[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 U.S. GOVERNMENT PRINTING OFFICE 34-414 PDF WASHINGTON DC: 2007 --------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800 DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP, Washington, DC 20402-0001 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. 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