MS. PARKS: Our next speaker is also probably familiar to everyone here, Peter Broida. I think I introduced Bill Jenkins earlier as with the Board from the beginning of time. Peter, I think, has probably been handling Board issues prior to that.

. . .

MR. BROIDA: Thank you, Jessica. When I started thinking about this discussion, my original direction was to urge abolition of the exclusive jurisdiction of the Federal Circuit. I would have been--sided with Elaine. I started thinking about it more, considering experience, and came up with ideas that were closely parallel to those of Mr. Robbins. So, with your forgiveness in advance, Elaine, these remarks.

Through the late 1960s, attention was called to the increasing case load of the federal appellate courts, and the inability of the Supreme Court to review a substantial portion of those cases. Between 1960 or so and 1981, appellate court filings increased from about 5,000 to about 27,000 and there were areas of federal law where the appellate system was reaching inconsistent decisions--in the application of federal statutes, of economic significance, including particularly the interpretations of our nation's patent and tax laws.

During the same period of time, the number of cases receiving merits review from the Supreme Court had not increased. What that meant was that the system was losing the capacity expeditiously to issue precedential decisions of national importance.

One response was the creation of an intermediate appellate court with subject matter, rather than geographical, jurisdiction. The Federal Circuit was chartered with responsibility for issuing decisions that would be nationally binding in designated subject areas. Creation of a uniform body of law, it was predicted, would decrease the number of appeals, as well as the number of new filings in district courts.

Established by the Federal Courts Improvement Act, signed into law by the President on April 2, 1982, the jurisdiction of the Federal Circuit would eventually embrace litigation involving patents and other intellectual property disputes, as well as appeals from the Court of International Trade, from the Court of Federal Claims, and from, yes, the Merit Systems Protection Board.

Injected into the review process, a few years after the 1982 establishment of the Federal Circuit, was the Court of Appeals for Veterans' Claims, an Article I Court exercising single jurisdiction review authority for cases coming through the claim system of the Department of Veterans' Affairs, and its wholly-owned subsidiary, the Board of Veterans' Appeals.

That Court provides specialized review, subject to further review through the Federal Circuit, for benefit claims that were received prior to the inception of that Court, either no judicial review or very limited judicial review through the Administrative Procedure Act in district court.

The Court of Appeals for Veterans' Claims was created with two principal objectives. One, providing veterans access to the courts; and two, implementation of due process protections for veterans' benefits.

Turning back, however, to civil service tribunals, established in 1978 and operational by early 1979, the MSPB and the FLRA created a reasonably discernable and generally reliable source of precedent in the areas of their respective jurisdictions.

The EEOC, inheritor of federal sector civil rights jurisdiction of the Civil Service Commission, and appellate reviewer of EEOC determinations by federal agency employers, by the MSPB, and, in some cases, by labor arbitrators and by the FLRA, has produced its own considerable volume of cases that are not as readily researched and less predictable as precedent than are the decisions of the MSPB and the FLRA.

The Federal Circuit stands as a unifying reviewing authority for MSPB decisions, although the effectiveness of that review is diminished somewhat through the number of non-precedential decisions issued by that Court.

Review of FLRA decisions by regional circuit appellate courts results in forum shopping and in splits among the circuits. The FLRA, and the development of federal circuit labor law, would likely benefit from unified specialized circuit court review, this being particularly true as to the complexities of negotiability law that account for many of the FLRA's decisions, an area of the law not paralleled in private sector cases coming to the regional circuit courts from the National Labor Relations Board.

Although there is now more judicial review and greater due process for most federal sector employment and labor law claims than existed prior to 1978, there are some groups of employees--for example, in the Postal Service--who have neither the benefit of arbitration clauses of collective bargaining contracts, nor the ability to pursue cases to the MSPB, who lack the ability to obtain review of employment decisions in a forum external to their agency, and whose internal grievance procedures lack due process protections, such as prehearing discovery or the availability of subpoenas.

There are also a variety of review procedures, or in some cases no review procedures, outside the MSPB and FLRA processes for many professional employees of the Department of Veterans Affairs, for employees of the Foreign Service, for personnel of some law enforcement agencies, for staffers of Congress and its organizational components, and often forgotten by those used to dealing with Executive Branch agencies, employees of our federal judiciary.

There are constant conflicts between the precedents and jurisdiction over claims appealed to and between the MSPB and EEOC, and lesser jurisdictional and doctrinal differences among the FLRA, MSPB, and EEOC. Each of these agencies, although vested with national jurisdiction over some portion of the federal sector employment disputes, utilizes different procedures.

The FLRA is centralized with a small group of ALJs, whose decisions are reviewed by that Agency's presidential appointee. The MSPB is organized on a regional basis, but with nationally-standardized adjudication procedures administered by attorney examiners; and, like the FLRA, has centralized review authority.

EEOC cases involving federal employees are distributed among a welter of regional and field offices, with procedures varying from office to office and from judge to judge, with review authority split between an Office of Federal Operations and the Commissioners themselves.

Cases are often misfiled or cross-filed with and among one or more of these appellate agencies. The review process for just a single case may involve multiple agencies. Multiple avenues of review lead to years of litigation before cases conclude, either through exhaustion of the process or through exhaustion of the parties. Judicial review is splintered for these various agencies, depending upon the nature of the claim, among the District Courts, the Federal Circuit, the Court of Federal Claims, and the regional circuit courts of appeals. The law rendered in nine-and-a-half type, consumes pages by the thousands, in at least three very tedious treatises.

The legal parameters of the Civil Service Reform Act, or in the various civil rights laws and labor statutes, have served agencies and employees well enough. The "efficiency of the service" standard is an accepted, if somewhat nebulous, determinant of appellate review for civil service cases.

The statutory standards establishing the jurisdiction of the FLRA in the area of negotiability law, representational rights, unfair labor practice cases, and arbitration review are well recognized, if not necessarily well understood.

The provisions of the 1964 Civil Rights Act, and the Age Discrimination in Employment Act, and other civil rights statutes have developed through elucidating litigation. I would say the civil service system has adapted after some adjustments, to the civil service due process amendments, USERRA, the Whistle-blower Protection Act, and VEOA.

The systemic difficulties lie not in the statutes or the occasional misinterpretation of the law. The problems lie, instead, from the standpoint of practitioners, in overlapping, confusing and conflicting jurisdictions of the principal and secondary tribunals, the lack of uniformity of adjudicative procedures among those tribunals, and the want of any effective appellate review process for some groups of federal employees.

To address these difficulties, I ask your consideration of two alterations in the present structure. First, that a single administrative tribunal, using ALJs, drawn from the cadres of existing adjudicators, and augmented by recruitment of judges external to the present system, be created to address all disputed personnel, labor relations, and equal employment claims--that adjudicative agency to cover all employees of all branches of the government and its independent establishments.

ALJs serving the new tribunal would be required to demonstrate proficiency in the administrative litigation practice, as well as in the substantive law administered by that specialized tribunal.

Decisions of the unified administrative tribunal, let us call it the Federal Employment Commission, would be reviewed by an intermediate court, similar to the Court of Appeals for Veterans' Claims. This new court, I will call the Court of Appeals for Federal Employees, or CAFE, whose decisions would be subject to Federal Circuit review.

No decision of CAFE would be non-precedential, although the Court could decide cases through summary affirmation. To reduce the parties' expense and dependence upon a specialized group of attorneys, practitioners before CAFE could be non-attorneys. Agencies, unions, and employees would have standing to bring appeals to the CAFE.

Appointees to the Article I Court would serve limited terms, their appointments by the President to be conditioned upon experience in the subject matter of the Court.

The unified administrative review for new authority and specialized employment and labor court would offer certainty in substance of the law, expertise in its development, and an end to the multiple and conflicting or confusing administrative and judicial review options that we currently face. The costs of the court would be more than offset by reduction in the number of current administrative tribunals and their associated duplicative operating, maintenance, and capital costs.

Modification of the existing system will not occur by reason of comments at a judicial conference, but they will only be possible through the involvement of practitioners such as yourselves, and the agencies in which some of you now work.

I want to thank, by the way, my associate, Natania Soto, sitting back there, for her research in producing these remarks. I would like to thank you for your patience in receiving them. Thank you very much.

(Applause.)

MS. PARKS: Peter, I do not think you said, but I am assuming that OSC would have independent litigating authority with CAFE?

MR. BROIDA: We would give them the right to review, yes.

MS. PARKS: Is that right?

MR. BROIDA: Everybody gets to review.

[Reprinted at 217 Federal Rules Decisions 710-713 (2003)