under the statute, 
am the chief operating officer, the CEO. As I indicated 
earlier, I have an inclusive style of management. Therefore, I 
want Member Sapin and Member Marshall, although her term is 
winding down, to be involved in the operational decisions 
facing the agency.
    Being at the Board, first as a senior attorney, then as a 
member, then as an Acting Chair, has really informed my view on 
the importance of the agency and some of the personnel 
involved. I have had some tough calls to make already. We have 
had a reorganization. We have brought on board a new computer 
system that sort of dragged for some time--finally it is 
operational--and so on.
    Senator Fitzgerald. What is the total number of personnel 
in the MSPB?
    Mr. McPhie. Two hundred and thirty-seven, thereabouts.
    Senator Fitzgerald. Do you know what the total budget is?
    Mr. McPhie. Between $35 to $37 million, and we have a 
regional office structure, we closed a couple of offices. I 
made it a personal decision to go visit those offices and talk 
to the affected employees. I thought that would be good.
    Senator Fitzgerald. I guess we are having some technical 
difficulties here ourselves.
    You closed the office in Boston. And where was the other 
one that you closed?
    Mr. McPhie. In Seattle. And we shifted cases accordingly, 
so it was a seamless changeover from the parties' perspective.
    Senator Fitzgerald. And why did you close those offices?
    Mr. McPhie. To realign staff with where the work was. Over 
time, the Federal workforce had shifted.
    Senator Fitzgerald. Where did you move the employees? Or 
where did you add more?
    Mr. McPhie. We gave every employee the option of moving, 
and most did. I think we had maybe two folks or three folks at 
most who decided to retire at that point in time. Some folks 
went from Seattle to San Francisco and so on. We had one person 
come to headquarters in Washington, DC, where she currently is.
    But, obviously, there were some anxious moments from a 
staff standpoint. We could not keep this thing hanging over 
folks' heads for too long, so we went out, we talked, we 
engaged the union, and we came up with decisions that were win-
win.
    We still have the issue down the road some of what impact, 
if any, changes with DOD's and DHS' final regulations would 
affect us, but we are better positioned today to absorb that 
impact.
    Senator Fitzgerald. How many people do you have in Chicago? 
Do you know off the top of your head?
    Mr. McPhie. In Chicago? I am told we have about nine 
administrative judges, but I couldn't tell you the total 
office.
    Senator Fitzgerald. OK.
    Mr. McPhie. Chicago is a thriving office for us. It is a 
very good office.
    Senator Fitzgerald. You do not plan to close Chicago?
    Mr. McPhie. No, I don't.
    Senator Fitzgerald. That is good. OK.
    Mr. McPhie. In fact, I am heading out there soon to give a 
speech at a law school, at Kent.
    Senator Fitzgerald. That is great.
    Mr. McPhie. So back to your original question, those are 
the kinds of almost baptisms by fire I have undergone since I 
have been at the Board. And I think I am better informed for 
it.
    Senator Fitzgerald. Ms. Sapin, what is your view of the 
role of an MSPB Board member? And how has your experience in 
the past as Vice Chairman of the Board affected your view of 
that role?
    Ms. Sapin. Well, clearly, the role is to be fair in 
adjudicating and to do it within the law and to uphold the 
merit system principles.
    I also feel that it is also important to work closely with 
staff and other Board members, and I think--I have firsthand 
knowledge from my experience as Vice Chairman. I do have 
firsthand knowledge of the Board's case law, the jurisdiction 
and procedures, and a valuable insight into how the MSPB 
functions as an impartial adjudicatory agency.
    Also in my experience there, I gained a keen appreciation 
of staff and the collegial relationships among Board members 
that I think are so important in the smooth functioning of the 
agency.
    Senator Fitzgerald. Now, does each Board member have his or 
her own personal staff?
    Ms. Sapin. Yes. When I was there, I had a chief counsel and 
two attorneys and a confidential assistant. I don't know what 
the numbers are at this point.
    Senator Fitzgerald. So what is the budget for each Board 
member? Would either of you know that?
    Mr. McPhie. Not off the top of my head. But there is a 
budget. I am aware of that.
    Senator Fitzgerald. Do you know what the budget is?
    Mr. McPhie. Let me correct my statement. The budget for the 
staff is not kept separately. There is a separate budget which 
I was alluding to, but that is for travel, that type of thing. 
Most Board members, including myself, rely a lot on MSPB's 
regular attorneys who are assigned on detail. In fact, Ms. 
Leonard, whom I introduced early on, is such a person.
    Senator Fitzgerald. OK.
    Ms. Sapin. And one of my attorneys was on detail from the 
general counsel's office, and we often worked very closely with 
the attorneys in the Office of Appeals Counsel to help us with 
the cases as well.
    Senator Fitzgerald. So do the individual Board members' 
staffs just report to that Board member that they are assigned 
to? Or are they--I mean, does your staff work for you, or are 
they loyal to the overall agency?
    Ms. Sapin. Well, they worked in my office, and, again, I 
don't know whether things have changed.
    Senator Fitzgerald. OK.
    Ms. Sapin. They worked in my office but were a part of the 
discussions that went on and the case handling discussions that 
went on throughout the agency.
    Senator Fitzgerald. OK.
    Mr. McPhie. Well, they are certainly a part of the 
deliberative process that each Board member goes through in 
arriving at some sort of a decision.
    Senator Fitzgerald. Right.
    Mr. McPhie. Therefore, you would want and insist, in fact, 
that that deliberative process be kept confidential.
    Senator Fitzgerald. Right.
    Mr. McPhie. Otherwise, you may, in fact, be accused of 
being influenced in some fashion in how you vote a particular 
case. So I rely on these folk to give me their unvarnished view 
of what the law is and what the outcome should be.
    Senator Fitzgerald. In most cases, you are just applying 
facts and the law, almost in an antiseptic way, almost like a 
judge would.
    Mr. McPhie. Yes, sir.
    Ms. Sapin. Yes.
    Senator Fitzgerald. Senator Akaka, who is our Ranking 
Democratic Member of the Subcommittee, unfortunately could not 
be with us, but he has some questions that he has asked me to 
ask on his behalf. And if you would be kind enough to respond 
to this question, Mr. McPhie. The Departments of Defense and 
Homeland Security are both required to consult with the Board 
in designing any new appeals system. Could you please describe 
for us the consultative process you have engaged in with both 
DOD and DHS? And has this role been helpful in safeguarding the 
merit system's principles? Or do you believe the role of the 
MSPB should be strengthened if similar personnel flexibility is 
granted in the future?
    Mr. McPhie. Well, the statute as written contemplates a 
consultative role for MSPB. The same statute contemplates a 
much more hands-on design role for OPM and for DOD and for DHS. 
So there is a difference.
    I was always of the personal view that consulting is most 
effective when you do it early. We got into the consulting 
business at the tail end of the DHS process. I was not the 
Chairperson then. And they had submitted a set of draft 
regulations.
    Now, once it began, there clearly was consulting. We had a 
team of senior people--I think the general counsel was on that 
team, who is here--and others, very experienced MSPB folks. And 
we tried then to shape the final product around our views.
    Now, quite clearly, we had no veto power. The regulations, 
there are things in there that we thought were quite good, and 
there are things, if we had to do it ourselves, we would have 
done differently. But that is our role.
    With DOD now, we formulated a similar group, and by this 
time I became then the Acting Chairperson, and I sort of became 
very proactive in seeking out a role for MSPB. And I talked to 
folks at DOD and at OPM, and there was a role created for MSPB. 
We had the same kind of team. DOD folks came to meet us rather 
early. We had working teams, and then there came a point in 
time when they asked us to sort of suspend what we are doing 
until they can put their arms around some other issues that 
frankly were not the appeal issues.
    We have clearly tried to make the case that MSPB is a 
viable organization that should be involved in any employee 
appeals system, no matter what. And while that decision has not 
been made, I anticipate having numerous opportunities to make 
that case myself and at the highest levels of government, if I 
have to.
    Senator Fitzgerald. Ms. Sapin, this is a question that 
Senator Akaka asked me to ask you. As you know, the Department 
of Homeland Security issued proposed regulations for its new 
human resources system, including its appeal system. However, 
this system would treat DHS employees differently than 
employees at other Federal agencies in matters regarding time 
lines for appeals and burdens of proof.
    What impact do you believe different procedures and 
standards among different agencies have on the Federal 
Government as a whole?
    Ms. Sapin. I think that there is a concern or I have a 
concern that the same kinds of issues may be treated 
differently among employees in different agencies. But I 
believe that the MSPB is very adept at working with the 
different standards of proof, providing a fair, objective 
adjudication of the appeals. And its my understanding that they 
have had experience with different levels, different burdens of 
proof and also working with different kinds of proofs.
    And, so I think that there is also a concern, that without 
proper resources and because there are some cases with 
abbreviated statutory time limits, there may be some cases that 
don't move as quickly because of the prioritization of the DHS 
cases.
    But I am very confident in the ability of the Board to 
handle that. I have also noted that the Board is working very 
hard, and has worked, to ease the time that cases sit at the 
Board and to really work very hard at case processing. So I 
think that is going to be and I have no doubt that they would 
be able to handle all of the cases that come in.
    Senator Fitzgerald. OK. And this is also another question 
from Senator Akaka, also for Ms. Sapin. Senator Akaka strongly 
believes that employees should be fully informed of their 
rights and protections. While individual agencies and the 
Office of Special Counsel have statutory responsibility in this 
area, Senator Akaka is interested in knowing how you believe 
MSPB could help to educate employees about the steps they can 
take if they have been retaliated or discriminated against.
    Ms. Sapin. I believe that the MSPB has many opportunities 
to inform employees and managers of the MSPB's procedures. I 
know that there are videos that are available. I am aware of 
the brochures.
    I also believe that in the offices, in the regional 
offices, there are some, where there is some sort of 
coordination to provide employees with additional assistance if 
it is needed under certain circumstances.
    I think that there are ways, again, given the resources of 
the organization, as I had recommended or suggested that there 
may be an ombudsman or an information person in the offices in 
the regions, and that, of course, will depend upon the 
resources. But I think that could go a long way in working with 
the Federal population to understand their rights under the 
MSPB.
    Senator Fitzgerald. Mr. McPhie, I would like to go into 
case processing. Could you please provide the Committee with a 
status report of the Board's current caseload and any backlog 
you may have? Do you have any of that information available 
with you today?
    Mr. McPhie. I don't have the statistics that would give you 
a total spread, but let me tell you what I have. This is our 
crunch period. This is our time when it is tough at the MSPB. 
Why? Because we are trying to meet our GPRA performance goals. 
Those are cases, we call them target cases. Those are cases 
that are at least 300 days or will be 300 days old by the end 
of the fiscal year. And the entire agency's focus at this point 
in time is getting those cases out of the door.
    That tends to be a challenge for the MSPB year-in and year-
out. I have talked to department heads trying to understand, 
and we have initiated some investigation to figure out where 
are the bottlenecks. And if so, what can we do about them?
    You talk to some folks, they tell you, well, it is just 
simply a resource issue. You get more people, you get things 
done quicker. I don't know that resource just totally explains 
it. There are some other issues, too, that the MSPB has to deal 
with.
    Senator Fitzgerald. Do you know how many cases you handle 
annually, on average?
    Mr. McPhie. About 8,000, isn't it?
    It is 8,416, on average.
    Senator Fitzgerald. Has that been going up in recent years?
    Mr. McPhie. No. In recent years, they have kept constant.
    Senator Fitzgerald. OK.
    Mr. McPhie. It is about 7,000 in the field offices and 
about 1,000 at headquarters, give or take.
    Senator Fitzgerald. And do you know at any one time how 
many cases over 300 days old you have?
    Mr. McPhie. Cases over 300 days old? Right now, it is about 
250 cases that must leave the MSPB between now and the end of 
the fiscal year.
    Senator Fitzgerald. The vast majority of that 8,000 cases 
that you get in a year are dealt with within 300 days.
    Are you aware of any trends in terms of whether the Federal 
circuit court is overturning Board decisions more often than 
they used to?
    Mr. McPhie. No. I can tell you with a certain amount of 
pride that we are maintaining a very high affirmance rate. I 
will also tell you--and I had this conversation with Federal 
circuit judges recently----
    Senator Fitzgerald. When you say a very high affirmance 
rate, would you--how high----
    Mr. McPhie. Yes, sir, that is 96, 97 percent, or 94 
percent.
    Senator Fitzgerald. OK. And has that remained pretty 
constant or has that----
    Mr. McPhie. That has remained pretty constant.
    Senator Fitzgerald. OK.
    Mr. McPhie. When we get the product in front of them, we 
are obviously doing a good job. That is not the issue for us. 
The number of cases that they are seeing from MSPB has 
declined. It is now 20 percent of the court's docket.
    But the way these cases--these time frames are created, 
cases come into a judge out in the field, and they are usually 
in and out of those field offices within about 90 days. I mean, 
it is real quick. These guys are really good. They are the real 
heroes at MSPB, as far as I am concerned.
    Then the case is appealed up to Washington, DC. That is 
where we have to do better. Cases, frankly, spend too long a 
time at headquarters.
    Senator Fitzgerald. Now, both of you are committed, I 
presume, to trying to work down any backlogs at all times and 
keep everything and everybody moving at the MSPB?
    Ms. Sapin. Absolutely.
    Mr. McPhie. Yes, sir.
    Senator Fitzgerald. Well, I think that about does it for 
the Committee's questions today. I would like to keep the 
hearing record open for any individual Senators or additional 
statements or questions from Senators through the close of 
business today. And that is pretty much it.
    Thank you both for being here, and thank you and 
congratulations to your families and friends.
    Ms. Sapin. Thank you.
    Mr. McPhie. Thank you, sir.
    If there is no further business to come before the 
Committee, this hearing is adjourned.
    [Whereupon, at 3:09 p.m., the Committee was adjourned.]


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