[Senate Hearing 108-590]
[From the U.S. Government Publishing Office]
S. Hrg. 108-590
NOMINATIONS OF NEIL McPHIE AND
BARBARA J. SAPIN
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON THE
NOMINATIONS OF NEIL McPHIE, TO BE CHAIRMAN, MERIT SYSTEMS PROTECTION
BOARD, AND BARBARA J. SAPIN, TO BE A MEMBER, MERIT SYSTEMS PROTECTION
BOARD
__________
JULY 19, 2004
__________
Printed for the use of the Committee on Governmental Affairs
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COMMITTEE ON GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah THOMAS R. CARPER, Deleware
PETER G. FITZGERALD, Illinois MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama MARK PRYOR, Arkansas
Michael D. Bopp, Staff Director and Chief Counsel
Johanna L. Hardy, Senior Counsel
Michael J. Russell, Staff Director, Financial Management,
the Budget, and International Security Subcommittee
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Nanci E. Langley, Minority Deputy Staff Director, Financial Management,
the Budget, and International Security Subcommittee
Jennifer E. Hamilton, Minority Research Assistant
Amy B. Newhouse, Chief Clerk
C O N T E N T S
------
Opening statements:
Page
Senator Fitzgerald........................................... 1
WITNESSES
Monday, July 19, 2004
Neil McPhie, to be Chairman, Merit Systems Protection Board...... 3
Barbara J. Sapin, to be a Member, Merit Systems Protection Board. 4
Alphabetical List of Witnesses
McPhie, Neil:
Testimony.................................................... 3
Prepared statement........................................... 11
Biographical and professional information requested of
nominees................................................... 13
Pre-hearing questionnaire and responses submitted for the
Record for the nomination hearing held May 15, 2003 of Mr.
McPhie to be a Member...................................... 23
Pre-hearing questionnaire and responses submitted for the
Record from Senator Akaka for the nomination hearing held
May 15, 2003 for the nomination of Mr. McPhie to be a
Member..................................................... 37
Pre-hearing questionnaire and responses submitted for the
Record for the nomination of Mr. McPhie to be Chairman..... 41
Sapin, Barbara J.:
Testimony.................................................... 4
Prepared statement........................................... 78
Biographical and professional information requested of
nominees................................................... 79
Pre-hearing questionnaire and responses for the Record....... 86
NOMINATIONS OF NEIL McPHIE AND BARBARA J. SAPIN
----------
MONDAY, JULY 19, 2004
U.S. Senate,
Committee on Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:34 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. Peter G.
Fitzgerald, presiding.
Present: Senator Fitzgerald.
OPENING STATEMENT OF SENATOR FITZGERALD
Senator Fitzgerald. This Committee will come to order.
Today, the Governmental Affairs Committee will consider the
nominations of Neil McPhie to be Chairman of the Merit Systems
Protection Board and Barbara J. Sapin to be a member of the
Merit Systems Protection Board.
I would like to welcome Mr. McPhie back before this
Committee. I was just recollecting his last appearance before
this Committee was in May 2003, I believe, and it was over in
the Capitol Building, and I was in between stacked votes. I
remember that distinctly. And welcome, Ms. Sapin, before this
Committee for the first time. The President has selected you
for important positions in our government, and I congratulate
you both of your nominations.
Mr. McPhie and Ms. Sapin have filed responses to the
Committee's biographical and financial questionnaire, answered
prehearing questions submitted by the Committee, and had their
financial statements reviewed by the Office of Government
Ethics. Without objection, this information will be made part
of the hearing record, with the exception of the financial
data, which are on file and available for public inspection in
the Committee offices.
In addition, I have personally reviewed the FBI background
investigation reports on each of the nominees.
Neil McPhie was nominated by President Bush to be a member
of the Merit Systems Protection Board on July 9, 2002, and was
renominated on January 7, 2003, when he began serving as senior
attorney to the Board. The President appointed Mr. McPhie as a
member of the Board on April 23, 2003. Prior to joining the
Board, Mr. McPhie served as a trial and appellate attorney for
the Equal Employment Opportunity Commission, as an Assistant
Attorney General for the Commonwealth of Virginia, and as the
Executive Director of the Virginia Department of Employment
Dispute Resolution. Mr. McPhie earned his J.D. degree from the
Georgetown University Law Center and a B.A. degree in economics
from Howard University.
Barbara Sapin currently serves as general counsel to the
National Abortion Federation in Washington, DC, a position she
has held since April 2002. Ms. Sapin previously served on the
Merit Systems Protection Board as its Vice Chairman from
January to December 2001. She also served as general counsel
and labor counsel for the American Nurses Association and as an
attorney with the National Labor Relations Board. Ms. Sapin
earned her J.D. from Catholic University School of Law and her
B.A. in psychology from Boston University.
The Merit Systems Protection Board serves as the guardian
of Federal merit systems principles. The Board was created in
1978 as part of a comprehensive reform of the civil service,
including statutory protections for Federal employees to
encourage disclosure of waste, fraud, abuse, and illegal
activity. In this area, the Board plays a critical role in
protecting the rights of whistleblowers.
Over the years, whistleblowers have presented some of the
most compelling evidence of government abuse and fiscal
mismanagement, saving the taxpayers hundreds of millions of
dollars. I am pleased to be an original cosponsor of S. 2628,
the Federal Employee Protection of Disclosures Act, that
Senator Akaka and Chairman Collins introduced earlier this
month. This bill would strengthen the current whistleblower
laws and provide added protection to those Federal employees
who expose waste, fraud, and abuse. I look forward to working
with Senator Akaka and our Committee colleagues on this
important legislative initiative.
At this point, I would like to swear in the nominees. Our
Committee rules require that all witnesses at nomination
hearings give their testimony under oath, and so at this time,
I would ask both of you to please stand and raise your right
hand. Do you solemnly swear to tell the truth, the whole truth,
and nothing but the truth, so help you, God?
Mr. McPhie. I do.
Ms. Sapin. I do.
Senator Fitzgerald. Thank you. You may be seated.
Before we begin with opening statements, I would ask
whether either of you would like to introduce any special
guests who are here today. Mr. McPhie?
Mr. McPhie. If I may defer to Ms. Sapin?
Senator Fitzgerald. OK. Ms. Sapin, do you have some special
guests you would like to introduce?
Ms. Sapin. I would like to introduce my family: My father,
George Sapin, who flew in from Cleveland today; my sister,
Linda Sapin; and my nephew, Sean Peacock. I would also like to
recognize my mother, Shirley Sapin, who was unable to make the
trip to Washington.
Senator Fitzgerald. Well, that is wonderful.
Ms. Sapin. And I also want to thank all my friends who came
today. They are sitting behind me.
Senator Fitzgerald. Well, that is terrific. It is great to
have some supporters here, and to the family, congratulations.
How old is your nephew?
Ms. Sapin. He is 12.
Senator Fitzgerald. That is my son's age. Are you going
into the seventh grade?
Ms. Sapin. Yes, he is.
Senator Fitzgerald. Oh, that is great. Good to see you
here.
Mr. McPhie.
Mr. McPhie. Yes, sir. I want to introduce my wife, Regina,
she is right here, and my two kids who were here the last time
but could not be here this time.
Senator Fitzgerald. Yes.
Mr. McPhie. But I told them I would tell them everything
that happens.
Senator Fitzgerald. Oh, that is great, yes.
Mr. McPhie. That is Abigail and Sidney. And there are folks
from the agency, MSPB, that I appreciate took the time out, and
let me, if I may, introduce them, please.
Senator Fitzgerald. Absolutely.
Mr. McPhie. There is Bill Atkinson. He is my Chief of
Staff. Tracey Watkins, she is my senior Adviser. And there is
Rosalyn Wilcots, who is the Legislative Counsel at MSPB. And
then there is our General Counsel, Marty Schneider. They helped
prepare me so I can look good in front of this----
Senator Fitzgerald. And answer my tough questions.
Mr. McPhie. Yes, sir. And then there is Rachel Leonard, who
is an attorney at the MSPB. Oh, yes, and there is my good
friend, Will Cardoza, who is also an attorney at the MSPB. Will
volunteered to be my photographer today.
Senator Fitzgerald. Where is Will? There is Will. OK. That
is terrific. Anybody else?
Mr. McPhie. I think I have covered them all.
Senator Fitzgerald. Well, that is great. It is good to see
that you both have some family and supporters here.
At this point, I would like you to go ahead and give your
introductory statements, and, Mr. McPhie, we would begin with
you. In the interest of time, we ask that you limit your
statements to no more than 10 minutes, and we will include your
full statement in the hearing record.
So, Mr. McPhie, you may proceed.
TESTIMONY OF NEIL McPHIE,\1\ TO BE CHAIRMAN, MERIT SYSTEMS
PROTECTION BOARD
Mr. McPhie. I will not read the statement, which is already
in the record, but I will just simply highlight some important
points.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. McPhie appears in the Appendix on
page 11.
Biographical and professional information appears in the Appendix
on page 13.
Pre-hearing questionnaire and responses submitted for the Record
for the nomination hearing held May 15, 2003 of Mr. McPhie to be a
Member appears in the Appendix on page 23.
Pre-hearing questionnaire and responses submitted for the Record
from Senator Akaka for the nomination hearing held May 15, 2003 for the
nomination of Mr. McPhie to be a Member appears in the Appendix on page
37.
Pre-hearing questionnaire and responses submitted for the Record
for the nomination of Mr. McPhie to be Chairman appears in the Appendix
on page 41.
---------------------------------------------------------------------------
I thank you and I thank the Committee, and the staff, for
making this hearing possible. I want to thank the President for
appointing me to this important position. And I want to thank
MSPB for being the decent agency that it is.
The agency has not had a full complement of Board members
for a while now, and they deserve a full complement. I do
believe that if it is the Senate's wish to confirm Ms. Sapin
and myself--and I hope it is--it would provide the agency with
two persons who will be there for some time and, therefore,
begin the task of long-term planning.
It is important, I believe, because the MSPB and what it
does is more important today, I would venture, than when it was
created in 1978. Today, we are in the midst of change in the
way government operates. We have DOD change; we have Department
of Homeland Security changes. Those two agencies account for at
least 20 percent of the MSPB case work.
Some have begun to question the role of the MSPB, and I
would assure you during my term I will be an ardent defender of
the importance of this agency. It is a small agency, but it
does a really good job. And it is real important for Federal
employees to have such an agency at this point.
So I am grateful to be here. I am happy, but I am more
happy that MSPB's interest is finally being taken care of.
There are some other things that I have highlighted, and I
will just stand by what I said in the opening statement, and
without further ado, I will pass the mike over to my colleague.
Oh, one other thing if I may. I am sorry. I want to tell
you that I am delighted to work with Ms. Sapin. When I heard of
her nomination, we met. We had a delightful lunch. We talked.
We shared views and so on. And I don't know that I could have
found a better person to conduct the important work of the
Board. I am the Chairman, but I am also inclusive in my
management style, and I am looking forward to having Barbara
Sapin's views be represented throughout the MSPB. Thank you
very much, sir.
Senator Fitzgerald. Thank you. Ms. Sapin.
TESTIMONY OF BARBARA J. SAPIN,\1\ TO BE A MEMBER, MERIT SYSTEMS
PROTECTION BOARD
Ms. Sapin. Thank you very much. That is very nice.
---------------------------------------------------------------------------
\1\ The prepared statement of Ms. Sapin appears in the Appendix on
page 78.
Biographical and professional information appears in the Appendix
on page 79.
Pre-hearing questionnaire and responses for the Record appears in
the Appendix on page 86.
---------------------------------------------------------------------------
To save the Committee time, I have submitted a prepared
statement that I hope can be placed into the record.
Senator Fitzgerald. Absolutely.
Ms. Sapin. Thank you. I really want to say how honored I am
to have been nominated as a member of the Merit Systems
Protection Board and to be appearing before this Committee
today. As you know, it was my privilege to serve as the Vice
Chairman of the MSPB during 2001 and work with the dedicated
staff of that agency. If I am confirmed, I will do everything
that I can to honor their accomplishments by committing to work
with Chairman McPhie and Board Member Marshall to promote the
goals of the agency.
I just want to also echo the sentiments of Mr. McPhie about
the agency and the experience that I had there. It is one of
the finest agencies--I have worked in several agencies in the
government, and it is one of the finest that I have ever worked
with.
I welcome the opportunity to serve as a member of the Merit
Systems Protection Board and look forward to the challenges
presented by that position. Thank you very much.
Senator Fitzgerald. Thank you.
We are going to start the first round of questions for the
nominees by asking you questions jointly, and if you could both
respond, these are standard questions.
Is there anything that you are aware of in your background
which might present a conflict of interest with the duties of
the office to which you have been nominated?
Mr. McPhie. No, sir.
Ms. Sapin. No, sir, there is not.
Senator Fitzgerald. Do you know of anything, personal or
otherwise, that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Mr. McPhie. No, sir.
Ms. Sapin. No, Senator.
Senator Fitzgerald. Do you agree without reservation to
respond to any reasonable summons to appear and testify before
any duly constituted committee of Congress, if you are
confirmed?
Mr. McPhie. Yes, sir.
Ms. Sapin. Yes, I do.
Senator Fitzgerald. You are sure about that? Sometimes they
change their mind when they get confirmed in the
administration. [Laughter.]
Well, that is good. I appreciate that. Those questions are
standard, and we ask all witnesses about that.
Mr. McPhie, what is your view of the role of Chairman of
the MSPB? And how have your experiences as Acting Chairman and
Board member influenced your view?
Mr. McPhie. Well, as the chairperson, I, under the statute,
am the chief operating officer, the CEO. As I indicated
earlier, I have an inclusive style of management. Therefore, I
want Member Sapin and Member Marshall, although her term is
winding down, to be involved in the operational decisions
facing the agency.
Being at the Board, first as a senior attorney, then as a
member, then as an Acting Chair, has really informed my view on
the importance of the agency and some of the personnel
involved. I have had some tough calls to make already. We have
had a reorganization. We have brought on board a new computer
system that sort of dragged for some time--finally it is
operational--and so on.
Senator Fitzgerald. What is the total number of personnel
in the MSPB?
Mr. McPhie. Two hundred and thirty-seven, thereabouts.
Senator Fitzgerald. Do you know what the total budget is?
Mr. McPhie. Between $35 to $37 million, and we have a
regional office structure, we closed a couple of offices. I
made it a personal decision to go visit those offices and talk
to the affected employees. I thought that would be good.
Senator Fitzgerald. I guess we are having some technical
difficulties here ourselves.
You closed the office in Boston. And where was the other
one that you closed?
Mr. McPhie. In Seattle. And we shifted cases accordingly,
so it was a seamless changeover from the parties' perspective.
Senator Fitzgerald. And why did you close those offices?
Mr. McPhie. To realign staff with where the work was. Over
time, the Federal workforce had shifted.
Senator Fitzgerald. Where did you move the employees? Or
where did you add more?
Mr. McPhie. We gave every employee the option of moving,
and most did. I think we had maybe two folks or three folks at
most who decided to retire at that point in time. Some folks
went from Seattle to San Francisco and so on. We had one person
come to headquarters in Washington, DC, where she currently is.
But, obviously, there were some anxious moments from a
staff standpoint. We could not keep this thing hanging over
folks' heads for too long, so we went out, we talked, we
engaged the union, and we came up with decisions that were win-
win.
We still have the issue down the road some of what impact,
if any, changes with DOD's and DHS' final regulations would
affect us, but we are better positioned today to absorb that
impact.
Senator Fitzgerald. How many people do you have in Chicago?
Do you know off the top of your head?
Mr. McPhie. In Chicago? I am told we have about nine
administrative judges, but I couldn't tell you the total
office.
Senator Fitzgerald. OK.
Mr. McPhie. Chicago is a thriving office for us. It is a
very good office.
Senator Fitzgerald. You do not plan to close Chicago?
Mr. McPhie. No, I don't.
Senator Fitzgerald. That is good. OK.
Mr. McPhie. In fact, I am heading out there soon to give a
speech at a law school, at Kent.
Senator Fitzgerald. That is great.
Mr. McPhie. So back to your original question, those are
the kinds of almost baptisms by fire I have undergone since I
have been at the Board. And I think I am better informed for
it.
Senator Fitzgerald. Ms. Sapin, what is your view of the
role of an MSPB Board member? And how has your experience in
the past as Vice Chairman of the Board affected your view of
that role?
Ms. Sapin. Well, clearly, the role is to be fair in
adjudicating and to do it within the law and to uphold the
merit system principles.
I also feel that it is also important to work closely with
staff and other Board members, and I think--I have firsthand
knowledge from my experience as Vice Chairman. I do have
firsthand knowledge of the Board's case law, the jurisdiction
and procedures, and a valuable insight into how the MSPB
functions as an impartial adjudicatory agency.
Also in my experience there, I gained a keen appreciation
of staff and the collegial relationships among Board members
that I think are so important in the smooth functioning of the
agency.
Senator Fitzgerald. Now, does each Board member have his or
her own personal staff?
Ms. Sapin. Yes. When I was there, I had a chief counsel and
two attorneys and a confidential assistant. I don't know what
the numbers are at this point.
Senator Fitzgerald. So what is the budget for each Board
member? Would either of you know that?
Mr. McPhie. Not off the top of my head. But there is a
budget. I am aware of that.
Senator Fitzgerald. Do you know what the budget is?
Mr. McPhie. Let me correct my statement. The budget for the
staff is not kept separately. There is a separate budget which
I was alluding to, but that is for travel, that type of thing.
Most Board members, including myself, rely a lot on MSPB's
regular attorneys who are assigned on detail. In fact, Ms.
Leonard, whom I introduced early on, is such a person.
Senator Fitzgerald. OK.
Ms. Sapin. And one of my attorneys was on detail from the
general counsel's office, and we often worked very closely with
the attorneys in the Office of Appeals Counsel to help us with
the cases as well.
Senator Fitzgerald. So do the individual Board members'
staffs just report to that Board member that they are assigned
to? Or are they--I mean, does your staff work for you, or are
they loyal to the overall agency?
Ms. Sapin. Well, they worked in my office, and, again, I
don't know whether things have changed.
Senator Fitzgerald. OK.
Ms. Sapin. They worked in my office but were a part of the
discussions that went on and the case handling discussions that
went on throughout the agency.
Senator Fitzgerald. OK.
Mr. McPhie. Well, they are certainly a part of the
deliberative process that each Board member goes through in
arriving at some sort of a decision.
Senator Fitzgerald. Right.
Mr. McPhie. Therefore, you would want and insist, in fact,
that that deliberative process be kept confidential.
Senator Fitzgerald. Right.
Mr. McPhie. Otherwise, you may, in fact, be accused of
being influenced in some fashion in how you vote a particular
case. So I rely on these folk to give me their unvarnished view
of what the law is and what the outcome should be.
Senator Fitzgerald. In most cases, you are just applying
facts and the law, almost in an antiseptic way, almost like a
judge would.
Mr. McPhie. Yes, sir.
Ms. Sapin. Yes.
Senator Fitzgerald. Senator Akaka, who is our Ranking
Democratic Member of the Subcommittee, unfortunately could not
be with us, but he has some questions that he has asked me to
ask on his behalf. And if you would be kind enough to respond
to this question, Mr. McPhie. The Departments of Defense and
Homeland Security are both required to consult with the Board
in designing any new appeals system. Could you please describe
for us the consultative process you have engaged in with both
DOD and DHS? And has this role been helpful in safeguarding the
merit system's principles? Or do you believe the role of the
MSPB should be strengthened if similar personnel flexibility is
granted in the future?
Mr. McPhie. Well, the statute as written contemplates a
consultative role for MSPB. The same statute contemplates a
much more hands-on design role for OPM and for DOD and for DHS.
So there is a difference.
I was always of the personal view that consulting is most
effective when you do it early. We got into the consulting
business at the tail end of the DHS process. I was not the
Chairperson then. And they had submitted a set of draft
regulations.
Now, once it began, there clearly was consulting. We had a
team of senior people--I think the general counsel was on that
team, who is here--and others, very experienced MSPB folks. And
we tried then to shape the final product around our views.
Now, quite clearly, we had no veto power. The regulations,
there are things in there that we thought were quite good, and
there are things, if we had to do it ourselves, we would have
done differently. But that is our role.
With DOD now, we formulated a similar group, and by this
time I became then the Acting Chairperson, and I sort of became
very proactive in seeking out a role for MSPB. And I talked to
folks at DOD and at OPM, and there was a role created for MSPB.
We had the same kind of team. DOD folks came to meet us rather
early. We had working teams, and then there came a point in
time when they asked us to sort of suspend what we are doing
until they can put their arms around some other issues that
frankly were not the appeal issues.
We have clearly tried to make the case that MSPB is a
viable organization that should be involved in any employee
appeals system, no matter what. And while that decision has not
been made, I anticipate having numerous opportunities to make
that case myself and at the highest levels of government, if I
have to.
Senator Fitzgerald. Ms. Sapin, this is a question that
Senator Akaka asked me to ask you. As you know, the Department
of Homeland Security issued proposed regulations for its new
human resources system, including its appeal system. However,
this system would treat DHS employees differently than
employees at other Federal agencies in matters regarding time
lines for appeals and burdens of proof.
What impact do you believe different procedures and
standards among different agencies have on the Federal
Government as a whole?
Ms. Sapin. I think that there is a concern or I have a
concern that the same kinds of issues may be treated
differently among employees in different agencies. But I
believe that the MSPB is very adept at working with the
different standards of proof, providing a fair, objective
adjudication of the appeals. And its my understanding that they
have had experience with different levels, different burdens of
proof and also working with different kinds of proofs.
And, so I think that there is also a concern, that without
proper resources and because there are some cases with
abbreviated statutory time limits, there may be some cases that
don't move as quickly because of the prioritization of the DHS
cases.
But I am very confident in the ability of the Board to
handle that. I have also noted that the Board is working very
hard, and has worked, to ease the time that cases sit at the
Board and to really work very hard at case processing. So I
think that is going to be and I have no doubt that they would
be able to handle all of the cases that come in.
Senator Fitzgerald. OK. And this is also another question
from Senator Akaka, also for Ms. Sapin. Senator Akaka strongly
believes that employees should be fully informed of their
rights and protections. While individual agencies and the
Office of Special Counsel have statutory responsibility in this
area, Senator Akaka is interested in knowing how you believe
MSPB could help to educate employees about the steps they can
take if they have been retaliated or discriminated against.
Ms. Sapin. I believe that the MSPB has many opportunities
to inform employees and managers of the MSPB's procedures. I
know that there are videos that are available. I am aware of
the brochures.
I also believe that in the offices, in the regional
offices, there are some, where there is some sort of
coordination to provide employees with additional assistance if
it is needed under certain circumstances.
I think that there are ways, again, given the resources of
the organization, as I had recommended or suggested that there
may be an ombudsman or an information person in the offices in
the regions, and that, of course, will depend upon the
resources. But I think that could go a long way in working with
the Federal population to understand their rights under the
MSPB.
Senator Fitzgerald. Mr. McPhie, I would like to go into
case processing. Could you please provide the Committee with a
status report of the Board's current caseload and any backlog
you may have? Do you have any of that information available
with you today?
Mr. McPhie. I don't have the statistics that would give you
a total spread, but let me tell you what I have. This is our
crunch period. This is our time when it is tough at the MSPB.
Why? Because we are trying to meet our GPRA performance goals.
Those are cases, we call them target cases. Those are cases
that are at least 300 days or will be 300 days old by the end
of the fiscal year. And the entire agency's focus at this point
in time is getting those cases out of the door.
That tends to be a challenge for the MSPB year-in and year-
out. I have talked to department heads trying to understand,
and we have initiated some investigation to figure out where
are the bottlenecks. And if so, what can we do about them?
You talk to some folks, they tell you, well, it is just
simply a resource issue. You get more people, you get things
done quicker. I don't know that resource just totally explains
it. There are some other issues, too, that the MSPB has to deal
with.
Senator Fitzgerald. Do you know how many cases you handle
annually, on average?
Mr. McPhie. About 8,000, isn't it?
It is 8,416, on average.
Senator Fitzgerald. Has that been going up in recent years?
Mr. McPhie. No. In recent years, they have kept constant.
Senator Fitzgerald. OK.
Mr. McPhie. It is about 7,000 in the field offices and
about 1,000 at headquarters, give or take.
Senator Fitzgerald. And do you know at any one time how
many cases over 300 days old you have?
Mr. McPhie. Cases over 300 days old? Right now, it is about
250 cases that must leave the MSPB between now and the end of
the fiscal year.
Senator Fitzgerald. The vast majority of that 8,000 cases
that you get in a year are dealt with within 300 days.
Are you aware of any trends in terms of whether the Federal
circuit court is overturning Board decisions more often than
they used to?
Mr. McPhie. No. I can tell you with a certain amount of
pride that we are maintaining a very high affirmance rate. I
will also tell you--and I had this conversation with Federal
circuit judges recently----
Senator Fitzgerald. When you say a very high affirmance
rate, would you--how high----
Mr. McPhie. Yes, sir, that is 96, 97 percent, or 94
percent.
Senator Fitzgerald. OK. And has that remained pretty
constant or has that----
Mr. McPhie. That has remained pretty constant.
Senator Fitzgerald. OK.
Mr. McPhie. When we get the product in front of them, we
are obviously doing a good job. That is not the issue for us.
The number of cases that they are seeing from MSPB has
declined. It is now 20 percent of the court's docket.
But the way these cases--these time frames are created,
cases come into a judge out in the field, and they are usually
in and out of those field offices within about 90 days. I mean,
it is real quick. These guys are really good. They are the real
heroes at MSPB, as far as I am concerned.
Then the case is appealed up to Washington, DC. That is
where we have to do better. Cases, frankly, spend too long a
time at headquarters.
Senator Fitzgerald. Now, both of you are committed, I
presume, to trying to work down any backlogs at all times and
keep everything and everybody moving at the MSPB?
Ms. Sapin. Absolutely.
Mr. McPhie. Yes, sir.
Senator Fitzgerald. Well, I think that about does it for
the Committee's questions today. I would like to keep the
hearing record open for any individual Senators or additional
statements or questions from Senators through the close of
business today. And that is pretty much it.
Thank you both for being here, and thank you and
congratulations to your families and friends.
Ms. Sapin. Thank you.
Mr. McPhie. Thank you, sir.
If there is no further business to come before the
Committee, this hearing is adjourned.
[Whereupon, at 3:09 p.m., the Committee was adjourned.]
A P P E N D I X
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