Dear Chairman McPhie:

When we met earlier this year I mentioned that I would note some of my ideas that might be of assistance to you as you plan for the Board's future. I will try to keep the list short and my explanations succinct.

My primary concern is that appellants (and lawyers who handle but a few Board cases for both appellants and agencies) have no resource available to them from the Board that is of any real value in researching substantive Board law. The Board's pamphlets, "Questions & Answers About Appeals," and "Questions & Answers About Whistleblower Appeals," and kindred publications provide a little procedural guidance concerning Board operations and the interrelationship of the Board with other federal personnel agencies. But these publications provide no information about the substantive aspects of Board decisional law, particularly in the areas of jurisdiction and timeliness, which predominate Board decisions.

There are two suggestions that I can make. First — and this is a long term project — it would be of enormous utility in the federal sector if the Board's Office of General Counsel were to place on the Board website succinct law review style synopses of Board law in critical areas. This is already done by the FLRA, whose General Counsel created a number of memoranda, available on the FLRA website, synopsizing complex areas of FLRA jurisprudence. Of course, the FLRA's General Counsel is not an adjudicator, and the memoranda are all prefaced with the cautionary words that the information presented is not necessarily a predictor of how the FLRA will rule in a particular case.

The areas that I think are most significant for appellants are jurisdiction, particularly in IRA, probationary termination, USERRA and VEOA cases, and timeliness, involving the filing of belated appeals (and PFRs) and the types of justifications that are necessary to present good cause for the delayed filings. Another area of considerable confusion in the law involves constructive adverse actions.

The Board's Office of Appeals Counsel maintains a database not only of all Board decisions (the most recent of which are already available on the Board's website), but also the OAC internal analytical memoranda that are prepared for use by Board Members. These legal memoranda represent the results of many thousands of hours of research by Board attorneys. Portions of these analyses should be classified by subject matter area and should then be made available for public access on the Board's website, devoid, of course, of the names or identifying particulars for the appellant whose case was on review.

With respect to Board adjudication procedure, it has become ossified over the years. The Board inherited a substantial group of attorneys from the Civil Service Commission who are used to doing things in a particular way, and that approach has dominated Board adjudication from 1978 to the present. The Board has really done very little by way of innovation in federal sector adjudication.

There have been certainly a few exceptions where the Board has tried a new approach to litigation. One was an effort to create a Voluntary Expedited Appeals Procedure (VEAP), but that was a failure because in attempting to expedite the decisional process the Board established a standard of review of the decisions by judges that was so high that it was impossible to have a bad decision overturned.

The Board also established a mediation program a year or two ago on a trial basis. The Board engaged consultants to provide training in mediation, but my impression of the program was that it was not particularly successful. The mediators, in my estimation, were too tied up in the intricacies of Board law to free themselves from the constraints of Board adjudication and creatively approach mediation. In other words, the mediators were confusing their roles as adjudicators with the innovative traits that make a good mediator. Additionally, the approach of the Board was to emulate the Postal Service's mediation program, which focuses upon "transformative" mediation. The term applied by the Postal Service is catchy, but what it really involves is an effort to return an employee to the workplace in a manner that will be more productive following the employee's return. Many of the Board cases involve people who are fired and who are likely to remain fired. The agencies often have very little interest in returning those individuals to the workplace, so the focus upon mediation has to be an economic adjustment, and that requires a good understanding of and ability to deal with the financial consequences of termination of employment and the need to allow employees to become again employable either in the federal sector or the private sector. In short, the mediation program needs a shot in the arm. What I would suggest is that the Board utilize highly experienced mediators from the Shared Neutrals Program of the Department of Health and Human Services who would work with Board employees interested in conducting mediation so that eventually Board employees could more productively conduct mediations.

One of the difficulties encountered by some appellants and by some lawyers is seemingly arbitrary or extremely unfair treatment by Board personnel, particularly administrative judges. Some administrative judges are excellent examples of what the Board professes in its customer service standards, and some are not. And some appellants and their representatives, and some agency lawyers, are just plain confused as to the role of the Board and its judge. I would suggest, to avoid all sorts of difficulties that have plagued the Board in the past relative to ex parte communications by people who are seeking something in the nature of an adjustment of their complaint about a particular judge during the course of adjudication, that the Board appoint one of its headquarters employees as an ombudsman who would be designated to field these complaints, determine whether there is any rational basis for them, and then determine how best and most tactfully to address the situation with the Regional Director or the judge. The same holds true with respect to appellants, or agency attorneys, who are distressed about the slow processing of their petitions for review. There should be someone at the Board who can be contacted to check the status of a case and give a meaningful explanation as to when a decision might be issued and, perhaps, the reason for the delay in the proceedings. That type of responsiveness would do wonders in improving the image of the Board's headquarters operations.

In my estimation the Board should do more by way of innovation in its adjudication techniques. I fully recognize that developments in Homeland Security and DOD have the effect of reducing current workload of judges, and what I suggest may be impractical because it could be inconsistent with maintaining current staffing levels with a declining workload. I would suggest, however, that you give some consideration to employing outside arbitrators to adjudicate Board cases of moderate complexity when a dispute is factual rather than a matter involving jurisdiction or timeliness. Experienced arbitrators are usually very good at settlement. They are reasonably efficient in the conduct of hearings, most of the time, and there are a number of arbitrators who have made a specialty of federal sector work, and therefore know more than the usual arbitrator about the complexities of federal sector law. It would be very interesting to compare the results developed by arbitrators and the levels of satisfaction achieved through those cases, with the results and levels of satisfaction achieved through adjudication by the Board corps of administrative judges.

And, finally, speaking of satisfaction levels and measurement of results, I would encourage the Board to provide with each initial decision and with each decision on a petition for review a customer survey that calls for reasonably detailed analysis by the respondent to the survey of how his or her case was handled by the judge or by the Board, including the quality of interaction between the judge and the appellant (or agency), the perceived fairness of the procedures involved, and suggestions by the respondent for improvements in the process.

The Board has long considered itself quasi-judicial, but it really does not act like a court. Judges of courts attend judicial conferences and interact with members of the bar. Law clerks of most federal district judges are ready and able to engage counsel and pro se plaintiffs on substantive and procedural developments during a case, without the necessity for formal motions (this is not to suggest that there is not a lot of motion practice in district court). Most appellate courts, and some district courts, have advisory committees that include a cross section of the bar who make suggestions concerning practices and procedures of the court. In short, the federal judiciary is a lot more responsive to the bar that practices before it than the Board is to the public it serves. Part of the interactive process that the Board should engage in would be substantive interaction with its brother and sister agencies, FLRA, EEOC, OPM, on matters of procedure. A procedure that particularly leaps to mind is the processing of mixed cases, which has involved hundreds of agencies and thousands upon thousands of appellants and complainants in time consuming, extremely expensive litigation (usually conducted on official time) involving the competing jurisdiction of the MSPB and the EEOC.

I wish you the best in your endeavors to redirect Board operations during a difficult period in the Board's history. But difficult times lead to change, and I know that the changes to come will be good.

With kindest regards, I am