Dear Chairman McPhie:

I take this opportunity to supplement my letter to you of April 19, 2004, containing a few suggestions for improvements in Board operations — suggestions from a practitioner's perspective.

I know that the Board's backlog of cases at the headquarters office has been growing steadily for the past couple of years. That is in part due to the absence of a third member of the Board.

I believe that in the past the Board has occasionally taken some of the backlog cases and farmed them out for draft decisions by administrative judges who obviously serve in regional offices other than the offices from which the decisions under review arose. Given the reduction in workload at the regional level, it would seem reasonable to balance the workload of the Board by sending some of the older cases for analysis to highly experienced administrative judges in the regions.

My suggestion is tempered with a natural interest in avoiding the situation of administrative judges reviewing the work of other administrative judges. The natural inference, at least in the minds of most appellants, would be that judges would naturally tend to affirm the decisions of their colleagues.

If judges are to be used to draft memoranda for the Board concerning the disposition of petitions for review, I think it would be essential for the Board to repeatedly advise the judges that they must act with full independence and without regard to the sensitivities of their colleagues, and that instruction would need to be reinforced by regional directors. Further, I would think it imperative that the analytical work done by judges on petitions for review be examined by OAC supervisors before those materials are submitted to the Board. It would probably also prove useful to initially set some criteria for referral of cases to the regions, depending upon the complexity of the case.

I appreciate your consideration of these suggestions, and I look forward to seeing you again soon.