Resources
Congressional Testimony

Chairman, Standing Panel on the Public Service
National Academy of Public Administration
For the
Senate Subcommittee on International Security,
Proliferation, and Federal Services
Committee on Governmental Affairs

February 26, 1998

Introduction

It is with pleasure that I provide this statement to the Subcommittee in support of S. 1495, "The Merit System Protection Act of 1997." I believe the provisions of this bill would improve the system for resolving disputes between employees and their employers, federal agencies, by facilitating final determination of the correct interpretation of significant matters of civil service law which have a substantial governmentwide impact. Achieving final determinations of disputed interpretations of civil service law will promote consistency, clarity and stability regarding employment relationships and discipline which will benefit both the employee and employer.

The Standing Panel on the Public Service, of which I am the Chair, is an arm of the National Academy of Public Administration, an independent, nonprofit, nonpartisan membership organization of 400 Fellows, chartered by Congress to identify emerging issues of governance and provide practical assistance to federal, state, and local governments on how to improve their performance. A major dimension of the Academy's program is that of human resources management, where through its Center for Human Resources Management, the Academy provides assistance to executive, legislative, and judicial agencies on matters related to personnel management and civil service issues.

Previous Testimony

Over the past three years, the Academy has provided on several occasions Congressional testimony on workplace issues. Most recently, I provided a statement on April 23, 1996, to the House subcommittee on Treasury, Postal Service and General Government on the subject of resolving workplace disputes. In that testimony I noted that "...how the federal government might improve the manner in which workplace issues are resolved is one of its most important tasks as a major employer."

The emphasis in that testimony, as with most commentators on the federal government's dispute resolution system, was on fully utilizing alternative dispute resolution mechanisms so that a minimum number of disputes required using a formal process. I believe this remains a sound, basic approach. At the same time, it is recognized that certain workplace disputes, especially those involving employee discipline, will come before formal dispute resolution authorities such as arbitrators, the Merit Systems Protection Board (MSPB), and the courts. Some of these cases involve significant interpretations of civil service law and regulation. When such cases are decided by the MSPB and the courts, their interpretations of law and regulation affect the entire system for resolving disputes in the federal civil service and the manner and standards by which agencies and employees are held accountable for workforce conduct and performance.

The CSRA Appeals Provisions

In passing the Civil Service Reform Act (CSRA), Congress recognized the need for a system for dealing with the small number of employee discipline cases which involve disputed interpretations of civil service law. For the employee, it provided the ability to appeal an MSPB decision or arbitration award to a higher level within MSPB and ultimately to the Federal Circuit Court of Appeals (Federal Circuit), with no restrictions on the grounds for such an appeal. For the government, it provided the employing agency a limited right to request the MSPB to review its initial decision, with no right to appeal an arbitrator's award, and no right to seek judicial review. Rather, the CSRA provided that only OPM, as the executive branch's central personnel agency, could seek judicial review of an arbitrator's award or a final MSPB decision. Further, such appeals to the court could only be made if the Director of OPM and the Department of Justice determined that an arbitrator's award or MSPB decision contained an erroneous interpretation of civil service law which would have a substantial impact on the continuing interpretation and application of civil service laws, rules, regulations and policy directives.

The basic purposes of the provision for judicial review are to (1) ensure that interpretations of civil service law that affect the entire civil service and its operations are fully considered and weighed by the parties and the dispute resolution authorities, including, if necessary, the U.S. Supreme Court, and (2) achieve a final resolution to disputed interpretations of civil service law so there is consistency, clarity and stability with respect to workplace relationships and discipline. For the most part, it has worked well with numerous significant issues resolved - sometimes in favor of the government and sometimes in favor of the employee.

Recent Experience

Although the number of cases reaching the Federal Circuit for review is small, their impact is substantial and extensive. According to data from the Office of Personnel Management (OPM), the Government has asked the appropriate appellate court to review an MSPB or arbitration decision only 57 times in the 18 years since the passage of the Civil Service Reform Act (CSRA), during which time there were over 22,000 final MSPB decisions as well as thousands of arbitration awards. The significance of these few cases is best demonstrated by the most recent outcome of the system - the Supreme Court's decision in Lachance v. Erickson which held that no federal employee has a constitutional or statutory right to lie.

Shortcomings of the Current System and How S. 1495 Would Correct Them

In our view, however, there are two serious shortcomings of the current system which are contrary to its objectives: (1) the Federal Circuit's discretion not to accept the OPM Director's determination that the decision was erroneous and would have a substantial impact and thus not address and resolve the contested interpretation of law; and (2) the requirement that OPM must file a petition for review within 30 days of its receipt of the MSPB or arbitration decision that is in the form of a complete brief on the merits. We believe these shortcomings could be successfully addressed by S. 1495 without affecting an employee's right to appeal and without placing additional burdens on the court or the appeals system.

Authority of the Federal Circuit

With respect to the first shortcoming, it is our understanding that the authority of the Federal Circuit to reject the OPM Director's substantial impact determination is perhaps unique in that OPM is unaware of any other instance in which a court of appeals possesses the authority to decline to hear agency appeals from final decisions. More importantly, this authority has prevented OPM from fulfilling its role as the executive branch's representative in seeking judicial resolution of disputed interpretations of law. According to OPM, the Federal Circuit has declined to hear 14 of the 54 total cases that OPM, along with the Department of Justice, have determined to be erroneous and substantially impact the civil service. Although neither the Academy nor I are in a position to offer an opinion on the specifics of these 14 cases, it seems clear that purposes of the CSRA in this regard would be better served if the Federal Circuit agreed to accept the OPM and Justice Department judgment and considered these infrequent but critical cases on the basis of their merits.

In refusing to fully consider all such cases, the court leaves unsettled differing interpretations of law which will continue to exist and probably emerge again as disputes in new cases. On the other hand, S. 1495 by permitting a full review of these cases would help achieve clarity and uniformity of legal principles affecting civil service employees throughout the executive branch. It would also ultimately reduce rather than add to the number of cases litigated because employees and employers would have a clearer understanding of the law's meaning and application.

30-Day Limit on Substantive Appellate Brief

The second shortcoming concerns the Federal Circuit's requirement that OPM file a full-blown substantive appellate brief 30--days after the date of an arbitrator or MSPB decision. S. 1495 would allow it to file a pro forma petition for review 60 days after a decision has been made which OPM believe is erroneous. I believe this proposed change would also contribute to a more effective use of the judicial review provision. First, it would remove what we understand is a condition which no other executive branch agency is required to meet, thereby allowing OPM appeals to be treated like other agency appeals of an administrative decision are. Second, it would ensure that OPM and the Justice Department have sufficient time to better analyze the case in question, and prepare a petition which frames the issues in ways most helpful to the court. It should also be noted that this change should not affect in any way an employee's present appeal rights.

In conclusion, I believe that S. 1495 would significantly perfect an aspect of the executive branch's appeals system that is often unnoticed but which has an impact far beyond the number of cases involved. If enacted, the bill would help bring to closure significant disputes over the meaning and application of civil service law. By doing so, it would benefit both employees and employers by providing clarity, consistency and stability in employment law and policy. Given the small number of cases which rise to this level of review and the judicious use OPM and the Department of Justice have made of the provision for judicial review, it is unlikely that the changes in S. 1495 will result in an increased judicial workload. Rather, it seems more likely that the issue resolution that should occur will result in less litigation in the future. For these reasons, I recommend favorable consideration of S. 1495, and thank you for requesting our views.