[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
   JUSTICE DELAYED IS JUSTICE DENIED: A CASE FOR A FEDERAL EMPLOYEES 
                             APPEALS COURT

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON THE FEDERAL WORKFORCE
                        AND AGENCY ORGANIZATION

                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 9, 2005

                               __________

                           Serial No. 109-115

                               __________

       Printed for the use of the Committee on Government Reform


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                      http://www.house.gov/reform

                                 ______


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                     COMMITTEE ON GOVERNMENT REFORM

                     TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut       HENRY A. WAXMAN, California
DAN BURTON, Indiana                  TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida                PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota             CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana              ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio           DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania    DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah                   WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee       DIANE E. WATSON, California
CANDICE S. MILLER, Michigan          STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio              CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California          LINDA T. SANCHEZ, California
JON C. PORTER, Nevada                C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas                BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia        ELEANOR HOLMES NORTON, District of 
PATRICK T. McHENRY, North Carolina       Columbia
CHARLES W. DENT, Pennsylvania                    ------
VIRGINIA FOXX, North Carolina        BERNARD SANDERS, Vermont 
JEAN SCHMIDT, Ohio                       (Independent)
------ ------

                    Melissa Wojciak, Staff Director
       David Marin, Deputy Staff Director/Communications Director
                      Rob Borden, Parliamentarian
                       Teresa Austin, Chief Clerk
          Phil Barnett, Minority Chief of Staff/Chief Counsel

     Subcommittee on the Federal Workforce and Agency Organization

                    JON C. PORTER, Nevada, Chairman
JOHN L. MICA, Florida                DANNY K. DAVIS, Illinois
TOM DAVIS, Virginia                  MAJOR R. OWENS, New York
DARRELL E. ISSA, California          ELEANOR HOLMES NORTON, District of 
KENNY MARCHANT, Texas                    Columbia
PATRICK T. McHENRY, North Carolina   ELIJAH E. CUMMINGS, Maryland
------ ------                        CHRIS VAN HOLLEN, Maryland

                               Ex Officio
                      HENRY A. WAXMAN, California

                     Ron Martinson, Staff Director
                Chris Barkley, Professional Staff Member
            Chad Christofferson, Legislative Assistant/Clerk
          Mark Stephenson, Minority Professional Staff Member



                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on November 9, 2005.................................     1
Statement of:
    Bransford, William L., general counsel, Senior Executives 
      Association; Neil A.G. McPhie, chairman, U.S. Merit Systems 
      Protection Board; Dale Cabaniss, chairman, U.S. Federal 
      Labor Relations Authority; and Cari M. Dominguez, Chair, 
      U.S. Equal Employment Opportunity Commission...............    13
        Bransford, William L.....................................    13
        Cabaniss, Dale...........................................    30
        Dominguez, Cari M........................................    37
        McPhie, Neil A.G.........................................    23
Letters, statements, etc., submitted for the record by:
    Bransford, William L., general counsel, Senior Executives 
      Association, prepared statement of.........................    16
    Cabaniss, Dale, chairman, U.S. Federal Labor Relations 
      Authority, prepared statement of...........................    33
    Cummings, Hon. Elijah E., a Representative in Congress from 
      the State of Maryland, prepared statement of...............    76
    Davis, Hon. Danny K., a Representative in Congress from the 
      State of Illinois:
        Prepared statement of....................................     8
        Prepared statements of Ms. Kelley and Mr. Gage...........    45
    Dominguez, Cari M., Chair, U.S. Equal Employment Opportunity 
      Commission, prepared statement of..........................    39
    McPhie, Neil A.G., chairman, U.S. Merit Systems Protection 
      Board, prepared statement of...............................    25
    Porter, Hon. Jon C., a Representative in Congress from the 
      State of Nevada, prepared statement of.....................     4


   JUSTICE DELAYED IS JUSTICE DENIED: A CASE FOR A FEDERAL EMPLOYEES 
                             APPEALS COURT

                              ----------                              


                      WEDNESDAY, NOVEMBER 9, 2005

                  House of Representatives,
      Subcommittee on Federal Workforce and Agency 
                                      Organization,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:10 a.m., in 
room 2247, Rayburn House Office Building, Hon. Jon C. Porter 
(chairman of the subcommittee) presiding.
    Present: Representatives Porter, Davis of Illinois, Norton, 
and Cummings.
    Staff present: Ronald Martinson, staff director; Chad 
Bungard, deputy staff director; Patrick Jennings, OPM detailee; 
Chad Christofferson, legislative assistant/clerk; Mark 
Stephenson, minority professional staff Member; and Teresa 
Coufal, minority assistant clerk.
    Mr. Porter. Good morning, everyone. I would like to bring 
the meeting to order.
    We do have a quorum present. We would like to welcome you 
all to ``Justice Delayed is Justice Denied: A Case for a 
Federal Employees Appeals Court.'' I would like to thank 
everyone for being here today, and I know that it took some 
change in schedule, so for those that had those challenges, I 
appreciate especially your ability to be here today.
    Since the founding of this Nation, the bedrock principle of 
judicial philosophy has been ``equal justice under the law.'' 
We hold this principle so dear that we have carved it into 
stone in front of the Supreme Court. This principle should be 
no less true of the Federal employee redress system as in our 
courts.
    But does the government deliver this result through its 
employee appeals system? At present, jurisdiction for handling 
Federal employee appeals is spread amongst the Merit Systems 
Protection Board, the Equal Employment Opportunity Commission, 
the Federal Labor Relations Authority, the U.S. Federal Courts 
and the Office of Special Counsel. Critics have argued that 
spreading appeals through so many agencies has inhibited the 
process from being as fair as it could be. Although each agency 
head here today deserves credit for implementing key reforms to 
improve their respective agencies, the very structure of the 
system may present challenges too great to overcome without 
some fundamental reform.
    Proposal for reform are what we are here to discuss. Today, 
among others, we are going to be discussing a proposal to 
consolidate all employee appeal and adjudication functions 
under one roof, a one-stop shop for the appeals matters. 
Advocates of this proposal claim that consolidating all these 
agencies would decrease confusion for the employees, managers 
and agencies; increase the efficiency of the process; and most 
important, deliver a more fair result for all parties that are 
involved.
    Efficiency and fairness, though, are not always the words I 
hear when the current appeals system is explained. Back in 1978 
the GAO had this to say about the day-to-day functioning of an 
average Federal workplace: ``Supervisors and managers instead 
tend to use an informal [disciplinary] system of working 
around, isolating, reassigning, sending to long-term training, 
or even promoting unsatisfactory employees.''
    Interestingly, GAO made this comment in the same year that 
our current appeals system was created. It was believed at the 
time that splintering all the adjudicatory agencies apart would 
resolve the problems with the appeals system. Unfortunately, it 
seems as if little has changed. Federal offices are hearing the 
same complaints today as we heard back then. In 1996, for 
example, GAO again testified regarding the problems of the 
Federal employee redress system, and stated: ``Because of the 
complexity of the system and the variety of redress mechanisms 
it affords Federal employees, it is inefficient, expensive and 
time-consuming.''
    The latest Human Capital Survey conducted by OPM reflected 
this sentiment yet again, revealing that employees are still 
frustrated by a system that doesn't deal justly with poor 
managers and poor employees. Under today's system, it is a 
challenge to determine which agency has jurisdiction over cases 
that involve a mix of discrimination, mismanagement or 
retaliation claims. So many cases fall under two or more venues 
that the time it takes to receive a decision is slowed to an 
unacceptable pace for all parties. If we are unable to obtain 
timely decisions for truly aggrieved employees, then justice 
delayed is justice denied.
    Likewise, jurisdictional confusion opens the door for a 
problem known as ``venue shopping.'' Under this scenario an 
employee with a complaint against his or her manager is 
permitted to ``shop around'' and file a complaint with multiple 
agencies. Feasibly, this person can simultaneously pursue a 
complaint against a manager at the EEOC, MSPB and Federal 
District Court. While the person in this example wouldn't be 
held accountable if the claim is frivolous, to the accused it 
can be a devastating experience. Because the system permits 
this kind of behavior, according to an American Bar Association 
publication, Federal employees are reportedly five times 
likelier than their private sector counterparts to issue a 
complaint against a manager.
    The sad reality is that the existence of more claims does 
not mean that we are better at uncovering discrimination and 
abuse. To the contrary, the EEOC recently reported that of the 
4,748 claims made by Federal employees in 2004 that were fully 
adjudicated by EEOC, 96 percent were found to lack merit. Let 
me repeat that statistic: not 10, 20, or even 50 percent, but 
96 percent of cases fully adjudicated by the EEOC--at a heavy 
cost to taxpayers, and a heavy cost to the employees that need 
the help of the system. This demonstrates serious problems and 
a staggering need for reform. Today's hearing will address this 
and a host of other reform ideas.
    In the end, it is essential that whatever system is in 
place, we ensure that it is fair for all people involved, 
employees and managers, and it is efficient in its use of our 
taxpayer dollars. I look forward to hearing first from our 
Senior Executive Association regarding its specific proposal 
for reforming this system. I also look forward to hearing from 
the other agencies that are here this morning and would be 
impacted by such a reform.
    But before I invite our witnesses to testify, let me 
underscore that this hearing, first of all, is a look at the 
issue. We are not expecting today to come up with a final 
answer, but I do expect to come up with a final answer in the 
not-too-distant future.
    I hope that everyone can take away from this hearing a 
point upon which we can all agree, and that is, for the sake of 
the employees, for the sake of the managers, for the sake of 
the agencies and the taxpayers, we can and must find a better 
way to deal with how we handle this issue. I welcome all the 
ideas from the panel here today, from my colleagues, from the 
member agencies, employee organizations, and other interested 
groups, to work together in a common partnership toward that 
good. We are privileged to have some of the most knowledgeable 
individuals in the field to be with us today.
    The bottom line is there are folks that have been 
discriminated against. There are folks that have problems with 
managers, very legitimate problems. There are employees that 
have problems with other employees. There are people that are 
having problems that are not gaining access to the system 
because it is tied up in our own bureaucracy. And as I tried to 
state earlier in my comments, I applaud the folks that are here 
today, for trying to do what you can with a system that we have 
given you to work with.
    But I would like for us to think out of the box. What can 
we do to help that employee or that individual that needs help 
the most, and to find a system that eliminates, as much as 
possible, frivolous lawsuits so that there can be justice for 
everyone involved.
    [The prepared statement of Hon. Jon C. Porter follows:]
    [GRAPHIC] [TIFF OMITTED] T5705.001
    
    [GRAPHIC] [TIFF OMITTED] T5705.002
    
    Mr. Porter. I would like to do some procedural matters, and 
I ask at this time that we have unanimous consent that all 
Members have 5 legislative days to submit written statements 
and questions for the record, that answers to written questions 
provided by the witnesses, also be included in the record.
    Without objection, it is so ordered.
    I ask unanimous consent that all exhibits, documents and 
other materials referred to by Members and the witnesses may be 
included in the hearing record, and all remarks by the Members 
be permitted to be revised and to extend them.
    Without objection, it is so ordered.
    And it is also the practice of the subcommittee to 
administer the oath to all witnesses, so if you could please 
all stand, I would like to administer the oath.
    [Witnesses sworn.]
    Mr. Porter. Let the record reflect that the witnesses have 
answered in the affirmative. Please be seated.
    My able-bodied counsel is asking me to share with you that 
you are lucky today because I am losing my voice. [Laughter.]
    So today is a good day to be here. I promise not to give 
you too hard of a time, but again, we appreciate you being 
here. I would like to turn to my colleague, Mr. Davis, for any 
opening comments.
    Mr. Davis of Illinois. Thank you very much, Mr. Chairman, 
and I don't think that with the kind of weather that you have 
out in Nevada that you will ever lose your voice. You just kind 
of slow it down when you get here.
    But thank you very much, Mr. Chairman.
    Today's hearing is on proposals to streamline procedures 
for hearing Federal employees' allegations relating to 
personnel practices. The Senior Executive Association has 
presented the most detailed of such proposals. They propose 
creating a Federal employee appeals court, which would combine 
most adjudicatory functions currently preformed by the Office 
of Personnel Management, the Merit Systems Protection Board, 
the Equal Employment Opportunity Commission, the Federal Labor 
Relations Authority, and the Office of Special Counsel.
    Under this proposal, the decisions of this court would be 
final and not subject to appeal, except in the case of 
employment discrimination. It strikes me from a review of the 
testimony that this proposal is driven in large part by 
dissatisfaction with the length of time the current equal 
employment opportunity process takes. There does not seem to be 
much complaint with the process at the Merit Systems Protection 
Board, or the Federal Labor Relations Authority, with the 
exception of so-called ``mixed cases'' which involve both the 
MSPB and the EEOC. If that is indeed the case, it may be that a 
better approach would be to focus more narrowly on the current 
process for resolving discrimination complaints in the Federal 
workplace.
    While I always keep an open mind on suggestions for 
improving the operations of the Federal Government, I must say 
that the proposal from the Senior Executives Association raises 
some serious questions in my mind. We must tread very carefully 
in this to ensure that due process rights of Federal employees 
are not diminished in what is being presented as an 
administrative reorganization. To that end I am disappointed a 
bit that representatives of Federal employee unions were not 
permitted to testify today. The National Treasury Employees 
Union and the American Federation of Government Employees have 
submitted written testimony, which I ask be made a part of the 
record for this hearing.
    It is also my understanding that employee representatives 
will be permitted to testify in person at any future hearings 
we may have on this subject.
    Of course, as always, I look forward to this group of 
expert witnesses. And, again, thank you, Mr. Chairman, for 
giving us the opportunity to review this matter.
    [The prepared statement of Hon. Danny K. Davis follows:]
    [GRAPHIC] [TIFF OMITTED] T5705.003
    
    Mr. Porter. Thank you, Mr. Davis.
    Congresswoman, any opening comments?
    Ms. Norton. Thank you very much, Mr. Chairman, and I thank 
you for tackling this issue. I think everybody ought to be 
forewarned that this is probably the most complicated issue in 
the Federal service, and I know because I was there at the 
birth. This I disclose as a matter of disclosure, because I was 
Chair of the Equal Employment Opportunity Commission when both 
reorganizations occurred, reorganization No. 1 and 
reorganization No. 2. That is what this one was.
    Reorganization No. 1, I am still very proud of. It was the 
transfer of the civil rights functions in the Labor Department 
to the EEOC, that is to say, the EPA and the Age Discrimination 
and Employment Agent Act, as well as, of course, certain of the 
Civil Service Commission functions.
    Reorganization Plan No. 2 created the--what do we call it--
the FLRA and the OPM, etc. Recognizing that four new agencies 
were being set up, the President's Reorganization Plan No. 1 
called for the EEOC to be the chief coordinator. I must say 
that we played that role when I was at the EEOC. It completely 
atrophied after I left EEOC. I see no evidence that EEOC has 
played a coordinating role involving all of the agencies 
involved, even though it has reached out in many ways. It would 
have taken very aggressive action because the coordination 
would have meant you would coordinate among other agencies, the 
Justice Department, every agency that had anything to do with 
civil rights matters.
    We are more than 25 years later. Everybody is frustrated 
with the accumulated experience. I should stress that when you 
are dealing with four agencies and they have overlapping 
jurisdiction, and it is the first time that these agencies in 
fact are operational, there was an attempt in 1978 to make sure 
that everybody's jurisdiction remained intact. Actually, I am 
surprised that, with more than 25 years later, in looking at 
this again, because I believe that the experience does inform 
us of--and long ago informed us of where some changes might 
have been made.
    I am going to listen very intently, because I believe in 
government, I believe in the EEOC and the civil rights 
functions, and therefore, I believe that those who believe in 
them ought to be at the front of the line seeking to make 
changes. But I think that there ought to be a fair warning to 
those who want change, structural change, because this is the 
committee that created Department of Homeland Security. I still 
support that idea. I do not support the way the product has in 
fact operated. It is still trying to get itself to look like a 
Federal agency. I am a major cosponsor of a bill to take FEMA 
out of the Department of Homeland Security. I think it needs to 
be nimble, to not have its funds, for example, subject to being 
stolen in the name of security when you get hurricanes every 
year, and hopefully you don't get terrorist threats, anything 
like that.
    We have seen, with the structural reform that we have 
already done, the virtual destruction of collective bargaining, 
according to a Federal court which heard the matter. We have 
seen other court suits now going forward as we deal with what 
we did in DOD and DHS with pay.
    So I am not sure about you, Mr. Chairman, but if there is 
to be an appetite for structural reform, it seems to me that 
the presumption has to be overcome that we are ready and we 
have such a good proposal here tested and at least proven that 
we should move ahead on it.
    But I think that we ought to remember that September 11th 
led to the changes that we have made, and frankly, I believe 
the September 11th deserve a better response than the monster 
we created in Department of Homeland Security. Again, I still 
support the idea. I do not support what has been made of the 
idea, which means that coming to a committee with an idea ought 
to, if anything, arouse skepticism if there is no indication 
that the idea would work or would work better than what is 
there, and that is what it seems to me is the burden of those 
who want to change.
    The need for change, interestingly, is agreed across the 
board, and that is not always the case when it comes to the 
various groups that would be involved in a matter like this. 
What moves me always is the word ``streamline,'' because, see, 
those are magic words to me. I think that people get to hate 
government when it gets to be complicated. For myself, I will 
be remembered, if at all, not about substantive things I am 
proud of at the EEOC like the sexual harassment guidelines, or 
the affirmative action guidelines, but for eliminating the 
EEOC's backlog by introducing streamlined processes that 
focused on early settlement of individual cases at a time when 
ADR was not even a word. So I come prepared to hear about 
something that would streamline a process.
    But, Mr. Chairman, we have just participated in creating a 
super agency that has yet to show it can work, and the question 
I think for us is we want to create a super court. Maybe so, 
but the burden is on those who want to do it. I will want to 
know, is the problem in the appeals? Is that where we have to 
start? That is interesting. Often you have to start earlier 
than that to get a problem. Is the problem venue shopping? I 
couldn't be more in your corner. I can't go into court here in 
the District of Columbia and the Federal Court at the same 
time. That is a problem. But what does that have to do with 
appeals? That has to do with, forum shopping has to do with 
where you file in the first place.
    So I am a little confused about focusing on appeals, except 
that this notion of mixed cases comes into play. I don't even 
want to go into what mixed cases is. The witnesses will 
testify, but a very few cases have overlap between EEOC and 
others. If you want to change the system because of those 
cases, then we need to understand if it is worth creating a 
whole super agency because of those cases, whether we ought to 
concentrate on those cases or whether we want to ask ourselves 
even deeper, more radical questions. What is the source of the 
problem? Is the source of the problem when the case gets to 
appeal? Fine. Then you are telling me that the cases are fine 
as they start. I am glad to hear that because I was not aware 
of that.
    Very complicated issue. I think the way to go about it is 
the way the chairman is going about it, analytically. But I 
must say, Mr. Chairman, that unlike other matters before us, in 
order to get a hold of this issue, if you really want to deal 
with the super court notion, it does seem to me that you ought 
to prepare yourself--and I am sure you have, Mr. Chairman--for 
what amounts to a mental exercise. I mean if you want to 
exercise it, you know, to exercise your mind is like doing a 
crossword puzzle, first try to understand this and then try to 
understand what the proponents want to do. Then perhaps we can 
make a decision on whether this is the right way to go or 
whether there are alternatives.
    And I appreciate, Mr. Chairman, that you have looked at 
this problem. It is not a huge problem, but for Federal workers 
who spend a lot of time in the system, they deserve a lot 
better.
    Thank you very much.
    Mr. Porter. Congresswoman, we are glad you are a part of 
this committee because we are going to need your help on this 
issue very, very much.
    Mr. Cummings, any opening?
    Mr. Cummings. Yes, just very briefly, Mr. Chairman. I want 
to thank you for holding this critically important hearing to 
evaluate the restructuring proposal for the Federal employee 
appeals process.
    For over two decades, Mr. Chairman, five distinct agencies 
have admirably worked to ensure that Federal employees have an 
appropriate forum to resolve their claims of unfair or unlawful 
treatment that occurs in the workplace.
    As it now stands, agency involvement of the Federal 
employee appeals system includes: the Merit Systems Protection 
Board, which hears individual appeals regarding agency adverse 
actions; the Office of Personnel Management, OPM, which is 
charged with administering the Federal personnel system; the 
Office of Special Counsel, OSC, which investigates and 
prosecutes specialized cases with a focus on protecting 
whistleblower; the Equal Employment Opportunity Commission 
[EEOC], enforces the right of equal employment opportunity by 
hearing cases concerning discrimination; and finally, the 
Federal Labor Relations Authority, which adjudicates 
disagreements between agencies and unions.
    Today's hearing presents us with the opportunity to discuss 
a proposal by the Senior Executives Association to streamline 
the Federal employee appeals system with the creation of a 
Federal Employee Appeals Court. Specifically the proposal calls 
for a single forum that would merge the appeals functions 
currently adjudicated by MSPB, OPM, OSC, EEOC and FLRA, into 
what would be considered a super agency. As the testimony of 
William Bransford articulates, the purpose of this new entity 
is to provide a simple and expeditious mechanism resulting in 
protection of the merit system by resolving employee concerns 
with relative speed, impartiality and in fairness, while 
preserving all employee appeals rights.
    In principle, I am sure that we can all agree that we best 
honor our public servants by having a Federal employee appeals 
system that provides a just, timely and thorough resolution of 
employee grievances. Further, I am sure that we can all agree 
that the current appeals system is not perfect, and could 
benefit from some efforts to improve its effectiveness and 
efficiency.
    I am expressly troubled by the lack of timeliness in the 
resolution of some mixed cases where there is a jurisdictional 
overlap between EEOC and MSPB, and the ability to continuously 
balance an appeal in such a case for additional review to 
another adjudicative forum. However, I am not 100 percent 
convinced that the SEA proposal for Federal Employee Appeals 
Court is the best course of action. At this point it seems that 
the five agencies at the center of the Federal employee appeals 
system are able to sufficiently fulfill their unique missions.
    The challenges that confront us seem largely concentrated 
to the extraordinary delays and disarray associated with mixed 
cases. With that said, the wholesale restructuring of the 
arbitration system seems unwarranted.
    John Gage of the AFL-CIO wisely stated in his testimony 
that in particular, there is no need to create a system which 
deprives Federal employees of their fundamental civil right to 
challenge discriminatory employment decisions, while permitting 
private sector and other public sector employees to file cases 
in Federal courts, State courts and before State administrative 
agencies as they can do now. Something seems awfully wrong with 
that picture.
    With that said, EEOC field restructuring plan that is 
typified by its calls for reduction of offices and staff, seems 
particularly unwise. No one wins if EEOC is incapable of 
enforcing discrimination laws, and if it is inadequately 
staffed to decrease backlogs and delays. Moreover, it seems 
appropriate that in focusing on specific challenges before us, 
that we look within the current system to determine how any 
perceived or actual inefficiencies associated with mixed cases 
can best be addressed.
    With that, Mr. Chairman, I yield back and look forward to 
the testimony.
    Mr. Porter. Thank you, Mr. Cummings. I would like to 
respond just to a couple things. For the employees, I will be 
meeting with them, as I had asked, sometime before the end of 
the year for their assistance, as we look at the pay-for-
performance proposals that has been before us, and by design my 
intentions were to have this discussion--and I appreciate your 
comment, Mr. Davis, as to why they are not here--but my goal is 
to actually have a personal one-on-one meeting to talk about 
the pay-for-performance proposal and to talk about some of 
their challenges in having a proper hearing. So your point is 
well taken, and I appreciate you bringing it up so I can make 
it clear that is my intention, and look forward to their input.
    I thought today we should hear from the management team and 
some of the challenges that they have, but probably more 
importantly, this hearing is really being driven by the 
employees that are very frustrated and are looking for some 
help and assistance. So we are looking for ideas. I do not have 
an intention of creating a new bureaucracy. I believe that we 
have systems in place to provide input and proper litigation 
when necessary. But there may well be a more efficient approach 
for the employee, whether it be a clearinghouse or a one-stop 
beginning to point them to the right agency.
    So I would hope as our discussions unfold, that I would not 
send the message that I am hoping or even intending to create 
additional bureaucracy or a super court system. But I do think 
that with the talent that we have, with the management team and 
the employees, we can find a system internally to make it 
easier for those that have been wronged to find some relief as 
quickly as possible.
    So appreciate my colleagues and your input, and look 
forward to future discussion.
    So today, as in the past, know that our witnesses have 5 
minutes each for their opening remarks, and after which the 
members of the committee will have a chance to ask questions. 
We only have one panel today, but I say today I am looking 
forward to additional hearings on this issue as we move 
forward. Today that panel will be comprised of Mr. William 
Bransford, general counsel for the Senior Executives 
Association; Neil McPhie, chairman of the Merit Systems 
Protection Board; Mr. Dale Cabaniss, chairman of the Federal 
Labor Relations Authority; and Cari Dominguez, Chair of the 
Equal Employment Opportunity Commission. And again, if I can 
say, Cari, I know it was a challenge and I appreciate you being 
here today.
    Mr. Bransford, thank you for appearing before the 
committee. I look forward to your testimony. Please proceed.

  STATEMENTS OF WILLIAM L. BRANSFORD, GENERAL COUNSEL, SENIOR 
EXECUTIVES ASSOCIATION; NEIL A.G. McPHIE, CHAIRMAN, U.S. MERIT 
SYSTEMS PROTECTION BOARD; DALE CABANISS, CHAIRMAN, U.S. FEDERAL 
 LABOR RELATIONS AUTHORITY; AND CARI M. DOMINGUEZ, CHAIR, U.S. 
            EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

               STATEMENT OF WILLIAM L. BRANSFORD

    Mr. Bransford. Thank you. Good morning, Mr. Chairman, and 
members of the subcommittee. I am William Bransford, general 
counsel of the Senior Executives Association, the professional 
association that represents the interests of career senior 
civil servants. We appreciate the opportunity to testify about 
an initiative we believe will correct the broken state of the 
Federal employee appeals process and improve Civil Service 
management. We look forward to presenting the perspective of 
the career Federal executive.
    SEA proposes that jurisdiction for the appeals and 
complaints processes for Federal employees currently 
investigated and adjudicated by the Merit Systems Protection 
Board, the Federal Labor Relations Authority, labor 
arbitration, the Office of Special Counsel, the Office of 
Personnel Management, and the Federal sector EEO system, be 
moved to and consolidated into one independent Federal Employee 
Appeals Court.
    The court we propose would be an Article I court similar to 
the U.S. Tax Court, and would have complete jurisdiction over 
Federal employee workplace issues, with appeals to the Circuit 
Court of Appeals for the Federal circuit for EEO matters. Our 
proposal ensures that all substantive appeal and complaint 
rights, including jury trials and compensatory damages for EEO 
cases would be preserved, and the new court would include 
investigative and dispute resolution functions that would 
employ all Federal employees whose jobs might be affected by 
the consolidation.
    The current system serves as a barrier to Federal managers 
effectively managing workplace misconduct and poor performance. 
The simple threat of an EEO complaint by an unhappy 
subordinate, which can hang over a manager for 3, 4, 5 or even 
6 years, gives pause to even the best manager before deciding 
to take action against a problem employee.
    Consider the EEOC's 2004 report, 601 days on average for 
agencies to issue a merit decision in an EEO complaint when no 
judge is involved. Even including cases withdrawn, settled or 
dismissed, average process time is 469 days. A case that goes 
to an EEO administrative judge lengthens these time limits 
considerably. This extensive process found only 321 cases of 
discrimination out of over 23,000 complaints closed last year, 
a rate of 1.3 percent. Even including cases that settle, nearly 
80 percent of EEO complaints still have no merit. Of course, 
even one instance of discrimination is too many. We believe 
this new court would provide a reinvigorated system that can 
screen out frivolous complaints early and more effectively deal 
with discrimination.
    One reason the current EEO system is so clogged is that it 
investigates every complaint, no matter how obviously specious 
of unconnected to actual discrimination. This is because the 
agencies investigate themselves, so every complaint is 
thoroughly reviewed to avoid accusations of conflict of 
interest. An independent court could take these same complaints 
and dismiss those with no merit, while putting resources into 
investigating and adjudicating viable cases. The sheer waste is 
reason enough to seriously examine reform of the current 
system.
    And that is just EEO complaints. Consider labor arbitration 
for employees in bargaining units on adverse actions that can 
also be appealed to the Merit Systems Protection Board, and 
there is the Office of Special Counsel for Whistleblower 
Reprisal, and on and on.
    The multitude of possibilities, the complexity of the 
system, and the delay, hinder good management. First level 
supervisors are reluctant to act, and higher level management 
is unsure about the level of support to give the front line 
manger. There is also the risk of reprisal allegations if a 
management decision needs to be made affecting an employee who 
has filed an EEO complaint. Simpler, more effective reform will 
help managers feel more comfortable to deal with problem 
employees in good faith, and will also help more quickly expose 
poor managers. Equally important, those with legitimate 
complaints and grievances will see them attended to more 
expeditiously.
    In the meantime, and until this court is operational, 
Congress should provide for statutory assurances that make the 
manager more a part of the EEO process. We propose that 
agencies be required to advise management of the filing of a 
complaint, to provide managers with relevant documents and the 
right to representation during meetings and investigations, to 
be consulted before a case is settled, and to be reconsidered 
for lost awards, lowered performance ratings and other negative 
personnel actions that occurred because of an EEO complaint if 
the EEO complaint is eventually found to be without merit.
    As the Merit Systems Protection Board rapidly processes 
cases and focuses on the statutory standard of efficiency of 
the service and the merit system, we believe its practices and 
culture would provide an excellent framework for the new court.
    We hope that today's hearing will spark a debate about 
reform of the Federal employee appeals process, particularly 
the lengthy and bulky processing of EEO complaints. Tomorrow's 
Federal managers will face increased expectations and 
accountability as reform of the Federal Civil Service's 
performance management system takes place. These managers 
deserve a new appeals system that adequately protects employees 
and the merit system, but does so in an expeditious and 
understandable manner.
    I have heard comments this morning attacking our proposal. 
I hope we can focus more on the problem the Senior Executives 
Association, in recognition of a serious problem, has put forth 
a very serious proposal that we believe will correct the 
matter, but more than that, we hope the debate will lead to 
some reform that will make a meaningful difference.
    Thank you very much.
    [The prepared statement of Mr. Bransford follows:]
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    Mr. Porter. Thank you very much, appreciate your testimony.
    Mr. McPhie.

                  STATEMENT OF NEIL A. McPHIE

    Mr. McPhie. Thank you. Good morning, Chairman Porter, 
Ranking Member Davis, and members of the committee. My name is 
Neil McPhie. I am the chairman of the U.S. Merit Systems 
Protection Board. Thank you for the opportunity to appear 
before you today to testify about the proposal to establish a 
Federal Employee Appeals Court.
    My comments today summarize my written statement, and I 
respectfully ask that my written statement be included in the 
record.
    The Senior Executives Association advances two main reasons 
for consolidating the existing complaint, appeals and grievance 
process into a single system administered by a court. The first 
reason given is that the current system is complex and 
confusing, in that personnel actions can be challenged before 
multiple bodies that apply different law.
    The second reason given is that under the current system it 
takes too long to resolve challenges to personnel actions. I 
believe the second reason, delayed resolution of disputes, is 
the greater concern. I submit, however, that the proposal ought 
to be subjected to fuller study.
    As to the first reason to establishing a court, it appears 
that managers who view the current system as too complex and 
confusing are primarily responding to the multiplicities of our 
laws and regulations that govern the Federal employment 
relationship, and not the fact that there are multiple avenues 
available for challenging personnel actions.
    Without providing an exhaustive list I would point out that 
an employee could claim that a single personnel action was 
improper for any or all of the following reasons: it was not 
taken for the efficiency of the service; it was discriminatory; 
it was taken in retaliation for the employee's whistleblowing; 
it violated the corrective bargaining agreement; or it 
constituted an unfair labor practice.
    Under the current system each of the claims I have just 
described could be considered by a different body, or in some 
instances by an arbitrator. Nevertheless, all of the claims 
could still be made if those bodies were combined into a single 
entity. My point is that insofar as day-to-day management of 
the Federal work force is concerned, complexity may be an 
outgrowth of the numerous detailed rights that policymakers 
have conferred on civil servants. In general the perceived 
complexity of the current system does not seem to be directly 
caused by the availability of multiple avenues for review of 
personnel action.
    In this connection I note that the current system has 
safeguards intended to prevent inconsistent decisions. For 
example, by statute an employee who believes that a personnel 
action was taken against him because of his whistleblowing must 
make a binding election among three possible review mechanisms: 
a grievance, a direct appeal to the MSPB, or a complaint for 
corrective action before the Office of Special Counsel. A 
choice of any one of these avenues forecloses the other two. 
Without going into further examples, I would simply observe 
that the current system is not designed to reach inconsistent 
decisions.
    As to the second main concern, lengthy delays, I note that 
a typical non-mixed case--that is one that does not go to 
EEOC--moves through the administrative system fairly quickly. 
In fiscal year 2005 the MSPB's administrative judges issued 
decisions in an average of 92 days. In over 50 percent of the 
cases, the administrative judges' decisions became the final 
decision. Based on fiscal year 2005 figures, on average it 
takes no more than 122 days from the date of the personnel 
action to the AJ's final decision. Either party may seek review 
of the administrative judge's decision before the full MSPB, 
and the Board members are striving to decide cases on average 
within 120 days.
    In fiscal year 2005 the Board reduced its pending 
headquarters inventory by 38 percent, from 955 cases to 593. A 
smaller inventory obviously means that newly filed cases will 
be decided more quickly. The MSPB is firmly committed to 
reducing its processing time as new Department of Homeland 
Security and Department of Defense appeals systems go into 
effect, although as I have stated in the past before you all, 
that MSPB will treat cases from all agencies equally.
    Assuming that the full MSPB can decide cases within an 
average of 120 days, in a typical case the total time from the 
date that personnel action is taken until a final judicially 
reviewable administrative action is rendered should be about 
277 days, roughly 9 months.
    The mixed case process where there is an appeal from an 
action that is both within the Board's jurisdiction and that 
the employee believes was discriminatory, presents a 
significant timeliness challenge. If the employee chooses to 
pursue every step in the process within regulatory timeframes, 
then approximately 695 days, or nearly 2 years, will have 
passed before administrative review is complete. The proposal 
from the Senior Executives Association would significantly 
modify the procedures by which discrimination claims are 
decided.
    It comes as no surprise, when I would tell you that it is 
my hope that you as policymakers would exercise great caution 
when studying ways to modify procedures for certain 
discrimination claims.
    In conclusion, it is possible that streamlining benefits 
may be achieved by consolidating current dispute resolution 
bodies into a single Federal Appeals Court. I would suggest, 
however, that the efficiencies sought by the Senior Executives 
Association could possibly be gained by reforming the current 
system. An appropriate course, in my view, would be to form a 
task force of the stakeholders to study possible changes and 
work to resolve inefficiencies in the current system. 
Naturally, the MSPB will be pleased to assist any such task 
force with its work.
    Again, thank you very much for permitting me to come and 
make these remarks.
    [The prepared statement of Mr. McPhie follows:]
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    Mr. Porter. Thank you, Mr. McPhie.
    Ms. Cabaniss.

                   STATEMENT OF DALE CABANISS

    Ms. Cabaniss. Chairman Porter, Ranking Member Davis, and 
members of the subcommittee, my name is Dale Cabaniss. I have 
the honor of serving as the chairman of the Federal Labor 
Relations Authority. Thank you for the opportunity to appear 
before you this morning as you examine the idea of creating a 
one-stop shop for the resolution of Federal employee 
complaints, appeals and grievances. I appreciate your 
continuing interest in this topic and your efforts to evaluate 
ways to improve government operations, while retaining 
important due process rights for Federal employees.
    There are a lot of comments that have been raised that have 
merit. I agree with Chairman McPhie that it is important to 
have the stakeholders involved, and I would encourage that 
committee to further study the idea of a Federal Employee 
Appeals Court.
    As you know, in 1978 the Civil Service Reform Act was 
enacted to replace a then-existing patchwork system of Federal 
employment governance. Chapter 71 of the statute established 
the Federal Labor Relations Authority by consolidating three 
previously independent entities: the Federal Service's Impasses 
Panel, the Office of the General Counsel, and the Federal Labor 
Relations Authority, decisional component which was preceded by 
the Federal Labor Relations Council. Under our statute, our 
General Counsel, our Administrative Law Judges, the Authority 
and the Federal Service's Impasses Panel, retain their 
important statutory independence of their prosecutorial and 
adjudicative responsibilities, but we co-exist in terms of 
managing our administrative overhead.
    From this perspective, the FLRA does represent a one-stop 
shop as a single point of entry for certain cases falling 
within our jurisdiction. During my time at the FLRA it has been 
my experience that each of these previously separate components 
has been able to successfully retain its statutory independence 
without the need for excessive, duplicative administrative 
budget, human resource or technology personnel.
    As you are aware, the Federal Labor Relations Authority 
does not initiate cases. All proceedings before the FLRA 
originate from filings arising through the affirmative actions 
of Federal employees, Federal agencies, or Federal labor 
organizations. For example, an employee who believes he or she 
has suffered an alleged unfair labor practice may petition the 
FLRA General Counsel. Our General Counsel, through one of the 
seven regional offices nationwide, will investigate this claim. 
If the General Counsel ultimately issues a complaint, the case 
moves to the Office of Administrative Law Judges where it will 
either settle or be scheduled for a hearing. If a case moves to 
a hearing, it will either settle or the assigned judge will 
issue a decision. Upon issuance of an ALJ decision, the 
nonprevailing party may then appeal to the FLRA Authority 
decisional component for adjudication. The Authority will issue 
a decision, after which judicial review may be had in either 
the U.S. Court of Appeals for the circuit in which the 
aggrieved party resides, or the U.S. Court of Appeals for the 
District of Columbia.
    Examining this process more closely, you will see that a 
ULP case can potentially route through three of our agency's 
four major case processing components, the OGC, the Office of 
the Administrative Law Judges, and the Authority. And each 
component engages in case processing activities that vary in 
complexity, time and procedures.
    To address potentially lengthy case processing and to 
improve the agency's overall responsiveness to its customers, 
during the past year we began collecting baseline performance 
and activity costing information, and revising our internal 
performance standards. Consistent with all executive 
departments and many other small agencies, we will soon 
implement agency-wide processing goals that are aligned 
directly with our executives' and managers' performance 
appraisals. Thus, regardless of which component a case is 
currently in, we will remain cognizant that there is a 
customer, whether agency or union, waiting not only for a fair 
decision but a timely result as well.
    One of the issues that has been identified with respect to 
the employees appeals process is the potential overlap of 
jurisdiction and the opportunity to raise issues in alternative 
forums. This is not a significant issue at the FLRA. For 
example, Section 7116 of our statute provides that issues which 
can properly be raised under an appeals procedure may not be 
raised as an unfair labor practice. This includes employment 
matters such as hiring, firing and the failure to promote. 
These matters are generally subjected to the jurisdiction of 
the MSPB.
    However, there are some instances in which different 
independent agencies could issue rulings involving the same 
employee complainant. For example, if a group of employees are 
terminated from Federal service, they may appeal that 
termination to the MSPB. Depending on the factual situation, at 
the same time, the union representing that bargaining unit may 
file an unfair labor practice charge with the FLRA alleging the 
agency failed to follow the collective bargaining agreement in 
effecting the employment action. The two cases are related, but 
because they raise different legal issues, there is the 
possibility of different rulings in different forums.
    In another example, where a factual situation involves 
multiple related actions by an agency, it would be possible to 
litigate the various parts separately if different legal issues 
can be identified. For example, a bargaining unit employee 
could be terminated from Federal service for insubordination 
resulting from his or her refusal to accept an overtime 
assignment. The bargaining unit employee could appeal the 
termination from Federal service to the MSPB, while also 
alleging an EEO violation for how he or she was treated during 
the investigation of the incident. At the same time, the union 
representing this particular bargaining unit could file an 
unfair labor practice charge alleging the employee was ordered 
to take the overtime assignment in reprisal for the employee's 
union activity. Because each piece of litigation raises a 
separate legal issue, each case will operate independently from 
each other. However, I should point out this is a rare 
occurrence. This is not something that you would see very 
often.
    In conclusion, while there is presently not a great deal of 
overlap in jurisdictions between the FLRA and the other 
agencies represented here today, I am sure we would all agree 
there is room for continued improvement administratively and 
operationally.
    Thank you again for the opportunity to appear this morning. 
I would be pleased to respond to any questions you may have or 
provide any additional information you seek.
    [The prepared statement of Ms. Cabaniss follows:]
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    Mr. Porter. Thank you very much.
    Ms. Dominguez, appreciate you being here.

                  STATEMENT OF CARI DOMINGUEZ

    Ms. Dominguez. Mr. Chairman, Congressman Davis, members of 
the subcommittee, thank you very much for inviting me to 
testify today on this very important topic. I am Cari 
Dominguez, Chair of the Equal Employment Opportunity 
Commission. First and foremost I want to applaud and commend 
this committee for allowing us this opportunity to look into 
ways for improving the Federal employee appeals and complaint 
process.
    Designing a process that efficiently and effectively 
resolves workplace disputes is of paramount importance to the 
Federal Government and to taxpayers. The EEOC plays a very 
significant role in that process. While this hearing is focused 
on the multiple complaint and appeal processes that are 
available to Federal workers, our view is through the lens of 
the EEO process. That is the process that we deal with on a 
daily basis.
    Many of the concerns that have been expressed and raised by 
the Senior Executives Association are concerns that we share. 
We recognize that reform of the Federal EEO system is 
warranted. Indeed, the Federal EEO process has been perennially 
criticized as too slow, too cumbersome, too expensive, and 
subject to perceived or real conflicts of interest.
    Many of the critics of the system consider the current 
arrangement under which the same agency accused of 
discrimination investigating itself has a conflict of interest. 
The EEO process is also sometimes used to address workplace 
disputes that belong in another forum. Clearly, these issues 
raise the question as to whether agencies, employees and 
taxpayers are being well served.
    In my view, what is needed is a better model and a more 
flexible system. It is critical that sufficient resources be 
devoted to those cases where it is likely that discrimination 
has occurred.
    EEOC's private sector charge process serves to inform us. 
As you know, we were established as part of the Civil Rights 
Act and we have been conducting investigations filed by private 
sector employees in the past 40 years. Our private sector 
complaint processing system was at one point overburdened and 
very time intensive. At one point we had over 110,000 charges 
backlogged, and the average processing time to complete a 
charge was well over a year. Without any significant change, we 
estimated that it would take more than 16 months to even begin 
an investigation.
    In the mid 1990's the Commission adopted a system known as 
Priority Charge Handling Procedures, using a similar model to 
the triage system that is applied in the health care field, 
whereby the most compelling cases are handled first.
    We have found that this system has been far more efficient, 
responsive and fair, not to mention economical, than the 
previous approach, where all charges, regardless of merit, were 
afforded the same time and attention. The average processing 
time for charges filed with EEOC in the private sector is now 
less than half of what it was 10 years ago, and has averaged 
165 days in the last 3 years.
    I believe that we need to draw from lessons learned in the 
Commission's private sector model to design a Federal sector 
system that is truly the best.
    One of the concerns frequently voiced is that the various 
processes for employee complaints and appeals are redundant and 
overlapping. There is a type of case that has been mentioned, 
where EEOC reviews decisions of the MSPB to ensure proper 
application of the employment discrimination laws. These are 
known as the mixed cases, and are frequently cited by those who 
raise the redundancy issue. Yet over the years, review of the 
MSPB decisions has constituted a very small number of appellate 
cases, in fact, only 1.1 percent of our 2005 receipts.
    Likewise, EEOC may review certain grievance decisions from 
the Federal Labor Relations Authority on issues of 
discrimination, but again, those cases make up very little of 
EEOC's appellate docket, two-tenths of appellate receipts in 
2005.
    We believe that reform of the various complaint and appeal 
processes to include the Federal EEO process can be a very 
positive step. Although the concept of a one-stop process is 
worth exploring, we believe that it requires further study. We 
question whether the creation of an Article I Court, without 
any changes to the administrative agency process, would 
actually yield the results intended. The EEO workload alone for 
a new court could be significant. In fiscal year 2004, more 
than 19,000 EEO complaints were filed with agencies. By 
contrast, over the last 5 years, Federal employees have filed 
fewer than 1,300 lawsuits raising discrimination issues in 
Federal District Courts. This amounts to about a tenth of 1 
percent.
    Further, the proposal under consideration would place all 
workplace disputes into a single judicial forum, one that has 
potential to become more legalistic, more expensive, more 
intimidating, and likely more time consuming than the existing 
processes. It may well have the effect of discouraging 
employees from seeking redress for any discrimination 
experienced, and that should not be the goal or result of any 
reform proposal.
    Ensuring a workplace free of discrimination is vital to our 
Nation's interest. Much progress has been made, but much more 
remains to be done. Improving on an approach that allows for 
the proficient resolution of workplace disputes is an objective 
that we all share and work diligently to meet. It is important 
that we and this subcommittee continue to look for ways that we 
can design a system that works better. We believe that reform, 
informed by what works well in the current administrative 
framework, is a good starting point, and provides the best 
platform for those efforts.
    Thank you very much for the opportunity to comment, and I 
will be happy to answer questions.
    [The prepared statement of Ms. Dominguez follows:]
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    Mr. Porter. Thank you very much.
    Before we get into questions, I would like to heed the 
request of Mr. Davis that we include statements prepared by the 
National Treasury Employees Union and the American Federation 
of Government Employees to be submitted as part of the record. 
So without objection, so ordered.
    Thank you very much.
    [The information referred to follows:]
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    Mr. Porter. I have a few questions for the EEOC. Where do 
you think the delays are occurring in the Federal sector, EEO 
processing, and what suggestions do you have to make it more 
fair and more efficient and effective?
    Ms. Dominguez. Thank you, Mr. Chairman. Since joining the 
Commission, we have looked at this issue very carefully and 
deliberately, and I am convinced that the greatest delay occurs 
during the investigative process conducted by Federal agencies.
    There is a reluctance to look at the merits of the case and 
then apply some judgment, primarily because of fear that at 
some level in the process the case will be reversed. So I think 
there is a reluctance by Federal agencies to conduct anything 
less than a thorough and full investigation, even when the 
allegations do not warrant such a lengthy review.
    Mr. Porter. You mentioned that the system, 96 percent of 
the cases are fully adjudicated, and of course, at heavy costs 
to taxpayers because of purely the manpower and the time. And 
96 percent are of course deemed to be without merit. Is that 
indicative that the system is working because 96 percent are 
without merit? Does that mean the system is working?
    Ms. Dominguez. We believe that what it tells us is that 96 
percent of the issues in which we found no discriminatory 
findings may relate to other management issues or other kinds 
of issues that cannot be substantiated through our 
discrimination analysis. We have put a lot of other things in 
place. One of the things we have encouraged agencies to do--and 
I have been personally meeting with agency heads--has been to 
engage more in the precomplaint counseling process. This is the 
time right before someone files a complaint, to do more 
mediation, to do more counseling, to do more outreach and 
training. We believe those are the tools that Federal agencies 
should continue to strengthen. We still have a very high 
conversion rate between the precomplaint counseling stage and 
the actual filing of a complaint. Government-wide it is about a 
45 percent conversion rate. We think we can drive that down and 
keep complaints from being filed if each agency continues to 
engage much more aggressively in dispute resolution 
administrative processes.
    However, I do think that once a formal complaint is filed, 
it is the old adage of, you know, there is a perception that 
the fox is guarding the hen house, and I believe that we need 
to remove that responsibility. It would be better for the 
agency. It would engender greater trust, and I think we could 
see dramatic improvement in the efficiency of the process.
    Mr. Porter. Thank you.
    I would like to remind my colleagues, if we can keep our 
questions to approximately 5 minutes, I am happy to do 
additional rounds if necessary. Mr. Davis, any questions?
    Mr. Davis of Illinois. Thank you, Mr. Chairman.
    Mr. McPhie, both you and Ms. Dominguez, what is it about 
the mixed cases that cause so much delay, and which makes it 
more difficult to process those in a more timely manner?
    Mr. McPhie. You want me to go first?
    Mr. Davis of Illinois. Yes.
    Mr. McPhie. The way the regulations are set up, a person 
has a right, if they are dissatisfied with an MSPB decision on 
discrimination, to seek review before the EEOC. And we get our 
agency decision very, very quickly. And it leaves our hands, it 
is at the EEOC. We have no control over the process, and then 
it would come back to us at some point in time in the distant 
future. It goes back and forth, and I have always wondered why, 
unlike other provisions described here this morning, people 
couldn't elect a remedy. Once they elect, they have to stay 
with that process. If they elected the Board remedy, for 
example, the case would be finished.
    Mr. Davis of Illinois. So the joint action is not so much 
the problem as the regs governing EEOC becomes more of a 
problem than any difficulty of the two agencies concurrently 
working together?
    Mr. McPhie. Oh, yes. EEOC is the expert, there is no 
question about that. And the Board, over 25 years, has 
developed a history that is quite good. EEOC has said that. But 
the process, I mean the regulation gives the person an 
unfettered right, if they don't like what they get from the 
Board, to take it over to the EEOC. Unless the regulations are 
changed, then you have to respect that right.
    Ms. Dominguez. I fully agree with that. I believe that 
there is access to review on the discrimination aspects of the 
claim by the Commission, and while as I mentioned, it makes up 
about 1 percent of all of the appellate reviews, there is that 
component.
    Mr. Davis of Illinois. Thank you very much.
    Mr. Bransford, I would hope that certainly my comments were 
not part of the notion of opposition to or attacking the 
proposal. I think I have a very open mind about this, and I am 
trying to arrive at what will get the best protection as 
expeditiously as possible, certainly for those employees who 
feel that somehow or another, they are just not getting a fair 
shake. I mean I get people who call me and who come by my 
office, and there are times when I think we are going to have 
to call a psychiatrist--[laughter]--or somebody to keep them 
from going berserk, in terms of what they express about the 
process and whether or not they are going to ever get fairness. 
You indicated that your most serious concern is the length of 
time that it takes to resolve discrimination complaints and 
mixed cases. We have heard some information relative to the 
mixed cases. What is there about the discrimination complaints 
that makes it so difficult?
    Mr. Bransford. There are, Congressman Davis, two things 
about them I think from a manager's perspective. First, the 
manager is not a part of the process. The EEO process in the 
agency works separately and it is supposed to do that. And I 
think to a certain extent when the agency is investigating 
itself, it should be free from management influence, but the 
manager doesn't feel like they are part of the process.
    And second, it goes on for so long, years. And the manager 
has to continue to work on a day-to-day basis with that 
employee who is unhappy with the manager, and very often that 
employee is a problem employee, is a poor performer or is 
engaging in workplace misconduct. The employee has filed an EEO 
complaint. The manager must then manage and make tough 
decisions and face a reprisal complaint because of an EEO 
complaint that has no end, all of this in a process where the 
manager is not a part. I think it creates difficulty for the 
manager.
    And then from the employee's perspective, because I have 
also been involved in these cases from the employee's 
perspective, when a case takes so long to resolve and there is 
a finding of discrimination, it is very difficult to give 
meaningful justice to an employee who has been wronged after 3 
or 4 or 5 years.
    Mr. Davis of Illinois. Thank you very much, Mr. Chairman.
    Mr. Porter. Congresswoman, do you have any questions at 
this point?
    Ms. Norton. Thank you very much, Mr. Chairman.
    I want to say to you, Mr. Bransford, that I am very 
sympathetic with what you go through. I mean I had to live with 
this system. I had to live with a system where people found 
multiple charges at a time, frankly, when we were trying to 
bring the agency, which had been a scandal, back to life. And 
so I hope you won't take our questions as meaning we don't see 
the problem. I lived with it. It is a terrible problem, about 
having someone who just lingers, and understands the system 
well enough to find ways to linger.
    Could I ask you, did you, in designing this idea, speak 
with or consult with the unions who are apparently just, 
perhaps even more frustrated with the present system as you 
are?
    Mr. Bransford. I have not had discussions with unions about 
this specific proposal. I have had numerous discussions with 
union officials over the years about the basic problem. This 
proposal, I would point out, was first designed about 10 years 
ago, and studied at that point. We have since revised it and 
developed it and have continued to push for it, and I think 
within the last 3 years, particularly in what has happened with 
Department of Homeland Security and the National Security 
Personnel System. I think the debate becomes even more 
necessary because the focus has been on reforming MSPB appeal 
rights, and I think the problem is actually broader.
    Ms. Norton. The reason I asked the question----
    Mr. Bransford. But I have not consulted with them on this 
proposal.
    Ms. Norton. The reason I ask the question, Mr. Bransford, 
is that where management and labor have the same basic 
criticism, one would think that is an opportunity for them to 
take at least a go-round at seeing if they could together come 
up with an answer even if they had basic differences. Someone--
I don't know if it was you, Mr. Chairman, or someone in their 
testimony--indicated that it would be advisable for there to be 
a task force of the stakeholders, as say, kind of a beginning 
point.
    Mr. Bransford, would you disagree with that as one way to 
proceed?
    Mr. Bransford. I think that is a very good way to proceed, 
and I think that task force of stakeholders should include the 
labor unions.
    Mr. Porter. Excuse me, Congresswoman, I am not sure who 
said it, but we will give you credit if you like. It is a good 
idea. [Laughter.]
    Ms. Norton. I mean it may have been in someone's testimony, 
Mr. Chairman. I got it from--oh, it was Mr. McPhie. And 
particularly since very often management and labor don't agree 
that there is even a problem, boy, that is a good head start it 
seems to me.
    I was a little puzzled by the very informative sheet that 
the SEA put out on the Federal Employee Court of Appeals. In 
talking about the need for reform, Mr. Bransford, you have a 
section here about the number of days it takes for various 
parts of the system to proceed, and you start with the 601 days 
for the agencies to decide a discrimination case, and you say, 
``when no judge is involved.''
    Mr. Bransford. That is right.
    Ms. Norton. So that means we haven't even gotten to the 
appeal process yet. Then you go on, 280 days for agencies just 
to complete investigations. Here, we are not to appeal yet.
    Mr. Bransford. That is right.
    Ms. Norton. We are still on the ground.
    Mr. Bransford. We are still in the agency.
    Ms. Norton. And even in the agency, in a real sense we 
really may be hopping--I mean there is something called bottom-
up and top-down. Then you go on that the EEOC judge takes 463 
days. Well, if you combine the number of days before you even 
get out of the agency, you have about twice as many days as it 
takes for the EEOC judge to be involved in the case. And of 
course, no appeals court touches that, I take it?
    Mr. Bransford. Well, it has not gone to Federal Court yet. 
At that point it can go--then after that, it can go to Federal 
Court.
    Ms. Norton. After that. So we are still left with the 
employee down there not knowing whether or not there is any 
cognizable claim even. I am wondering whether or not we want to 
nip the problem in the bud, as they say, because I go on again 
with your sheet, because you complain, I think quite rightly, 
that the process, this process, this process that doesn't get 
to appeal--so few cases get to appeal. You say the process 
rarely finds discrimination, meaning that managers are often 
unfairly labeled as discriminating officials.
    And then you go on to cite how few cases find 
discrimination. One of the reasons for that, Mr. Chairman, is 
that this is a free system. These are well-educated employees, 
and whatever message you send, they are going to receive. And 
by the way, if you send a message that there is an appeals 
court, a brand new nice appeals court, don't underestimate 
Federal employees, please. I am sure that will be just where 
everybody tries to get. I just want you to keep that in mind. 
But again, here we have very few cases.
    Now, Ms. Dominguez testified about ways that the EEOC is 
trying to reach out to help these agencies get through that 
process. I would like to know whether or not you think that 
given the resources that go into this system, even before any 
appeals judge get a hold of it, whether it wouldn't be wise for 
the committee to concentrate on carrying out the Federal 
mandate that is now law, that every agency has to have a viable 
ADR process, because I think that if anything, this means that 
whatever version of ADR we are using, is failing, and you, 
therefore, after it has failed, are trying to get hold of the 
few cases that make it to the appeals system with good reason, 
but leaving the process as it is where all of the delay really 
is.
    So I am asking you whether or not your employee, you who 
are the manager, wouldn't be better off if there were a way to 
settle this case or to negotiate the case early on, and then if 
it can't be negotiated, and the employee wants to go on up, 
that is another problem. But isn't our time better put into--
given what appeals are going to produce, isn't it better put 
into trying to get rid of frivolous cases, cases that might be 
easily settled, because you say right here, 20 percent of the 
cases settle but many result in small significant benefit for 
the complainant, meaning that the complainant is willing to 
take a small benefit. So I am asking you aren't we kind of 
putting the cart before the horse and wouldn't it be better for 
the committee to focus on trying to get these cases resolved 
early so that whatever appeals process we decide upon has very 
few cases in the first place.
    Mr. Bransford. The short answer is, yes, I believe that 
there should be more effort made to alternative dispute 
resolution and mediation. However, I don't think that would 
solve the problem.
    The Senior Executives Association supports requiring 
managers to actually participate in alternative dispute 
resolution. The EEO does--and it is one of the significant 
improvements of the last 4 or 5 years--require ADR programs in 
agency EEO systems, which I believe has actually resulted in a 
reduction of many complaints that could have gone forward. But 
the problem is----
    Ms. Norton. That is one agency. We are dealing with five 
agencies, all of which were created because they have very 
distinct expertise. I mean the reason that in 1978 this 
happened in the first place was because the government found, 
the Congress found, that the specific missions of these 
agencies were so dissimilar, so dissimilar that they warranted 
actually setting up different agencies. That took a whole lot 
to do.
    Now, essentially you come back and you put them all 
together again, at least up at the top. There has to be a very 
good reason for doing that, Mr. Bransford.
    Mr. Bransford. And the basic reason for doing it is to 
recognize that it is all about the Federal employee complaint 
system that very often has overlapping concerns, overlapping 
issues. Under the current system if you go to the EEOC on an 
issue and you want to take it to Federal Court on 
discrimination, you have to go through the discrimination 
route. If you want to argue Federal Civil Service, you take it 
through the MSPB and the Federal Circuit.
    Ms. Norton. Would you be in favor of what we have in the 
Federal court system or in most court systems, you choose your 
forum?
    Mr. Bransford. You choose your forum, that is right, and--
--
    Ms. Norton. I am sorry. Would you be in favor of that as 
one way to deal with this problem, so that you wouldn't then 
say, oh, I chose my forum, but here I am going to relitigate it 
in another forum.
    Mr. Bransford. But you would still have multiple ways of 
attacking a problem, and I think tighter rules on choosing your 
forum would be a positive reform, but I don't think it takes 
care of the compete problem because you still have a very 
lengthy delay in the EEO processing that is not being 
addressed.
    Ms. Norton. Mr. Chairman, I can stop here if you want to go 
to other people.
    But again, you keep going back to a delay in the EEO 
processing. Therefore I want to focus you on the EEO 
processing. If the delay is there, then the question for the 
committee is why don't we tackle where the biggest delay is? We 
may still find we have delays in the appeal process. That is on 
the table as far as I am concerned, but the notion of not 
tackling where the real delay is, that is where the employee is 
encountering problems. Where is your little sheet that I had? 
Your employee, and if you say that is who you are doing this 
for, your employee that you are so concerned about, and your 
manager, at 601 days for the agency. That is the agency where 
you are, Mr. Bransford.
    Mr. Bransford. That is correct.
    Ms. Norton. For the agency to decide a discrimination case. 
You still got it at that point, you, the agency. And then 280 
days for the investigation. I am just perplexed, Mr. Chairman, 
why I would want to leap over to the appeals process without 
tackling this and finding ways to make this--to reduce this 
process, given the results you, yourself point out here. Most 
of these cases are going to wash out in the first place, so we 
are interested in the tiny, tiny number that don't wash out.
    Mr. Porter. Congresswoman, that is why we are here today, 
and I think your point is well taken.
    Mr. Bransford. Our proposal would actually start the 
process in the court on day 1, not day 601, and the 
investigation, the consideration of the complaint would be done 
by the independent Court of Appeals, the Federal Employee----
    Ms. Norton. Then I have to have a followup question. Then 
what you are suggesting, Mr. Bransford, is we have a court 
where we transfer the complexity in the administrative process 
now to, of all places, what is always a more costly process, a 
court process. You do say in your sheet that the Court's 
jurisdiction would encompass duties the Office of Special 
Counsel, the General Counsel's Office of the FLRA. The court--
imagine this now--the court would have an investigatory arm. In 
America we are used to agencies investigating. Encompassing the 
duties of the OSC, the Office of Special Counsel and the 
General Counsel of the FLRA. This transfer of jurisdiction, it 
seems to me, doesn't do anything about the number of days, 
doesn't do anything about the delays. What it does do is pile 
them all up in one agency, and we know from experience that if 
you want to make a problem worse, create a big bureaucracy and 
say, now all of the problems are yours, all the delays are 
yours, all of the jurisdiction, including jurisdiction that a 
court has never had, which is jurisdiction over investigations, 
that is all yours. And somehow if we put all of that in a 
court, simply because it is under the same roof, everything is 
going to be done more quickly than it is done now.
    I don't know, Mr. Chairman, I remain to be convinced.
    Mr. Porter. Thank you, Congresswoman, appreciate it.
    Mr. Cummings.
    Mr. Cummings. I am just going to be very brief because I 
think Ms. Norton pretty much expressed my frustrations here.
    But I just want to just bring some of the--you know, Mr. 
Bransford, and I think it was Mr. McPhie, I understand you are 
trying to do something to help employees, and particularly 
employees that find themselves in a situation where they need a 
remedy for what they at least perceive to be a problem. I am 
just wondering, you know, I have read a statement from Colleen 
Kelley, the president of the National Treasury Employees Union, 
who seems to think that this is not the greatest idea. I guess 
when I am trying to help somebody, I would kind of like to know 
that the help that I am offering them is truly help and not 
something that they would deem is not helpful. So I am just 
wondering--and then I want to put alongside of that, when we 
did the Department of Homeland Security, we combined some 22, 
put together 22 agencies and created a super agency. When we 
look at what happened with Katrina, there is not one human 
being that cannot say that there was a failure on the part of a 
lot of folks, local, State and definitely Federal.
    So I am trying to figure out. She claims, that is, Ms. 
Kelley claims that this is a bureaucratic nightmare, and I 
think that is to some degree what Ms. Norton was kind of 
getting at. I just want to make sure--first of all, have you 
been in contact with any of the union folk?
    Mr. Bransford. I discussed the broad problem with the 
unions. I have not discussed with them or had a debate with 
them about this specific proposal, nor have I attempted to get 
their buy-in to it.
    Mr. Cummings. Not necessarily buy-in. I tell my staff, in 
dealing with people, one of the best things that you can do is 
consult with people, at least talk to them, because the person 
who could be your greatest advocate can become your worst enemy 
if they are not at least in some way included in the process. 
It seems to me that if I am trying to create something and redo 
something to help someone, it just seems to me--you don't have 
to have a buy-in, but at least consultation, because I am sure 
the unions catch a lot of the flack when these problems come 
up. I was just curious as to what your process was, that is 
all.
    Mr. Bransford. What our process was in developing this 
proposal?
    Mr. Cummings. Yes.
    Mr. Bransford. We talked to quite a few officials and ex-
officials at the various agencies that do this, and we talked 
to many managers, and received feedback from them about their 
concern, and in addition to that, we talked to a lot of 
employee advocates about how these different agencies actually 
work.
    I have discussed with AFGE and NTEU and other labor unions 
the basic problem of the employee appeals system, including the 
efforts of the last 3 years to diminish the authority and use 
of the Merit Systems Protection Board, and I am well aware of 
their position on that. I am also well aware, Congressman 
Cummings, that the unions would probably be very much against 
my proposal because of its provision to eliminate labor 
arbitration.
    Nonetheless, we believe that it is the best avenue, it 
makes the most sense. The Merit Systems Protection Board was 
created to hear the very same cases that labor arbitrators also 
hear, and it makes no sense to have a Board that is accountable 
to Congress and to the courts, and labor arbitrators that are 
not nearly as accountable, and a perception of managers--and 
the employee advocates, I might also add--that in general 
arbitrators often unreasonably favor the employee in their 
decisions. It seems to me to be, when you look at it, an option 
that is unnecessary, especially considering the Board, but one 
that is very much cherished by the union, and it goes back a 
long way, and I would expect them to oppose our proposal on 
that basis alone.
    Mr. Cummings. Where would the court be centralized? I mean 
where would it be? Would it be regional? I mean would we have 
courts around the country? I take it that MSPB and the FLRA 
maintain some kind of regional agencies throughout, or 
umbrellas out there, and I am just wondering first of all, 
where do you propose this court being?
    Mr. Bransford. I think those details need to be worked out 
as the legislative process unfolds, but I would imagine like 
most Title I courts, it would be headquartered in Washington, 
but I would assume it would have offices throughout the 
country. The MSPB has I think five or seven regional offices. 
The FLRA has offices that deal with Federal employee issues, 
and the EEOC has quite a few offices. So I would think you 
would have to set up offices in every place where currently to 
Federal agencies deal with Federal employee complaint issues.
    Mr. Cummings. And offices meaning that they would also be 
places where matters could be adjudicated. Is that what you are 
saying?
    Mr. Bransford. Matters would be adjudicated. Hearing 
examiners and judges would be housed in those offices, and 
court staff to investigate and do dispute resolution.
    Mr. Cummings. Well, the jury is still out. Thank you.
    Mr. Porter. Thank you, Mr. Cummings.
    We are going to be voting on the House floor in about 10 
minutes, and I am willing to have another round of questions if 
the committee would like. Congresswoman.
    Ms. Norton. Commissioner Dominguez, wouldn't some of this 
problem go away if the EEOC had the same kind of enforcement 
authority in the Federal sector that it has in the private 
sector?
    Ms. Dominguez. Congresswoman Norton, certainly it would 
improve. We are often frustrated because there is oftentimes a 
resistance to provide necessary data during the hearings 
process, and of course, the Commission doesn't have any kind of 
sanctioning powers to impose submission of that data.
    Let me just for the record--I know that SEA provided the 
data for 2004 in terms of hearings, but I am just very proud to 
report that in 2005 we have gone from 421 days to 249 days, so 
we are trying to squeeze out the efficiencies, but there is a 
point where you have to look at the foundation of the process, 
not necessarily what the current process is, but how are we 
organized. And that I think was really the key part here.
    Ms. Norton. I think first things first. We may have 
problems in the appeal process, but I am yet to understand why 
it would begin there rather than where all the delay is.
    Mr. Bransford, for as long as--and there has been Federal 
law and administrative process, it has been Federal process to 
keep people out of court. That is why you have all of these 
decisions, some of them counter-intuitive in this process, but 
have all these decisions saying exhaust your remedies, exhaust 
your remedies.
    Your proposal would actually make what are now 
administrative functions into judicial functions, functions 
literally of a court. Isn't that turning the whole notion of 
keeping people out of court on its head, and reversing what has 
been Federal policy for decades? Why would we want to do that?
    Mr. Bransford. Well, we would want to do it for two 
reasons. One is, by creating a Title I court like this, I think 
you are creating an organization that would have a tremendous 
degree of independence and integrity, sufficient, for the 
second reason, to remove these Federal employee cases from 
Federal District Court and actually putting them in this Title 
I court, where employees would have----
    Ms. Norton. I am talking about the administrative function.
    Mr. Bransford [continuing]. One shot at it. We think by 
creating a specialized court that was focusing only on Federal 
employee issues, you could do this effectively without having 
an administrative process, and that administrative process that 
you are discussing is quasi-judicial already, the MSPB and the 
FLRA and the EEOC and the Office of Special Counsel, which we 
think this court----
    Ms. Norton. Mr. Bransford, are you aware that in the 
processes right here, most employees don't get a lawyer. Once 
you say you are going into some kind of court, most--many cases 
are handled by people themselves, pro se, by non-lawyers, by 
union representatives who aren't lawyers, by friends who come 
in to help them. Now we are creating, under your proposal, an 
administrative court, a lot of complexity in it, complexity 
that is now in the administrative process. Wouldn't there be a 
need for a lawyer in this court process?
    Mr. Bransford. Well, there are also people who go to 
Federal District Court pro se.
    Ms. Norton. Very few. That is no answer to my question.
    Mr. Bransford. I would agree. I would agree with that, 
but----
    Ms. Norton. The question here is, do you envision that 
people would be able to go into this process without a lawyer, 
or would feel that perhaps before an Article I court, they best 
have a lawyer?
    Mr. Bransford. I feel that this process could be set up 
specifically to handle pro se cases exactly like they are 
handled at the MSPB or the EEOC----
    Ms. Norton. So here we have then a court doing what the 
administrative process does, only we call it a court and we 
send a signal that it should be treated like a court. There are 
a lot of mixed functions in here. One of the great debates of 
the administrative process when the NLRB was set up was about 
firewalls and fairness. One thing that having separate agencies 
does is to at least make it clear that notion of fairness isn't 
being violated because it is all mixed up in the same agency. I 
regard that as a problem that needs to be dealt with.
    You have the court handling advisory functions of 
independent agencies. You have things in this court that no 
court has ever had anything to do with, functions like issuance 
of guidance on labor relations issues. It doesn't sound to me 
like this is a court at all, but a combination agency and 
court, some kind of hybrid, that transfers a lot of complexity 
now in the administrative process upward.
    I do have a question for Ms. Cabaniss. Ms. Cabaniss, you 
are aware that we have before us not as a piece of formal 
legislation, but what has been outlined certainly in a form 
which could become legislative, a proposal called ``Working for 
America Act.'' So in viewing this proposal, I have had to look 
at it in light of that proposal because--and to ask you what 
would be left of the FLRA if on the one hand you get the 
Working for America Act, on the other hand you get this act?
    For example, under the proposed Working for America Act--I 
am looking here at the executive summary--the unions would lose 
certain rights that now apparently are before you, the right to 
attend formal discussions between management and employees. You 
handle I guess such grievances. Existing union right to attend 
formal discussions between management employees on any 
personnel matter. There is, you know, emergencies. An agency 
could declare emergency whenever it--excuse me--damn well 
pleased, and there goes consultation and a whole lot of things 
that by fiat don't come any longer if we were to pass this act, 
and the Working for America Act.
    And so this needs--you are very modest here--you kind of 
say, this needs a little study. I am asking you if we pass both 
of these things, the Working for America Act and this proposal, 
whether or not there is any need for an FLRA, or whether we 
shouldn't just streamline government all together, and 
eliminate the FLRA?
    Ms. Cabaniss. That is a very good question. I see the 
proposals as being distinct. The SEA proposal clearly looks as 
if it would take the place of the FLRA. The Working for America 
Act, as I understand it, would limit the scope of bargaining. 
It doesn't necessarily take away any of the responsibilities of 
the FLRA. It might change the type of cases that come before 
the FLRA, which certainly could have an impact on the number of 
cases, depending on what the ultimate scope of bargaining is, 
and how many times, you know, unions take to have those cases 
come before the FLRA. So it certainly would have an impact on 
our jurisdiction.
    Ms. Norton. But there wouldn't be much left of the FLRA if 
we had this proposal.
    Ms. Cabaniss. As I understand it, it looks like it would 
largely take the place of----
    Ms. Norton. Just as well abolish the FLRA.
    Mr. Porter. Thank you.
    Ms. Norton. I think that is a very weighty and heavy notion 
to bear in mind here, and if it is that easy, Mr. Chairman, 
fine, but it hasn't seemed that easy to me.
    Thank you very much, Mr. Chairman.
    Mr. Porter. Thank you for your comments.
    Mr. Davis, any questions?
    Mr. Davis of Illinois. Yes.
    Mr. Bransford, if we could go back. It seems that I 
remember at a point you suggested that part of the problem with 
the EEO process was that managers were not really integrated 
into that process. If that is the case, could there not be some 
way to correct or fix that to the extent that input from 
managers could be a part, and would that not maybe help to 
streamline the process a bit?
    Mr. Bransford. Yes, it would. I believe that managers 
should be more a part of the process, and the Senior Executives 
Association has a legislative proposal that we have entitled 
the Federal Managers Fairness Act to do exactly that, to make 
managers more a part of the process. And to the extent that 
this independent court does not become a reality or is delayed 
in becoming a reality, we think it is important that managers 
are brought into the EEO process, that they be informed when a 
complaint is filed, that they be entitled to representation 
during investigations, that they be provided with relevant 
documents, that they be consulted, not necessarily in any 
authoritative way, but at least advised before a case is 
settled so that their input could be obtained, and that they be 
reconsidered for lost awards, lost promotions, lowered 
performance appraisals if an EEO complaint is later found to 
not have merit.
    We think that is important, and I suspect that the SEA's 
proposal on this court would be studied for some period of 
time. We hope that the other reform would take place in the 
interim, would be less necessary if an independent court were 
set up because we think these cases would move through it 
rapidly.
    Mr. Davis of Illinois. Representative Norton has sort of 
indicated that this would be a different kind of court, sort of 
a hybrid, something different than what individuals are 
generally accustomed to. Do you think that employees might end 
up feeling that they were shortchanged if they now are blocked 
from moving to Federal court in the traditional sense, or that 
they now can't go anyplace else, that this is it, and other 
people have the chance to go to Federal Court, maybe even to 
the Supreme Court, if necessary, that someone might feel that 
their rights had been diminished or taken away?
    Mr. Bransford. I have thought a lot about that because I 
think that is a very important question. Where I come down on 
it is by creating an Article I court you are going to give the 
court I think sufficient prestige and credibility that it will 
be able to fairly, fully decide these cases. They would be 
appealable to the Federal Circuit and then ultimately to the 
Supreme Court for EEO cases, so they would be fully appealed.
    The current system is to some extent clogging the Federal 
Courts. The data that was thrown out here this morning is only 
1,300 cases, but there are still quite a few in Federal Court, 
and these are cases that have already gone through the 
administrative process. Unlike in the private sector, where an 
employee goes through the EEOC process in a less intensive way 
and faster, and they can go to Federal District Court, there's 
no separate mechanism.
    It seems to me that the Federal employee appeals and 
complaints system has learned enough to be able to set up this 
type of a court to give it sufficient significance so that 
Federal employees would accept it, decide cases rapidly, and 
also deal with cases as far as the input in a less formal way, 
so that employees could feel comfortable doing that without 
having a lawyer if they chose to.
    Mr. Davis of Illinois. And finally, anyone who would 
respond, is there any way that you can think of that would just 
simply shorten for people the process? I mean the title I think 
``Justice Delayed, Justice Denied.'' I mean there are people 
who obviously just simply feel their cases will never get 
adjudicated, that they will just hang forever and forever and 
forever and forever, and they will never know. Does that do an 
injustice to our judicial notions and our judicial system, and 
is there a way to really kind of speed that up?
    Ms. Cabaniss. I know, at least in the FLRA's experience, in 
our statute Congress required us to do a certain type of case 
within a specific time deadline. Perhaps Congresswoman Norton 
has a better sense than I do of why that was the case. When the 
decision was made that the FLRA has to act on cases involving 
issues of representation, we have to act as the Authority 
within 60 days. Those kind of time limits were not imposed in 
our statute for other types of cases. That is the only issue 
that I would option--suggestion that I would make, if Congress 
makes a determination that the cases should be done within a 
specific amount of time, you might look to that, and the 
history behind it as a model.
    Mr. Bransford. Congressman Davis, if I could address your 
point. Current law does impose time limits, but the time limits 
don't have meaningful sanctions because when the time limit 
expires, the employee then has a right to move on to the next 
phase, and they can choose where to go. And very often, when 
you are representing an employee, as I have had the occasion to 
do over the years, and you get to that 180 days, you are left 
with a choice of, well, do I go to Federal Court and its very 
expensive process, do I go to the EEOC which is a less 
expensive but still expensive process, or do I wait for the 
agency to finish the investigation and learn a great deal of 
useful information? Usually you decide to wait, and the agency 
just takes off and takes its time.
    So if the time limits had more meaningful sanctions, 
perhaps that could speed the process up.
    Mr. Davis of Illinois. Thank you very much, Mr. Chairman.
    Mr. Porter. Thank you.
    A lot of good people that have real problems won't enter 
the system because they are afraid it is going to take so long 
or that they are wasting their time or have some of that 
intimidation. I would like to note for the record that members 
can submit additional questions.
    Ms. Norton. Mr. Chairman, could I just--irresistibly 
because we have had a hearing on the Working for America Act, 
where you were just seeking reactions to it, and here--my 
recollection is that Ms. Cabaniss did not appear at that 
hearing and I am not sure anybody from the FLRA appeared at 
that hearing. I would like to know whether she supports the 
Working for America Act proposal?
    Ms. Cabaniss. I don't really think that it is appropriate. 
You all had the opportunity to talk to all the stakeholders, 
see where they are. The one thing I do support and I think is 
appropriate, is that you all are having this discussion. 
Unlike, for example, Superfund or the Clean Air Act, so many of 
these statutes come up for reauthorization that Congress has an 
opportunity to bring in all the stakeholders, those who are 
affected, have the hearing, and discuss is this where we want 
to be? Where do we want to go?
    I don't know that conversation has really taken place 
wholesale on the statute governing the FLRA. Obviously, there 
have been changes over the years, amendments through the 
appropriations process, but I don't know that anyone has really 
taken a hard look or whether or not the statute best serves the 
interest of the agencies, but more importantly the interest of 
the employees. We are a complex statute. Generally you do need 
a lawyer to come before the FLRA. I think it is always 
appropriate to have that discussion whether or not our statute 
is best serving the needs of our customers.
    Ms. Norton. But you are not prepared to endorse that 
proposal at this time?
    Ms. Cabaniss. No, ma'am, I am not, just because it is not a 
piece of legislation yet. We haven't been involved.
    Ms. Norton. But for us to be doing a piece of legislation 
that affects primarily your agency, it seems to me that you 
would be the first to want to have something to say about it.
    Ms. Cabaniss. Well, if given the opportunity to formally 
engage on that, we would certainly be happy to.
    Ms. Norton. You hear her, Mr. Chairman? She would be happy 
to engage in it. She is not engaging right now when I ask her 
questions, but perhaps you can engage Ms. Cabaniss later.
    Mr. Porter. Thank you for your questions, and thank you for 
your testimony. I appreciate you all being here. Members do 
have time to submit for the record additional questions.
    Thank you all for being here. Have a good day.
    [Whereupon, at 11:53 a.m., the subcommittee was adjourned.]
    [The prepared statement of Hon. Elijah E. Cummings and 
additional information submitted for the hearing record 
follow:]
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