[Senate Hearing 110-140]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-140
 
               SAFEGUARDING THE MERIT SYSTEMS PRINCIPLES:
                A REVIEW OF THE MERIT SYSTEMS PROTECTION
                BOARD AND THE OFFICE OF SPECIAL COUNSEL

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

                                HEARING

                               before the

                  OVERSIGHT OF GOVERNMENT MANAGEMENT,
                THE FEDERAL WORKFORCE, AND THE DISTRICT
                        OF COLUMBIA SUBCOMMITTEE

                                 of the

                              COMMITTEE ON
                         HOMELAND SECURITY AND
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 22, 2007

                               __________

        Available via http://www.access.gpo.gov/congress/senate

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs



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34-414 PDF                 WASHINGTON DC:  2007
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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas              NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana          TOM COBURN, Oklahoma
BARACK OBAMA, Illinois               PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri           JOHN WARNER, Virginia
JON TESTER, Montana                  JOHN E. SUNUNU, New Hampshire

                  Michael L. Alexander, Staff Director
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
                  Trina Driessnack Tyrer, Chief Clerk


 SUBCOMMITTEE ON GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE 
                          DISTRICT OF COLUMBIA

                   DANIEL K. AKAKA, Hawaii, Chairman
CARL LEVIN, Michigan                 GEORGE V. VOINOVICH, Ohio
THOMAS R. CARPER, Delaware           TED STEVENS, Alaska
MARK L. PRYOR, Arkansas              TOM COBURN, Oklahoma
MARY L. LANDRIEU, Louisiana          JOHN WARNER, Virginia

                   Richard J. Kessler, Staff Director
                        Jennifer Tyree, Counsel
             Jennifer A. Hemingway, Minority Staff Director
       Theresa Manthripragada, Minority Professional Staff Member
                      Emily Marthaler, Chief Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Akaka................................................     1
    Senator Voinovich............................................     3

                               WITNESSES
                        Thursday, March 22, 2007

Hon. Neil McPhie, Chairman, U.S. Merit Systems Protection Board..     4
Hon. Scott Bloch, Special Counsel, U.S. Office of Special Counsel     6

                     Alphabetical List of Witnesses

Bloch, Hon. Scott:
    Testimony....................................................     6
    Prepared statement...........................................    34
McPhie, Hon. Neil:
    Testimony....................................................     4
    Prepared statement...........................................    27

                                APPENDIX

Charts submitted for the Record from OSC.........................    42
Background.......................................................    49
Letter to Leroy A. Smith, dated March 23, 2005, from Maria 
  Garabis with Memorandum attached...............................    62
Tom Devine, Legal Director and Adam Miles, Legislative Dirctor, 
  Government Accountability Project, prepared statement..........    66
Colleen M. Kelley, National President of National Treasury 
  Employees Union, prepared statement............................    78
Jeff Ruch, Executive Director, PEER, prepared statement..........    81
Responses to questions for the Record from:
    Mr. McPhie...................................................    91
    Mr. Bloch with attachments...................................   114


   SAFEGUARDING THE MERIT SYSTEMS PRINCIPLES: A REVIEW OF THE MERIT 
       SYSTEMS PROTECTION BOARD AND THE OFFICE OF SPECIAL COUNSEL

                              ----------                              


                        THURSDAY, MARCH 22, 2007

                                   U.S. Senate,    
              Subcommittee on Oversight of Government      
                     Management, the Federal Workforce,    
                            and the District of Columbia,  
                      of the Committee on Homeland Security
                                        and Governmental Affairs,  
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:30 p.m., in 
room 342, Dirksen Senate Office Building, Hon. Daniel Akaka, 
Chairman of the Subcommittee, presiding.
    Present: Senators Akaka and Voinovich.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. With the consent of my friend and Ranking 
Member of this Subcommittee, Senator Voinovich, I call the 
Subcommittee on Oversight of Government Management, the Federal 
Workforce, and the District of Columbia to order.
    I am very pleased to welcome Neil McPhie, Chairman of the 
Merit Systems Protection Board, and Scott Bloch, Special 
Counsel at the Office of Special Counsel, to this Subcommittee 
today to review how both agencies are meeting their statutory 
missions as Congress begins consideration of their 
reauthorization requests.
    Both the MSPB and OSC were created by the Civil Service 
Reform Act of 1978 to safeguard the merit system principles and 
to help ensure that the Federal employees are free from 
discriminatory, arbitrary, and retaliatory actions, especially 
against those who step forward to disclose government waste, 
fraud, and abuse. These protections are essential so that 
employees can perform their duties in the best interests of the 
American public. The enforcement of the merit system principles 
by MSPB and OSC helps ensure that the Federal Government is an 
employer of choice.
    The MSPB is charged with monitoring the Federal 
Government's merit-based system of employment by hearing and 
deciding appeals from Federal employees regarding job removal 
and other major personnel actions. The Board also reviews 
regulations of the Office of Personnel Management and conducts 
studies of the merit system.
    OSC is charged with protecting Federal employees and job 
applicants from reprisal for whistleblowing and other 
prohibited personnel practices. OSC serves as a safe and secure 
channel for Federal workers who wish to disclose violations of 
law, gross mismanagement or waste of funds, abuse of authority, 
or a specific danger to public health and safety. In addition, 
the OSC enforces and provides advisory opinions regarding the 
Hatch Act, which restricts the political activities of Federal 
employees and protects the rights of Federal employees, 
military veterans and reservists under the Uniformed Services 
Employment and Reemployment Rights Act of 1994.
    Congress intended OSC and MSPB to be the stalwarts of the 
merit system. However, both agencies have been criticized for 
failing to live up to their mission. For example, the most 
recent employee satisfaction survey conducted by OSC shows that 
less than 5 percent of the respondents reported any degree of 
satisfaction with the results obtained by OSC, while over 92 
percent were dissatisfied.
    Since the year 2000, I have been pushing legislation to 
reform the Whistleblower Protection Act to address judicial 
decisions that have been inconsistent with Congressional intent 
and provide structural reform to the process for protecting 
Federal whistleblowers. The need for this legislation is very 
clear. No Federal whistleblower has won on the merits of their 
claim before the Board since the year 2003. At the Federal 
Circuit Court, whistleblowers have won on the merits twice out 
of 178 cases since 1994, when Congress last strengthened the 
Act.
    For OSC, organizations that help whistleblowers claim that 
OSC has gone from being their first option for relief to their 
last choice, since OSC no longer works with agencies to achieve 
informal relief and the percentage of corrective actions and 
stays has been cut in half since 2002.
    As the Administration pushes for changes to Federal 
personnel laws that decrease the ability of employees to engage 
in collective bargaining and bring grievances, it becomes even 
more important for employees to have full confidence in MSPB 
and OSC.
    Two years ago, the Subcommittee held a hearing on how OSC 
was meeting its statutory mission. At that time, employees, 
good government groups, and employee unions, alleged that OSC 
was abandoning its mission to protect employees, especially 
whistleblowers, from prohibited personnel practices and to act 
in the interest of employees who seek its assistance and 
instead had been ignoring whistleblower complaints, had been 
failing to protect employees subjected to sexual orientation 
discrimination, and had been retaliating against whistleblowers 
at OSC. If true, these practices would directly counter OSC's 
legal responsibility to be the protector of civil service 
employees.
    Given the fact that OSC employees could not make their 
disclosure to the Special Counsel, the alleged individual who 
engaged in the wrongdoing and retaliated against them, the 
employees and stakeholders filed a complaint with the 
President's Council on Integrity and Efficiency. The OPM 
Inspector General was then charged with investigating the 
matter. Unfortunately, the OPM IG is still investigating these 
allegations, but new evidence suggests that things have not 
changed. OSC has interfered with the ability of employees to 
talk to the OPM IG by requiring employees to arrange interviews 
through the Special Counsel's Office. While OSC has since 
rescinded this policy, this action, combined with the numerous 
other allegations against the agency, does not instill 
confidence.
    The lead agency charged with protecting Federal employees 
cannot ignore its responsibility and violate the merit 
principles or even give the appearance of doing so or else the 
trust of Federal employees and the American people in the 
Federal workforce will be compromised. OSC must be a safe haven 
and a place of hope for employees. As such, OSC must be held to 
a higher standard and be beyond reproach. Unfortunately, it 
does not appear that OSC is measuring up.
    I hope that today's hearing will allow us to address these 
concerns and allegations and ensure that MSPB and OSC are 
meeting their missions.
    Now, I would like to turn to my good friend, Senator 
Voinovich, for any opening statement that he may have. Senator 
Voinovich.

             OPENING STATEMENT OF SENATOR VOINOVICH

    Senator Voinovich. Thank you, Senator Akaka. Thank you for 
having this hearing this afternoon. I am anxious to hear from 
the witnesses. As you said, it was a couple of years ago that 
we had a hearing on this topic and I am interested to see what 
progress, if any, has been made.
    I would like to extend a warm welcome to our witnesses, the 
Hon. Neil McPhie, Chairman of the Merit Systems Protection 
Board, and the Hon. Scott Bloch, Special Counsel.
    The United States is well served by professional civil 
servants hired and promoted based on a series of merit 
principles. Apart from political parties and disagreements in 
Congress or the White House, the dedicated individuals of the 
Federal service ensure that the needs of the American people 
are met, whether it is guarding our borders or processing 
Social Security checks. Mr. McPhie, I am proud to say that I 
believe our system is admired around the world.
    Guarding the merit principles that preserve the integrity 
of the civil service are two important agencies, the Merit 
Systems Protection Board and the Office of Special Counsel. 
These responsibilities require that these agencies lead by 
example and that their personnel management policies reflect 
the merit principles they are told to uphold.
    As an independent investigative and prosecutorial agency, 
OSC protects current and former Federal employees and 
applicants for Federal employment from prohibited personnel 
practices, promotes and enforces compliance of the Hatch Act, 
and facilitates disclosures by Federal whistleblowers about 
government wrongdoing.
    As an independent quasi-judicial agency, MSPB adjudicates 
cases brought by the Office of Special Counsel as well as 
appeals over improper suspensions, removals, retirement 
benefits, and veterans' preference claims. Furthermore, the 
MSPB has the authority to conduct studies of the civil service.
    Authorization for both of these agencies expires at the end 
of this fiscal year. Mr. Chairman, I believe it is important 
for us to act promptly to advance legislation to reauthorize 
these agencies and I look forward to a continued bipartisan 
collaboration with you on introducing and advancing this 
legislation. Thank you.
    Senator Akaka. Thank you very much, Senator Voinovich.
    I again want to welcome our witnesses, Mr. McPhie and 
Special Counsel Bloch, to this hearing.
    As you know, it is the custom of this Subcommittee to swear 
in all witnesses, and so I ask you to stand and raise your 
right hand?
    Do you swear that the testimony you are about to give this 
Subcommittee is the truth, the whole truth, and nothing but the 
truth, so help you, God?
    Mr. McPhie. I do.
    Mr. Bloch. I do.
    Senator Akaka. Thank you very much.
    Although statements are limited to 5 minutes, I want our 
witnesses to know that their entire statement will be included 
in the record. Mr. McPhie, please proceed with your statement.

   TESTIMONY OF NEIL McPHIE,\1\ CHAIRMAN, U.S. MERIT SYSTEMS 
                        PROTECTION BOARD

    Mr. McPhie. Thank you, Mr. Chairman and Ranking Member 
Voinovich. Let me say first that the MSPB welcomes oversight. I 
am happy to be here to discuss MSPB's role in safeguarding the 
merit system principles. I am proud and honored to serve as the 
seventh Chairman of the Board, and today, what I plan to do is 
highlight some of the Board's accomplishments since the last 
reauthorization and some legislative proposals we have 
submitted. Finally, I will discuss some of the challenges that 
I foresee in the Board's future.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. McPhie appears in the Appendix on 
page 27.
---------------------------------------------------------------------------
    From fiscal year 2002 to 2006, the Board adjudicated 42,145 
cases for an average of 8,429 per year. During this period, we 
reduced the average processing time for initial decisions from 
99 days to 92 days. We also made significant progress in 
reducing the average case processing time at headquarters from 
265 days in fiscal year 2005 to 154 days in fiscal year 2006. 
There has been no sacrifice in quality. The Court of Appeals 
for the Federal Circuit has affirmed 93 percent of the Board 
decisions that came before them during that period.
    We have embraced technology to help us expedite case 
processing. For example, since 2002, we have increased the use 
of video conferencing. In fiscal year 2003, MSPB implemented an 
electronic appeals process that allows appellants to file an 
initial appeal using the Internet. Currently, approximately 25 
percent of initial appeals are filed electronically.
    Our mediation program was implemented nationwide in 2004 
and has resulted in the successful settlement of more than 100 
appeals.
    As you know, the Board conducts independent, nonpartisan, 
objective research and produces reports that promote the merit 
system principles that are embodied in Title 5. Between fiscal 
year 2002 and 2006, the Board issued over 20 reports and Board 
employees conducted more than 400 outreach presentations.
    With respect to general management issues, I am pleased to 
report that the Board has earned a clean audit in each of the 4 
years that Federal agencies have been required to submit a 
financial audit.
    We have submitted for the Subcommittee's consideration six 
legislative proposals. One proposal seeks to provide for an 
order of succession for the Board when, one, the Board 
membership is comprised of two or more Board members but no 
member has been designated chairman or vice chairman; or two, 
all three Board positions are vacant. This proposed legislation 
recognizes the President's prerogative to control key Executive 
Branch appointments while preserving the continuity of agency 
operations.
    In another proposal, the Board requests summary judgment 
authority as other agencies, such as the EEOC, already have. It 
is also worth noting that MSPB will have that summary judgment 
authority under the new employee appeals processes for the 
Departments of Homeland Security and Defense.
    Pursuant to 5 U.S.C. Section 1203, the chairman of the 
Board serves as the chief executive and administrative officer 
of the agency. As such, the Board historically has followed a 
practice of leaving budget and administrative responsibilities 
to the chairman. Two of the proposed technical amendments 
merely reconcile the language of Section 1204 to the plain 
intent expressed in Section 1203.
    The further amendment emphasizes the chairman's authority 
to delegate certain responsibilities to the employee or 
employees he or she appoints. As a quasi-judicial agency, the 
Board functions similar to a court when it deliberates and 
decides cases. The proposed exemption from the requirements in 
the Sunshine Act will enable Board members to freely discuss 
and deliberate cases.
    The Board faces several potential challenges in the near 
future. Several factors could result in an increase in the 
Board's caseload, including the anticipated increase in 
retirement throughout the Federal Government and the resultant 
wave of hiring to fill those vacancies. Also, changes in 
judicial precedent and new legislation, such as the proposed 
amendment for the Whistleblower Protection Act now pending 
before Congress may also result in an increase to the Board's 
caseload.
    Additionally, we will be working with DHS on the 
implementation of its new expedited employee appeals system, 
and in the context of the Board's studies, we anticipate that 
DHS and DOD personnel systems will require greater study as 
they are implemented. That is why we are currently collecting 
baseline data.
    My red light is on. I have a small paragraph which I would 
like to finish, with your permission.
    Senator Akaka. Please complete it.
    Mr. McPhie. Thank you, sir. As the Board prepares for the 
impact of increased retirements throughout government, we have 
recognized that the Board itself will be affected. In fact, 
within 5 years, 40 percent of the MSPB's workforce will be 
eligible to retire. Almost 20 percent are eligible at this 
time. To prepare for this wave, my administration has looked 
for creative ways to attract, develop, and retain employees. 
For example, I have directed each office to develop a 
succession plan. I have also instituted developmental training 
programs throughout the agency.
    In short, Board members, officials, staff have successfully 
fulfilled the agency's statutory missions. We have been careful 
stewards of the public funds entrusted to us. We continue to 
explore ways to achieve new levels of efficiency and to better 
serve the American public. We believe that the proposed 
amendments described during this hearing will help the agency 
meet these goals.
    In these times of great changes in Federal human resources 
management, a strong, vibrant, and independent MSPB is 
critical. We look forward to continuing to work with you and 
with the Subcommittee as we fulfill these important 
responsibilities. Thank you for your patience.
    Senator Akaka. Thank you very much, Mr. McPhie. Special 
Counsel Bloch, please proceed with your statement.

 TESTIMONY OF SCOTT BLOCH,\1\ SPECIAL COUNSEL, U.S. OFFICE OF 
                        SPECIAL COUNSEL

    Mr. Bloch. Thank you, Mr. Chairman and Ranking Member 
Voinovich. It is an honor to be before this Subcommittee. John 
Adams said, ``Good Government is an empire of laws.'' I have 
quoted this often in my tenure and I believe in its emphasis of 
the rule of law holding government officials to high standards 
and holding ourselves accountable to the public trust.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Bloch with attachments appears in 
the Appendix on page 34.
---------------------------------------------------------------------------
    As the Special Counsel of the U.S. Office of Special 
Counsel, I am requesting reauthorization because upholding 
OSC's laws keeps our government accountable and just.
    I am pleased to tell you our agency is functioning better 
than ever, while still continuing to improve. Morale is high. 
We have very qualified employees who are doing a great job for 
the merit system.
    I have brought preview copies of our fiscal year 2006 
annual report and charts showing some of our numbers.\1\ The 
annual report will soon be up on our website.
---------------------------------------------------------------------------
    \2\ The charts referred to appears in the Appendix on page 42.
---------------------------------------------------------------------------
    I have previously submitted written testimony that contains 
most of what I want to say to the Subcommittee, but let me give 
you an overview of how we are functioning better in four areas: 
Whistleblower disclosures, investigation and prosecution of 
prohibited personnel practices, the Hatch Act, and then the 
Uniformed Services Employment and Reemployment Rights Act, or 
USERRA.
    Now, I brought charts here to show how we are doing with 
our Whistleblower Disclosure Unit and this shows how many were 
pending at the end of each fiscal year. We see a steep drop-off 
in the number of cases we roll over from year to year. It kind 
of has that ski jump look to it which I like to see because it 
shows that the unit is doing its job.
    Next, we have another chart, again regarding our Disclosure 
Unit, that shows the number of cases rising since I started in 
the position since the full Committee kindly had me confirmed. 
It shows an increase in the whistleblower referrals to agencies 
more than double what was going on before. Now, this translates 
into a safer, more efficient America, whether it is in 
resolving of aircraft near misses at Dallas-Fort Worth Airport, 
or uncovering and fixing environmental hazards at Federal 
prison facilities, or in greater health and safety at Veterans 
Affairs or Health and Human Services health facilities, 
military aircraft maintenance safety, Border Patrol and Customs 
safety, or rooting out fraud and waste in procurement and in 
travel reimbursements.
    The next chart we have is about our prohibited personnel 
practices results, showing a decrease in the processing times 
in our Screening Unit of the PPPs from fiscal year 2002 to less 
than half of what it was, in 2006, which means more time for 
the IPD to get results. The IPD is our Investigation and 
Prosecution Division.
    Now, the next chart shows a decrease in the average age of 
cases in the IPD, which I am very happy because you had many 
cases that were in the division for 2, 3, 4, and sometimes even 
5 years and we have tried to implement new procedures and 
standard operating procedures so that cases don't spend more 
than a year there, whether they are filed with the Board or 
they are mediated or they are resolved in another fashion.
    One higher-profile case last year was the forced 
resignation of an Agriculture Department State Director in 
Alaska for multiple abuses of a whistleblower. We got her her 
job back and he left service. We just filed a petition for 
corrective action before MSPB on a case in which we had already 
obtained a stay of transfer for a DEA agent who reported 
illegal and unconstitutional interrogation of his superiors.
    Turning to the Hatch Act, we have a chart that shows a 
decrease, again, in the average processing time for complaints, 
again, that same kind of steep slope. The next chart shows you 
an increase in the number of disciplinary and corrective 
actions corresponding in that same time with a drop in 2005 
after the 2004 elections, and then it spiked back up for the 
2006 mid-terms.
    We have had a variety of interesting cases lately, some 
high-profile and Hatch Act, but none more important than four 
Board cases that have come down fairly recently that 
affirmatively declare that political activity through the use 
of government e-mail is inappropriate and can result in the 
loss of Federal jobs.
    The final chart shows our USERRA Unit is achieving great 
results. Starting in February 2005, you see we have taken on 
several hundred cases there and we have achieved a remarkable 
corrective action rate for service members who are Federal 
employees of over 25 percent, which is very high for Federal 
enforcement agencies. And it wasn't until 2004 that we filed 
OSC's first-ever USERRA cases at the Board in the 13 years of 
the statute's history.
    One notable case recently was someone, a service member 
injured in Iraq and he was denied his job back. When he came to 
us, we got him his job back and restoration of his benefits, 
and we have many other stories like that.
    OSC has partial jurisdiction over initial investigation of 
these USERRA cases in a demonstration project with the 
Department of Labor. The project expires at the end of this 
fiscal year and I know, Mr. Chairman, that you and your staff 
at the Committee on Veterans Affairs will be looking at that.
    We have also included in our request for reauthorization 
some legislative proposals, some of which have already been 
proposed by the Chairman in legislation he has sponsored. I 
would emphasize one provision to take away a chilling effect on 
filing of disciplinary actions by assessing attorneys fees 
against OSC if we lose the case.
    OSC is doing a good job for Federal employees and the merit 
system and should be authorized. Now, I welcome any questions 
you may have. Thank you.
    Senator Akaka. Thank you very much for your testimony, Mr. 
Bloch.
    I have a series of questions about the issue of 
discrimination related to sexual orientation that I would like 
to discuss with you to gain clarity on the scope of protection. 
You have taken the position that Section 2302 does not make it 
illegal for the Federal Government to deny an applicant a job 
solely on the basis of his sexual orientation. Is that correct?
    Mr. Bloch. Thank you, Senator. As you may recall from my 
2005 testimony before this Subcommittee, I reflected to the 
Subcommittee that we stand firm on the proposition that we do 
not believe it is appropriate to discriminate against Federal 
employees for any reason. I don't believe in it. I have so 
stated many times throughout my tenure. Sometimes it is 
printed, sometimes it isn't. And I also explained that we do 
not have any experience or any knowledge of any experience of 
such discrimination or of failing to provide all of the 
remedies that the law provides to Federal executive employees 
to give them full due process, full consideration, and I have 
so instructed my staff many times.
    I also reflected to the Committee the 12 PPPs that we have 
in Title 5 U.S.C. 2302(b) and they are not exhaustive of 
potential rights that people may have, but we are limited, of 
course, in what we can do to bring a corrective action or a 
disciplinary action to debar a Federal manager based on the 
language of the statute as well as the case law that MSPB has 
used to interpret the statute.
    And so when I did the legal review that I explained, we 
looked to see what the basis for the extension of our statute 
was by my predecessor. We could not find any reason that was 
given. We then looked to the language of the statute, which 
doesn't mention sexual orientation. Then we looked to the case 
law in the MSPB and we found that it had been rejected by the 
MSPB in 1998 in a case titled Morales v. Department of Justice. 
So faced with that, had I then said, well, I don't care what 
the MSPB says, I don't care what the statute says, I am going 
to extend protections for a class of people, a special class, 
and provide them a specific protection that may not be in the 
statute that has come before the Senate and has been rejected 
specifically.
    There was an Executive Order that makes it clear in the 
Federal Government that agencies are not to discriminate on 
that basis and I fully support that and that is true of my 
agency as well as other agencies. But the question for me as a 
Federal enforcer of laws is do I have the statutory power to 
enforce a statute and debar Federal employees based on status, 
and the status protections that we have, which everyone is 
familiar with, the general ones of Title 7 which are race, 
color, creed, religion, and so on, and sex and a number of 
other categories, disability and so on, that these are 
contained in Section (b)(1) of our statute. Sexual orientation 
is not contained there.
    We do have an anti-discrimination provision in Section 
(b)(10) which we do enforce and that does subsume into itself 
some cases that people might colloquially describe as sexual 
orientation discrimination cases, but the language of the 
statute and the way in which we enforce it, as I have explained 
in the policy that I put out in April 2004, states that one may 
not discriminate against an employee based upon private conduct 
or adverse action that the employee may take.
    Section (b)(10) basically says, no discrimination based on 
conduct that occurs outside the workplace, as long as it 
doesn't adversely affect that employee and their performance or 
the performance of other employees, and that is something we 
have enforced. That is something we go after aggressively when 
we have the evidence and the basis upon which to do that.
    Senator Akaka. Mr. Bloch, if a manager signs a written 
statement that he or she did not hire an applicant because the 
applicant is gay, would the manager be admitting to 
discrimination based on sexual orientation or discrimination 
based on sexual conduct?
    Mr. Bloch. Thank you, Senator. Well, each case obviously 
would depend on the facts of each case. What we do and what we 
would do if someone submitted a claim such as that to us is 
they would fill out a Form 11. They would explain what they had 
done or what had happened to them and we would then engage in a 
dialogue with them and find out what the facts of the case 
were.
    So if the facts were to reveal that the manager was taking 
into account sexual conduct or, to make up facts here, if that 
is all right, such as someone had an affair with somebody or 
somebody was seeing and holding hands with somebody or whatever 
it might be, this clearly would fall within the protections of 
our statute and so we would just simply go down the line with 
the employee, asking questions and asking them to comb their 
memory for any reasons or discussions or what have you that 
would be able to either present evidence that would fit within 
the statute or not.
    Senator Akaka. Please identify the facts that OSC would 
have to investigate to determine which of the two forms of 
discrimination has occurred, discrimination based on sexual 
orientation or discrimination based on homosexual conduct.
    Mr. Bloch. As I said, Senator, I think that we would have 
to ask the employee about that, and if it got further than 
that, we could ask the manager or other people who might have 
witnessed what had happened or why the person was not hired or 
promoted or whatever the case may be, and we would look for 
evidence by which we could prove at the Board that there was 
discrimination under the statute and seek corrective action. So 
the various kinds of conduct, it could vary from anything from 
what I described and being seen somewhere, being seen with 
somebody, anything of that nature.
    I have also in my policy explained that sometimes you don't 
have the luxury as a lawyer or as an enforcer of law when you 
are trying to prove a case to have direct evidence. Sometimes 
you have to rely on what we call circumstantial evidence or 
implied or imputed conduct, and so there would be cases where 
you wouldn't have direct witnessing of anything, but it might 
be related by someone, and that would be sufficient.
    Senator Akaka. In this context, aren't sexual orientation 
and sexual conduct essentially the same thing? In other words, 
when a manager does not hire an applicant because of his or her 
sexual orientation, doesn't it follow that the manager is not 
hiring the applicant because of the kind of sexual or other 
conduct he or she believes that the employee engages in as a 
gay person?
    Mr. Bloch. Well, I certainly can see the point that a 
manager might be basing their decision on conduct, and if you 
ask them the question, well, what do you mean when you say, ``I 
didn't hire that person because they were gay,'' or they didn't 
hire them because they were homosexual, what do you mean by 
that, and if you peel back the layers very far, you may indeed 
find conduct. But it may also not be that.
    One thing I can't do as a law enforcer is get into social 
policy and determining the philosophy behind the notion of 
conduct versus orientation. I am not sure what the answer is 
and I think a lot of people have tried to grapple with that. I 
don't make policy. I think that is for the Congress to do and 
you do a good job of that. But what I do is I simply look at 
the statute and the case law. If the case law says, you can't 
go there, I don't go there. I don't go asking philosophic 
questions. I mean, I do like philosophy, but that is not my 
job.
    Senator Akaka. OSC's fiscal year 2005 annual report, Mr. 
Bloch, shows that the number of favorable prohibited personnel 
practice--or PPP--actions decreased from 126 in fiscal year 
2002 to 45 in 2005. According to the report, fiscal year 2005 
was the year OSC's Investigation and Prosecution Division, 
which processes PPP cases, reduced its backlog, that many of 
the backlogged cases had been in the IPD for 2 or more years, 
and the majority of these older cases were not strong cases. 
The report also said that fiscal year 2006 would be the first 
year the IPD would be able to focus primarily on case received 
during fiscal year 2006 and expected a higher number of 
favorable actions.
    However, the 2006 annual report shows that only 52 
favorable PPP actions. Can you explain why there wasn't a 
greater improvement in PPP favorable actions?
    Mr. Bloch. Thank you, Senator. There was an improvement, 
and that much we do know. The numbers were better. They were 
decreasing since 2002 and 2003, before I took office. They were 
down to 115, and then in 2004 to 80. And I have talked about 
this with my senior staff and asked, what is going on here? 
What is the problem, or is there a problem, and the answer that 
I have gotten back--obviously, I don't work all these cases, 
the career staff does--the answer that I have gotten back is 
two-fold.
    One is you can't determine how many favorable actions you 
have at a given snapshot of time. If maybe you went back to the 
inception of OSC, you would see a different pattern back to 
1979. But statistically, you can't really tell what is going on 
there. But they have suggested some possible explanations if, 
indeed, there is any significance statistically to that drop in 
numbers.
    One is that the CEU, or this Complaints Examining Unit, has 
reported to superiors as well as to me that the quality of 
cases that they were seeing in the last 2 years had decreased 
or dropped off, and I asked, well, what is going on? What do 
you think is the issue? And they said they don't know, but just 
the quality was just not as good. And we have struggled and 
scratched our head to figure out, well, what can we do?
    One thing we have implemented is simpler filing procedures 
on the Internet. We have tried to encourage the CEU examiners 
to speak with the complainants and find the good that is within 
their case. It might not be 100 percent good, but maybe there 
is a PPP in there. I have even sat in on the sort of round-
robin sessions of the CEU where they brainstorm and try to 
figure out, where is the PPP? I have kidded with them that it 
is kind of like ``Where is Waldo?'' Where is the hidden PPP?
    Because sometimes when a Federal executive employee comes 
to you, they have a problem and it is a bundle of things. They 
are not really sure what to call it. They explain the problem, 
but they don't know what slot to necessarily fit it into. And 
so what we try to do is try to find a PPP that may not be 
obvious from the facts, and I think the CEU is to be credited 
for being very good at that, as well as the Investigation and 
Prosecution Division. We have expert attorneys and 
investigators who are always thinking creatively.
    One of the things that I emphasized when I arrived at OSC 
was we do not exist to get rid of cases. We exist to find the 
good that is there. We exist to improve the merit system. We 
need to make better case law. We need to be aggressive. We need 
to file more before MSPB, when appropriate. So we are really 
trying to locate those good cases, and it is quite earnest and 
we have the staff to do it. It is just they report that the 
quality of the PPPs may not be quite as good.
    So then there is one final possible speculative reason, is 
there has been a slight shift in philosophy within the 
directorate of the IPD/CEU. New management is in place that 
believes it is not appropriate to go for corrective action if 
the law does not permit it. In other words, to essentially go 
to an agency and say, hey, give us corrective action and we 
won't burden you with 2 years of bothersome investigation and 
possible prosecution for an MSPB, a kind of implied threat. 
This was something that was fairly common before, according to 
what has been reported to me.
    I did not tell anyone to stop that per se. I have said 
nothing really particularly. I have just been informed that the 
IPD does not permit that anymore, and so there may be a shift 
of philosophy to we are going after stronger, bigger things and 
more litigation when possible rather than perhaps something 
that might be a little more insubstantial and not based on law 
and authority to do so, and those are the only possible reasons 
I can explain, Senator.
    I wish those numbers were tripled. Anyone in the agency 
will tell you that I love good numbers. You can see from those 
charts. And I love to get corrective action for people and I 
love to go after cases. It is just in my blood, and everybody 
knows that and I preach that constantly. So we are really 
trying to find those.
    We have found some very positive cases in the USERRA area 
which we consider another PPP. I mean, you have got a service 
member who is a Federal executive employee and they are not 
being given their job back, and so we consider that essentially 
an unwritten PPP as part of USERRA and we are getting a lot of 
corrective actions there. If you add that number in here, it is 
certainly up to about 100. So we are really proud of the work 
we are doing for the Federal employees. It is just we can't 
make up the evidence. We can't make the cases good when they 
come in. We have to follow the law.
    Senator Akaka. Thank you. Thank you very much, Mr. Bloch, 
for your responses. Now I would like to ask Senator Voinovich 
for his questions.
    Senator Voinovich. How many cases have you had where people 
complained that they weren't hired because of sexual 
orientation?
    Mr. Bloch. Well, the CEU, Complaints Examining Unit, 
doesn't track that specifically because it is not mentioned in 
our statute. But in asking them that question, there are 
approximately 2 percent of the Section (b)(10) cases that come 
in that may be fairly described as having to do with sexual 
conduct or sexual orientation.
    That is the statute concerning nondiscrimination on the 
basis of conduct that doesn't adversely affect the job.
    Senator Voinovich. So it is 2 percent, you think, about----
    Mr. Bloch. Two percent of the 100--of those PPPs, which 
would be about two. I would have said if you asked me last year 
or the year before, I would have said a handful of about five 
percent, maybe ten percent in certain years. And so it is 
really a very small percentage.
    Senator Voinovich. OK. This is a question for both of you. 
Your agencies share responsibility for enforcing laws 
protecting veterans' rights in the Federal workplace, is that 
right?
    Mr. McPhie. That is correct, sir.
    Mr. Bloch. Yes, sir.
    Senator Voinovich. And as a practical matter, your 
respective caseloads are likely to increase given the returning 
veterans from Iraq and Afghanistan?
    Mr. McPhie. Yes, sir.
    Senator Voinovich. Have you seen that kind of an increase 
at all yet?
    Mr. McPhie. I tell you, we have had more veterans types of 
cases even before the Iraq and Afghanistan issues. It was when 
the Court of Appeals changed existing precedent regarding the 
way the government would allocate or track military leave. The 
government was doing it one way for many years and the Circuit 
Court said that was wrong. We have seen a whole lot of those 
cases. I believe the case is McCormick. I could be wrong. 
Butterbaugh.
    Senator Voinovich. Butterbaugh?
    Mr. McPhie. Yes, the Butterbaugh lines of cases.
    Senator Voinovich. When was that precedent----
    Mr. McPhie. In 2003.
    Senator Voinovich. OK. So after 2003, you have had more 
cases brought because of the court case?
    Mr. McPhie. Because of the court case. We anticipate, and 
we say it in our comments that we have submitted, that the 
returning veterans could indeed push up our caseload.
    Senator Voinovich. OK. So the question I have, then, is 
what are your respective agencies doing to prepare, in terms of 
the people that you need to get the job done, with the growing 
expectations that you are going to have?
    Mr. McPhie. If I may take the first shot, as you can tell, 
we are becoming more productive and more efficient. We have 
been forced to. We have a really good cadre of administrative 
judges throughout the regions who currently are averaging 89 
days to do a case from start to finish. They are the persons 
that would be getting these cases. I believe some of them can 
come directly to the Board. I don't want to get into a 
discussion of jurisdiction.
    We are familiar with the statute. We have been issuing more 
opinions under USERRA and VEOAA, the statutes that you are 
referring to. My Chief Counsel on my staff is a person who has 
developed a particular expertise in that area and the AJs that 
work for the Board are up to snuff on that particular area of 
the law, and I feel very certain that they are up to issuing 
decisions at the same rate at which we are doing it now.
    Now, mind you, if we get a whole bunch of cases at the same 
time, I may be coming to a committee of Congress saying, help. 
But absent that, we will triage it. We have had those kind of 
issues before----
    Senator Voinovich. In other words, you are working harder 
and smarter and doing more with less.
    Mr. McPhie. Yes. We have a legal conference coming up real 
soon. USERRA and VEOAA are front and center at that conference.
    Senator Voinovich. How about you, Mr. Bloch?
    Mr. Bloch. Thank you, Senator. USERRA is a growth area for 
us, has been since I started in the job. We went looking for 
it, if you will, and with the demonstration project we have 
established a USERRA Unit with specialized individuals, some of 
whom are reservists, to attack the growing number of veterans' 
types of claims due to the historic mobilization of troops and 
demobilization that constantly is occurring and a greater 
awareness about it because of news and the experience of some 
veterans who have been discriminated against, and it happens, 
unfortunately, more often than we would like to see in the 
Federal Government.
    So we have really ramped up. We have this wonderful USERRA 
Unit headed by a GS-15 who is an expert in USERRA, does a lot 
of outreach, does a lot of litigation. I really wanted to send 
a message that this is an important area that I think had 
been----
    Senator Voinovich. What I understand is that you are being 
proactive and getting the word out to the various agencies 
saying that they have got veterans coming back. You want to 
remind them of this, so that you can nip it in the bud before 
it happens.
    Mr. Bloch. That is correct, Senator, and we are finding a 
great deal of cooperation in that area, and I do some outreach 
myself. I just spoke to the Reserve Officers Association here 
on the Hill a couple of weeks back. So it is something we do--
--
    Senator Voinovich. This is important, I think you ought to 
redouble your efforts and make sure these agencies understand 
what rights veterans have and make sure that we don't have a 
big front-page article in the Washington Post or the New York 
Times saying that these people coming back are not being 
treated the way they ought to be treated, OK?
    Mr. Bloch. Yes, sir.
    Senator Voinovich. OK. The other thing I would like to do 
is, Mr. McPhie and Mr. Bloch, Congress continues to debate the 
personnel system for the TSAs. My colleagues have expressed 
concern that TSOs do not have appeal rights to MSPB and that 
the OSC does not have full statutory authority to investigate 
complaints. Mr. Bloch, OSC has a Memorandum of Understanding 
with TSA receiving whistleblower complaints, and how would 
OSC's authority be enhanced if TSA was covered by the same 
statute as other Federal agencies?
    And Mr. McPhie, do you believe TSOs are lacking a fair 
appeal process without OSC appeal rights?
    Mr. McPhie. Senator, since I am the chairman of an 
adjudicatory agency, I try not to engage in giving opinions as 
to what I believe the law should be--whether it is a good law, 
a bad law, and that type of thing. My job really is to 
interpret the law and to enforce the law as the law is written.
    I can tell you, I have been a lawyer in employment law for 
quite a while. I believe that third-party appeal systems work. 
I have seen them work. The Board is a third-party appeal 
system. By that, I mean the parties to the dispute don't decide 
the dispute. That has been my general observation over time, 
but I don't want to comment on regulations that would emerge in 
some form of which I don't know and then have to sit in 
judgment on cases.
    Senator Voinovich. Could you give me the number of 
complaints that have come before MSPB from TSA?
    Mr. McPhie. No. We don't have jurisdiction at this point in 
time over TSA. The new statute--the statutes that are currently 
up here, the whistleblower statutes, would, in fact, give those 
folks MSPB appeal rights.
    Senator Voinovich. OK.
    Mr. McPhie. And if that occurs, yes, we have them. But at 
this point in time, we don't.
    Senator Voinovich. So you don't get them. Mr. Bloch, you 
have got a Memorandum of Understanding. How is that working? 
How many whistleblower complaints have you gotten out of TSA?
    Mr. Bloch. We have had--when I first arrived, we had about 
45 in the pipeline, and overnight they kind of dried up because 
a decision came out that said there was no jurisdiction. Now, I 
have great respect for Mr. McPhie and so I don't want to tread 
on their ground, but we did advocate that we felt that the 
Homeland Security Act did cover TSA screeners owing to the 
provision, I think it was Section 803, that said, 
notwithstanding anything else in the Act, these employees will 
have (b)(8), (b)(9) rights, which are whistleblower reprisal 
rights and if they filed an appeal, rights if they were 
retaliated against for filing an appeal.
    So we operated from the premise that that actually was 
already there in the law, but it was a complex, interwoven----
    Senator Voinovich. Do you have a Memorandum of 
Understanding with TSA regarding whistleblower complaints?
    Mr. Bloch. Yes, we do, and we have had since 2003. That has 
worked fairly well, but we don't have powers to demand 
corrective action. We can't send a corrective action report. We 
can simply say, here is what we found out. It is up to you to 
do what you want to do. When you lack the teeth that comes with 
the power to come before the Board to seek a stay, to seek 
corrective action, to seek disciplinary action, our experience 
has been the results aren't going to be quite as good. However, 
I will say that we have found in favor of whistleblowers at the 
TSA and those matters have been taken up by TSA, and to the 
best of my knowledge, some corrective action has occurred.
    I am assured that it is true, yes. Some corrective action 
has occurred on behalf of the employees due to our MOU. But 
again, I am going to defer to my colleague from the MSPB as to 
what the state of the law is there.
    Senator Voinovich. Well, I guess the bottom line is that 
what both of you would like to see these rights granted to 
TSO's. If this ends up going to conference, I would like to see 
these rights provided to the individuals. Do you think that 
would provide added benefits to the TSO's, if your jurisdiction 
was clear?
    Mr. McPhie. Yes, sir.
    Mr. Bloch. Absolutely.
    Senator Voinovich. OK. Senator Akaka, would you allow me a 
few more minutes, or do you want to take over?
    Senator Akaka. You may.
    Senator Voinovich. Mr. McPhie, the Board is seeking an 
exemption from the requirements under the Sunshine Act when it 
exercises its adjudicatory function. The Sunshine Act already 
allows adjudicatory meetings to be closed. What makes the 
Board's operational procedures different from similar appellate 
agencies, such as the Equal Employment Opportunity Commission?
    Mr. McPhie. Well, I can't speak for other agencies, but I 
can tell you how the Board operates in its case deliberations. 
Here is what happens. I have a chief counsel. He understands my 
position in a case, so he goes off and he talks to another 
Board member's chief counsel and they sort of talk about 
different positions. And then a third chief counsel gets 
involved, and then these things are communicated back to Board 
members. Terribly cumbersome, and it doesn't really----
    Senator Voinovich. The purpose of doing that is to avoid 
the Sunshine Act?
    Mr. McPhie. Well, the purpose of doing that is if you can't 
decide these cases in the flow of business. I mean, we have a 
lot of cases and time pressures in getting cases and getting 
them out right the first time. I told you 93 percent of our 
cases have been affirmed by the Court of Appeals, so we do a 
good job on that. And my Board members are here. They know that 
we all work very hard. We try to get positions clarified. We 
try to meet to reach consensus. And we really like it when we 
are 3-0 opinions. It is clear. It sends the right message----
    Senator Voinovich. How would this help?
    Mr. McPhie. It would permit, I believe, Board members to 
respond to each other the way judges do all of the time. You 
have a really robust deliberative discussion and you cut 
through a lot of the bureaucracy and you end up with a well-
informed decision perhaps in a shorter time frame. And you have 
to understand also, whatever the Board's decision, it is 
published. It is not like this is some secret society that 
never sees the light of day. It is published, and people take 
appeals from the Board decisions, and if the Board is wrong, 
the Court of Appeals will tell us we are wrong and then we 
conform.
    Senator Voinovich. OK, the fact is that you are under the 
Sunshine Law, and if you all got together in a room and started 
talking about a case, then the Sunshine Law would apply?
    Mr. McPhie. Would apply, and the Sunshine Law has 
requirements. You have to give notice. You have to give time 
and place, agenda, and you have to invite the public. We have 
no--the issue for us is not transparency.
    Senator Voinovich. Yes. I just thought the Sunshine Act, 
according to what I have been told from my staff, already 
allows that adjudicatory meetings be closed, and that you can 
do that right now.
    Mr. McPhie. It gives some relief, but not the kind of 
relief that would facilitate a free exchange. We haven't had a 
Sunshine Act meeting since 2001 and the reason for that really 
is you have a meeting, you start off talking about something. 
When has a meeting matriculated into a discussion of cases? We 
have to be real careful about that.
    We may be at lunch. We may be in a conference someplace and 
we have lunch together. We have to always remind ourselves that 
even if the case has been in the office for a long time and we 
all want to get that case out, we dare not talk about it. And 
we don't. We reserve it for when we get back to the office and 
we explain to our surrogates what our positions are and they 
sort of are the front persons to get consensus, and then it is 
shown to us and then we sign off if we have reached consensus.
    I am not suggesting the MSPB is going to stop functioning 
if we don't get this exemption. All I am suggesting to you is, 
look, we are quasi-judicial. The Court of Appeals expects us to 
act like they do. And I can tell you, their practice is right 
after an argument is made, they sit down and immerse themselves 
and get the sense of whether this case is going to be a 
difficult one to decide or whether it is going to be an easy 
one.
    Senator Voinovich. And you are saying you can't do that 
because of the law?
    Mr. McPhie. We can't do that.
    Senator Voinovich. So you think that the Sunshine Act does 
apply to adjudicatory meetings being closed and that is why you 
want to change it?
    Mr. McPhie. Well, you can do it if you--you can do it under 
(b)(10), but you still have to do everything that the Sunshine 
Act requires of you. You have got to give the notice. You have 
got to have an agenda, I mean, say what the agenda is. And you 
can close that portion of the meeting and engage in a 
discussion. But suppose that discussion of one case leads to, 
well, what do we do with cases like it on which we have----
    Senator Voinovich. OK, and you are saying that because the 
requirement of the Sunshine Law, you have to lay out what you 
will be discussing, even though it is not going to be open to 
the public, if you move into something, another area--you don't 
have the same kind of freedom of discussion that you might have 
with a court where maybe they are talking about one case and 
they get into another case.
    Mr. McPhie. Another case.
    Senator Voinovich. OK, I understand. Thank you.
    Senator Akaka. Thank you. We will move into a second round 
here of questions.
    Mr. McPhie, you noted that six meetings covered by the 
Sunshine Act were held in the year 2001 and that some of those 
meetings discussed particular cases. Were those cases closed or 
open to the public, and if they were closed, how did MSPB avoid 
crossing the line between policy discussions and case 
deliberations?
    Mr. McPhie. Senator, I wasn't there. I don't know. I came 
to the Board in 2003. In 2001, I was still in Richmond, 
Virginia. So I don't know. I could only assume that my 
predecessors in office followed the law, but I just don't know.
    Senator Akaka. Mr. McPhie, the Board's legislative proposal 
would permit the MSPB to grant motions for summary judgment or 
rule on a matter when there are no disputes of the facts in the 
case. However, I am concerned with the impact this change could 
have on employees who represent themselves before the Board. 
How would the Board handle summary judgment cases for employees 
who do not have attorneys, and would the Board assist or give 
guidance to those employees?
    Mr. McPhie. Senator, the Board has a long history of 
deciding cases brought by pro se individuals. We understand it 
is a ``David and Goliath'' story a lot of times when these 
cases are brought. Summary judgment is a tool, and that is all 
it is. It comes into play only when there are no disputed 
facts, no material facts in dispute, only when--so it is not 
appropriate for all cases. If, in fact, an issue will turn on, 
say, credibility of witnesses, you can't, without having the 
person in front of you, you cannot render a judgment on--decide 
a case based on summary judgment.
    But let me say this. I have used that tool myself. In all 
my years of practice, I have seen it used. I think in this 
country, we have--I know the Supreme Court of the United States 
has frequently laid out the rules for summary judgment. One of 
the things a summary judgment does and does quite well, it 
focuses a case.
    A lot of times, people come to the Board, they don't know 
what their case is. They have got a bunch of facts and they 
throw the facts up. What summary judgment can do for people is 
really focus the case and help not just the party bringing the 
case recognize when they have a strong or a weak case, but help 
the agency recognize when it has a strong or weak case. And if 
you can get people to focus and be realistic with what is going 
to happen based on the quality of their case, you may get, for 
example, an agency saying, this is not one we want to fight. So 
you can get a settlement. Conversely, an employee can recognize 
weaknesses in his or her case and decide, this is not one I 
want to fight. I mean, it cuts both ways.
    The thing that I believe is important to recognize, there 
are checks and balances. If the Board doesn't follow the rules, 
I can assure you the Federal Circuit is going to reverse it and 
send it right back to the Board.
    I mean, some of it spreads fear. I have heard that over 
time. But I have seen summary judgment work and work quite 
well. It is a tool, and we operate in a time when the Board has 
been forced to decide cases under time constraints. In the DHS-
DOD bills, that time is 90 days per case. In the proposed 
whistleblower legislation, I believe on the House side, that 
time is 180 days. We are in a new environment. We can't hold 
onto cases for months and years and so on. It is not right, in 
any event. The person deserves an answer. It is a tool to get 
to that point efficiently, with a full-blown explanation.
    Senator Akaka. Mr. McPhie, talking about summary judgment, 
the Board's justification of this proposal noted that, if 
granted, the summary judgment authority would rarely be used. 
So in how many cases in the past year would summary judgment 
have been helpful?
    Mr. McPhie. I don't know because our Court of Appeals said 
we don't have that authority. That is why we have to ask for 
it. I am reminded that the new statutes under the DOJ and DOD 
personnel changes clearly give the Board summary judgment 
authority. Now, one of the things that is going to be somewhat 
incongruous is to have a system where you have summary judgment 
for some cases but not for other cases. The development of 
jurisprudence that governs the workplace in an orderly and 
effective manner ought to be as uniform as we can make it with 
respect to the rules around bringing these cases to conclusion.
    But I couldn't tell you. I just couldn't tell you which 
cases. I have read many cases where you go on and on and 
sometimes in the end, the employee loses. For goodness sake, if 
you told an employee up front, maybe they wouldn't have spent 
the money. Maybe they won't have hired the lawyer. Maybe they 
won't have to travel and spent money in depositions and 
discovery and that kind of thing. It is a tool that can work, I 
believe, if handled well, to bring some sense of order in those 
cases that it applies.
    Senator Akaka. Thank you, Mr. McPhie.
    Let me ask the next question to Special Counsel Bloch. 
Under a demonstration project, OSC shares the responsibility 
with the Department of Labor to receive and investigate claims 
from Federal service members under the Uniformed Services 
Employment and Reemployment Rights Act. As Chairman of the 
Senate Veterans Committee and the Federal Workforce 
Subcommittee, I am very interested in how the demonstration 
project is working. How has the addition of the USERRA Unit 
affected OSC's ability to adequately staff and process cases in 
other OSC divisions and units?
    Mr. Bloch. Thank you, Senator. The demonstration project 
has given us half the cases that normally go to the Department 
of Labor Veterans' Employment and Training Service Office, 
which amounts to about 200 cases a year extra. Now, if you look 
at our overall picture, we get about 2,000 PPPs a year. We get 
about 250 to 300 Hatch Act cases and about 2,000 requests for 
advisory opinions for Hatch Act in an off year, that is to say, 
a non-Presidential election year. In a Presidential election 
year, we went up in the last one to 4,000 advisory opinions. In 
the Whistleblower Disclosure Unit, we have approximately 500 
claims, disclosures, filed with us per year.
    So the 200 that have been filed with USERRA in addition to 
what we normally would get from the Veterans' Employment and 
Training Service that works its way through their investigatory 
process then ends up at our door to prosecute potentially, it 
has not in any way really affected our ability to process 
claims, to deliver justice in a timely way, and I think the 
charts have shown that, that you would expect in 2005 to have 
seen an increase in time of cases spent in divisions, but we 
haven't seen that. I think we are doing--people are doing an 
excellent job, as Senator Voinovich put it, doing more with 
less.
    What we did, Senator, and the way I would explain how could 
we do that and not have the USERRA project affect our overall 
efficiency with the other areas without additional FTEs and 
additional budget is that we became more efficient through the 
way in which we looked at our processes and procedures and 
reorganized the agency, so that before when I arrived, there 
were many procedures in place that caused memos to be written 
that were three, four times as long as they needed to be and 
that they were reviewed by three or four people and it would 
get bounced back and forth and sit on desks for a month at a 
time.
    So we looked at those kinds of procedures and said, what is 
the net benefit to the merit system? What is the net benefit to 
the Federal employee? We did away with anything that wasn't 
benefitting the process, wasn't benefitting justice, wasn't 
benefitting the Federal merit system or the employee, and we 
stripped it down to what it takes to deliver justice to an 
employee without a lot of internal bureaucratic frills, and 
without sacrificing any quality, we really did remove those 
impediments and those bottlenecks and those excess procedures 
that didn't really go to benefit the system.
    By doing that, we really freed up the ability of employees 
to look at these USERRA claims that had been taking a back 
burner, and I don't think we want our veterans, whether it is a 
USERRA claim or a veterans' preference claim, to take any back 
seat to anybody. They have the same rights that other Federal 
employees have, and indeed, when you go off to fight for your 
country, you would hope that your Federal Government agencies 
would welcome you back rather than turn you away. So this is 
the kind of philosophy that we have developed.
    And I would add that we have also seen an increase in the 
number of PPPs that accompany USERRA claims. We call these 
mixed cases and they also come to us in the demonstration 
project, when a PPP accompanies a USERRA claim. And so, really, 
there is a complementarity between USERRA and PPP and we often 
have a great deal of interaction between those people that do 
PPPs and those who do USERRA and it is very complementary to 
our entire operation, I think, and we are very happy with the 
demonstration project and certainly would like to see it made 
permanent for the benefit of the veterans who are getting more 
timely and a greater percentage of corrective action, we 
believe.
    Senator Akaka. Thank you for your response, Senator 
Voinovich.
    Senator Voinovich. Thank you. In 2004, GAO recommended that 
the OSC present a strategy to Congress to allow more consistent 
processing of cases within the existing statutory time limits. 
The expectation was that the strategy would provide details on 
what, if any, staffing, organizational, or legislative changes 
could help reduce the backlog.
    Has OSC ever developed and submitted to Congress the 
comprehensive strategy recommended by GAO. If GAO were to 
conduct a follow-up review, do you think the recommendations 
would be different?
    Mr. Bloch. Thank you, Senator. I have retired from 
prognosticating on what would happen with GAO, but----
    Senator Voinovich. But have you ever submitted a 
comprehensive strategy recommended by GAO?
    Mr. Bloch. Yes, we have. In 2005, I believe it was prior to 
the hearing in May 2005 before your Subcommittee, and we 
submitted the response. It was a, I am guessing, 25, 30-page 
response to GAO's initial investigation that came out very 
shortly after I arrived, maybe 2 months after I arrived. And we 
welcomed that report and we welcomed the opportunity to report 
on what we had done. If I recall correctly, Senator, we 
submitted that to the Subcommittee as part of the record of 
that hearing, our response to GAO, and we also had supplied a 
copy of our reorganization memorandum, which was about 15 pages 
long, and it also outlined the methodologies that we used to 
put in place, standard operating procedures to make it 
essentially next to impossible for these backlogs to occur 
again.
    And so we believe that problem is a thing of the past and 
we are very proud of the work of the career staff to take 
personal responsibility for the caseload and for the timeliness 
of decisions and weigh that in the balance to make sure quality 
is also assured for all Federal applicants.
    Senator Voinovich. At your last hearing we discussed the 
creation of the Detroit Field Office. At the time, affected 
employees felt that you were moving them to Detroit because of 
a personality conflict. How has the creation of the Detroit 
Field Office played out?
    Mr. Bloch. Thank you, Senator. I was just there, actually, 
2 weeks ago.
    Senator Voinovich. How many of the people that were 
initially assigned left OSC?
    Mr. Bloch. I think we supplied the numbers to you there. We 
had one physically actually go there and then decided he wanted 
to live where his fiance was in Ohio, and so moved from there. 
We had two or three others plan to go, but then before they 
could actually make the transition, they got other jobs in 
town. And then I think we had two or three, maybe four--I 
honestly can't give you the exact numbers--who just decided 
they didn't want to go and told us so up front and got other 
Federal jobs.
    Senator Voinovich. So basically, most of them that were 
assigned to Detroit did not transfer?
    Mr. Bloch. Most did not choose to go to Detroit.
    Senator Voinovich. Did anyone go?
    Mr. Bloch. Yes, two, one that I described who went and was 
actually working there and then decided to go to Ohio, from 
your wonderful State, and then another who is the chief of the 
office, and he is there still and doing a wonderful job. I was 
really pleased with the progress of the office. It is 
functioning very well. The people there are very happy. Morale 
is high. They are a real contributor to the overall team.
    So the overall reasoning and rationale for the 
reorganization and how I had hoped things would work out has 
come true. In other words, nothing has worked out badly. It has 
worked out extremely well. All the field offices are very 
strong functioning parts of the OSC. They have independence, in 
a sense. They are very competitive. They have teamwork. So it 
is working out very well. And I had a number of employees tell 
me in Detroit how happy they were to have their jobs and how 
glad they were that we established an office there. I was just 
delighted by the morale and the level of achievement that we 
are seeing there, as well as with our other field offices.
    Senator Voinovich. But these were new people that you 
brought on?
    Mr. Bloch. No, the chief of the office was from Washington.
    Senator Voinovich. Yes, but the other people were mostly 
from the Detroit area?
    Mr. Bloch. Well, one was in the honors program at the DOJ 
here in Washington, DC and decided they wanted to move back to 
where they were from, which was Detroit, and they joined us in 
Washington, DC and then went to Detroit.
    Senator Voinovich. How many are there now?
    Mr. Bloch. Six, I believe, maybe seven.
    Senator Voinovich. How many regional offices do you have?
    Mr. Bloch. We have four field offices. We call Washington, 
DC, a field office. The IPD is the Washington Field Office. And 
then we have three outlying field offices, Detroit, Dallas, and 
we call San Francisco a field office but it is actually in 
Oakland. And so you can see we have four corners of the 
country, if you will, covered, and that has helped in terms of 
investigations and travel and those sorts of things.
    Senator Voinovich. All the complaints come in to the 
Washington office and then you farm them out to the regional 
offices based on the geography, is that it?
    Mr. Bloch. Well, that is one consideration. Caseload might 
be another. Expertise might be another. But yes, generally.
    Senator Voinovich. Senator Akaka, I have no more questions.
    Senator Akaka. Thank you very much, Senator Voinovich.
    Special Counsel Bloch, the OSC annual reports for fiscal 
years 2003 through 2006 failed to report the survey results 
related to the Disclosure Unit. As you know, Title 5 requires 
the OSC to conduct an annual survey of all individuals who 
contact OSC for assistance. Can you tell me why OSC is no 
longer reporting survey results related to the Disclosure Unit?
    Mr. Bloch. Thank you, Senator. The legal counsel and Policy 
Division of my agency looked at that question and interpreted 
the statute and informed me of their interpretation that we 
need to put out a survey to those who are seeking relief, 
actual relief for their particular problem and that can get 
corrective action of their particular employment situation, 
discipline, retaliation, whatever it might be, under USERRA and 
the Hatch Act, as well. What did you do to somebody? Did you 
take discipline? Did you correct something?
    With regard to the Disclosure Unit, we don't have 
investigative powers. We have only the power to review under 
the statute and then to declare to the agency we have found a 
substantial likelihood that the condition, whether it be a 
health, safety, gross mismanagement, an illegality, or abuse of 
authority, whatever it might be in the area of whistleblower 
disclosure, that we find a substantial likelihood that is true 
based upon simply talking to the whistleblower and looking at 
whatever materials that person may send us. Then we can tell 
the agency under Title 5 U.S.C. 1213 that they are required to 
do an investigation, and they usually will send it to their 
Inspector General.
    We don't have any power over the results. We can't tell 
them what to do with their agency or how to correct the 
situation or not correct it, what to do to an employee to 
discipline them, and so on, and so consequently, as I recall, 
and we are going back 3 years now, the legal counsel and Policy 
Division did a legal analysis of the obligation there in order 
to streamline and make it more timely to get the survey 
results, and then we also put them into an electronic form so 
we could get them out by e-mail to people and so we have been 
able to get them more timely.
    That is the explanation that I would give you. I can't, as 
I sit here, give you all of the legal ins and outs because I 
don't remember them, but we could certainly supply that to your 
staff if you would wish.
    Senator Akaka. I hope you will start including summary 
survey data related to the Disclosure Unit.
    Mr. Bloch, you mentioned in your testimony the case 
involving Leroy Smith, who disclosed environmental hazards at 
Federal prisons, and noted that he was awarded the Public 
Servant Award last year. I was troubled to find out, however, 
that OSC dismissed Mr. Smith's retaliation complaint and he had 
to hire his own lawyer to address the agency's retaliation and 
he has since said that the problems he identified as part of 
the whistleblower's complaint still have not been resolved. So 
I am deeply disturbed to learn that the Federal employee 
honored by OSC as being a whistleblower received so little 
help. What is your response to this allegation?
    Mr. Bloch. Thank you, Senator. Mr. Smith did a very 
important and brave thing. Conditions have changed because of 
his disclosure and we honor him and continue to honor him. I 
have so spoken in recent news articles in the last few months. 
There are other Federal prisons that are still being 
investigated and cleaned up. I think what he did is a very 
important thing, and it is deplorable when any individual is 
retaliated against and we go after that with a great deal of 
aggressiveness when we have jurisdiction.
    Now, in the case of Mr. Smith, the allegations you are 
talking about are reckless and slanderous. My career staff did 
not throw out his claim, and I will supply to your staff the 
proof of what happened. I will tell you what happened. Mr. 
Smith got an attorney in California. The attorney got him full 
relief, got him a transfer that he asked for, and then entered 
into a settlement agreement which required him in the 
settlement agreement that he and his lawyer signed to have OSC 
dismiss its retaliation complaint.
    We then received that request along with the settlement 
agreement. We will supply you with the documents. We have them. 
We will fax them to your office today, if you like. And then we 
sent him a letter that said, ``Dear Mr. Smith, Because you have 
asked us to withdraw your complaint and because your settlement 
agreement requires that, we are now dismissing or withdrawing 
your complaint and it is closed.'' And that is the beginning, 
middle, and end of it, Senator.
    Senator Akaka. Well, as I said, I was disturbed to learn 
about that. Please relay copies of those letters to my office.
    Mr. McPhie, although DHS is implementing its new appeals 
system, the U.S. District Court for Washington, DC ruled in 
2005 that the litigation standard to be applied by the Board is 
unfair to employees. While the Court of Appeals reversed this 
decision on the grounds that the matter was not properly before 
the court at that time, can you tell me how MSPB will ensure 
that DHS employees receive a fair hearing?
    Mr. McPhie. Senator, we don't have them yet. It hasn't been 
implemented. We don't have the first case yet. I know what you 
are referring to. It says the matter was premature because the 
Board hadn't passed on the matter, and the mitigation language 
is different language from what the Board has utilized in the 
past. We use the Douglas standard. The DHS mitigation standard 
is brand new.
    We don't have a case yet. I am sure my fellow Board members 
would take those cases very seriously and try to come up with 
some sort of standard, some sort of rule, some sort of 
interpretive guideline. What that interpretation may be, I just 
can't speculate. It is going to have to be in the context of a 
case and we don't have the first case yet.
    Senator Akaka. Mr. McPhie, Title 5 currently provides MSPB 
with the authority to delegate the performance of any of its 
administrative functions to any employee of the Board. Given 
this authority, why is the Board seeking a statutory change for 
succession purposes instead of simply delegating certain 
authorities to address possible vacancies?
    Mr. McPhie. I think we are talking about two different 
things. The legal advice I have been provided by not only the 
current general counsel, but the one before the current general 
counsel, who worked many years at the Board, we were confronted 
in the Board with a most unusual and unprecedented 
circumstance. My colleague and I, Member Sapin and I, were not 
confirmed. There was one Board member confirmed and she was at 
the end of a holdover term. We had to ask the question, what 
would happen in terms of succession, who is going to run the 
Board if there is no quorum, or there is no Board member? Now, 
we have staggered terms so theoretically it shouldn't happen. 
But it did.
    So the general counsel might have been the one who began 
the conversation. We have got to come up with some kind of 
succession so if we are in that situation, we know, the public 
knows, and the Board's operation continues. What they tried to 
do was to recommend to me, and different people had a say in 
all of that, what in their view would be a plausible way for 
the Board to continue in the circumstance that I described. And 
that is the reason.
    Now, I don't know that the Board has authority to delegate 
its functions, and I am told the Board does not have 
authorization to delegate anything to anybody with respect to 
running the agency.
    Senator Akaka. Thank you very much for your responses.
    Let me ask my final question to Special Counsel Bloch. Once 
again, OSC's survey results showed dissatisfaction with OSC's 
handling of prohibited personnel practices. My question to you 
is, what steps has OSC taken to determine reasons behind those 
responses and address any identified problems associated with 
them?
    Mr. Bloch. Thank you, Senator. We would note that a very 
small percentage of those who are surveyed respond to our 
survey, and so if you look at the numbers, out of the small 
percentage of those surveyed who actually respond to the 
survey, the vast majority are those who did not get any relief. 
In other words, they were the people who did not have 
meritorious cases or there was no jurisdiction or they weren't 
a Federal executive employee, whatever it might have been.
    And as a result of that, we can certainly understand people 
who don't get the relief they wish for or see justice a 
different way than the law sees it perhaps would be 
dissatisfied. I would be if I were them. But we can't really do 
much about that part of it.
    The part that obviously does concern me are those who 
respond negatively and also would say they didn't feel that 
they were treated right or they didn't feel that the service 
provided was timely or courteous or professional, something of 
that nature. Now that, I take very seriously, and we have 
trained our people and retrained them about how to deal with 
Federal executive employees to help them even if we don't have 
jurisdiction.
    In other words, we have employees that will call us and 
they are worried about their veterans' checks, their disability 
checks, or their Social Security disability checks. We don't 
handle that, but we don't turn them away, either. We have 
instructed our employees to help them out any way they can, 
give them the right number, give them the right direction, try 
to find out what their problem is. So that is something we are 
very keen about.
    The other thing I would note is that while you can read 
these numbers any way you like, I suppose, one way to look at 
them is that looking at the 2006, for instance, there are 5 
percent of PPP complainants who took the survey and received 
the result they desired. So 95 percent did not receive the 
result they desired. But an average of 37 percent were not 
dissatisfied with the service provided. And so even though they 
didn't get the result they wanted, they described their 
experience as not unsatisfactory or positive.
    Now, I think for an enforcement agency where your life may 
be topsy-turvy, you are not getting treated well at work, there 
are difficulties and problems and friction, and you can come 
away from an experience where you don't get the results you 
want but you are still not dissatisfied with how you were 
treated, I think that is a good thing. So we have to try to 
mine some positives out of this and not simply look at the 
negativity here.
    Frankly, one could, if one had the money, design a survey 
that would be a lot more adaptive to the positives as well as 
the negatives and give us some material and some ability to 
make changes that would actually improve the system, improve 
the customer service. But I don't think the survey as it now 
stands really is that helpful.
    Senator Akaka. Special Counsel Bloch, do you know if those 
who responded negatively were the ones whose cases you had 
jurisdiction over or not?
    Mr. Bloch. There is no way of telling from the survey.
    Senator Akaka. Well, I want to thank both of you so much 
for your responses. Thank you, Mr. McPhie.
    Mr. McPhie. Thank you, Senator.
    Senator Akaka. Thank you, Special Counsel Bloch, for being 
here today.
    Mr. Bloch. Thank you.
    Senator Akaka. Because of my belief in the merit system and 
its principles, I want to work with you to make sure that MSPB 
and OSC are complying with these principles and are working to 
make sure other agencies are complying, as well. As this 
Subcommittee considers your agencies' reauthorization requests, 
be assured that this will be the standard by which your 
proposals will be measured.
    The Federal Government must be free of retaliation for 
disclosing wrongdoing and discrimination, which is why I plan 
to introduce legislation to restore protections for employees 
who are discriminated against based on their sexual 
orientation. It does not make sense to me to protect employees 
from discrimination based on their conduct but not on their 
status, which is established by the very same protected 
conduct.
    With that, again, I want to thank you so much and look 
forward to continuing to work with you.
    The hearing record will be open for 1 week for additional 
statements or questions other Members may have.
    The hearing is adjourned.
    [Whereupon, at 4:12 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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