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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

(

(II)

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

BARACK OBAMA, Illinois 

CLAIRE McCASKILL, Missouri 

JON TESTER, Montana 

SUSAN M. COLLINS, Maine 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

PETE V. DOMENICI, New Mexico 

JOHN WARNER, Virginia 

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 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

GEORGE V. VOINOVICH, Ohio 

TED STEVENS, Alaska 

TOM COBURN, Oklahoma 

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 

(III)

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

(1)

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 perVerDate 0ct 09 2002 14:53 Sep 14, 2007 Jkt 034414 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\34414.TXT SAFFAIRS PsN: PAT
2

sonnel 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 arVerDate 0ct 09 2002 14:53 Sep 14, 2007 Jkt 034414 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 C:\DOCS\34414.TXT SAFFAIRS PsN: PAT
3

range 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 

4

1The prepared statement of Mr. McPhie appears in the Appendix on page 27. 

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. 

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. 

5

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 

6

1The prepared statement of Mr. Bloch with attachments appears in the Appendix on page 34. 

2The charts referred to appears in the Appendix on page 42. 

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. 

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. 

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 

7

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. 

8

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 conVerDate 0ct 09 2002 14:53 Sep 14, 2007 Jkt 034414 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 C:\DOCS\34414.TXT SAFFAIRS PsN: PAT
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tained 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 

10

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 

11

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 

12

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 peoVerDate 0ct 09 2002 14:53 Sep 14, 2007 Jkt 034414 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 C:\DOCS\34414.TXT SAFFAIRS PsN: PAT
13

ple 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 frontpage 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? 

14

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 

15

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, 

16

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. 

17

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 

18

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 

19

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. 

20

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. 

21

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 

22

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 

23

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. 

24

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. 

25

Senator AKAKA. Special Counsel Bloch, do you know if those who 

responded negatively were the ones whose cases you had jurisdiction over or not? 

Mr. BLOCH. There is no way of telling from the survey. 

Senator AKAKA. Well, I want to thank both of you so much for 

your responses. Thank you, Mr. McPhie. 

Mr. MCPHIE. Thank you, Senator. 

Senator AKAKA. Thank you, Special Counsel Bloch, for being here 

today. 

Mr. BLOCH. Thank you. 

Senator AKAKA. Because of my belief in the merit system and its 

principles, I want to work with you to make sure that MSPB and 

OSC are complying with these principles and are working to make 

sure other agencies are complying, as well. As this Subcommittee 

considers your agencies’ reauthorization requests, be assured that 

this will be the standard by which your proposals will be measured. 

The Federal Government must be free of retaliation for disclosing 

wrongdoing and discrimination, which is why I plan to introduce 

legislation to restore protections for employees who are discriminated against based on their sexual orientation. It does not make 

sense to me to protect employees from discrimination based on 

their conduct but not on their status, which is established by the 

very same protected conduct. 

With that, again, I want to thank you so much and look forward 

to continuing to work with you. 

The hearing record will be open for 1 week for additional statements or questions other Members may have. 

The hearing is adjourned. 

[Whereupon, at 4:12 p.m., the Subcommittee was adjourned.] 

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