I

107TH CONGRESS

1ST SESSION H. R. 1965

To clarify the Administrative Dispute Resolution Act of 1996 to authorize

the Merit Systems Protection Board to establish under such Act a

3-year pilot program that will provide a voluntary early intervention

alternative dispute resolution process to assist Federal agencies and

employees in resolving certain personnel actions, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MAY 23, 2001

Mr. GEKAS introduced the following bill; which was referred to the Committee

on Government Reform, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each

case for consideration of such provisions as fall witin the jurisdiction of

the committee concerned

A BILL

To clarify the Administrative Dispute Resolution Act of 1996

to authorize the Merit Systems Protection Board to establish under such Act a 3-year pilot program that will

provide a voluntary early intervention alternative dispute

resolution process to assist Federal agencies and employees in resolving certain personnel actions, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Merit Systems Protec3 tion Board Administrative Dispute Resolution Act of

4 2001’’.

5 SEC. 2. FINDINGS.

6 The Congress finds the following:

7 (1) Workplace disputes waste resources of the

8 Federal Government, take up too much time, and

9 deflect managers and employees from their primary

10 job functions.

11 (2) The Merit Systems Protection Board (here12 after in this Act referred to as the ‘‘Board’’) has al13 ready taken steps to encourage agency use of ADR

14 before appeals are filed with the Board, including

15 extending the regulatory time limit for filing appeals

16 when the parties agree to try ADR, but high levels

17 of litigation continue.

18 (3) The Board’s administrative judges, who de19 cide appeals from personnel actions by Federal agen20 cies, find that by the time cases are formally filed

21 with the Board, the positions of the parties have

22 hardened, communication between the parties is dif23 ficult and often antagonistic, and the parties are not

24 amenable to open discussion of alternatives to litiga25 tion.
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1 (4) Early intervention by an outside neutral,

2 after the first notice of a proposed action by an

3 agency but before an appeal is filed with the Board,

4 will allow the parties to explore settlement outside

5 the adversarial context. However, without the en6 couragement of a neutral provided without cost,

7 agencies are reluctant to support an early interven8 tion ADR program.

9 (5) A short-term pilot program allowing the

10 Board, upon the joint request of the parties, to in11 tervene early in a personnel dispute is an effective

12 means to test whether ADR at that stage can re13 solve disputes, limit appeals to the Board, and re14 duce time and money expended in such matters.

15 (6) The Board is well equipped to conduct a

16 voluntary early intervention pilot program testing

17 the efficacy of ADR at the initial stages of a per18 sonnel dispute. The Board can provide neutrals who

19 are already well versed in both ADR techniques and

20 personnel law. The Board handles a diverse work21 load including removals, suspensions for more than

22 14 days, and other adverse actions, the resolution of

23 which entails complex legal and factual questions.
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1 SEC. 3. MERIT SYSTEMS PROTECTION BOARD ALTER2 NATIVE DISPUTE RESOLUTION PILOT PRO3 GRAM.

4 (a) AMENDMENT TO CHAPTER 5 OF TITLE 5.—

5 Chapter 5 of title 5, United States Code, is amended by

6 adding immediately after section 584 the following:

7 ‘‘§ 585. Establishment of voluntary early intervention

8 alternative dispute resolution pilot pro9 gram for Federal personnel disputes

10 ‘‘(a) IN GENERAL.—

11 ‘‘(1) The Board is authorized under section 572

12 to establish a 3-year pilot program to provide Fed13 eral employees and agencies with voluntary early

14 intervention alternative dispute resolution (in this

15 section referred to as ‘ADR’) processes to apply to

16 certain personnel disputes. The Board shall provide

17 ADR services, upon joint request of the parties, in

18 matters involving removals, suspensions for more

19 than 14 days, other adverse actions under section

20 7512, and removals and other actions based on un21 acceptable performance under section 4303.

22 ‘‘(2) The Board shall test and evaluate a vari23 ety of ADR techniques, which may include—

24 ‘‘(A) mediation conducted by private

25 neutrals, Board staff, or neutrals from appro26 priate Federal agencies other than the Board;
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1 ‘‘(B) mediation through use of neutrals

2 agreed upon by the parties and credentialed

3 under subsection (c)(5); and

4 ‘‘(C) non-binding arbitration.

5 ‘‘(b) EARLY INTERVENTION ADR.—

6 ‘‘(1) AUTHORITY.—The Board is authorized to

7 establish an early intervention ADR process, which

8 the agency involved and employee may jointly re9 quest, after an agency has issued a notice letter of

10 a proposed action to an employee under section

11 4303 or 7513 but before an appeal is filed with the

12 Board.

13 ‘‘(2) NOTICE IN PERSONNEL DISPUTES.—Dur14 ing the term of the pilot program, an agency shall,

15 in the notice letter of a proposed personnel action

16 under section 4303 or 7513—

17 ‘‘(A) advise the employee that early inter18 vention ADR is available from the neutral

19 Board, subject to the standards developed pur20 suant to subsection (c)(1)(A), and that the

21 agency and employee may jointly request it; and

22 ‘‘(B) provide a description of the program,

23 including the standards developed pursuant to

24 subsection (c)(1)(A).
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1 ‘‘(3) REQUEST.—Any agency and employee may

2 seek early intervention ADR from the Board by fil3 ing a joint request with the Board pursuant to the

4 program standards adopted under subsection

5 (c)(1)(A). All personnel dispute matters appealable

6 to the Board under section 4303 or 7513 shall be

7 eligible for early intervention ADR, upon joint re8 quest of the parties, unless the Board determines

9 that the matter is not appropriate for the program

10 subject to any applicable collective bargaining agree11 ment established under chapter 71.

12 ‘‘(4) CONFIDENTIALITY AND WITHDRAWAL.—

13 The consent of an agency or an employee with re14 spect to an early intervention ADR process is con15 fidential and shall not be disclosed in any subse16 quent proceeding. Either party may withdraw from

17 the ADR process at any time.

18 ‘‘(5) ANCILLARY MATTER.—In any personnel

19 dispute accepted by the Board for the ADR pilot

20 program authorized by this section, the Board may

21 attempt to resolve any ancillary matter which the

22 Board would be authorized to decide if the personnel

23 action were effected under section 4303 or 7513,

24 including—
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1 ‘‘(A) a claim of discrimination as described

2 in section 7702(a)(1)(B);

3 ‘‘(B) a prohibited personnel practice claim

4 as described in section 2302(b); or

5 ‘‘(C) a claim that the agency’s action is or

6 would be, if effected, not in accordance with

7 law.

8 ‘‘(c) IMPLEMENTATION.—

9 ‘‘(1) PROGRAM DUTIES.—In carrying out the

10 program under this section, the Board shall—

11 ‘‘(A) develop and prescribe standards for

12 selecting and handling cases in which ADR has

13 been requested and is to be used;

14 ‘‘(B) take such actions as may be nec15 essary upon joint request of the parties, includ16 ing waiver of all statutory, regulatory, or Board

17 imposed adjudicatory time frames; and

18 ‘‘(C) establish a time target within which

19 it intends to complete the ADR process.

20 ‘‘(2) EXTENSION.—The Board, upon the joint

21 request of the parties, may extend the time period

22 as it finds appropriate.

23 ‘‘(3) ADVOCACY AND OUTREACH.—The Board

24 shall conduct briefings and other outreach, on a non25 reimbursable basis, aimed at increasing awareness
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1 and understanding of the ADR program on the part

2 of the Federal workforce—including executives,

3 managers, and other employees.

4 ‘‘(4) RECRUITMENT.—The Chairman of the

5 Board may contract on a reimbursable basis with of6 ficials from other Federal agencies and contract with

7 other contractors or temporary staff to carry out the

8 provisions of this section.

9 ‘‘(5) TRAINING AND CREDENTIALLING OF

10 NEUTRALS.—The Board shall develop a training and

11 credentialing program to ensure that all individuals

12 selected by the Board to serve as program neutrals

13 have a sufficient understanding of the issues that

14 arise before the Board and are sufficiently skilled in

15 the practice of meditation or any other relevant form

16 of ADR.

17 ‘‘(6) REGULATIONS.—The Board is authorized

18 to prescribe such regulations as may be necessary to

19 implement the ADR program established by this sec20 tion.

21 ‘‘(d) EVALUATION.—

22 ‘‘(1) CRITERIA.—The Board’s Office of Policy

23 and Evaluation shall establish criteria for evaluating

24 the ADR pilot program and prepare a report con25 taining findings and recommendations as to whether
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1 voluntary early intervention ADR is desirable, effec2 tive, and appropriate for cases subject to section

3 4303 or 7513.

4 ‘‘(2) REPORT CONTENT.—The report, subject to

5 subsection (b)(4) and section 574, shall include—

6 ‘‘(A) the number of cases subject to the

7 ADR program, the agencies involved, the re8 sults, and the resources expended;

9 ‘‘(B) a comprehensive analysis of the effec10 tiveness of the program, including associated

11 resource and time savings (if any), and the ef12 fect on the Board’s caseload and average case

13 processing time;

14 ‘‘(C) a survey of customer satisfaction; and

15 ‘‘(D) a recommendation regarding the de16 sirability of extending the ADR program be17 yond the prescribed expiration date and any

18 recommended changes.

19 The recommendation under subparagraph (D) shall

20 discuss the relationship between the Board’s pilot

21 ADR program and those workplace ADR programs

22 conducted by other Federal agencies.

23 ‘‘(3) REPORT DATE.—The report shall be sub24 mitted to the President and the Congress 180 days

25 before the close of the ADR pilot program.’’.
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1 (b) APPROPRIATIONS.—

2 (1) IN GENERAL.—For the purpose of carrying

3 out the ADR pilot program established by this sec4 tion, there are authorized to be appropriated such

5 sums as may be necessary for each of the 3 fiscal

6 years beginning after the date of enactment of this

7 Act.

8 (2) NO REDUCTIONS.—The authorization of ap9 propriations by paragraph (1) shall not have the ef10 fect of reducing any funds appropriated for the

11 Board for the purpose of carrying out its statutory

12 mission under section 1204.

13 (c) EFFECTIVE DATE.—The amendment made by

14 subsection (a) shall take effect no later than the close of

15 the 60th day after the enactment of appropriations au16 thorized by subsection (b)(1) and shall remain in effect

17 for 3 years from the effective date.

18 (d) CONFORMING AMENDMENT.—The table of sec19 tions for subchapter IV of chapter 5 of title 5, United

20 States Code, is amended by adding after the item relating

21 to section 584 the following new item:

‘‘585. Establishment of voluntary early intervention alternative dispute resolution pilot program for Federal personnel disputes.’’.
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1 SEC. 4. MERIT SYSTEMS PROTECTION BOARD ADMINISTRA2 TIVE JUDGES.

3 (a) MODIFIED PAY SYSTEM FOR ADMINISTRATIVE

4 JUDGES.—

5 (1) IN GENERAL.—Subchapter VII of chapter

6 53 of title 5, United States Code, is amended by in7 serting after section 5372b the following:

8 ‘‘§ 5372c. Administrative judges of the Merit Systems

9 Protection Board

10 ‘‘(a) DEFINITIONS.—For purposes of this section—

11 ‘‘(1) the term ‘Board’ means the Merit Systems

12 Protection Board;

13 ‘‘(2) the term ‘administrative judge’ means an

14 employee of the Board who is authorized by the

15 Board to hold a hearing or to decide a case without

16 a hearing, but does not include—

17 ‘‘(A) an administrative law judge ap18 pointed under section 3105;

19 ‘‘(B) a member of the Board under section

20 1201; or

21 ‘‘(C) an individual appointed on other than

22 a permanent basis;

23 ‘‘(3) the term ‘Chairman’ means the Chairman

24 of the Board (as described in section 1203(a)); and
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1 ‘‘(4) the terms ‘pay locality’ and ‘comparability

2 payment’ have the meanings given them by section

3 5302.

4 ‘‘(b) PAY SCHEDULE FOR ADMINISTRATIVE

5 JUDGES.—

6 ‘‘(1) IN GENERAL.—There shall be 4 rates of

7 basic pay (designated as AJ–1, 2, 3, and 4, respec8 tively) for administrative judges, and each adminis9 trative judge shall be paid at 1 of those rates in ac10 cordance with the provisions of this section.

11 ‘‘(2) RATES.—

12 ‘‘(A) IN GENERAL.—The 4 rates of basic

13 pay referred to in paragraph (1) shall be as fol14 lows:

The rate is equal to the

‘‘For: following percentage of the

rate described in subparagraph (B):

AJ–1 ..................................................................................... 70.

AJ–2 ..................................................................................... 80.

AJ–3 ..................................................................................... 90.

AJ–4 ..................................................................................... 92.

15 ‘‘(B) RATE DESCRIBED.—The rate de16 scribed in this subparagraph is the rate of basic

17 pay (including any comparability payment) pay18 able to a member of the Senior Executive Serv19 ice who—

20 ‘‘(i) is being paid at the second high21 est rate of basic pay established under sec22 tion 5382; and
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1 ‘‘(ii) holds a position, in or under the

2 Board, within the pay locality of the ad3 ministrative judge involved.

4 ‘‘(c) INITIAL APPOINTMENT AND ADVANCEMENT.—

5 ‘‘(1) INITIAL APPOINTMENT.—A new appoint6 ment to an administrative judge position shall be

7 made at the AJ–1 rate. However, under regulations

8 prescribed by the Chairman which provide for such

9 considerations as the existing pay or unusually high

10 or unique qualifications of an individual, or a special

11 need of the Board for an individual’s services, the

12 Chairman may (instead of the rate that would other13 wise apply under the preceding sentence) fix that in14 dividual’s pay at such higher rate (under subsection

15 (b)) as the Chairman considers appropriate.

16 ‘‘(2) ADVANCEMENT.—An administrative judge

17 who has not reached the highest rate under sub18 section (b) shall be advanced in pay successively to

19 the next higher rate following the completion of—

20 ‘‘(A) 104 weeks of service at the AJ–1

21 rate,

22 ‘‘(B) 104 weeks of service at the AJ–2

23 rate, and

24 ‘‘(C) 52 weeks of service at the AJ–3 rate,
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1 subject to the condition that the work of the judge

2 exceeds the fully successful level throughout the pe3 riod involved (as determined based on the judge’s

4 performance appraisals of record over such period).

5 ‘‘(3) REVIEW BOARD.—If paragraph (2) cannot

6 be applied, due to the adoption of a pass-fail stand7 ard or any other modification in a performance ap8 praisal system, advancement to the next higher level

9 shall instead occur following—

10 ‘‘(A) completion of the requisite number of

11 weeks under subparagraph (A), (B), or (C) of

12 paragraph (2) (as appropriate), subject to the

13 condition that the work of the judge is of an ac14 ceptable level of competence throughout the pe15 riod involved (as determined based on the

16 judge’s performance appraisals of record over

17 such period); and

18 ‘‘(B) approval of such advancement by a

19 review board (appointed by the Chairman from

20 among senior employees of the Board), in ac21 cordance with such regulations as the Chairman

22 shall prescribe consistent with the purposes of

23 this paragraph.
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1 ‘‘(d) REGULATIONS.—Any regulations necessary to

2 carry out this section shall be prescribed by the Chair3 man.’’.

4 (2) CLERICAL AMENDMENT.—The table of sec5 tions for chapter 53 of title 5, United States Code,

6 is amended by inserting after the item relating to

7 section 5372b the following:

‘‘5372c. Administrative judges of the Merit Systems Protection Board.’’.

8 (3) EFFECTIVE DATE.—Except as provided in a

9 succeeding provision of this section, the amendments

10 made by this subsection shall apply only in the case

11 of an individual first appointed (as an administrative

12 judge) on or after the first day of the first pay pe13 riod of the first calendar year beginning at least 3

14 months after the date of the enactment of this Act.

15 (b) PROVISIONS RELATING TO ADMINISTRATIVE

16 JUDGES FIRST APPOINTED BEFORE EFFECTIVE DATE.—

17 (1) IN GENERAL.—An administrative judge who

18 is serving on the effective date described in sub19 section (a)(3) (other than a judge described in sub20 section (a)(3)) shall remain subject to the pay provi21 sions that (but for this section) would otherwise

22 apply, unless and until converted to the pay system

23 established by section 5372c of title 5, United States

24 Code (as added by subsection (a)) in accordance

25 with the following:
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1 (A) If, as of such effective date—

2 (i) the administrative judge would

3 (disregarding this section) be entitled to be

4 paid at a rate of pay for grade GS–15 of

5 the General Schedule, and

6 (ii) the judge’s last 3 performance ap7 praisals of record (as such a judge) exceed

8 the fully successful level,

9 such judge shall, effective as of such date, be10 come subject to such section 5372c, at the rate

11 that would then apply if—

12 (I) such section had been in effect

13 since the time of such judge’s original ap14 pointment, and

15 (II) advancements had been made

16 (since that time) in accordance with sub17 section (c)(2) of such section (disregarding

18 the matter after subparagraph (C) there19 of).

20 (B) If, as of such effective date, the ad21 ministrative judge—

22 (i) is entitled to be paid at a rate of

23 pay for grade GS–15 of the General

24 Schedule, but
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1 (ii) does not satisfy the requirement

2 under subparagraph (A)(ii),

3 such judge shall, upon satisfying such require4 ment (including, to the extent appropriate, by

5 taking into account up to the judge’s last two

6 performance appraisals of record), become sub7 ject to such section 5372c, effective as of the

8 first day of the first applicable pay period be9 ginning after the date as of which such judge

10 satisfies such requirement, at the same rate as

11 if first appointed on such first day.

12 (C) If, as of such effective date, the admin13 istrative judge is entitled to be paid at a rate

14 of pay for a grade below grade GS–15 of the

15 General Schedule, such judge shall—

16 (i) upon satisfying the requirement

17 under subparagraph (A)(ii),

18 (ii) taking into account only perform19 ance appraisals for service performed, at a

20 rate of pay for grade GS–15 of the Gen21 eral Schedule, on or after such effective

22 date,

23 become subject to such section 5372c, effective

24 as of the first day of the first applicable pay pe25 riod beginning after the date as of which such
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1 judge so satisfies such requirement, at the same

2 rate as if first appointed on such first day.

3 (D) If subparagraph (B) or (C) cannot be

4 applied, due to the adoption of a pass-fail

5 standard or any other modification in a per6 formance appraisal system, eligibility for con7 version (to the rate specified in such subpara8 graph (B) or (C), as appropriate) shall instead

9 be determined in accordance with procedures

10 which the Chairman shall by regulation pre11 scribe based on subsection (c)(3) of such section

12 5372c.

13 (2) REEMPLOYMENT CASES.—In the case of an

14 individual who—

15 (A) is first appointed as an administrative

16 judge before the effective date described in sub17 section (a)(3),

18 (B) is not serving as an administrative

19 judge on such effective date, and

20 (C) becomes reemployed as an administra21 tive judge after such effective date,

22 paragraph (1) shall be applied by substituting the

23 date as of which such individual becomes so reem24 ployed for ‘‘the effective date described in subsection
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1 (a)(3)’’ each place it (or any other reference to such

2 effective date) appears.

3 (3) SPECIAL AUTHORITIES.—Notwithstanding

4 any other provision of this section, the Chairman

5 may—

6 (A) in exceptional cases, provide for the

7 conversion of an administrative judge to the ap8 propriate rate for such judge under paragraph

9 (1) or (2) (as applicable), without regard to any

10 conditions of eligibility otherwise required for

11 such conversion; and

12 (B) in any case described in subparagraph

13 (B) or (C) of paragraph (1) (or the cor14 responding case under paragraph (2)) or a

15 similar case under subparagraph (A), exercise

16 the authority described in the second sentence

17 of section 5372c(c)(1) of title 5, United States

18 Code (as added by subsection (a)), if the Chair19 man (in his or her sole discretion) determines

20 that the circumstances so warrant.

21 (c) PHASE-IN AUTHORITY.—

22 (1) IN GENERAL.—Notwithstanding any other

23 provision of this section, if the Chairman (in his or

24 her sole discretion) determines that the cir25 cumstances so warrant, the rate of basic pay payable
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1 to an administrative judge converted to the new pay

2 system pursuant to subsection (b) shall, during the

3 period described in paragraph (3), be determined in

4 accordance with the following:

5 (A) Instead of the rate of pay to which

6 otherwise entitled under section 5372c of title

7 5, United States Code (as added by subsection

8 (a)), such individual shall continue to be paid in

9 accordance with the provisions of law that

10 would otherwise apply (if this section had never

11 been enacted), subject to subparagraph (B).

12 (B) Instead of any adjustment in pay to

13 which such individual would otherwise be enti14 tled during such period under sections 5303

15 and 5304–5304a of title 5, United States Code,

16 such individual shall receive (as of the date the

17 adjustment under such section 5303 would oth18 erwise be scheduled to become effective in the

19 year involved)—

20 (i) a percentage adjustment under

21 such section 5303 equal to the same per22 centage adjustment taking effect in such

23 year under section 5382(c) of such title in

24 the case of a member of the Senior Execu-
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1 tive Service described in section

2 5372c(b)(2)(B) of such title,

3 (ii) the same comparability payment

4 (expressed as a percentage) as the percent5 age taking effect in such year under sec6 tions 5303–5304a of such title in the case

7 of a member of the Senior Executive Serv8 ice described in section 5372c(b)(2)(B) of

9 such title, and

10 (iii) an additional $3,000,

11 not to exceed the limitation under paragraph

12 (4)(B).

13 (C) The provisions of this subsection shall

14 continue to apply (in the case of each adminis15 trative judge described in the matter before

16 subparagraph (A)) until such time as—

17 (i) this subsection terminates in ac18 cordance with paragraph (3); or

19 (ii) if earlier, the pay for such judge

20 equals the rate that would then (but for

21 this subsection) otherwise be payable to

22 such judge under such section 5372c.

23 (2) CONDITION FOR APPLICABILITY.—This sub24 section shall apply only if the Chairman, not later

25 than 1 month before the effective date described in
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1 subsection (a)(3), determines (by order published in

2 the Federal Register) that the phase-in authority

3 under this subsection is necessary.

4 (3) DURATION.—If the Chairman makes a de5 termination under paragraph (2), this subsection

6 shall apply for the period—

7 (A) beginning on the effective date de8 scribed in subsection (a)(3), and

9 (B) ending—

10 (i) at the close of the year in which

11 the Chairman determines (by order pub12 lished in the Federal Register) that the

13 phase-in authority under this subsection is

14 no longer necessary; but

15 (ii) in no event later than at the close

16 of the 7-year period beginning on the effec17 tive date described in subsection (a)(3).

18 (4) LIMITATIONS.—In no event may the rate of

19 pay of an administrative judge (described in para20 graph (1) in the matter before subparagraph (A)

21 thereof)—

22 (A) at any time while this subsection re23 mains in effect, be less than the rate that would

24 then otherwise apply if this section had never

25 been enacted; or
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1 (B) be increased, as a result of this sub2 section, to a rate higher than would then other3 wise apply pursuant to this section, absent this

4 subsection.

5 (5) EXCEPTION.—The Chairman may at any

6 time provide that an administrative judge serving as

7 a chief administrative judge—

8 (A) be excluded from the application of

9 this subsection; and

10 (B) instead be treated as if this subsection

11 had never been enacted.

12 (6) IRREVOCABILITY.—A determination under

13 paragraph (2), (3)(B)(i), or (5) shall be irrevocable.

14 (d) DEFINITIONS.—For purposes of this section, the

15 terms ‘‘administrative judge’’ and ‘‘Chairman’’ have the

16 meanings given them by section 5372c of title 5, United

17 States Code (as added by subsection (a)).

Æ