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95–502 PDF 2004

S. Hrg. 108–590

NOMINATIONS OF NEIL McPHIE AND

BARBARA J. SAPIN

HEARING

BEFORE THE

COMMITTEE ON 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON THE

NOMINATIONS OF NEIL McPHIE, TO BE CHAIRMAN, MERIT SYSTEMS 

PROTECTION BOARD, AND BARBARA J. SAPIN, TO BE A MEMBER, 

MERIT SYSTEMS PROTECTION BOARD

JULY 19, 2004

Printed for the use of the Committee on Governmental Affairs

(

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

ARLEN SPECTER, Pennsylvania 

ROBERT F. BENNETT, Utah 

PETER G. FITZGERALD, Illinois 

JOHN E. SUNUNU, New Hampshire 

RICHARD C. SHELBY, Alabama 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

RICHARD J. DURBIN, Illinois 

THOMAS R. CARPER, Deleware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

MICHAEL D. BOPP, Staff Director and Chief Counsel 

JOHANNA L. HARDY, Senior Counsel 

MICHAEL J. RUSSELL, Staff Director, Financial Management, 

the Budget, and International Security Subcommittee 

JOYCE A. RECHTSCHAFFEN, Minority Staff Director and Counsel 

NANCI E. LANGLEY, Minority Deputy Staff Director, Financial Management, 

the Budget, and International Security Subcommittee 

JENNIFER E. HAMILTON, Minority Research Assistant 

AMY B. NEWHOUSE, Chief Clerk 

(III)

C O N T E N T S 

Opening statements: Page 

Senator Fitzgerald ............................................................................................ 1

WITNESSES 

MONDAY, JULY 19, 2004

Neil McPhie, to be Chairman, Merit Systems Protection Board ......................... 3

Barbara J. Sapin, to be a Member, Merit Systems Protection Board ................. 4

ALPHABETICAL LIST OF WITNESSES

McPhie, Neil: 

Testimony .......................................................................................................... 3

Prepared statement .......................................................................................... 11

Biographical and professional information requested of nominees .............. 13

Pre-hearing questionnaire and responses submitted for the Record for 

the nomination hearing held May 15, 2003 of Mr. McPhie to be a 

Member .......................................................................................................... 23

Pre-hearing questionnaire and responses submitted for the Record from 

Senator Akaka for the nomination hearing held May 15, 2003 for 

the nomination of Mr. McPhie to be a Member ......................................... 37

Pre-hearing questionnaire and responses submitted for the Record for 

the nomination of Mr. McPhie to be Chairman .......................................... 41

Sapin, Barbara J.: 

Testimony .......................................................................................................... 4

Prepared statement .......................................................................................... 78

Biographical and professional information requested of nominees .............. 79

Pre-hearing questionnaire and responses for the Record ............................. 86

(1)

NOMINATIONS OF NEIL McPHIE AND 

BARBARA J. SAPIN 

MONDAY, JULY 19, 2004

U.S. SENATE, 

COMMITTEE ON GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:34 p.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Peter G. Fitzgerald, 

presiding. 

Present: Senator Fitzgerald. 

OPENING STATEMENT OF SENATOR FITZGERALD 

Senator FITZGERALD. This Committee will come to order. Today, 

the Governmental Affairs Committee will consider the nominations 

of Neil McPhie to be Chairman of the Merit Systems Protection 

Board and Barbara J. Sapin to be a member of the Merit Systems 

Protection Board. 

I would like to welcome Mr. McPhie back before this Committee. 

I was just recollecting his last appearance before this Committee 

was in May 2003, I believe, and it was over in the Capitol Building, 

and I was in between stacked votes. I remember that distinctly. 

And welcome, Ms. Sapin, before this Committee for the first time. 

The President has selected you for important positions in our government, and I congratulate you both of your nominations. 

Mr. McPhie and Ms. Sapin have filed responses to the Committee’s biographical and financial questionnaire, answered prehearing 

questions submitted by the Committee, and had their financial 

statements reviewed by the Office of Government Ethics. Without 

objection, this information will be made part of the hearing record, 

with the exception of the financial data, which are on file and 

available for public inspection in the Committee offices. 

In addition, I have personally reviewed the FBI background investigation reports on each of the nominees. 

Neil McPhie was nominated by President Bush to be a member 

of the Merit Systems Protection Board on July 9, 2002, and was renominated on January 7, 2003, when he began serving as senior 

attorney to the Board. The President appointed Mr. McPhie as a 

member of the Board on April 23, 2003. Prior to joining the Board, 

Mr. McPhie served as a trial and appellate attorney for the Equal 

Employment Opportunity Commission, as an Assistant Attorney 

General for the Commonwealth of Virginia, and as the Executive 

Director of the Virginia Department of Employment Dispute Resolution. Mr. McPhie earned his J.D. degree from the Georgetown 

2

University Law Center and a B.A. degree in economics from Howard University. 

Barbara Sapin currently serves as general counsel to the National Abortion Federation in Washington, DC, a position she has 

held since April 2002. Ms. Sapin previously served on the Merit 

Systems Protection Board as its Vice Chairman from January to 

December 2001. She also served as general counsel and labor counsel for the American Nurses Association and as an attorney with 

the National Labor Relations Board. Ms. Sapin earned her J.D. 

from Catholic University School of Law and her B.A. in psychology 

from Boston University. 

The Merit Systems Protection Board serves as the guardian of 

Federal merit systems principles. The Board was created in 1978 

as part of a comprehensive reform of the civil service, including 

statutory protections for Federal employees to encourage disclosure 

of waste, fraud, abuse, and illegal activity. In this area, the Board 

plays a critical role in protecting the rights of whistleblowers. 

Over the years, whistleblowers have presented some of the most 

compelling evidence of government abuse and fiscal mismanagement, saving the taxpayers hundreds of millions of dollars. I am 

pleased to be an original cosponsor of S. 2628, the Federal Employee Protection of Disclosures Act, that Senator Akaka and 

Chairman Collins introduced earlier this month. This bill would 

strengthen the current whistleblower laws and provide added protection to those Federal employees who expose waste, fraud, and 

abuse. I look forward to working with Senator Akaka and our Committee colleagues on this important legislative initiative. 

At this point, I would like to swear in the nominees. Our Committee rules require that all witnesses at nomination hearings give 

their testimony under oath, and so at this time, I would ask both 

of you to please stand and raise your right hand. Do you solemnly 

swear to tell the truth, the whole truth, and nothing but the truth, 

so help you, God? 

Mr. MCPHIE. I do. 

Ms. SAPIN. I do. 

Senator FITZGERALD. Thank you. You may be seated. 

Before we begin with opening statements, I would ask whether 

either of you would like to introduce any special guests who are 

here today. Mr. McPhie? 

Mr. MCPHIE. If I may defer to Ms. Sapin? 

Senator FITZGERALD. OK. Ms. Sapin, do you have some special 

guests you would like to introduce? 

Ms. SAPIN. I would like to introduce my family: My father, 

George Sapin, who flew in from Cleveland today; my sister, Linda 

Sapin; and my nephew, Sean Peacock. I would also like to recognize my mother, Shirley Sapin, who was unable to make the trip 

to Washington. 

Senator FITZGERALD. Well, that is wonderful. 

Ms. SAPIN. And I also want to thank all my friends who came 

today. They are sitting behind me. 

Senator FITZGERALD. Well, that is terrific. It is great to have 

some supporters here, and to the family, congratulations. 

How old is your nephew? 

Ms. SAPIN. He is 12. 

3

1The prepared statement of Mr. McPhie appears in the Appendix on page 11. 

Biographical and professional information appears in the Appendix on page 13. 

Pre-hearing questionnaire and responses submitted for the Record for the nomination hearing held May 15, 2003 of Mr. McPhie to be a Member appears in the Appendix on page 23. 

Pre-hearing questionnaire and responses submitted for the Record from Senator Akaka for 

the nomination hearing held May 15, 2003 for the nomination of Mr. McPhie to be a Member 

appears in the Appendix on page 37. 

Pre-hearing questionnaire and responses submitted for the Record for the nomination of Mr. 

McPhie to be Chairman appears in the Appendix on page 41. 

Senator FITZGERALD. That is my son’s age. Are you going into the 

seventh grade? 

Ms. SAPIN. Yes, he is. 

Senator FITZGERALD. Oh, that is great. Good to see you here. 

Mr. McPhie. 

Mr. MCPHIE. Yes, sir. I want to introduce my wife, Regina, she 

is right here, and my two kids who were here the last time but 

could not be here this time. 

Senator FITZGERALD. Yes. 

Mr. MCPHIE. But I told them I would tell them everything that 

happens. 

Senator FITZGERALD. Oh, that is great, yes. 

Mr. MCPHIE. That is Abigail and Sidney. And there are folks 

from the agency, MSPB, that I appreciate took the time out, and 

let me, if I may, introduce them, please. 

Senator FITZGERALD. Absolutely. 

Mr. MCPHIE. There is Bill Atkinson. He is my Chief of Staff. Tracey Watkins, she is my senior Adviser. And there is Rosalyn 

Wilcots, who is the Legislative Counsel at MSPB. And then there 

is our General Counsel, Marty Schneider. They helped prepare me 

so I can look good in front of this——

Senator FITZGERALD. And answer my tough questions. 

Mr. MCPHIE. Yes, sir. And then there is Rachel Leonard, who is 

an attorney at the MSPB. Oh, yes, and there is my good friend, 

Will Cardoza, who is also an attorney at the MSPB. Will volunteered to be my photographer today. 

Senator FITZGERALD. Where is Will? There is Will. OK. That is 

terrific. Anybody else? 

Mr. MCPHIE. I think I have covered them all. 

Senator FITZGERALD. Well, that is great. It is good to see that 

you both have some family and supporters here. 

At this point, I would like you to go ahead and give your introductory statements, and, Mr. McPhie, we would begin with you. In 

the interest of time, we ask that you limit your statements to no 

more than 10 minutes, and we will include your full statement in 

the hearing record. 

So, Mr. McPhie, you may proceed. 

TESTIMONY OF NEIL McPHIE,1 TO BE CHAIRMAN, MERIT 

SYSTEMS PROTECTION BOARD 

Mr. MCPHIE. I will not read the statement, which is already in 

the record, but I will just simply highlight some important points. 

I thank you and I thank the Committee, and the staff, for making this hearing possible. I want to thank the President for appointing me to this important position. And I want to thank MSPB 

for being the decent agency that it is. 

4

1The prepared statement of Ms. Sapin appears in the Appendix on page 78. 

Biographical and professional information appears in the Appendix on page 79. 

Pre-hearing questionnaire and responses for the Record appears in the Appendix on page 86. 

The agency has not had a full complement of Board members for 

a while now, and they deserve a full complement. I do believe that 

if it is the Senate’s wish to confirm Ms. Sapin and myself—and I 

hope it is—it would provide the agency with two persons who will 

be there for some time and, therefore, begin the task of long-term 

planning. 

It is important, I believe, because the MSPB and what it does is 

more important today, I would venture, than when it was created 

in 1978. Today, we are in the midst of change in the way government operates. We have DOD change; we have Department of 

Homeland Security changes. Those two agencies account for at 

least 20 percent of the MSPB case work. 

Some have begun to question the role of the MSPB, and I would 

assure you during my term I will be an ardent defender of the importance of this agency. It is a small agency, but it does a really 

good job. And it is real important for Federal employees to have 

such an agency at this point. 

So I am grateful to be here. I am happy, but I am more happy 

that MSPB’s interest is finally being taken care of. 

There are some other things that I have highlighted, and I will 

just stand by what I said in the opening statement, and without 

further ado, I will pass the mike over to my colleague. 

Oh, one other thing if I may. I am sorry. I want to tell you that 

I am delighted to work with Ms. Sapin. When I heard of her nomination, we met. We had a delightful lunch. We talked. We shared 

views and so on. And I don’t know that I could have found a better 

person to conduct the important work of the Board. I am the Chairman, but I am also inclusive in my management style, and I am 

looking forward to having Barbara Sapin’s views be represented 

throughout the MSPB. Thank you very much, sir. 

Senator FITZGERALD. Thank you. Ms. Sapin. 

TESTIMONY OF BARBARA J. SAPIN,1 TO BE A MEMBER, MERIT 

SYSTEMS PROTECTION BOARD 

Ms. SAPIN. Thank you very much. That is very nice. 

To save the Committee time, I have submitted a prepared statement that I hope can be placed into the record. 

Senator FITZGERALD. Absolutely. 

Ms. SAPIN. Thank you. I really want to say how honored I am 

to have been nominated as a member of the Merit Systems Protection Board and to be appearing before this Committee today. As 

you know, it was my privilege to serve as the Vice Chairman of the 

MSPB during 2001 and work with the dedicated staff of that agency. If I am confirmed, I will do everything that I can to honor their 

accomplishments by committing to work with Chairman McPhie 

and Board Member Marshall to promote the goals of the agency. 

I just want to also echo the sentiments of Mr. McPhie about the 

agency and the experience that I had there. It is one of the finest 

agencies—I have worked in several agencies in the government, 

and it is one of the finest that I have ever worked with. 

5

I welcome the opportunity to serve as a member of the Merit 

Systems Protection Board and look forward to the challenges presented by that position. Thank you very much. 

Senator FITZGERALD. Thank you. 

We are going to start the first round of questions for the nominees by asking you questions jointly, and if you could both respond, 

these are standard questions. 

Is there anything that you are aware of in your background 

which might present a conflict of interest with the duties of the office to which you have been nominated? 

Mr. MCPHIE. No, sir. 

Ms. SAPIN. No, sir, there is not. 

Senator FITZGERALD. Do you know of anything, personal or otherwise, that would in any way prevent you from fully and honorably 

discharging the responsibilities of the office to which you have been 

nominated? 

Mr. MCPHIE. No, sir. 

Ms. SAPIN. No, Senator. 

Senator FITZGERALD. Do you agree without reservation to respond to any reasonable summons to appear and testify before any 

duly constituted committee of Congress, if you are confirmed? 

Mr. MCPHIE. Yes, sir. 

Ms. SAPIN. Yes, I do. 

Senator FITZGERALD. You are sure about that? Sometimes they 

change their mind when they get confirmed in the administration. 

[Laughter.] 

Well, that is good. I appreciate that. Those questions are standard, and we ask all witnesses about that. 

Mr. McPhie, what is your view of the role of Chairman of the 

MSPB? And how have your experiences as Acting Chairman and 

Board member influenced your view? 

Mr. MCPHIE. Well, as the chairperson, I, under the statute, am 

the chief operating officer, the CEO. As I indicated earlier, I have 

an inclusive style of management. Therefore, I want Member Sapin 

and Member Marshall, although her term is winding down, to be 

involved in the operational decisions facing the agency. 

Being at the Board, first as a senior attorney, then as a member, 

then as an Acting Chair, has really informed my view on the importance of the agency and some of the personnel involved. I have 

had some tough calls to make already. We have had a reorganization. We have brought on board a new computer system that sort 

of dragged for some time—finally it is operational—and so on. 

Senator FITZGERALD. What is the total number of personnel in 

the MSPB? 

Mr. MCPHIE. Two hundred and thirty-seven, thereabouts. 

Senator FITZGERALD. Do you know what the total budget is? 

Mr. MCPHIE. Between $35 to $37 million, and we have a regional 

office structure, we closed a couple of offices. I made it a personal 

decision to go visit those offices and talk to the affected employees. 

I thought that would be good. 

Senator FITZGERALD. I guess we are having some technical difficulties here ourselves. 

You closed the office in Boston. And where was the other one 

that you closed? 

6

Mr. MCPHIE. In Seattle. And we shifted cases accordingly, so it 

was a seamless changeover from the parties’ perspective. 

Senator FITZGERALD. And why did you close those offices? 

Mr. MCPHIE. To realign staff with where the work was. Over 

time, the Federal workforce had shifted. 

Senator FITZGERALD. Where did you move the employees? Or 

where did you add more? 

Mr. MCPHIE. We gave every employee the option of moving, and 

most did. I think we had maybe two folks or three folks at most 

who decided to retire at that point in time. Some folks went from 

Seattle to San Francisco and so on. We had one person come to 

headquarters in Washington, DC, where she currently is. 

But, obviously, there were some anxious moments from a staff 

standpoint. We could not keep this thing hanging over folks’ heads 

for too long, so we went out, we talked, we engaged the union, and 

we came up with decisions that were win-win. 

We still have the issue down the road some of what impact, if 

any, changes with DOD’s and DHS’ final regulations would affect 

us, but we are better positioned today to absorb that impact. 

Senator FITZGERALD. How many people do you have in Chicago? 

Do you know off the top of your head? 

Mr. MCPHIE. In Chicago? I am told we have about nine administrative judges, but I couldn’t tell you the total office. 

Senator FITZGERALD. OK. 

Mr. MCPHIE. Chicago is a thriving office for us. It is a very good 

office. 

Senator FITZGERALD. You do not plan to close Chicago? 

Mr. MCPHIE. No, I don’t. 

Senator FITZGERALD. That is good. OK. 

Mr. MCPHIE. In fact, I am heading out there soon to give a 

speech at a law school, at Kent. 

Senator FITZGERALD. That is great. 

Mr. MCPHIE. So back to your original question, those are the 

kinds of almost baptisms by fire I have undergone since I have 

been at the Board. And I think I am better informed for it. 

Senator FITZGERALD. Ms. Sapin, what is your view of the role of 

an MSPB Board member? And how has your experience in the past 

as Vice Chairman of the Board affected your view of that role? 

Ms. SAPIN. Well, clearly, the role is to be fair in adjudicating and 

to do it within the law and to uphold the merit system principles. 

I also feel that it is also important to work closely with staff and 

other Board members, and I think—I have firsthand knowledge 

from my experience as Vice Chairman. I do have firsthand knowledge of the Board’s case law, the jurisdiction and procedures, and 

a valuable insight into how the MSPB functions as an impartial 

adjudicatory agency. 

Also in my experience there, I gained a keen appreciation of staff 

and the collegial relationships among Board members that I think 

are so important in the smooth functioning of the agency. 

Senator FITZGERALD. Now, does each Board member have his or 

her own personal staff? 

Ms. SAPIN. Yes. When I was there, I had a chief counsel and two 

attorneys and a confidential assistant. I don’t know what the numbers are at this point. 

7

Senator FITZGERALD. So what is the budget for each Board member? Would either of you know that? 

Mr. MCPHIE. Not off the top of my head. But there is a budget. 

I am aware of that. 

Senator FITZGERALD. Do you know what the budget is? 

Mr. MCPHIE. Let me correct my statement. The budget for the 

staff is not kept separately. There is a separate budget which I was 

alluding to, but that is for travel, that type of thing. Most Board 

members, including myself, rely a lot on MSPB’s regular attorneys 

who are assigned on detail. In fact, Ms. Leonard, whom I introduced early on, is such a person. 

Senator FITZGERALD. OK. 

Ms. SAPIN. And one of my attorneys was on detail from the general counsel’s office, and we often worked very closely with the attorneys in the Office of Appeals Counsel to help us with the cases 

as well. 

Senator FITZGERALD. So do the individual Board members’ staffs 

just report to that Board member that they are assigned to? Or are 

they—I mean, does your staff work for you, or are they loyal to the 

overall agency? 

Ms. SAPIN. Well, they worked in my office, and, again, I don’t 

know whether things have changed. 

Senator FITZGERALD. OK. 

Ms. SAPIN. They worked in my office but were a part of the discussions that went on and the case handling discussions that went 

on throughout the agency. 

Senator FITZGERALD. OK. 

Mr. MCPHIE. Well, they are certainly a part of the deliberative 

process that each Board member goes through in arriving at some 

sort of a decision. 

Senator FITZGERALD. Right. 

Mr. MCPHIE. Therefore, you would want and insist, in fact, that 

that deliberative process be kept confidential. 

Senator FITZGERALD. Right. 

Mr. MCPHIE. Otherwise, you may, in fact, be accused of being influenced in some fashion in how you vote a particular case. So I 

rely on these folk to give me their unvarnished view of what the 

law is and what the outcome should be. 

Senator FITZGERALD. In most cases, you are just applying facts 

and the law, almost in an antiseptic way, almost like a judge 

would. 

Mr. MCPHIE. Yes, sir. 

Ms. SAPIN. Yes. 

Senator FITZGERALD. Senator Akaka, who is our Ranking Democratic Member of the Subcommittee, unfortunately could not be 

with us, but he has some questions that he has asked me to ask 

on his behalf. And if you would be kind enough to respond to this 

question, Mr. McPhie. The Departments of Defense and Homeland 

Security are both required to consult with the Board in designing 

any new appeals system. Could you please describe for us the consultative process you have engaged in with both DOD and DHS? 

And has this role been helpful in safeguarding the merit system’s 

principles? Or do you believe the role of the MSPB should be 

8

strengthened if similar personnel flexibility is granted in the future? 

Mr. MCPHIE. Well, the statute as written contemplates a consultative role for MSPB. The same statute contemplates a much more 

hands-on design role for OPM and for DOD and for DHS. So there 

is a difference. 

I was always of the personal view that consulting is most effective when you do it early. We got into the consulting business at 

the tail end of the DHS process. I was not the Chairperson then. 

And they had submitted a set of draft regulations. 

Now, once it began, there clearly was consulting. We had a team 

of senior people—I think the general counsel was on that team, 

who is here—and others, very experienced MSPB folks. And we 

tried then to shape the final product around our views. 

Now, quite clearly, we had no veto power. The regulations, there 

are things in there that we thought were quite good, and there are 

things, if we had to do it ourselves, we would have done differently. 

But that is our role. 

With DOD now, we formulated a similar group, and by this time 

I became then the Acting Chairperson, and I sort of became very 

proactive in seeking out a role for MSPB. And I talked to folks at 

DOD and at OPM, and there was a role created for MSPB. We had 

the same kind of team. DOD folks came to meet us rather early. 

We had working teams, and then there came a point in time when 

they asked us to sort of suspend what we are doing until they can 

put their arms around some other issues that frankly were not the 

appeal issues. 

We have clearly tried to make the case that MSPB is a viable 

organization that should be involved in any employee appeals system, no matter what. And while that decision has not been made, 

I anticipate having numerous opportunities to make that case myself and at the highest levels of government, if I have to. 

Senator FITZGERALD. Ms. Sapin, this is a question that Senator 

Akaka asked me to ask you. As you know, the Department of 

Homeland Security issued proposed regulations for its new human 

resources system, including its appeal system. However, this system would treat DHS employees differently than employees at 

other Federal agencies in matters regarding time lines for appeals 

and burdens of proof. 

What impact do you believe different procedures and standards 

among different agencies have on the Federal Government as a 

whole? 

Ms. SAPIN. I think that there is a concern or I have a concern 

that the same kinds of issues may be treated differently among employees in different agencies. But I believe that the MSPB is very 

adept at working with the different standards of proof, providing 

a fair, objective adjudication of the appeals. And its my understanding that they have had experience with different levels, different burdens of proof and also working with different kinds of 

proofs. 

And, so I think that there is also a concern, that without proper 

resources and because there are some cases with abbreviated statutory time limits, there may be some cases that don’t move as quickly because of the prioritization of the DHS cases. 

9

But I am very confident in the ability of the Board to handle 

that. I have also noted that the Board is working very hard, and 

has worked, to ease the time that cases sit at the Board and to 

really work very hard at case processing. So I think that is going 

to be and I have no doubt that they would be able to handle all 

of the cases that come in. 

Senator FITZGERALD. OK. And this is also another question from 

Senator Akaka, also for Ms. Sapin. Senator Akaka strongly believes 

that employees should be fully informed of their rights and protections. While individual agencies and the Office of Special Counsel 

have statutory responsibility in this area, Senator Akaka is interested in knowing how you believe MSPB could help to educate employees about the steps they can take if they have been retaliated 

or discriminated against. 

Ms. SAPIN. I believe that the MSPB has many opportunities to 

inform employees and managers of the MSPB’s procedures. I know 

that there are videos that are available. I am aware of the brochures. 

I also believe that in the offices, in the regional offices, there are 

some, where there is some sort of coordination to provide employees with additional assistance if it is needed under certain circumstances. 

I think that there are ways, again, given the resources of the organization, as I had recommended or suggested that there may be 

an ombudsman or an information person in the offices in the regions, and that, of course, will depend upon the resources. But I 

think that could go a long way in working with the Federal population to understand their rights under the MSPB. 

Senator FITZGERALD. Mr. McPhie, I would like to go into case 

processing. Could you please provide the Committee with a status 

report of the Board’s current caseload and any backlog you may 

have? Do you have any of that information available with you 

today? 

Mr. MCPHIE. I don’t have the statistics that would give you a 

total spread, but let me tell you what I have. This is our crunch 

period. This is our time when it is tough at the MSPB. Why? Because we are trying to meet our GPRA performance goals. Those 

are cases, we call them target cases. Those are cases that are at 

least 300 days or will be 300 days old by the end of the fiscal year. 

And the entire agency’s focus at this point in time is getting those 

cases out of the door. 

That tends to be a challenge for the MSPB year-in and year-out. 

I have talked to department heads trying to understand, and we 

have initiated some investigation to figure out where are the bottlenecks. And if so, what can we do about them? 

You talk to some folks, they tell you, well, it is just simply a resource issue. You get more people, you get things done quicker. I 

don’t know that resource just totally explains it. There are some 

other issues, too, that the MSPB has to deal with. 

Senator FITZGERALD. Do you know how many cases you handle 

annually, on average? 

Mr. MCPHIE. About 8,000, isn’t it? 

It is 8,416, on average. 

Senator FITZGERALD. Has that been going up in recent years? 

10

Mr. MCPHIE. No. In recent years, they have kept constant. 

Senator FITZGERALD. OK. 

Mr. MCPHIE. It is about 7,000 in the field offices and about 1,000 

at headquarters, give or take. 

Senator FITZGERALD. And do you know at any one time how 

many cases over 300 days old you have? 

Mr. MCPHIE. Cases over 300 days old? Right now, it is about 250 

cases that must leave the MSPB between now and the end of the 

fiscal year. 

Senator FITZGERALD. The vast majority of that 8,000 cases that 

you get in a year are dealt with within 300 days. 

Are you aware of any trends in terms of whether the Federal circuit court is overturning Board decisions more often than they used 

to? 

Mr. MCPHIE. No. I can tell you with a certain amount of pride 

that we are maintaining a very high affirmance rate. I will also tell 

you—and I had this conversation with Federal circuit judges recently——

Senator FITZGERALD. When you say a very high affirmance rate, 

would you—how high——

Mr. MCPHIE. Yes, sir, that is 96, 97 percent, or 94 percent. 

Senator FITZGERALD. OK. And has that remained pretty constant 

or has that——

Mr. MCPHIE. That has remained pretty constant. 

Senator FITZGERALD. OK. 

Mr. MCPHIE. When we get the product in front of them, we are 

obviously doing a good job. That is not the issue for us. The number of cases that they are seeing from MSPB has declined. It is now 

20 percent of the court’s docket. 

But the way these cases—these time frames are created, cases 

come into a judge out in the field, and they are usually in and out 

of those field offices within about 90 days. I mean, it is real quick. 

These guys are really good. They are the real heroes at MSPB, as 

far as I am concerned. 

Then the case is appealed up to Washington, DC. That is where 

we have to do better. Cases, frankly, spend too long a time at headquarters. 

Senator FITZGERALD. Now, both of you are committed, I presume, 

to trying to work down any backlogs at all times and keep everything and everybody moving at the MSPB? 

Ms. SAPIN. Absolutely. 

Mr. MCPHIE. Yes, sir. 

Senator FITZGERALD. Well, I think that about does it for the 

Committee’s questions today. I would like to keep the hearing 

record open for any individual Senators or additional statements or 

questions from Senators through the close of business today. And 

that is pretty much it. 

Thank you both for being here, and thank you and congratulations to your families and friends. 

Ms. SAPIN. Thank you. 

Mr. MCPHIE. Thank you, sir. 

If there is no further business to come before the Committee, this 

hearing is adjourned. 

[Whereupon, at 3:09 p.m., the Committee was adjourned.] 

(11)

A P P E N D I X 


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Æ


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