I
106TH CONGRESS
1ST SESSION
H. R. 2946
To amend title 5, United States Code, to authorize the Merit Systems Protec-
tion Board to conduct an alternative dispute resolution pilot program
to assist Federal Government agencies in resolving serious workplace
disputes, and to establish an administrative judge pay schedule for ad-
ministrative judges employed by the Merit Systems Protection Board.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 24, 1999
Mr. GEKAS introduced the following bill; which was referred to the Committee
on Government Reform
A BILL
To amend title 5, United States Code, to authorize the
Merit Systems Protection Board to conduct an alter-
native dispute resolution pilot program to assist Federal
Government agencies in resolving serious workplace dis-
putes, and to establish an administrative judge pay
schedule for administrative judges employed by the Merit
Systems Protection Board.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. POLICY, FINDINGS, AND PURPOSES.
(a) POLICY.—Chapter 12 of title 5, United States
Code, is amended to authorize the United States Merit
Systems Protection Board to test and evaluate a variety
of alternative dispute resolution techniques in workplace
disputes involving Federal administrative agencies and
proceedings governed by chapters 5 and 7 of title 5,
United States Code. The statement of purpose and policy
is a reaffirmation of the encouragement to Federal agen-
cies to use alternative dispute resolution, enunciated in the
Administrative Dispute Resolution Act of 1996. (Public
Law 104–320).
(b) FINDINGS.—The Congress finds that—
(1) Workplace disputes waste resources of the
Federal Government, take up too much time, and
deflect managers and employees from their primary
job functions.
(2) In the past, the Federal Government has re-
lied heavily upon traditional, adversarial processes.
(3) Alternative dispute resolution has been use-
ful in resolving a variety of matters in controversy
without litigation, providing quick resolution, open
communications, improved working relationships and
avoidance of costly and lengthy litigation, and use of
alternative dispute resolution should be promoted.
(4) It is important to determine whether man-
datory alternative dispute resolution is desirable, ap-
propriate, or effective for certain workplace disputes.
(5) The Merit Systems Protection Board is well
suited to conduct a 3-year alternative dispute resolu-
tion program focusing on workplace disputes in the
Federal sector because it is an independent adju-
dicative agency that decides approximately 10,000
cases involving Federal workplace disputes each
year, has a long history of using alternative dispute
resolution to settle cases filed with the Board, and
has as one of its missions the responsibility to study
and report on issues of importance to the civil serv-
ice system. The Board’s workload is diverse and in-
cludes a sufficient variety of both highly complex
cases and high-volume less complex cases to ade-
quately test and evaluate broader use of alternative
dispute resolution techniques. It has an experienced
corps of administrative judges who are already fa-
miliar with traditional settlement techniques.
(c) PURPOSES.—The Board shall evaluate the alter-
native dispute resolution pilot program and, after the com-
pletion of the 3-year program, shall file a comprehensive
report with the President and Congress.
SEC. 2. MERIT SYSTEMS PROTECTION BOARD ALTER-
NATIVE DISPUTE RESOLUTION PILOT PRO-
GRAM.
(a) AMENDMENT TO CHAPTER 12 OF TITLE 5.—
Chapter 12 of title 5, United States Code, is amended by
adding immediately after section 1206 the following:
‘‘§ 1207. Establishment of alternative dispute resolu-
tion program
‘‘(a) IN GENERAL.—
‘‘(1) The Merit Systems Protection Board is
authorized to establish a 3-year program to provide
employees and agencies with alternative dispute res-
olution processes to apply to workplace disputes and
disagreements involving removals, suspensions for
more than 14 days, and other adverse actions under
section 7512.
‘‘(2) The Board shall test and evaluate a vari-
ety of alternative dispute resolution techniques,
which may include—
‘‘(A) settlement judges or attorneys;
‘‘(B) mediation through use of shared
neutrals;
‘‘(C) mediation by Merit Systems Protec-
tion Board staff or others as appointed by the
Chairman;
‘‘(D) administrative arbitration; and
‘‘(E) certified alternative dispute resolution
counselors (agency personnel specifically trained
in Board law and alternative dispute resolution
techniques).
‘‘(b) EARLY INTERVENTION ALTERNATIVE DISPUTE
RESOLUTION.—
‘‘(1) INVOKING
RESOLUTION
PROCESS.—The
Board’s early intervention alternative dispute resolu-
tion process may be invoked after an agency has
issued a notice letter of a proposed action to an em-
ployee but before a final decision has been made
under section 7513.
‘‘(2) EARLY
INTERVENTION.—Any agency or
employee may seek early intervention alternative dis-
pute resolution from the Board by filing a request
with the Board. If the Board determines that alter-
native dispute resolution is appropriate, the parties
shall participate.
‘‘(3) MANDATORY
RESOLUTION.—The Chair-
man of the Merit Systems Protection Board is au-
thorized to designate up to 3 agencies with a sub-
stantial volume of Board appeals for participation in
a mandatory early intervention alternative dispute
resolution program. Under this alternative dispute
resolution process, all matters appealable under sec-
tion 7512 shall be subject to early intervention alter-
native dispute resolution unless the Board deter-
mines that the matter is not appropriate for the pro-
gram or a statute or collective bargaining agreement
precludes inclusion of the matter in the alternative
dispute resolution program.
‘‘(c) ALTERNATIVE DISPUTE RESOLUTION AFTER AN
APPEAL OR PETITION FOR REVIEW IS FILED.—
‘‘(1) APPEAL OR PETITION FOR REVIEW.—Once
an appeal or petition for review is filed with the
Board, any employee or agency may request that a
case be selected for alternative dispute resolution.
The request shall be filed with the administrative
judge assigned to the appeal or with the Clerk of the
Board if the matter is before the Board on petition
for review at the same time that the appeal or peti-
tion for review is filed.
‘‘(2) SELECTION OF CASES.—The Board shall
have sole authority to select cases for alternative dis-
pute resolution after an appeal or petition for review
is filed. The Board may also select cases for alter-
native dispute resolution as it determines appro-
priate.
‘‘(d) IMPLEMENTATION.—
‘‘(1) PROGRAM DUTIES.—In carrying out the
program under this section, the Board shall—
‘‘(A) develop and prescribe standards for
selecting and handling cases in which alter-
native dispute resolution is to be used;
‘‘(B) take such actions as may be nec-
essary, including waiver of all statutory, regu-
latory, or Board imposed adjudicatory time
frames; and
‘‘(C) establish a time target within which
it intends to complete the alternative dispute
resolution process.
‘‘(2) EXTENSION.—A party may request an ex-
tension of the alternative dispute resolution period,
or the Board may extend the time period as it finds
appropriate.
‘‘(3) RECRUITMENT.—The Chairman of the
Merit Systems Protection Board may recruit and
hire temporary staff or contractors to carry out this
section.
‘‘(4) REGULATIONS.—The Board is authorized
to prescribe such regulations as may be necessary to
implement the alternative dispute resolution pro-
gram.
‘‘(e) EVALUATION.—
‘‘(1) CRITERIA.—The Board’s Office of Policy
and Evaluation shall establish criteria for evaluating
the alternative dispute resolution program and pre-
pare a report containing findings and recommenda-
tions as to whether mandatory alternative dispute
resolution is desirable, effective, and appropriate for
cases decided by Federal administrative agencies
under proceedings governed by chapters 5 and 7.
‘‘(2) REPORT
CONTENT.—The report shall
include—
‘‘(A) the number of cases subject to the al-
ternative dispute resolution program, the agen-
cies involved, the results, and the resources ex-
pended;
‘‘(B) a comprehensive analysis of the effec-
tiveness of the program, including whether it is
cost-effective;
‘‘(C) a survey of the satisfaction of partici-
pants; and
‘‘(D) a recommendation regarding the de-
sirability of extending the alternative dispute
resolution program beyond the prescribed expi-
ration date and any recommended changes.
‘‘(3) REPORT DATE.—The report shall be sub-
mitted to the President and the Congress 180 days
following the close of the alternative dispute resolu-
tion program.’’.
(b) APPROPRIATIONS.—
(1) IN GENERAL.—For the purpose of carrying
out the alternative dispute resolution program estab-
lished by the amendment made by subsection (a),
there are authorized to be appropriated the following
sums: $1,000,000 for fiscal year 2000; $1,000,000
adjusted by the most recent percentage change in
the employment cost index (ECI) for fiscal year
2001; and $1,000,000 adjusted by the most recent
percentage change in the ECI for fiscal year 2002.
(2) NO REDUCTIONS.—The authorization of ap-
propriations by paragraph (1) shall not have the ef-
fect of reducing any funds appropriated for the
Board for the purpose of carrying out its statutory
mission under section 1204.
(c) EFFECTIVE DATE.—The amendment made by
subsection (a) shall take effect no later than the close of
the 60th day after the date of enactment of appropriations
authorized by subsection (b)(1) for fiscal year 2000 and
shall remain in effect for 3 years from the effective date.
(d) CONFORMING AMENDMENT.—The table of sec-
tions for subchapter I of chapter 12 of title 5, United
States Code, is amended by adding after the item relating
to section 1206 the following new item:
‘‘1207. Establishment of alternative dispute resolution program.’’.
SEC. 3. POLICY AND FINDINGS.
(a) POLICY.—Chapter 53 of title 5, United States
Code, is amended to establish an MSPB Administrative
Judge Pay Schedule and to provide MSPB administrative
judges with pay that is comparable to that of immigration
judges (IJs) and administrative law judges (ALJs).
(b) FINDINGS.—The Congress finds that—
(1) MSPB administrative judges perform work
at the same level of importance and complexity as
immigration judges and administrative law judges.
Federal employees deserve to have their cases heard
by judges with the same pay and status as the
judges who hear private sector benefits and employ-
ment law cases. Veterans in the Federal workforce
deserve to have their cases heard by judges with the
same pay and status as the judges who hear cases
involving illegal aliens.
(2) MSPB administrative judges are leaving the
Board for positions with other adjudicatory agencies.
During the past 4 years, the Board has lost 20 per-
cent of its most experienced judges to other adju-
dicatory agencies. MSPB administrative judges
should not have to leave the agency to achieve the
pay and status they deserve when they are adjudi-
cating cases with the same importance and com-
plexity as cases heard by IJs and ALJs.
SEC. 4. MERIT SYSTEMS PROTECTION BOARD ADMINISTRA-
TIVE JUDGES AND COMPENSATION.
(a) AMENDMENT TO CHAPTER 53 OF TITLE 5.—
Chapter 53 of title 5, United States Code, is amended by
adding immediately after section 5372a the following:
‘‘§ 5372b. Merit Systems Protection Board administra-
tive judges
‘‘(a) DEFINITIONS.—For the purposes of this
section—
‘‘(1) the term ‘administrative judge (AJ)’
means an employee of the Merit Systems Protection
Board appointed to an administrative judge position
and paid under the MSPB Administrative Judge
Schedule established by subsection (b); and
‘‘(2) the term ‘administrative judge (GS)’
means an employee of the Merit Systems Protection
Board appointed to an administrative judge position
and paid under the General Schedule described in
section 5332 of this title.
‘‘(b) IN GENERAL.—There is established the MSPB
Administrative Judge Pay Schedule which shall have 4 lev-
els of pay, designated as AJ–1, –2, –3, and –4. Each ad-
ministrative judge (AJ) shall be paid at one of those levels
in accordance with subsection (c).
‘‘(c) RATES OF PAY.—
‘‘(1) BASIC PAY.—The rates of basic pay for
the levels of the MSPB Administrative Judge Pay
Schedule established by the subsection (b) shall be
as follows:
‘‘(A) AJ–1: 70 percent of the next to high-
est rate of basic pay for the Senior Executive
Service.
‘‘(B) AJ–2: 80 percent of the next to high-
est rate of basic pay for the Senior Executive
Service.
‘‘(C) AJ–3: 90 percent of the next to high-
est rate of basic pay for the Senior Executive
Service.
‘‘(D) AJ–4: 92 percent of the next to high-
est rate of basic pay for the Senior Executive
Service.
‘‘(2) LOCALITY PAY.—Locality pay as provided
by section 5304 shall be applied to the basic pay for
administrative judges (AJ) paid under the MSPB
Administrative Judge Pay Schedule.
‘‘(d) APPOINTMENT AND ADVANCEMENT.—
‘‘(1) INITIAL
APPOINTMENT.—Except as pro-
vided in paragraph (3), initial appointment of an ad-
ministrative judge (AJ) shall be at the AJ–1 pay
level. Subject to subsection (d)(2), an administrative
judge (AJ) shall be advanced to AJ–2 upon comple-
tion of 104 weeks of service, to AJ–3 upon comple-
tion of 104 weeks of service at the next lower level,
and to AJ–4 upon completion of 52 weeks of service
at the next lower level.
‘‘(2) ADVANCEMENT.—Advancement to the AJ–
2, –3, and –4 levels as provided by paragraph (1)
shall not be effected if the Chairman of the Merit
Systems Protection Board determines that the work
of an administrative judge (AJ) at the next lower
level is not of an acceptable level of competence. An
administrative judge (AJ) may appeal an adverse ac-
ceptable level of competence determination to the
Merit Systems Protection Board under the same
conditions by which an administrative judge (GS)
may appeal the denial of a periodic step increase in
pay under section 5335(c).
‘‘(3) EXCEPTION.—Notwithstanding paragraph
(1), the Chairman of the Merit Systems Protection
Board may provide for initial appointment of an ad-
ministrative judge (AJ) at a level higher than AJ–
1 under such circumstances as the Chairman may
determine appropriate.
‘‘(4) CONVERSION.—An administrative judge
(GS), who occupies a level below grade 15 of the
General Schedule, may, when entitled by tenure and
performance to be advanced to grade 15 of the Gen-
eral Schedule, be converted to the MSPB Adminis-
trative Judge Pay Schedule and appointed at the
AJ–1 level.’’.
(b) TRANSITION PROVISIONS.—
(1) CONVERSION
TO
MSPB
ADMINISTRATIVE
JUDGE PAY SCHEDULE.—Subject to paragraphs (2)
and (3), an administrative judge (GS) who is serving
as of the effective date of this section and who occu-
pies the grade 15 level of the General Schedule shall
be converted to the MSPB Administrative Judge
Pay Schedule and appointed as an administrative
judge (AJ). Each administrative judge (AJ) so con-
verted shall be placed in the appropriate pay level
prescribed under section 5372(c) of title 5, United
States Code, as added by subsection (a), based on
the amount of time the administrative judge (AJ)
has served as an administrative judge (GS).
(2) LIMITATION ON CONVERSION.—Conversion
of an administrative judge (GS) to administrative
judge (AJ) under paragraph (1) shall not be effected
if the Chairman of the Merit Systems Protection
Board determines that the work of an administrative
judge (GS) at the grade 15 level of the General
Schedule is not of an acceptable level of competence.
An administrative judge (AJ) may appeal an adverse
acceptable level of competence determination to the
Merit Systems Protection Board under the same
conditions by which an administrative judge (GS)
may appeal the denial of a periodic step increase in
pay under section 5335(c).
(3) LIMITATION ON PAY INCREASES.—Notwith-
standing the rates of basic pay prescribed under sec-
tion 5372(c) of title 5, United States Code, as added
by subsection (a), the Chairman of the Merit Sys-
tems Protection Board may, on the effective date of
this section and each year for a period of 7 years
thereafter, limit the pay increase for each adminis-
trative judge (AJ) to an adjustment equal to—
(A) the percentage pay adjustment re-
ceived by members of the Senior Executive
Service under section 5382(c) of this title, if
any;
(B) locality pay under section 5304; and
(C) an additional $3,000.
The Senior Executive Service percentage pay adjust-
ment, if any, shall be included in basic pay. Annual
adjustments in pay after the effective date of this
section will be made on the first day of the first pay
period of each calendar year. The limitation on pay
increases under this subsection may continue during
the time period prescribed by this subsection until
such time as the pay of each administrative judge
(AJ) reaches the appropriate rate of basic pay under
section 5372b(c) of title 5, United States Code, as
added by subsection (a). The Chairman may waive
any limitation on pay under this subsection in the
case of an administrative judge (AJ) serving as a
chief administrative judge.
(4) PAY IN RELATION TO GRADE 15 OF THE
GENERAL SCHEDULE.—In no case shall an adminis-
trative judge (AJ) who is converted in accordance
with paragraph (1), or whose pay increase in any
year is limited under paragraph (3), be paid after
the effective date of this section at a rate that is less
than the adminstrative judge’s (AJ) rate of pay
would have been had the administrative judge (AJ)
remained as an administrative judge (GS) occupying
the grade 15 level of the General Schedule.
(5) 
DEFINITIONS.—For 
purposes 
of 
this
subsection—
(A) the term ‘‘administrative judge (AJ)’’
means an employee of the Merit Systems Pro-
tection Board appointed to an administrative
judge position and paid under the MSPB Ad-
ministrative Judge schedule established by the
amendment made by subsection (a); and
(B) the term ‘‘administrative judge (GS)’’
means an employee of the Merit Systems Pro-
tection Board appointed to an administrative
judge position and paid under the General
Schedule described in section 5332 of this title.
(c) APPROPRIATIONS.—
(1) IN GENERAL.—There are authorized to be
appropriated such sums as are necessary for the
purpose of carrying out this section.
(2) NO REDUCTION.—The authorization of ap-
propriations by paragraph (1) shall not have the ef-
fect of reducing any funds appropriated for the
Board for the purpose of carrying out its statutory
mission under section 1204 of title 5, United States
Code.
(d) EFFECTIVE DATE.—This section shall take effect
on the first day of the first pay period of the calendar
year immediately following the date of enactment of ap-
propriations authorized by subsection (c)(1).
(e) CONFORMING AMENDMENT.—The table of sec-
tions for subchapter VII of chapter 53 of title 5, United
States Code, is amended by adding after the item relating
to section 5372a the following new item:
‘‘5372b. Merit Systems Protection Board administrative judges.’’.
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