Merit board seeks summary judgment powers

A top official responsible for overseeing the federal merit system wants new summary judgment powers and an exemption from some transparency law provisions, in part to streamline operations in preparation for workload increases projected over the next several years.

Neil McPhie, chairman of the Merit Systems Protection Board, argued at a Thursday Senate hearing that an upcoming reauthorization bill should include measures that would help the board decide cases more quickly without sacrificing accuracy. MSPB's main responsibilities include protecting whistleblowers and deciding cases in which federal employees allege wrongful personnel actions.

McPhie said summary judgment authority, in which the board could make decisions without first holding a hearing when both sides agree on the facts of the case, would increase efficiency. In particular, he said, the authority would be helpful in cases where either the agency or employee is reluctant to acknowledge having a weak case.

The chairman said that under House-approved whistleblower legislation, a 180-day deadline for the board to issue rulings would be strictly applied, and said summary judgment authority would help in meeting that requirement.

Sen. Daniel Akaka, D-Hawaii, questioned McPhie about potential effects of such a change on claimants who represent themselves before the board without a lawyer, but the chairman said the board has a long history with such pro se claimants, and they would not be harmed.

McPhie also argued for some exemptions from the 1976 Government in the Sunshine Act, which he said slows board decisions by limiting how its three members can discuss cases.

According to the chairman's account, the three board members assiduously avoid speaking together about ongoing cases because of a requirement that meetings of presidentially appointed, Senate-confirmed bodies be announced publicly and follow an agenda. While there is an exemption for meetings scheduled to adjudicate particular cases, McPhie said, the board is sensitive to the possibility that a discussion could drift to address other cases or issues. "Even if we want to close a case quickly, we avoid talking about it," he said.

McPhie said the board members brief their general counsels on their views regarding a particular case, and the lawyers get together and work out details on which all the board members can agree. He said the Court of Appeals expects MSPB, as a quasi-judicial body, to work like the appellate court. This would include the adjudicators discussing cases to decide how to approach them.

In presenting the legislative requests, McPhie outlined factors that could increase the board's workload during the next five years. He said a growing number of retirements stemming from an aging workforce would typically be accompanied by increasing benefits appeals, while falling agency budgets could lead to layoffs and other personnel actions prone to dispute. MSPB can also expect a heavier appeals caseload as veterans return from Iraq and Afghanistan and seek reinstatement with their previous employers under the 1994 Uniformed Services Employment and Reemployment Rights Act and the 1998 Veterans Employment Opportunities Act, he said.

Whistleblower legislation presented in the House and Senate could also lead to more and stronger appeal rights, potentially including Transportation Security Administration screeners, a group currently without recourse through the MSPB. McPhie also said personnel reforms under way at the departments of Homeland Security and Defense will require monitoring for their impacts on employees.