Dear Chairman Grundmann:

I thank you for the opportunity to comment on the Board's recently published draft Strategic Plan.

I've seen these plans from the Board from time to time. Generally they have included much emphasis on statistics concerning Board operations and plans to improve those operations as demonstrated by incremental improvement in the statistics reported in the next few Board annual reports. The predictions of expected improvement are, not surprisingly, generally met. This might be expected when the organization producing a report itself selects the measurement points for organizational improvement—as opposed to a strategic plan created by a combination of internal and external reviewers knowledgeable of agency operations.

In order to provide comments that might have some significance to you and to the other Board members and executive staff, I reviewed the Government Performance and Results Act of 1993 and implementing guidance from the Office of Management and Budget. The review was informative in the sense that the guidance provided by both the legislation and OMB was so vague as to render discretionary among agencies how to describe and measure enhancements in agency operations.

But within the general structure of the legislation are statutory references to pilot projects and a "new focus" on results, service quality, customer satisfaction. Also included within the legislation is the requirement that each agency establish performance goals expressed in an objective, quantifiable and measurable form.

Reviewing the Board's draft report, I see no pilot projects of substance, nor do I see much that can be characterized as a new focus on results, service quality, or customer satisfaction.

The performance goals, theoretically to be objective, quantifiable, and measurable, contained in the Board report are more descriptions of the Board's work than they are true measures of what the Board is supposed to be doing and how it is supposed to be doing it. In fact the performance goals of the Board are much like the performance standards utilized by agencies and Chapter 43 actions—more descriptions of work than measurements of work performed.

I suggest to you the need for a bolder approach by the Board in its planning for the future.

It is of no comfort to me as an individual long involved in Board operations that the Federal Circuit affirms the Board at a relatively high percentage of cases. The reason that is of no comfort to me is the number of cases that the Board itself has decided in the past year or two in which judges clearly did not have a firm grip upon the complexities of Board law or the appropriate means by which to develop and analyze factual information in the course of adjudication.

My suggestion is that the Board require rigorous training of incoming judges—that training to be administered by panels of chief administrative judges functioning as something of a training academy, with a clear curriculum, reading assignments, and verifiable examination of skills learned. I do not think it is sufficient to recruit as MSPB judges individuals with exemplary backgrounds and then to leave them to essentially develop by themselves knowledge of Board law and practice on a case-by-case basis. Additionally, I believe that judges who have been with the Board for a period of years should undergo rigorous refresher training, particularly in developing areas of the law, and that they be given verifiable examinations as well concerning their knowledge of Board law. The suggestion may not be particularly popular among judges—just as mandatory CLE is not particularly appreciated by lawyers who think they know what they are doing—but it would reduce the number of Board decisions that require revisions or remands and it would instill greater confidence in the Board's corps of judges by those who appear before them.

With respect to pilot projects, it is my suggestion that the Board experiment with new forms of adjudication.

First, and this is particularly true with respect to many pro se appellants, the complexities of Board law and procedure are overwhelming, just as they are to some counsel who only occasionally represent appellants and agencies. Rather than developing a record based upon an adversarial model, I would give to the appellants the option of dispensing with discovery, motion practice, complex prehearing submissions, and formal evidentiary hearings and instead require judges to utilize an inquisitorial model so that the judges, working with appellants and agencies, have the responsibility for developing records and guiding the process of hearings, including questioning of witnesses.

Second, to provide a sense of greater impartiality I would suggest two additional possible experimental changes in adjudication and ADR. One would be use of contract arbitrators as judges, with those arbitrators being drawn from the ranks of individuals with substantial experience in federal sector adjudication who are members of the National Academy of Arbitrators. Second, I would suggest that the parties be given a choice of judges from a particular region through a strike off procedure similar to that employed with arbitrators selected through FMCS lists. The parties would be given a short biography of the judge, access to sample initial decisions of the judge, and then participate in the choice of a judge.

Over the years, the Board's interaction with its public has been sporadic. There would be a greater confidence in Board operations, particularly in the level of trust in judges, if they were regular meetings between judges and attorneys for agencies and appellants, so that they can share their experiences and suggestions with respect to regional operations. This is commonplace among attorneys who appear before judges of state and local courts. It should become commonplace with the Board.

For years I have suggested that the Board establish some type of advisory committee, including representatives of the bar of agencies, appellants, and unions, to meet with Board executives and to suggest means for improvement of Board operations. The suggestion remains strongly urged. Advisory committees are used by many adjudicators; one example that I know you're familiar with is the advisory committee to the Federal Circuit.

I suggest that each year the Board examine the complete case records and decisions in sampled cases of complexity and determine, through expert reviewers what lessons can be learned from those records to formulate plans for avoiding those types of problems in the future.

Finally, I believe the Board needs to devote more time and resources to its internal records systems. When the Board began operations, it compiled a series of internal directives and instructions on the processing of appeals and PFRs. Those instructions and directives were catalogued and accessible under FOIA. In past years that records system has not been maintained with the same rigor. The Board's internal system of directives should be updated, properly catalogued and made readily accessible through FOIA or, better yet, on the website.

The long and short of my comments is my belief that the Board needs to add substance to its strategic planning and that the substance needs to be plainly expressed in terms of what it the Board is going to do and when it is going to do it.

I wish you well in their efforts to improve Board operations and I'm happy to contribute time to that worthy effort.