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Foreword

In accordance with section 1206 of Title 5, United States Code (U.S.C.), the U.S. Merit Systems 

Protection Board (MSPB) submits this annual report on its significant actions during fiscal year

(FY) 2016.

We invite customers and stakeholders to send comments to improve the MSPB Annual Report to:

DeeAnn Batten, Ph.D.

Performance Improvement Officer

U.S. Merit Systems Protection Board 

1615 M Street, NW

Washington, DC 20419

Email: mspb@mspb.gov (to the attention of the PIO)

Toll Free: 1-800-209-8960

Fax: 202-653-7130

Information about MSPB’s FY 2016 program performance results (as required under the 

Government Performance and Results Act Modernization Act) is available in the Annual 

Performance Report and Annual Performance Plan (APR-APP) for FY 2016-2018. Financial 

accountability and audit information is included in MSPB’s Annual Financial Report (AFR) for FY 

2016. MSPB’s Annual Reports, AFRs, APR-APPs, and Strategic Plans are posted on the ‘Agency 

Plans and Reports’ page on MSPB’s’s website, www.mspb.gov, when they are released. 

Go to www.mspb.gov to learn more about MSPB’s work, sign up for MSPB’s adjudication or 

studies listservs, follow us on twitter (@USMSPB), or download the MSPB app (for Android or 

iPhone). 
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Table of Contents

 Page

Message from the Chairman ..........................................................................................1

Introduction................................................................................................................... 3

About MSPB................................................................................................................................................. 3

MSPB’s Mission and Vision........................................................................................................................ 3

Board Members............................................................................................................................................ 4

MSPB Offices and Their Functions.......................................................................................................... 5

MSPB Organizational Chart....................................................................................................................... 7

Fiscal Year 2016 in Review ............................................................................................ 9

Adjudication .................................................................................................................................................. 9

MSPB Regulations........................................................................................................................................ 9

Merit Systems Studies.................................................................................................................................. 9

The Significant Actions of the Office of Personnel Management..................................................... 10

Outreach, Merit Systems Education, and References to MSPB’s Work ........................................... 10

International Activities .............................................................................................................................. 10

Legislative and Congressional Relations Activity.................................................................................. 11

External Factors and Internal Management Challenges ...................................................................... 12

Case Processing Statistics for FY 2016 .........................................................................15

Summary of Cases Decided by MSPB.................................................................................................... 15

Cases Processed in the Regional and Field Offices.............................................................................. 16

Cases Processed at Headquarters............................................................................................................. 26

Significant Board Decisions and Court Opinions Issued in FY 2016......................... 35

Significant Board Decisions Issued in FY 2016 .................................................................................... 35

Significant Opinions Issued by the U.S. Courts of Appeals in FY 2016........................................... 44

Summary of Merit Systems Studies Activity in FY 2016 ............................................. 49

Summaries of Reports Released in FY 2016.......................................................................................... 50

FY 2016 Noteworthy Articles.................................................................................................................. 50

FY 2016 Issues of Merit Newsletter Topics .............................................................................................. 51

2016 Merit Principles Survey (MPS)........................................................................................................ 51

Significant Actions of the U.S. Office of Personnel Management in FY 2016............ 53

Financial Summary.......................................................................................................61

List of Abbreviations and Acronyms ........................................................................... 63
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1 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

U.S. MERIT SYSTEMS PROTECTION BOARD

FISCAL YEAR 2016 ANNUAL REPORT

MESSAGE FROM THE CHAIRMAN

I am pleased to submit this Annual Report of the significant actions of the U.S. Merit Systems 

Protection Board (MSPB) for Fiscal Year (FY) 2016. In FY 2016, MSPB issued a total of 9,794

decisions including 8,602 decisions issued by the regional and field offices, 1,180 decisions issued by 

the Board, and 12 decisions issued by Administrative Law Judges. While this amount is less than the 

total decisions issued in 2014 and 2015, which included the bulk of MSPB’s decisions on furlough 

cases, the total number of decisions issued in FY 2016 was higher than the total number of decisions 

issued in any one year from 2003 to 2013. 

Between FY 2012-2016, MSPB issued decisions in 70,811 cases, including decisions issued in 

approximately 33,186 furlough cases. As of September 30, 2016, we have completed adjudication of 

over 99.5% of the furlough initial appeals filed as a result of budget sequestration in 2013. The 

quality of MSPB’s decisions remained high, with an average of 95 percent of MSPB cases left 

unchanged by MSPB’s reviewing court over 2014-2016. In early FY 2016, MSPB issued additional 

decisions under the Veterans Access, Choice, and Accountability Act of 2014. Also in 2016, MSPB 

issued an interim final rule clarifying that the parties have the right to use MSPB’s existing discovery 

procedures in compliance proceedings. More information about MSPB’s adjudication activities in 

2016, including case processing statistics and summaries of significant Board decisions and Court 

opinions, are included in this report.

In FY 2016, MSPB issued three study reports: The Merit System Principles: Guiding the Fair and Effective 

Management of the Federal Workforce; Preventing Nepotism in the Federal Civil Service; and Training & 

Development for the Senior Executive Service: A Necessary Investment. MSPB also published three editions 

of the Issues of Merit newsletter and two noteworthy articles, including one article on reasonable 

cause for using indefinite suspensions in situations related to potentially criminal behavior. In 

addition, we successfully administered the 2016 Merit Principles Survey to over 120,000 Federal 

employees in 24 Federal agencies. This web-based survey met all Federal information technology

(IT) and security requirements and will provide data necessary to support several topics on the 

MSPB research agenda approved in 2015. Summaries of MSPB’s studies publications and other 

studies activities are included in this Annual Report. 

In accordance with Section 1206 of MSPB’s statute, this Annual Report also includes summaries of 

the significant actions of the Office of Personnel Management (OPM) and an assessment of the 

degree to which those actions support the merit principles and a workforce free from prohibited 

personnel practices (PPPs). That section also discusses some important contextual factors involved 

in assessing OPM’s significant actions. 

Despite our successful year, MSPB must be prepared to face external challenges such as potential

changes in law and jurisdiction proposed and enacted by the new Congress, possible reductions in 

Federal appropriations in FY 2018 and beyond, and other potential changes implemented by the 

new Administration. These changes may affect MSPB’s appeals workload beginning in FY 2017.

For example, proposed legislation summarized in this document and the FY 2015 Annual Report 

would expand the Department of Veterans’ Affairs (VA) Senior Executive Service (SES) appeal 

rights and processing changes to all VA employees. These changes would necessarily affect MSPB 

adjudication of these VA cases which would logically also affect our processing of all non-VA 
2 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

cases. These proposed changes also emphasize the importance of MSPB’s merit systems studies 

and OPM review functions to ensure that the workforce continues to be managed under the merit 

principles and free from PPPs. 

Internally, approximately 22 percent of MSPB employees agency-wide, including a higher proportion 

of MSPB’s administrative judges (AJs), are eligible to retire in the next two years. We are thankful 

that Congress recognized MSPB’s need for additional resources in FY 2014 and FY 2015, and 

stabilized those resources in FY 2016. These additional resources were essential to MSPB’s ability to 

adjudicate furlough cases in an efficient manner, and simultaneously perform our other statutory and 

support functions. We have made progress in stabilizing and improving our IT infrastructure 

following the IT outage in late June 2015. We appointed an Acting CIO who will lead the efforts to 

upgrade MSPB’s infrastructure and begin the process of planning for and transitioning to new 

applications for our adjudication, studies, and support functions. These efforts will include support 

for MSPB’s modernization efforts involving e-Adjudication and implementing a stable, secure webbased survey capability. More information about our progress since the outage and our future IT 

endeavors can found in the MSPB APR-APP for FY 2016-2018. 

My term on the Board ended on March 1, 2016. I continued to serve in a one-year hold-over period

until my resignation as a Board Member and Chairman, effective January 7, 2017. Pursuant to 5 

U.S.C. § 1203(c), Member Mark A. Robbins will assume all executive and administrative authority 

over the Board effective January 8, 2017. With two vacancies, MSPB will lack a quorum preventing 

it from considering petitions for review and issuing reports of merit system studies. However, longstanding delegations authorized by Title 5 of the U.S. Code will allow MSPB’s AJs in the regional 

and field offices to continue hearing appeals and issuing initial decisions. And, appellants in the these 

actions may exercise their right to appeal directly to the U.S. Court of Appeals for the Federal 

Circuit. Thus, MSPB’s adjudicatory process, albeit truncated, will continue. 

As always, MSPB’s success in FY 2016, and in past years, required the combined efforts of every 

MSPB office. The expertise, integrity, and dedication of MSPB employees are without equal. It has 

been an honor and privilege to serve as the Chairman of MSPB. I am confident that MSPB will 

continue to perform its statutory responsibilities effectively and efficiently in order to ensure a 

highly-qualified, diverse Federal workforce that is fairly and effectively managed.

Susan Tsui Grundmann,

Chairman

January 6, 2017
3 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

INTRODUCTION

This U.S. Merit Systems Protection Board (MSPB) Annual Report for FY 2016 includes summaries 

of the most significant Board decisions and relevant Court opinions, case processing statistics, 

summaries of MSPB’s merit systems study reports, Issues of Merit (IoM) newsletter topics, noteworthy 

articles, and summaries of the significant actions of the Office of Personnel Management (OPM).

1

The report also contains summaries of the Board’s financial status, outreach, and merit systems 

education activities, legislative and congressional relations activities, international activities, and the

internal management challenges, and external factors that affect MSPB’s work. 

About MSPB

MSPB was created by the Civil Service Reform Act of 1978 (CSRA) to carry on the function of the 

Civil Service Commission to adjudicate employee appeals, thus providing independent review and 

due process to employees and agencies. The CSRA authorized MSPB to develop its adjudicatory 

processes and procedures, issue subpoenas, call witnesses to testify at hearings, and enforce 

compliance with final MSPB decisions. MSPB also was granted broad authority to conduct 

independent, objective studies of the Federal merit systems and Federal human capital management 

issues. In addition, MSPB was given the authority and responsibility to review and act on OPM’s 

regulations and review and report on OPM’s significant actions.2 The CSRA also codified for the 

first time the values of the Federal merit systems as the merit system principles (MSPs) and 

delineated specific actions and practices as the prohibited personnel practices (PPPs) that were 

proscribed because they were contrary to merit system values.3Since the enactment of the CSRA, 

Congress has given MSPB jurisdiction to hear cases and complaints filed under a variety of other 

laws.4

MSPB’s Mission and Vision

Mission 

To protect the Merit System Principles and promote an effective Federal workforce

free of Prohibited Personnel Practices.

Vision

A highly qualified, diverse Federal workforce that is fairly and effectively managed, 

providing excellent service to the American people.

 

1 The review of OPM significant actions conducted under 5 U.S.C. § 1206 is not, and should not be construed as, an advisory opinion (which is 

prohibited under 5 U.S.C. § 1204(h)).

2 Pursuant to 5 U.S.C. § 1204(f), MSPB may, on its own motion, or at the request of other parties, review and declare invalid OPM regulations if such 

regulations, or the implementation of such regulations, would require an employee to commit a prohibited personnel practice. Pursuant to 5 U.S.C. § 

1206, MSPB also is responsible for annually reviewing and reporting on OPM’s significant actions.

3 Title 5 U.S.C. § 2301 and § 2302, respectively.

4 Including the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq.; the Veterans Employment 

Opportunity Act (VEOA), 5 U.S.C. § 3309 et seq.; The Whistleblower Protection Act (WPA), Pub. L. No. 101-12, 103 Stat. 16; The Whistleblower 

Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199; The Veterans Access, Choice and Accountability Act of 2014, Pub. L. No. 113-

146; 5 U.S.C. § 4304; 5 U.S.C. § 7513; and those set out at 5 C.F.R. § 1201.3.
4 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Board Members

The bipartisan Board consists of the Chairman, Vice Chairman, and Board Member, with no more 

than two of its three members from the same political party. Board members are appointed by the 

President, confirmed by the Senate, and serve overlapping, nonrenewable 7-year terms. 

SUSAN TSUI GRUNDMANN

Chairman, November 2009 to January 7, 2017

Susan Tsui Grundmann was nominated by President Barack Obama 

to serve as a Member and Chairman of the MSPB on July 31, 2009. 

She was confirmed by the U.S. Senate on November 5, 2009, and 

sworn in on November 12, 2009. Chairman Grundmann’s term 

expired on March 1, 2016, and she continued to serve as Chairman 

until January 7, 2017, under the Board’s enabling statute that permits a 

member to carry over for up to one year, or until a new member is 

confirmed and sworn in to succeed that member.

Previously, Ms. Grundmann served as General Counsel to the National Federation of Federal

Employees (NFFE), which represents 100,000 Federal workers nationwide and is affiliated with the 

International Association of Machinist and Aerospace Workers. At NFFE, she successfully litigated 

cases in the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the 

District of Columbia. In 2004, Ms. Grundmann represented NFFE and other labor unions in the 

statutory “meet and confer” process with officials from the Department of Homeland Security 

(DHS) and OPM, which sought agreement on how to proceed with new DHS personnel 

regulations. She represented NFFE and the United Department of Defense Workers Coalition, 

consisting of 36 labor unions, and served on the Coalition’s litigation team in a coordinated response 

to proposed personnel changes at the Department of Defense (DoD). In addition to DoD 

employees, Ms. Grundmann represented employees in the Forest Service, Department of 

Agriculture, Passport Service, Veterans Administration, General Services Administration, and some 

25 additional Federal agencies. From 2003 to 2009, she was a regular instructor on Federal sector 

labor and employment law at the William W. Winpisinger Education and Technology Center in 

Hollywood, Maryland. Prior to joining NFFE, Ms. Grundmann served as General Counsel to the 

National Air Traffic Controllers Association. She began her legal career as a law clerk to the judges 

of the Nineteenth Judicial Circuit of Virginia, and later worked in both private practice and at the 

Sheet Metal Workers’ National Pension Fund. Chairman Grundmann earned her undergraduate 

degree at American University and her law degree at Georgetown University Law Center.

MARK A. ROBBINS

Member, May 2012 to Present

Mark A. Robbins was nominated by President Barack Obama to serve as 

a Member of the MSPB on December 5, 2011. He was confirmed by the 

U.S. Senate on April 26, 2012. In January, 2017, in accordance with 5 

U.S.C. § 1203(c), Mr. Robbins will perform the functions vested in the 

Chairman following Susan T. Grundmann’s departure. Mr. Robbins' term 

expires on March 1, 2018.

At the time of his nomination, Mr. Robbins was the General Counsel of 

the U.S. Election Assistance Commission. In that capacity, Mr. Robbins 
5 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

worked to certify elections systems and maintain information on the best practices of conducting 

elections. He previously served as a Senior Rule of Law Advisor for the State Department in Babil 

Province, Iraq. Mr. Robbins also served as Executive Director of the White House Privacy and Civil 

Liberties Oversight Board between 2006 and 2008 and as General Counsel of the Office of 

Personnel Management from 2001 to 2006. He worked in private practice as a litigation attorney in 

Los Angeles, California, between 1988 and 2000, and in the White House Office of Presidential 

Personnel from 1984 to 1988. He began his career as a legislative assistant to two members of the 

U.S. House of Representatives, where, among other issues, he covered the Federal civil service and 

human resources (HR) management. Mr. Robbins earned both his undergraduate and law degrees

from George Washington University. He is a member of the California and District of Columbia 

bars. In 2013, in recognition of his extensive professional involvement and continued leadership in 

public administration, Mr. Robbins was elected as a Fellow of the National Academy of Public 

Administration.

The third position on the Board has been vacant since the term of the Vice Chair Anne Wagner 

expired on March 1, 2015. The President nominated a successor but no action was taken on this 

nomination by the Senate during the 114th Congress.

MSPB Offices and Their Functions

MSPB is headquartered in Washington, D.C. and has eight regional and field offices located 

throughout the United States. For FY 2017 the agency requested 235 Full-time Equivalents (FTEs) 

to conduct and support its statutory duties. 

The Board Members adjudicate the cases brought to the Board. The Chairman, by statute, is the 

chief executive and administrative officer. The Directors of offices described below report to the 

Chairman through the Executive Director.

The Office of the Administrative Law Judge (ALJ) adjudicates and issues initial decisions in 

corrective and disciplinary action complaints (including Hatch Act complaints) brought by the 

Special Counsel, proposed agency actions against ALJs, MSPB employee appeals, and other cases 

assigned by MSPB. The functions of this office currently are performed under interagency 

agreements by ALJs at the Federal Trade Commission (FTC), the Coast Guard, and the 

Environmental Protection Agency (EPA).

The Office of Appeals Counsel conducts legal research and prepares proposed decisions for the 

Board to consider for cases in which a party files a Petition for Review (PFR) of an initial decision 

issued by an Administrative Judge (AJ) and in most other cases to be decided by the Board. The 

office prepares proposed decisions on interlocutory appeals of AJs’ rulings, makes recommendations 

on reopening cases on the Board’s own motion, and provides research, policy memoranda, and 

advice on legal issues to the Board.

The Office of the Clerk of the Board receives and processes cases filed at MSPB headquarters (HQ), 

rules on certain procedural matters, and issues Board decisions and orders. It serves as MSPB’s public 

information center, coordinates media relations, operates MSPB’s library and on-line information 

services, and administers the Freedom of Information Act (FOIA) and Privacy Act programs. It also 

certifies official records to the Courts and Federal administrative agencies, and manages MSPB’s 

records systems, website content, and the Government in the Sunshine Act program.
6 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

The Office of Equal Employment Opportunity plans, implements, and evaluates MSPB’s equal 

employment opportunity programs. It processes complaints of alleged discrimination brought by 

agency employees and provides advice and assistance on affirmative employment initiatives to 

MSPB’s managers and supervisors.

The Office of Financial and Administrative Management administers the budget, accounting, 

travel, time and attendance, human resources (HR), procurement, property management, physical 

security, and general services functions of MSPB. It develops and coordinates internal management 

programs, including review of agency internal controls. It also administers the agency’s cross-agency 

servicing agreements with the U.S. Department of Agriculture (USDA), National Finance Center for 

payroll services, U.S. Department of the Treasury, Bureau of the Public Debt for accounting 

services, and USDA’s Animal and Plant Health Inspection Service for HR services.

The Office of the General Counsel, as legal counsel to MSPB, advises the Board and MSPB 

offices on a wide range of legal matters arising from day-to-day operations. The office represents 

MSPB in litigation; coordinates the review of OPM rules and regulations; prepares proposed 

decisions for the Board to enforce a final MSPB decision or order, in response to requests to review 

OPM regulations, and for other assigned cases; conducts the agency’s PFR settlement program; and 

coordinates the agency’s legislative policy and congressional relations functions. The office also 

drafts regulations, conducts MSPB’s ethics program, performs the Inspector General function, and 

plans and directs audits and investigations. 

The Office of Information Resources Management develops, implements, and maintains 

MSPB’s automated information systems to help the agency manage its caseload efficiently and carry 

out its administrative and research responsibilities.

The Office of Policy and Evaluation carries out MSPB’s statutory responsibility to conduct special 

studies of the civil service and other Federal merit systems. Reports of these studies are sent to the 

President and the Congress and are distributed to a national audience. The office provides 

information and advice to Federal agencies on issues that have been the subject of MSPB studies. 

The office also carries out MSPB’s statutory responsibility to review and report on the significant 

actions of OPM. The office conducts special projects and program evaluations for the agency and is 

responsible for coordinating MSPB’s performance planning and reporting functions required by the 

Government Performance and Results Act Modernization Act of 2010 (GPRAMA).

The Office of Regional Operations oversees the agency’s six regional and two field offices, which 

receive and process appeals and related cases. It also manages MSPB’s Mediation Appeals Program 

(MAP). AJs in the regional and field offices are responsible for adjudicating assigned cases and for 

issuing fair, well-reasoned, and timely initial decisions.
7 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

MSPB Organizational Chart
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9 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

1%

34%

93%

99.5%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Figure 1.1: Percent of Furlough Initial Appeals 

Processed: Cumulative each year for 

FY 2013 - 2016

2013 2014 2015 2016

FISCAL YEAR 2016 IN REVIEW

Adjudication

In FY 2016, MSPB processed 9,794 cases. 

MSPB’s AJs in the regional and field offices

issued initial decisions in 8,602 cases, including 

2,235 furlough appeals. As figure 1.1 indicates, 

MSPB as issued decisions in over 99.5% of the 

furlough appeals, cumulative beginning in 2013. 

The regional and field offices closed 5,886 nonfurlough appeals. MSPB’s Board Members 

processed 1,180 cases including 1,022 PFRs.

This is the second largest number of cases 

closed by the Board at HQ in the last six years.

MSPB continued to provide alternative dispute 

resolution options to its customers, including 

the Mediation Appeals Program (MAP).

Information about whistleblower cases will be

available in MSPB’s APR-APP for FY 2016-

2018 in accord with The Whistleblower Protection Enhancement Act of 2012 (WPEA).

Statistical information on MSPB’s case processing activity is provided in the Case Processing Statistics 

for FY 2016 section of this report. Summaries of significant MSPB decisions, and opinions issued by 

the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court are included in the 

section entitled Significant Board Decisions and Court Opinions Issued in FY 2016.

MSPB Regulations

MSPB published its interim final rule covering discovery in compliance cases on October 30, 2015. 

The interim final rule amends MSPB’s rules of practice and procedure to address the holding in

(Bernard v. Department of Agriculture, 788 F.3d 1365 (Fed. Cir. 2015)) and clarifies that the parties have 

a right to discovery in such cases under the Board’s existing discovery procedures. This new 

provision also sets a deadline by which initial discovery requests must be filed. As in other Board 

cases, this deadline may be changed by the AJ.

Merit Systems Studies

In FY 2016, MSPB approved and published three merit system study reports on fair and effective 

management, nepotism, and training and development for the Senior Executive Service. MSPB also

issued three editions of its Issues of Merit (IoM) newsletter, and two online articles. MSPB successfully 

administered the 2016 Merit Principle Survey (MPS) to over 120,000 Federal employees in 24 agencies. 

Summaries of FY 2016 MSPB merit systems study reports, IoM newsletter, noteworthy articles, and

other merit systems studies activities are in the Summary of Merit Systems Studies Activity in FY 2016

section of this report.
10 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

The Significant Actions of the Office of Personnel Management

In accordance with 5 U.S.C. § 1206, MSPB is responsible for reviewing the significant actions of 

OPM to ensure that they conform with MSPs and do not result in PPPs. In FY 2016, MSPB 

reviewed OPM’s new significant actions including: Guidance on the Placement of Political 

Appointees in the Career Service During the 2016 Presidential Election Period, Strengthening the 

Senior Executive Service (SES), and Closing Mission-Critical Skills Gaps. MSPB updated the status 

of previous OPM significant actions and provided the review of OPM’s work within the context of 

significant OPM issues including the changes in OPM Leadership and the National Background 

Investigation Bureau (NBIB). More information about MSPB’s review of OPM significant actions is 

included in that section of this report.

Outreach, Merit Systems Education, and References to MSPB’s Work 

MSPB’s education and outreach efforts are designed to enhance the understanding of merit, ensure 

that MSPs are applied consistently throughout the Government, reduce the likelihood of PPPs, and 

promote stronger merit-based management practices. MSPB outreach also promotes better 

operation and understanding of the Federal merit system disciplinary and appeals process by sharing 

information about MSPB processes and its legal precedent. All of these efforts, in turn, help to 

improve employee and organizational performance, improve service to the American people, and 

provide value to the taxpayer.

In FY 2016, MSPB staff conducted 117 outreach events with a variety of customers and 

stakeholders. MSPB staff made presentations to OPM, the American Society for Public 

Administration, the EEOC’s Excel Conference, the Society for Labor and Employee Relations 

Professionals, and to management, union, and affinity groups. Several MSPB staff participated in 

live and taped interviews with Federal News Radio. MSPB staff members were invited to present at 

the Federal Dispute Resolution Conference, National Federation of Federal Employees Convention,

and the White House Leadership Development Program.

MSPB’s adjudication and studies work, and other activities involving MSPB, were cited over 680 

times in at least 135 different print and online sources including wire services, professional and trade 

publications, textbooks, newspapers, and other media. MSPB study reports were cited in GAO’s 

report on Federal hiring and OPM’s need to improve management and oversight of hiring authorities

and in GAO’s report on lessons learned for engaging Millennials and other age groups. Other specific 

citations of MSPB’s work are contained in the legislative summary and merit system studies activity 

sections of this report.

International Activities

During FY 2016, MSPB hosted representatives from China, India, and Canada to share information 

about the Federal civil service, MSPB’s structure and functions, and its role in fostering adherence to 

the MSPs and protecting employees and applicants from PPPs. MSPB staff members met with 

delegations from China and India to provide an overview of the Federal civil service. MSPB staff 

also met via video-teleconference with representatives from the Public Service Commission of 

Canada to discuss veterans’ preference issues.
11 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Legislative and Congressional Relations Activity

MSPB Reauthorization Hearing in the House. Chairman Grundmann testified at a hearing

conducted by the House Committee on Oversight and Government Reform (OGR) subcommittee 

on Government Operations, on December 16, 2015, titled “Merit Systems Protection Board, Office 

of Government Ethics and Office of Special Counsel Reauthorization.” In January 2016, she 

submitted responses to follow up questions that she received from the Chairman and Ranking 

Member of the OGR Subcommittee on Government Operations.

Meeting with House Oversight Subcommittee Chairman, Mark Meadows. Representative. 

Mark Meadows, Chairman of the House Committee on OGR Subcommittee on Government 

Operations visited MSPB HQ on April 12, 2016. Chairman Meadows met first with the Board 

Members and members of their staff. He then addressed all MSPB staff and responded to questions. 

Regional and field offices participated in this event by video teleconference.

Other Congressional Activity. Chairman Grundmann submitted statements for the record for two 

congressional hearings. First, on November 18, 2015, the Senate Committee on Veterans’ Affairs 

held a hearing on pending benefits legislation. At the Committee’s request, Chairman Grundmann 

submitted a statement for the record presenting her views on the Veterans Affairs Retaliation 

Prevention Act of 2015. Under the provisions of this bill, the VA is required to initiate an adverse 

action against a supervisory employee who has been found to have engaged in whistleblower 

retaliation. The supervisory employee would be permitted to appeal to MSPB pursuant to the 

applicable provisions of Section 713 of title 38, United States Code, which codifies provisions of the 

Veterans Access, Choice, and Accountability Act of 2014 (“the Choice Act”), Pub. L. No. 113-146.

5

The Chairman’s testimony discussed the constitutional defects of the new legislation:

 By permitting the VA to remove tenured Federal employees without any pre-removal notice 

or an opportunity to respond, and by severely limiting post-removal appeal rights, Section 

707 violates an employee’s right to constitutional due process as articulated by the Supreme 

Court. 

 By removing the full Board from the MSPB appellate review process and permitting MSPB 

AJs to make a final decision binding an executive branch agency which is not reviewable by a 

presidential appointee, Section 707 violates the Appointments Clause contained in Article II, 

Section 2 of the United States Constitution.

Second, on June 17, 2016, the Senate Committee on Indian Affairs held a hearing to consider S. 

2953, the Indian Health Service (IHS) Accountability Act of 2016. At the Committee’s request, 

Chairman Grundmann submitted a statement for the hearing record regarding the impact of this

legislation on MSPB’s adjudicatory process. As with the previous bill, the statement described 

possible constitutional defects in the proposed legislation.

In addition to the annual briefing for the House and Senate appropriations subcommittees on the 

agency’s budget requests, MSPB staff conducted 5 briefings for congressional staff to provide

technical assistance regarding proposed and/or pending legislation.

 

5 The Choice Act of 2014 mandates an expedited process wherein the MSPB AJ is required to issue a decision not later than 21 days after the date of 

the appeal. If an MSPB AJ’s fails to issue a decision within 21 days, the VA Secretary’s decision to either remove or transfer the employee becomes 

final. The decision in any such appeal is final and not subject to further appeal, either to the three-member Board at MSPB Headquarters in 

Washington, D.C., or to any federal court.
12 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Legislation that Impacts MSPB or the Civil Service. During FY 2016, MSPB staff members 

were asked to provide technical assistance to House and Senate staff members regarding several 

other bills that might impact MSPB’s adjudication of appeals or the civil service more generally. One 

of the most significant bills was S. 2921, the Veterans First Act of 2016 which had bipartisan 

support from 45 senators. This Act would require MSPB to expedite the adjudication of appeals 

filed by VA employees (i.e., issue a decision within 90 days), but does not provide that MSPB’s 

decision becomes final if MSPB fails to meet this deadline. MSPB anticipates Congressional action 

on similar bills in the next Congress. Significant activity in FY 2017 on legislation affecting the civil 

service or MSPB specifically will be summarized in the FY 2017 Annual Report.

Congressional Citations of MSPB’s work. Representative Tammy Duckworth cited MSPB’s study

on sexual orientation in a press release on H.R. 4668. Senate report 114-255 on the FY 2017 National 

Defense Authorization Act (NDAA, S. 2943) cited MSPB’s Veteran Hiring in the Civil Service: 

Practices and Perceptions report in relation to terminating the use of a waiver of the required 180 

days of retirement before a military member can be hired for a position at DoD.

Nomination of New Board Member. On July 8, 2015, President Obama nominated Mark P. 

Cohen, Principal Deputy Special Counsel, U.S. Office of Special Counsel, to be a member of the 

MSPB, with the intent to appoint him as Vice Chairman. MSPB’s legislative counsel accompanied 

nominee Cohen when he met with the minority staff of the Senate Committee on Homeland 

Security and Governmental Affairs on September 26, 2016, to discuss his responses to their policy 

questions. Ultimately, no action was taken on this nomination by the Senate.

External Factors and Internal Management Challenges

The categories of, and limited information about, the external factors and internal management

challenges that may affect MSPB’s work are provided here as context for the other information 

contained in the Annual Report. More detailed information about MSPB’s external factors and 

internal management challenges can be obtained in the MSPB APR-APP for FY 2016-2018. MSPB’s 

primary internal challenges include human capital issues, and ensuring a stable, secure and viable IT 

infrastructure to support current mission and administrative functions and its modernization efforts,

which include implementing MSPB’s e-Adjudication initiative and obtaining a secure, cloud-based 

survey capability. 

Human Capital Issues. Chairman Susan T. Grundmann’s term ended March 2016 and she 

continued to serve as Chairman until her departure on January 7, 2017. In accordance with 5 U.S.C. 

§ 1203(c), Member Mark A. Robbins shall perform the functions vested in the Chairman, as the 

single remaining Board Member. Without a quorum of at least two confirmed and sworn-in Board 

Members, MSPB will not be able to issue PFR decisions or publish reports of merit system studies.

In addition, 22 percent of MSPB employees will be eligible to retire in the next two years. This 

includes over 25 percent of the 70 AJs occupying permanent positions, and at least three people in 

one-deep critical positions.

IT Infrastructure Stability and Modernization. As we reported last year, on June 30, 2015, 

MSPB experienced a significant disruption of its IT infrastructure resulting in the loss of MSPB’s 

virtual environment as well as the loss of employee working and archived documents. MSPB 

enlisted the help of an independent contractor to assess the agency’s network and infrastructure. 

William Spencer, then the Clerk of the Board, was appointed as Acting Chief Information Officer 

(CIO) effective June 27, 2016. More information about the assessment and recommendations of
13 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

the independent contractor, status of MSPB’s IT infrastructure, progress on improvements during 

FY 2016, and future IT plans can be found in the APR-APP for FY 2016-2018. 

Changes in Law and Jurisdiction. In addition to legislation introduced and reported in last year’s 

Annual Report that expands the Veterans Affairs’ SES appeals procedures, several additional bills were 

introduced in FY 2016. There is likely to be further action on these or similar bills in the new 

Congress. MSPB will continue to monitor legislation that affects the merit systems and MSPB’s role in 

protecting merit, and significant legislative activity on these topics will be summarized in the FY 2017 

Annual Report. As stated above, to carry out all of MSPB’s statutory responsibilities, including issuing 

decisions at HQ and merit systems study reports, MSPB needs a full quorum of Board Members.

Governmentwide Budget Reductions Beyond FY 2017. It is unclear if other Governmentwide

budget reductions will occur in late FY 2017 and beyond. Budget reductions could mean an increase

in appeals involving furloughs, reductions in force (RIFs), or early retirements (through Voluntary 

Early Retirement Authority (VERA) and Voluntary Separation Incentive Payment (VSIP)). 

Legislative changes and budget reductions not only affect our adjudication functions, they also 

emphasize the need for strong merit studies and OPM review programs to ensure the Federal 

workforce continues to be managed under the MSPs and free from PPPs.
14 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

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15 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

CASE PROCESSING STATISTICS FOR FY 2016

Summary of Cases Decided by MSPB

Table 1: FY 2016 Summary of Cases Decided by MSPB

Cases Decided in MSPB Regional and Field Offices

 Appeals 8,121

 Addendum Cases1455

 Stay Requests226

TOTAL Cases Decided in RO/FOs 8,602

Cases Decided by Administrative Law Judges (ALJs) - Original 

Jurisdiction3 12

 Cases Decided by the Board

 Appellate Jurisdiction:

 Petitions for Review (PFRs) - Appeals 1,022

 Petitions for Review (PFRs) - Addendum Cases 94

 Reviews of Stay Request Rulings 0

 Requests for Stay of Board Order 0

 Reopenings46

 Court Remands 5

 Compliance Referrals 21

 EEOC Non Concurrence Cases 0

 Arbitration Cases 6

 Subtotal - Appellate Jurisdiction 1,154

 Original Jurisdiction524

 Interlocutory Appeals 2

 TOTAL Cases Decided by the Board 1,180

 TOTAL Decisions (Board, ALJs, RO/FOs) 9,794

1

Includes 83 requests for attorney fees, 161 Board remand cases, 185 compliance cases, 8 court remand cases, 9 requests for compensatory 

damages (discrimination cases only), 7 requests for consequential damages, and 2 requests for liquidated damages.

2

Includes 24 stay requests in whistleblower cases and 2 in nonwhistleblower cases.

3

Initial decisions by ALJs: 1 disciplinary action–non Hatch Act case, 1 Hatch Act case, 3 actions against SES cases, and 7 actions against ALJs.

4

These 6 cases were reopened by the Board on its own motion.

5

Final Board Decisions: 1 disciplinary action-non Hatch Act, 1 Hatch Act, 3 PFRs of actions against ALJs, 9 requests for regulation 

review, and 10 requests for stay.
16 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Cases Processed in the Regional and Field Offices

Table 2: Disposition of Appeals Decided in the Regional and 

Field Offices, by Type of Case

Decided Dismissed1Not DIsmissed1 Settled2 Adjudicated2

Type of Case # # % # % # % # % 

Adverse Action by Agency3 4,502 1,253 27.83 3,249 72.17 796 24.50 2,453 75.50

Termination of Probationers 396 367 92.68 29 7.32 25 86.21 4 13.79

Reduction in Force 34 20 58.82 14 41.18 6 42.86 8 57.14

Performance 158 36 22.78 122 77.22 75 61.48 47 38.52

Acceptable Level of 

Competence (ALOC)

4

32 20 62.50 12 37.50 9 75.00 3 25.00

Suitability 60 23 38.33 37 61.67 26 70.27 11 29.73

CSRS Retirement: Legal4 319 194 60.82 125 39.18 8 6.40 117 93.60

CSRS Retirement: Disability 3 2 66.67 1 33.33 0 0.00 1 100.00

CSRS Retirement: 

Overpayment

85 38 44.71 47 55.29 32 68.09 15 31.91

FERS Retirement: Legal4 140 94 67.14 46 32.86 3 6.52 43 93.48

FERS Retirement: Disability 108 68 62.96 40 37.04 0 0.00 40 100.00

FERS Retirement: 

Overpayment

414 146 35.27 268 64.73 175 65.30 93 34.70

FERCCA4 14 13 92.86 1 7.14 0 0.00 1 100.00

Individual Right of Action 555 348 62.70 207 37.30 107 51.69 100 48.31

USERRA 195 77 39.49 118 60.51 28 23.73 90 76.27

VEOA 234 103 44.02 131 55.98 9 6.87 122 93.13

Other5 872 817 93.69 55 6.31 39 70.91 16 29.09

Total 8,121 3,619 44.56 4,502 55.44 1,338 29.72 3,164 70.28

1

Percent Dismissed and Not Dismissed are of the number Decided.

2

Percent Settled and Adjudicated are of the number Not Dismissed.

3

This includes 2,235 furlough appeals decided, 209 dismissed, 2,026 not dismissed, 1 settled, 2,025 adjudicated on the merits.

4

An acceptable level of competence (ALOC) means an employee is effectively performing the duties and responsibilities of his or her 

assigned job, which warrants advancing the employee’s rate of pay to the next higher step at the grade of the employee’s position. If an 

employee’s performance is not at an ALCO, then the agency may deny his or her within-grade increase (WIGI); Civil Service Retirement 

System (CSRS); Federal Employees Retirement System (FERS); Federal Erroneous Retirement Coverage Corrections Act (FERCCA).

5

“Other” appeals include Restoration to Duty (102), Miscellaneous (703), and additional types, such as Reemployment Priority, 

Employment Practices, and others.
17 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Figure 3.1: Type of Appeals Decided in the Regional and Field Offices

(Including furlough appeals)

Total Number of Appeals: 8,121

Termination of 

Probationers (396)

Reduction in Force (34)

Performance (158)

Acceptable Level of 

Competence (32) Suitability (60)

CSRS Retirement Legal 

(319)

CSRS Retirement 

Disability (3)

CSRS Retiremant 

Overayment (85)

FERS Retirement Legal 

(140)

FERS Retirement 

Disability (108)

FERS Retirement 

Overpayment (414)

FERCCA (14)

Individual Right of 

Action (555)

USERRA (195)

VEOA (234)

Other (872)

Adverse Actions (4502)
18 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Figure 3.1a: Type of Appeals Decided in the Regional and Field Offices 

(Not including furlough appeals)

Total Number of Appeals: 5,886

Termination of 

Probationers (396)

Reduction in Force (34)

Performance (158)

Acceptable Level of 

Competence (32) Suitability (60)

CSRS Retirement: Legal 

(319)

CSRS Retirement: 

Disability (3)

CSRS Retiremant: 

Overayment (85)

FERS Retirement: Legal 

(140)

FERS Retirement: 

Disability (108)

FERS Retirement: 

Overpayment (414)

FERCCA (14)

Individual Right of 

Action (555)

USERRA (195)

VEOA (234) Other (872)

Adverse Actions (2267)
19 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Figure 3.2: Dispositions: Initial Appeals Not Dismissed 

by Regional/Field Offices (Including furlough appeals)

Total Number of Appeals that Were Not Dismissed: 4,502

Figure 3.2a: Dispositions: Initial Appeals Not Dismissed 

by Regional/Field Offices (Not including furlough appeals)

Total Number of Appeals that Were Not Dismissed: 2,476

Appeal Settled (1338) 

30%

Action or Decision 

Upheld or Left 

Undisturbed (2904) 

64%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (208) 5%

Mitigated (33) 1%

Other (19) 0%

Appeal Settled (1337) 

54%

Action or Decision 

Upheld or Left 

Undisturbed (958) 

39%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (129) 5%

Mitigated (33) 1%

Other (19) 1%
20 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Figure 3: Dispositions: Initial Appeals Not Dismissed or Settled 

by Regional/Field Office

Based on 919 Appeals Adjudicated on the Merits

Figure 3.3: Dispositions: Initial Appeals Not Dismissed or Settled 

by Regional/Field Office (Including furlough appeals)

Based on 3,164 Appeals Adjudicated on the Merits

Figure 3.3a: Dispositions: Initial Appeals Not Dismissed or Settled 

by Regional/Field Office (Not including furlough appeals)

Based on 1,139 Appeals Adjudicated on the Merits

Action or Decision 

Upheld or Left 

Undisturbed 

(2904) 92%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (208) 6%

Mitigated (33) 1% Other (19) 1%

Action or Decision 

Upheld or Left 

Undisturbed (958) 

84%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (129) 

11%

Mitigated (33) 3%

Other (19) 2%
21 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Table 3: Disposition of Appeals by Agency

Decided Dismissed1Not DIsmissed1 Settled2 Adjudicated2

# # % # % # % # % 

Department of the Army 1,471 408 27.7 1,063 72.3 132 12.4 931 87.6

Office of Personnel Management31,122 562 50.1 560 49.9 242 43.2 318 56.8

Department of the Navy 1,089 316 29.0 773 71.0 95 12.3 678 87.7

Department of Veterans Affairs 962 548 57.0 414 43.0 279 67.4 135 32.6

Department of Defense 617 206 33.4 411 66.6 48 11.7 363 88.3

United States Postal Service 571 418 73.2 153 26.8 91 59.5 62 40.5

Department of the Air Force 500 144 28.8 356 71.2 61 17.1 295 82.9

Department of Homeland Security 403 243 60.3 160 39.7 93 58.1 67 41.9

Department of Health and Human 

Services 210 82 39.0 128 61.0 32 25.0 96 75.0

Department of Justice 193 120 62.2 73 37.8 37 50.7 36 49.3

Department of the Treasury 139 84 60.4 55 39.6 41 74.5 14 25.5

Department of Agriculture 134 70 52.2 64 47.8 41 64.1 23 35.9

Department of the Interior 134 72 53.7 62 46.3 31 50.0 31 50.0

Department of Transportation 87 56 64.4 31 35.6 15 48.4 16 51.6

Social Security Administration 87 51 58.6 36 41.4 15 41.7 21 58.3

Department of Commerce 59 32 54.2 27 45.8 16 59.3 11 40.7

Department of Labor 51 34 66.7 17 33.3 10 58.8 7 41.2

Department of Energy 41 20 48.8 21 51.2 8 38.1 13 61.9

Department of State 25 15 60.0 10 40.0 3 30.0 7 70.0

Environmental Protection Agency 25 18 72.0 7 28.0 3 42.9 4 57.1

Department of Housing and Urban 

Development 21 14 66.7 7 33.3 5 71.4 2 28.6

General Services Administration 19 16 84.2 3 15.8 2 66.7 1 33.3

Small Business Administration 17 9 52.9 8 47.1 3 37.5 5 62.5

Tennessee Valley Authority 12 8 66.7 4 33.3 0 0.0 4 100.0

Equal Employment Opportunity 

Commission 11 6 54.5 5 45.5 3 60.0 2 40.0

National Aeronautics and Space 

Administration 10 4 40.0 6 60.0 3 50.0 3 50.0

Federal Deposit Insurance 

Corporation 9 4 44.4 5 55.6 2 40.0 3 60.0

Department of Education 8 4 50.0 4 50.0 3 75.0 1 25.0

Smithsonian Institution 8 4 50.0 4 50.0 3 75.0 1 25.0

National Archives and Records 

Administration 7 5 71.4 2 28.6 2 100.0 0 0.0

Agency for International 

Development 6 3 50.0 3 50.0 1 33.3 2 66.7

Corporation for National and 

Community Service 6 3 50.0 3 50.0 2 66.7 1 33.3
22 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Table 3: Disposition of Appeals by Agency (Cont.)

Decided Dismissed1Not DIsmissed1 Settled2 Adjudicated2

# # % # % # % # % 

Securities and Exchange 

Commission 6 3 50.0 3 50.0 3 100.0 0 0.0

Federal Communications 

Commission 5 5 100.0 0 0.0 0 0.0 0 0.0

Export-Import Bank of the United 

States 4 2 50.0 2 50.0 2 100.0 0 0.0

Federal Housing Finance Agency 4 2 50.0 2 50.0 1 50.0 1 50.0

Federal Reserve System 3 2 66.7 1 33.3 0 0.0 1 100.0

Federal Trade Commission 3 3 100.0 0 0.0 0 0.0 0 0.0

Armed Forces Retirement Home 2 0 0.0 2 100.0 1 50.0 1 50.0

Commodity Futures Trading 

Commission 2 1 50.0 1 50.0 1 100.0 0 0.0

Court Services and Offender 

Supervision Agency for District of 

Columbia

2 1 50.0 1 50.0 1 100.0 0 0.0

Government Printing Office 2 1 50.0 1 50.0 1 100.0 0 0.0

International Boundary and Water 

Commission: U.S. and Mexico

2 0 0.0 2 100.0 2 100.0 0 0.0

Judicial Branch 2 2 100.0 0 0.0 0 0.0 0 0.0

Merit Systems Protection Board 2 1 50.0 1 50.0 0 0.0 1 100.0

National Science Foundation 2 2 100.0 0 0.0 0 0.0 0 0.0

Nuclear Regulatory Commission 2 0 0.0 2 100.0 0 0.0 2 100.0

Office of Management and Budget 2 1 50.0 1 50.0 0 0.0 1 100.0

Overseas Private Investment 

Corporation 2 0 0.0 2 100.0 1 50.0 1 50.0

Railroad Retirement Board 2 1 50.0 1 50.0 1 100.0 0 0.0

Administrative Conference of the 

United States 1 1 100.0 0 0.0 0 0.0 0 0.0

Administrative Office of the U.S. 

Courts 1 1 100.0 0 0.0 0 0.0 0 0.0

Broadcasting Board of Governors 1 1 100.0 0 0.0 0 0.0 0 0.0

Defense Nuclear Facilities Safety 

Board 1 0 0.0 1 100.0 0 0.0 1 100.0

Executive Office of the President, 

Office of Administration 1 0 0.0 1 100.0 0 0.0 1 100.0

Federal Election Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

Government Accountability Office 1 1 100.0 0 0.0 0 0.0 0 0.0

Government of the District of 

Columbia 1 1 100.0 0 0.0 0 0.0 0 0.0

Inter-American Foundation 1 0 0.0 1 100.0 0 0.0 1 100.0
23 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Table 3: Disposition of Appeals by Agency (Cont.)

Decided Dismissed1Not DIsmissed1 Settled2 Adjudicated2

# # % # % # % # % 

Millennium Challenge Corporation 1 1 100.0 0 0.0 0 0.0 0 0.0

National Council on Disability 1 1 100.0 0 0.0 0 0.0 0 0.0

National Credit Union 

Administration 1 1 100.0 0 0.0 0 0.0 0 0.0

National Labor Relations Board 1 1 100.0 0 0.0 0 0.0 0 0.0

Office of Special Counsel 1 1 100.0 0 0.0 0 0.0 0 0.0

Other 1 1 100.0 0 0.0 0 0.0 0 0.0

Peace Corps 1 0 0.0 1 100.0 1 100.0 0 0.0

Pension Benefit Guaranty 

Corporation 1 0 0.0 1 100.0 1 100.0 0 0.0

The White House 1 1 100.0 0 0.0 0 0.0 0 0.0

TOTAL 8,121 3,619 44.6 4,502 55.4 1,338 29.7 3,164 70.3

1

Percent Dismissed and Not Dismissed are of the number Decided.

2

Percent Settled and Adjudicated are of the number Not Dismissed.

3 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the administrator of the Civil Service 

Retirement System and the Federal Employees Retirement System.
24 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

by Agency

Adjudicated1 Affirmed Reversed Mitigated 

Modified Other

# # % # % # % # % 

Department of the Army 931 836 89.80 90 9.7 5 0.5 0 0.0

Department of the Navy 678 669 98.7 6 0.9 3 0.4 0 0.0

Department of Defense 363 357 98.35 5 1.4 1 0.3 0 0.0

Office of Personnel Management2318 244 76.7 49 15.4 7 2.2 18 5.7

Department of the Air Force 295 289 97.97 4 1.4 2 0.7 0 0.0

Department of Veterans Affairs 135 113 83.7 18 13.3 4 3.0 0 0.0

Department of Health and Human 

Services 96 94 97.92 2 2.1 0 0.0 0 0.0

Department of Homeland 

Security 67 59 88.1 7 10.4 1 1.5 0 0.0

United States Postal Service 62 49 79.03 9 14.5 4 6.5 0 0.0

Department of Justice 36 34 94.4 2 5.6 0 0.0 0 0.0

Department of the Interior 31 31 100.00 0 0.0 0 0.0 0 0.0

Department of Agriculture 23 19 82.6 3 13.0 0 0.0 1 4.3

Social Security Administration 21 19 90.48 2 9.5 0 0.0 0 0.0

Department of Transportation 16 14 87.5 1 6.3 1 6.3 0 0.0

Department of the Treasury 14 12 85.71 0 0.0 2 14.3 0 0.0

Department of Energy 13 13 100.0 0 0.0 0 0.0 0 0.0

Department of Commerce 11 10 90.91 1 9.1 0 0.0 0 0.0

Department of Labor 7 5 71.4 0 0.0 2 28.6 0 0.0

Department of State 7 7 100.00 0 0.0 0 0.0 0 0.0

Small Business Administration 5 5 100.0 0 0.0 0 0.0 0 0.0

Environmental Protection Agency 4 3 75.00 1 25.0 0 0.0 0 0.0

Tennessee Valley Authority 4 3 75.0 1 25.0 0 0.0 0 0.0

Federal Deposit Insurance 

Corporation 3 3 100.00 0 0.0 0 0.0 0 0.0

National Aeronautics and Space 

Administration 3 3 100.0 0 0.0 0 0.0 0 0.0

Agency for International 

Development 2 2 100.00 0 0.0 0 0.0 0 0.0

Department of Housing and 

Urban Development 2 1 50.0 1 50.0 0 0.0 0 0.0

Equal Employment Opportunity 

Commission 2 0 0.00 2 100.0 0 0.0 0 0.0

Nuclear Regulatory Commission 2 1 50.0 1 50.0 0 0.0 0 0.0
25 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

by Agency (Cont.)

Adjudicated1 Affirmed Reversed Mitigated 

Modified Other

# # % # % # % # % 

Armed Forces Retirement Home 1 1 100.00 0 0.0 0 0.0 0 0.0

Corporation for National and 

Community Service 1 0 0.0 1 100.0 0 0.0 0 0.0

Defense Nuclear Facilities Safety 

Board 1 1 100.00 0 0.0 0 0.0 0 0.0

Department of Education 1 1 100.0 0 0.0 0 0.0 0 0.0

Executive Office of the President, 

Office of Administration 1 0 0.00 0 0.0 1 100.0 0 0.0

Federal Housing Finance Agency 1 0 0.0 1 100.0 0 0.0 0 0.0

Federal Reserve System 1 1 100.00 0 0.0 0 0.0 0 0.0

General Services Administration 1 1 100.0 0 0.0 0 0.0 0 0.0

Inter-American Foundation 1 1 100.00 0 0.0 0 0.0 0 0.0

Merit Systems Protection Board 1 0 0.0 1 100.0 0 0.0 0 0.0

Office of Management and 

Budget 1 1 100.00 0 0.0 0 0.0 0 0.0

Overseas Private Investment 

Corporation 1 1 100.0 0 0.0 0 0.0 0 0.0

Smithsonian Institution 1 1 100.00 0 0.0 0 0.0 0 0.0

TOTAL3 3,164 2,904 91.8 208 6.6 33 1.0 19 0.6

1

Adjudicated, i.e., not dismissed or settled.

2 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the administrator of the Civil Service 

Retirement System and the Federal Employees Retirement System. 

3 Percentages may not total 100 because of rounding.
26 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Cases Processed at Headquarters

For case outcomes, we have provided data both with and without furlough cases. The data without 

furlough cases is most comparable to case processing data in previous Annual Reports.

Table 5: Disposition of Petitions for Review of Initial Decisions 

by Type of Case

Decided Dismissed Settled Denied

Denied; 

Further 

Analysis1

 Granted

Type of Case # # % # % # % # % # % 

Adverse Action by Agency2

629 132 20.99 4 0.64 402 63.91 18 2.86 73 11.61

Termination of 

Probationers 26 1 3.85 0 0.00 23 88.46 0 0.00 2 7.69

Reduction in Force 6 0 0.00 0 0.00 4 66.67 0 0.00 2 33.33

Performance 18 2 11.11 3 16.67 13 72.22 0 0.00 0 0.00

Acceptable Level of 

Competence (ALOC)

3 4 0 0.00 0 0.00 2 50.00 0 0.00 2 50.00

Suitability 3 0 0.00 0 0.00 3

100.0

0

0 0.00 0 0.00

CSRS Retirement: Legal3

26 2 7.69 1 3.85 22 84.62 1 3.85 0 0.00

CSRS Retirement: Disability 2 1 50.00 0 0.00 1 50.00 0 0.00 0 0.00

CSRS Retirement: 

Overpayment

4 0 0.00 0 0.00 3 75.00 0 0.00 1 25.00

FERS Retirement: Legal3

15 0 0.00 1 6.67 14 93.33 0 0.00 0 0.00

FERS Retirement: Disability 14 2 14.29 0 0.00 9 64.29 0 0.00 3 21.43

FERS Retirement: 

Overpayment

25 1 4.00 0 0.00 20 80.00 1 4.00 3 12.00

Individual Right of Action 86 7 8.14 0 0.00 56 65.12 2 2.33 21 24.42

USERRA 29 3 10.34 0 0.00 20 68.97 0 0.00 6 20.69

VEOA 41 0 0.00 0 0.00 33 80.49 0 0.00 8 19.51

Other 94 3 3.19 2 2.13 77 81.91 2 2.13 10 10.64

Total 1,022 154 15.07 11 1.08 702 68.69 24 2.35 131 12.82

1 “Denied; Further Analysis” includes cases denied on the basis of the issues raised in the PFR, but in which the Board has considered an issue 

sua sponte, i.e., of the Board’s own accord (5 C.F.R. § 1201.117(a)). This definition applies also to Table 6, and Figures 3.5, 3.5a, 3.7 and 3.7a. 

Historically, when the Board denied a party’s PFR, but upon review of a case, chose to analyze additional issues, this was described as 

“reopening the appeal on its own motion under 5 C.F.R. § 1201.118,” and the description used in the Annual Report was “Denied But 

Reopened.” Beginning in 2014, the Board will report dispositions of cases that are denied, but in which the Board considers other issues of its 

own accord as “Denied; Further Analysis.”

1 This includes 370 furlough appeals decided, 25 furlough appeals dismissed, 212 furlough appeals denied, 2 furlough appeals denied; further 

analysis, and 31 furlough appeals granted.

2

An acceptable level of competence (ALOC) means an employee is effectively performing the duties and responsibilities of his or her assigned 

job, which warrants advancing the employee’s rate of pay to the next higher step at the grade of the employee’s position. If an employee’s 

performance is not at an ALCO, then the agency may deny his or her within-grade increase (WIGI); Civil Service Retirement System (CSRS); 

Federal Employees Retirement System (FERS).
27 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Figure 3.4: Types of Petitions for Review (Including furlough appeals)

Total Number of PFRs: 1,022

Adverse Actions 

(629) 62%

Termination of 

Probationers (26) 3%

Reduction In Force 

(6) 1%

Performance (18) 2%

Acceptable Level of 

Competence (4) 0%

Suitability (3) 0%

CSRA Retirement: 

Legal (26) 3%

CSRA Retirement: 

Disability (2) 0%

CSRA Retirement: 

Overpayment (4) 0%

FERS Retirement: 

Legal (15) 1%

FERS Retirement: 

Disability (14) 1%

FERS Retirement: 

Overpayment (25) 

2%

Individual Right of 

Action (86) 8%

USERRA (29) 3%

VEOA (41) 4%

Other (94) 9%
28 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Figure 3.4a: Types of Petitions for Review (Not including furlough appeals)

Total Number of PFRs: 652

Adverse Actions 

(259) 40%

Termination of 

Probationers (26) 4%

Reduction In Force 

(6) 1%

Performance (18) 3%

Acceptable Level of 

Competence (4) 1%

Suitability (3) 0%

CSRA Retirement: 

Legal (26) 4%

CSRA Retirement: 

Disability (2) 0%

CSRA Retirement: 

Overpayment (4) 1%

FERS Retirement: 

Legal (15) 2%

FERS Retirement: 

Disability (14) 2%

FERS Retirement: 

Overpayment (25) 

4%

Individual Right of 

Action (86) 13%

USERRA (29) 4%

VEOA (41) 6%

Other (94) 14%
29 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Figure 3.5: Disposition of Petitions for Review of Initial Decisions

(Including furlough appeals)

Based on 1,022 Total PFRs

Figure 3.5a: Disposition of Petitions for Review of Initial Decisions

(Not including furlough appeals)

Based on 652 Total PFRs

Dismissed (154) 

15%

Settled (11) 1%

Denied (702) 69%

Denied; Further 

Analysis (24) 2%

Granted (131) 13%

Dismissed (43) 7%

Settled (11) 2%

Denied (490) 75%

Denied; Further 

Analysis (8) 1%

Granted (100) 15%
30 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Figure 3.6: Disposition of Petitions for Review Granted

(Including furlough appeals)

Based on 131 PFRs Granted

Figure 3.6a: Disposition of Petitions for Review Granted

(Not including furlough appeals)

Based on 100 PFRs Granted

Initial Decision 

Affirmed (4) 3%

Initial Decision 

Case Remanded Reversed (31) 24%

(93) 71%

Agency Action 

Mitigated (0) 0%

Other (3) 2%

Initial Decision 

Affirmed (4) 4%

Initial Decision 

Reversed (4) 4%

Case Remanded 

(89) 89%

Agency Action 

Mitigated (0) 0%

Other (3) 3%
31 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Figure 3.7: Disposition of Petitions for Review Denied; Further Analysis

(Including furlough appeals)

Based on 24 PFRs Denied; Further Analysis

Figure 3.7a: Disposition of Petitions for Review Denied; Further Analysis

(Not including furlough appeals)

Based on 8 PFRs Denied; Further Analysis

Initial Decision 

Affirmed (22) 92%

Initial Decision 

Reversed (0) 0%

Case Remanded 

(0) 0%

Agency Action 

Mitigated (0) 0%

Other (2) 8%

Initial Decision 

Affirmed (6) 75%

Initial Decision 

Reversed (0) 0%

Case Remanded 

(0) 0%

Agency Action 

Mitigated (0) 0%

Other (2) 25%
32 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Table 6: Disposition of Petitions for Review of Initial Decisions, by Agency1

Decided Dismissed Settled Denied

Denied; 

Further 

analysis

 Granted

# # % # % # % # % # % 

Department of the Army 216 110 50.93 0 0 69 31.94 0 0 37 17.13

Department of the Navy 169 4 2.37 2 1.183 131 77.51 16 9.47 16 9.47

Department of Veterans 

Affairs 87 5 5.75 1 1.149 62 71.26 3 3.45 16 18.39

Office of Personnel 

Management 87 6 6.90 2 2.299 70 80.46 2 2.30 7 8.05

Department of the 

Treasury 79 1 1.27 1 1.266 75 94.94 0 0 2 2.53

United States Postal 

Service 75 1 1.33 0 0 66 88 1 1.333 7 9.33

Department of Homeland 

Security 56 6 10.71 2 3.571 39 69.64 0 0 9 16.07

Department of Defense 41 5 12.2 1 2.439 26 63.41 0 0 9 21.95

Department of the Air 

Force 41 1 2.44 0 0 38 92.68 0 0 2 4.88

Department of Health and 

Human Services 36 2 5.56 0 0 30 83.33 0 0 4 11.11

Department of Justice 27 2 7.41 0 0 21 77.78 1 3.704 3 11.11

Department of the Interior 16 0 0 0 0 13 81.25 0 0 3 18.75

Department of 

Transportation 14 2 14.29 0 0 10 71.43 0 0 2 14.29

Department of Agriculture 13 0 0 1 7.692 9 69.23 0 0 3 23.08

Social Security 

Administration 10 1 10 0 0 7 70 0 0 2 20

Department of Commerce 9 2 22.22 0 0 5 55.56 0 0 2 22.22

Department of Labor 9 1 11.11 1 11.11 6 66.67 0 0 1 11.11

Environmental Protection 

Agency 4 1 25 0 0 2 50 0 0 1 25

Tennessee Valley Authority 4 0 0 0 0 2 50 0 0 2 50

Department of Energy 3 0 0 0 0 3 100 0 0 0 0

Department of State 3 0 0 0 0 1 33.33 1 33.33 1 33.33

General Services 

Administration 3 1 33.33 0 0 2 66.67 0 0 0 0

Small Business 

Administration 3 0 0 0 0 2 66.67 0 0 1 33.33

Federal Deposit Insurance 

Corporation 2 0 0 0 0 1 50 0 0 1 50

National Aeronautics and 

Space Administration 2 0 0 0 0 2 100 0 0 0 0

National Archives and 

Records Administration 2 0 0 0 0 2 100 0 0 0 0

1 This table includes both furlough and nonfurlough appeals.
33 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Table 6: Disposition of Petitions for Review of Initial Decisions, by Agency (Cont.)

Decided Dismissed Settled Denied

Denied; 

Further 

analysis

 Granted

# # % # % # % # % # % 

Administrative Conference 

of the United States 1 1 100 0 0 0 0 0 0 0 0

Agency for International 

Development 1 0 0 0 0 1 100 0 0 0 0

Armed Forces Retirement 

Home 1 0 0 0 0 1 100 0 0 0 0

Central Intelligence Agency 1 0 0 0 0 1 100 0 0 0 0

Committee for Purchase 

from People Who Are Blind 

or Severely Disabled

1 1 100 0 0 0 0 0 0 0 0

Department of Education 1 0 0 0 0 1 100 0 0 0 0

Equal Employment 

Opportunity Commission 1 0 0 0 0 1 100 0 0 0 0

Merit Systems Protection 

Board 1 0 0 0 0 1 100 0 0 0 0

National Science 

Foundation 1 0 0 0 0 1 100 0 0 0 0

Securities and Exchange 

Commission 1 1 100 0 0 0 0 0 0 0 0

U.S. Tax Court 1 0 0 0 0 1 100 0 0 0 0

TOTAL 1,022 154 15.07 11 1.08 702 68.69 24 2.35 131 12.82
34 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

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35 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

SIGNIFICANT BOARD DECISIONS AND COURT OPINIONS ISSUED IN FY 2016

Several of the Board’s significant decisions issued in FY 2016 are summarized below. As a service to 

MSPB’s stakeholders, we also have provided brief summaries of selected significant opinions issued by 

the U.S. Court of Appeals for the Federal Circuit.

Significant Board Decisions Issued in FY 2016

Jurisdiction

Martin v. U.S. Postal Service, 2016 MSPB 6, 123 M.S.P.R. 189 (2016): The parties entered into a 

settlement agreement, which provided that the appellant would retire effective July 2011 and the 

agency would enhance its contributions to her retirement for the 3 previous years. When the Office 

of Personnel Management (OPM) did not approve the enhanced retirement contributions, the 

agency reinstated the appellant in October 2012 retroactive to July 2011, and designated the period 

between July 2011 and October 2012 as leave without pay (LWOP). The appellant filed an appeal 

seeking back pay for the LWOP period. The administrative judge dismissed the appeal for lack of 

jurisdiction, finding that the appellant failed to make a nonfrivolous allegation that she was 

constructively suspended between July 2011 and October 2012, because her decision to retire in 

July 2011 was knowing and voluntary. The Board reversed the initial decision, finding that the 

administrative judge erred in applying case law related to constructive suspension appeals. The 

Board explained that the term “constructive suspension” is properly reserved for appeals when the 

appellant alleges that leave that appeared to be voluntary was not; however, in this case, the 

appellant’s retroactive placement in LWOP status for 430 days was not even ostensibly voluntary. 

Therefore, the Board found, the appellant suffered an actual (versus a constructive) suspension 

within the Board’s jurisdiction. The Board then canceled the suspension, finding that the agency 

violated the appellant’s Fifth Amendment due process rights by suspending her without an 

opportunity to be heard. 

Pirkkala v. Department of Justice, 2016 MSPB 16, 123 M.S.P.R. 288 (2016): The agency removed the 

appellant and informed him that he could challenge his removal either through the negotiated 

grievance procedure, by filing a Board appeal, or through the equal employment opportunity 

complaint process. The appellant filed an untimely grievance, which the agency rejected, and his 

union ultimately declined to proceed with arbitration on his behalf. Several years later, he filed a 

Board appeal, which the administrative judge dismissed for lack of jurisdiction, finding that the 

appellant had made a binding election to contest his removal through the negotiated grievance 

process. On review, the Board found that the appellant’s untimely grievance did not constitute a 

binding election under 5 U.S.C. § 7121(e)(1), which provides that an employee will be deemed to 

have exercised his option to file a Board appeal or a grievance “at such time as the employee timely

files a notice of appeal under the applicable appellate procedures or timely files a grievance in writing 

in accordance with the provisions of the parties’ negotiated grievance procedures, whichever event 

occurs first.” Accordingly, the Board concluded that it had jurisdiction over the appeal, and instead 

dismissed it as untimely filed. 

Kingsley v. U.S. Postal Service, 2016 MSPB 21, 123 M.S.P.R. 365 (2016); Clark v. U.S. Postal Service, 2016 

MSPB 26, 123 M.S.P.R. 466 (2016): The appellants in these cases filed appeals alleging that the 

agency improperly denied them restoration following their partial recovery from a compensable 

injury. In Kingsley, the Board noted that it had recently issued new regulations, effective March 30, 

2015, adopting a nonfrivolous allegation standard for establishing jurisdiction over such restoration 
36 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

appeals. See 5 C.F.R. § 1201.57(a)(4), (b). To establish jurisdiction under the new standard, an 

appellant must make nonfrivolous allegations that: (1) she was absent from her position due to a 

compensable injury; (2) she recovered sufficiently to return to duty on a part-time basis, or to return 

to work in a position with less demanding physical requirements than those previously required of 

her; (3) the agency denied her request for restoration; and (4) the agency’s denial was arbitrary and 

capricious. In Clark, the Board further clarified that to meet the nonfrivolous allegation standard, an 

appellant must make material and plausible assertions of fact that, if true, could establish that the 

agency breached its substantive restoration obligations, including any obligations that it voluntarily 

adopted. A vague, conclusory, or unsupported allegation, such as one that essentially repeats the 

legal standard, without more, is pro forma and insufficient. 

LeMaster v. Department of Veterans Affairs, 2016 MSPB 25, 123 M.S.P.R. 453 (2016): The agency 

terminated the appellant’s appointment during his probationary period, citing “conduct issues” 

relating to the terms of a 2007 court-ordered probation agreement. Under the agreement, the 

appellant was required to inform any employer or prospective employer of his current conviction 

and supervision status, and was prohibited from using a computer with access to any online service 

without the court’s prior written approval. The termination notice explained that the appellant failed 

to disclose that his computer access violated his probation agreement and that his inability to use the 

agency’s computer system prevented him from performing his job duties. On appeal, the appellant 

argued that the Board had jurisdiction under 5 C.F.R. § 315.806(c) because he was terminated for 

pre-appointment reasons and he did not receive the procedural protections set forth in 5 C.F.R. 

§ 315.805, which include notice and an opportunity to respond. The administrative judge dismissed 

the appeal, finding that the termination was based on the appellant’s post-appointment conduct. On 

review, the Board agreed with the appellant that the termination was based at least in part on preappointment reasons, i.e., the terms of the probation agreement. Accordingly, the Board found 

jurisdiction under 5 C.F.R. § 315.806(c) and remanded the case to determine if the agency’s failure to 

provide the procedural protections of 5 C.F.R. § 314.805 was harmful error. 

Adverse Action Charges

Ryan v. Department of Homeland Security, 2016 MSPB 7, 123 M.S.P.R. 202 (2016): The appellant, whose 

duties included market research for FEMA-contracted call centers, was also president of a private 

company, which was considering competing for a call center contract. He emailed his supervisor and 

an agency ethics officer to advise them of the situation and ask if it presented a conflict of interest. 

Subsequently, the agency suspended him for two alleged ethics violations: (1) creating the 

appearance of a conflict of interest; and (2) failing to report his role with the private company and 

recuse himself from call center market research. Regarding charge (1), the Board found that creating 

the appearance of an ethical violation requires some action by the employee, and that the company’s 

internal deliberations were insufficient to create the appearance of a conflict of interest. As to 

charge (2), the Board found that, prior to his email, the appellant’s plan to involve his company in 

bidding for call center contracts had not progressed to the point that he was obliged to notify his 

supervisor and recuse himself from the market research project. Accordingly, the Board reversed 

the suspension. 

Fargnoli v. Department of Commerce, 2016 MSPB 19, 123 M.S.P.R. 330 (2016): The appellant, a Criminal 

Investigator, was removed on the following charges: (1) unauthorized possession of equipment, 

specifically, a firearm acquired during his previous employment with the Department of Labor 

(DOL); (2) conduct unbecoming a law enforcement officer; and (3) lack of candor. The 

administrative judge sustained all three charges and upheld the removal. On review, the Board found 

that the first charge was supported by evidence showing that the appellant received the firearm from 
37 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

the manufacturer for testing in his official capacity with DOL, and that he was not entitled to keep 

the firearm when he left DOL to take a job with the agency. The Board also sustained the conduct 

unbecoming charge, but did not sustain the specification that the appellant improperly stored an 

unauthorized firearm in a Government-owned vehicle, because the policy the agency cited applied 

only to authorized firearms. As to the third charge, the Board held that a lack of candor charge 

requires proof of two elements: (1) that the employee gave incorrect or incomplete information; 

and (2) that he did so knowingly. Because the administrative judge made no finding as to whether 

the appellant knowingly gave incorrect or incomplete information to agency investigators, the Board 

remanded the case for the administrative judge to make the necessary credibility determinations on 

that issue. 

Indefinite Suspensions

Henderson v. Department of Veterans Affairs, 2016 MSPB 29, 123 M.S.P.R. 536 (2016): The appellant 

was indicted by a Federal grand jury on 50 counts of making false statements relating to health care 

matters in violation of 18 U.S.C. § 1035. The agency indefinitely suspended him based on its 

reasonable belief that he had committed a crime for which a period of imprisonment may be 

imposed, and the administrative judge sustained the action on appeal. On review, the appellant 

argued that the indictment alone was insufficient to establish reasonable cause when it was the 

agency that made the criminal allegations against him and provided the only evidence presented to 

the grand jury. The Board disagreed, finding that the grand jury indictment was sufficient to meet 

the reasonable cause requirement even if it was based entirely on evidence and testimony provided 

by the agency. The Board also rejected the appellant’s contention that the agency denied him due 

process, finding that the information contained in the indictment was sufficiently detailed to provide 

him a meaningful opportunity to respond to the proposed indefinite suspension. 

Furloughs

NV24-KEYPORT2 et al. v. Department of the Navy, 2016 MSPB 14, 123 M.S.P.R. 263 (2016): The 

appellants, who were similarly situated employees at the Naval Undersea Warfare Center (NUWC) 

Division Keyport, challenged the initial decision that sustained their 6-day furloughs. On review, the 

appellants argued that the furloughs were not a reasonable management solution to the financial 

restrictions placed on the agency, because NUWC Division Keyport is a Major Range and Test 

Facility Base covered under 10 U.S.C. § 129, which applies at the installation level and prohibits 

certain constraints or limitations on the management of civilian Department of Defense employees, 

including constraints or limitations in terms of “man years.” The Board found that, even if the 

NUWC Division Keyport was a covered installation, there was no evidence that the furloughs 

constituted an improper constraint or limitation on the management of civilian personnel in 

violation of the applicable statute. The deciding official’s acknowledgment that the furloughs 

ultimately restricted or limited the availability of man years did not imply that the management of 

civilian personnel at the installation level was “subject to” or “managed on the basis of” a constraint 

or limitation on man years. The Board further found that it was reasonable for the agency to 

consider its budget holistically, and that its use of overtime was fair and even. Accordingly, the 

Board sustained the furlough actions. 

Whistleblower Protection

Hawker v. Department of Veterans Affairs, 2015 MSPB 62, 123 M.S.P.R. 62 (2015): The appellant filed a 

complaint with the Office of Special Counsel (OSC) alleging that the agency terminated him from 

his physician position during his probationary period in retaliation for his disclosures regarding 
38 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

patient care issues. OSC issued a close-out letter notifying the appellant of his right to seek 

corrective action from the Board, and he filed a timely individual right of action (IRA) appeal. When 

the appellant failed to respond to the administrative judge’s jurisdictional notice, the administrative 

judge dismissed the appeal for lack of jurisdiction, finding that the appellant failed to nonfrivolously 

allege the facts necessary to establish his IRA claim. On review, the appellant presented evidence 

that OSC reopened its investigation pursuant to his request for reconsideration while the appeal was 

pending before the administrative judge. Based on that evidence, the Board vacated the initial 

decision and dismissed the appeal without prejudice to refiling. The Board held that OSC’s decision 

to reopen its investigation deprived its initial close-out determination of the finality required before 

an appellant can file an IRA appeal with the Board pursuant to the exhaustion requirement of 

5 U.S.C. § 1214(a)(3)(A). 

El v. Department of Commerce, 2015 MSPB 64, 123 M.S.P.R. 76 (2015): The appellant filed an IRA 

appeal alleging that the agency terminated him during his trial period and refused to reinstate him in 

retaliation for disclosing delays in processing claims for reimbursement of his travel expenses. The 

administrative judge dismissed the appeal for lack of jurisdiction, finding that the claimed disclosure 

was not sufficiently detailed and specific in that it did not identify a law, rule, or regulation that the 

agency allegedly violated, and therefore was not a nonfrivolous allegation of a protected disclosure. 

On review, the Board agreed with that finding, and clarified that under the Whistleblower Protection 

Enhancement Act (WPEA), vague, conclusory, unsupported, and pro forma allegations of 

wrongdoing do not meet the nonfrivolous pleading standard needed to establish the Board’s 

jurisdiction over an IRA appeal. The Board found that the appellant nonfrivolously alleged that he 

made a protected disclosure in a letter to OSC, in which he identified a regulation that the agency 

may have violated; however, his disclosure could not have been a contributing factor in his 

termination and the agency’s subsequent refusal to reinstate him because the disclosure occurred 

after those actions. Accordingly, the Board affirmed the initial decision as modified, still dismissing 

the IRA appeal for lack of jurisdiction. 

Corthell v. Department of Homeland Security, 2016 MSPB 23, 123 M.S.P.R. 417 (2016): The appellant 

filed an IRA appeal in which he alleged that the agency retaliated against him based on his protected 

disclosures and the agency’s mistaken belief that he had reported other matters to the agency’s 

Office of Inspector General. The administrative judge dismissed the appeal for lack of jurisdiction, 

finding that the appellant failed to make a nonfrivolous allegation that he made a protected 

disclosure under 5 U.S.C. § 2302(b)(8). On review, the Board affirmed the initial decision as to the 

alleged protected disclosures, but found that it was a case of first impression as to whether it may 

consider a request for corrective action under 5 U.S.C. § 1221(a) based on a claim that the agency 

retaliated against an employee for perceived activity under 5 U.S.C. § 2302(b)(9)(C). In its analysis, 

the Board reasoned that the statutory language does not specify that the appellant must have actually 

engaged in the protected activity under § 2302(b)(9)(C), and found that nothing in the legislative 

history suggests that Congress intended a narrower reading. The Board further noted that it 

previously had recognized that corrective action may be available for reprisal claims for perceived 

whistleblowing under 5 U.S.C. § 2302(b)(8), and found that the same rationales that forbid 

retaliation for perceived whistleblowing also apply to perceived protected activity under 

§ 2302(b)(9)(C). Accordingly, the Board vacated the initial decision and remanded for jurisdictional 

notice and further adjudication of the appellant’s retaliation claim for perceived 

§ 2302(b)(9)(C) activity. 

Graves v. Department of Veterans Affairs, 2016 MSPB 24, 123 M.S.P.R. 434 (2016): The appellant filed 

an IRA appeal in which he alleged that the agency terminated his appointment in retaliation for 

disclosures of gross mismanagement and gross waste of funds, which he made during a grievance 
39 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

proceeding, and also for his prior testimony before an Administrative Investigative Board (AIB) in 

support of a coworker who was being investigated for misconduct. On review, the Board affirmed 

the initial decision that dismissed the appeal for lack of jurisdiction. The Board first found that the 

appellant failed to make a nonfrivolous allegation that his disclosures were protected under 5 U.S.C. 

§ 2302(b)(8), because they were made solely during the grievance proceeding. The Board also 

rejected the appellant’s contention that his testimony before the AIB was protected activity under 

§ 2302(b)(9)(B), which prohibits retaliation against an employee for testifying for or otherwise 

lawfully assisting an individual in the exercise of rights referred to in § 2302(b)(9)(A)(i) or (ii), i.e.,

“the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation[.]” 

Relying on the statutory language and case law interpreting the pre-WPEA version of § 2302(b)(9), 

the Board concluded that the AIB investigation did not constitute the exercise of an appeal, 

complaint, or grievance right by the appellant’s coworker, because it did not constitute an initial step 

toward taking legal action against the agency for a perceived violation of employment rights. 

Bradley v. Department of Homeland Security, 2016 MSPB 30, 123 M.S.P.R. 547 (2016): The 

administrative judge dismissed the appellant’s IRA appeal for lack of jurisdiction, finding that he 

failed to make a nonfrivolous allegation that his protected disclosures were a contributing factor in 

the agency’s decision not to select him for a promotion. In making that finding, the administrative 

judge noted that the appellant had not alleged that the members of the selection panel had actual 

knowledge of his protected disclosures. On review, the Board observed that the knowledge/timing 

test is not the only way to satisfy the contributing factor element, and noted that the appellant had 

alleged that senior agency officials with knowledge of his disclosures had conspired with others not 

to select him for the position. Citing the Federal Circuit’s recent decision in Cahill v. Merit Systems 

Protection Board, 821 F.3d 1370 (Fed. Cir. 2016), the Board found that the appellant could meet his 

jurisdictional burden without specifically identifying which management officials were responsible 

for the alleged reprisal. The Board explained that, when the personnel action at issue is a 

nonselection, the evidence concerning who was involved in the selection process, what they knew 

about the appellant’s protected disclosures, and who may have influenced their decision is 

exclusively within the agency’s possession. The Board found that the appellant’s allegations sufficed 

to establish jurisdiction, and remanded the whistleblower case for adjudication on the merits. 

Reprisal

Mattison v. Department of Veterans Affairs, 2016 MSPB 27, 123 M.S.P.R. 492 (2016): In his appeal of an 

indefinite suspension action, the appellant claimed that the agency retaliated against him for filing 

two internal appeals: an Information Security Office appeal alleging that his medical records had 

been accessed without authorization, and a FOIA request seeking information gathered by police for 

an investigation. The administrative judge sustained the indefinite suspension action, finding the 

retaliation claim unproven, and the Board affirmed on review. In doing so, the Board distinguished 

Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), and clarified that retaliation claims under 

5 U.S.C. § 2302(b)(9)(A)(ii) that do not involve reprisal for activity protected under Title VII would 

continue to be analyzed under the standard set forth in Warren v. Department of the Army, 804 F.2d 654 

(Fed. Cir. 1986). That is, the appellant must show that: (1) he engaged in protected activity; (2) the 

accused official knew of the activity; (3) the adverse action under review could have been retaliation 

under the circumstances; and (4) there was a genuine nexus between the alleged retaliation and the 

adverse action. In this case, the Board found the appellant failed to establish a genuine nexus 

between his protected activity and the agency’s action. Thus, the Board denied the appellant’s 

petition for review and affirmed the administrative judge’s decision. 
40 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Veterans Employment Opportunity Act of 1998 (VEOA)

Montgomery v. Department of Health & Human Services, 2016 MSPB 8, 123 M.S.P.R. 216 (2016): The 

appellant filed a VEOA appeal alleging that he was denied the right to compete for a job under 

5 U.S.C. § 3304(f)(1) when the agency transferred an employee from outside its workforce to a 

position in the competitive service without first advertising the vacancy. The administrative judge 

denied the appellant’s request for corrective action, finding that the agency could fill the vacancy by 

any authorized method, and the appellant had not shown that he was qualified for the position. On 

review, the Board first found that the agency was required to advertise the vacancy before filling it, 

because 5 U.S.C. § 3304(f)(1) applies to both merit promotion and open competitive examining 

procedures. The Board further considered the agency’s claim that it did not announce the positon at 

issue because, pursuant to an internal standard operating procedure, it “shared” a selection 

certificate for an advertised vacancy for an allegedly comparable position, for which the appellant 

applied but was not selected. The Board rejected that argument, finding that an internal agency 

policy may not override otherwise applicable statutes, including 5 U.S.C. § 3304(f)(1). Because there 

was a genuine dispute of material fact regarding the appellant’s qualification for the position at issue, 

the Board remanded the case for further adjudication. 

Goodin v. Department of the Army, 2016 MSPB 18, 123 M.S.P.R. 316 (2016): The appellant, a veteran, 

was tentatively selected for a clinical social worker position but thereafter failed to produce his 

transcripts and other documents that were required to complete the agency’s credentialing process. 

OPM denied the agency’s passover request and informed the agency that its options were to 

challenge its decision or “consider/select” the appellant for the position. The Board found that the 

agency complied with VEOA by continuing to consider the appellant, but that VEOA did not 

preclude the agency from withdrawing its tentative selection once he was unwilling or unable to 

produce the documents that all applicants were notified were necessary to complete the credentialing 

process. The agency was not required to request passover authority from OPM a second time. 

Uniformed Services Employment and Reemployment Rights Act (USERRA)

Kitlinski v. Department of Justice, 2015 MSPB 60, 123 M.S.P.R. 41 (2015): The appellant filed an appeal 

in which he alleged that, after he drove his personally owned vehicle to the agency’s headquarters to 

attend a deposition in his Equal Employment Opportunity (EEO) complaint, he discovered a 

Blackberry device concealed under the hood of his car. He contended that it was the same 

Blackberry model that the agency used for voice recording and electronic tracking and monitoring. 

In his USERRA appeal, he alleged discrimination, a hostile work environment, and retaliation based 

upon the exercise of his USERRA rights. The administrative judge issued an initial decision 

dismissing the USERRA appeal for lack of jurisdiction. On review, the Board affirmed the initial 

decision as modified, finding that the appellant failed to nonfrivolously allege that the agency’s 

purported conduct involving the Blackberry was based on his military status or that the agency 

subjected him to a hostile work environment in violation of USERRA. 

Retirement

McDaniel v. Office of Personnel Management, 2015 MSPB 61, 123 M.S.P.R. 55 (2015): The appellant’s 

father retired under the Civil Service Retirement System (CSRS) and designated the appellant as the 

sole beneficiary of any lump-sum benefit payable after his death, which occurred 6 months after he 

retired. When he died, he was also the father of a minor child, whose mother was his former spouse. 

OPM issued a reconsideration decision denying the appellant’s death benefits application based on 

her father’s Federal service, finding that a lump-sum payment of retirement contributions is not 
41 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

payable when a former employee has children who are entitled to monthly annuity payments and 

that, in this instance, the minor child is entitled to such payments. The administrative judge affirmed 

OPM’s reconsideration decision, and the Board affirmed the initial decision. The Board explained 

that, although designated beneficiaries come first in the order of precedence for receipt of a lump 

sum under 5 U.S.C. § 8342(c), pursuant to 5 C.F.R. § 831.2003(a), a lump-sum benefit is payable to 

the survivor in the order of precedence described in that provision only if there is no survivor who 

is entitled to monthly survivor annuity benefits on the death of the former employee. That condition 

was not met in this case because the minor child is a survivor who became entitled to monthly 

survivor annuity benefits upon the death of the appellant’s father under 5 U.S.C. § 8341(e)(2). 

Miller v. Office of Personnel Management, 2015 MSPB 63, 123 M.S.P.R. 68 (2015): Following the 

appellant’s mother’s death, OPM erroneously continued to send CSRS annuity payments to the 

appellant’s mother at the assisted living center where she had resided, and the assisted living center 

then sent the payments to the appellant. OPM subsequently informed the appellant that she was 

overpaid in CSRS annuity benefits and that it intended to collect the overpayment. The appellant 

filed a Board appeal of OPM’s reconsideration decision denying her request to waive the collection 

of the overpayment. The administrative judge dismissed the appeal for lack of jurisdiction based on 

OPM’s assertion that it rescinded its reconsideration decision. The Board vacated the initial decision, 

finding that OPM’s rescission of its reconsideration decision did not divest the Board of jurisdiction 

over this matter because the record indicated that OPM did not intend to issue a new 

reconsideration decision. Nonetheless, the Board found that it lacked jurisdiction to consider the 

appellant’s waiver request because she failed to show that she had a right or interest to the annuity 

overpayments under the CSRS. In that regard, the Board noted that the appellant was not a 

designated survivor annuitant and she did not receive any Federal funds directly, as a representative 

of her mother’s estate, or as a third party with rights under the Federal retirement laws. 

Campbell v. Office of Personnel Management, 2016 MSPB 11, 123 M.S.P.R. 240 (2016): The appellant 

challenged OPM’s reconsideration decision, which declined to waive collection of an overpayment 

that resulted when OPM neglected to reduce the appellant’s late husband’s annuity to account for 

his survivor benefit election. While the appeal was pending, OPM indicated that it rescinded its 

decision, and the administrative judge dismissed the appeal for lack of jurisdiction. However, OPM 

did not refund the $1,122.30 it withheld from the late husband’s basic annuity pursuant to the 

exigent collection provisions at 5 C.F.R. § 845.205(d)(1), which allow OPM to commence collection 

proceedings prior to affording administrative review if a delay in collection would “substantially 

prejudice the Government’s ability to collect the debt.” Because it was unclear whether the appellant 

might be entitled to the $1,122.30 or some portion thereof, the Board vacated the initial decision 

and remanded the appeal to determine if the appellant had been restored to the status quo ante. 

Administrative Law Judges

Jennings v. Social Security Administration, 2016 MSPB 31, 123 M.S.P.R. 577 (2016): In an earlier decision 

(Jennings I), the Board found that the agency had good cause to remove the appellant from an 

administrative law judge position on the grounds that he was in active duty and pay status with the 

U.S. Army Reserves while simultaneously being paid by the agency. While that case was pending, the 

agency retroactively placed the appellant on LWOP status for the active-duty period, and notified 

him of his debt for the resulting salary overpayment. The appellant then filed an appeal in which he

alleged that the agency denied him rights and benefits under USERRA, and further argued that his 

retroactive placement in LWOP status amounted to a reduction in pay and a suspension, which the 

agency improperly implemented without first filing a complaint with the Board under 5 U.S.C. 

§ 7121 and proving that there was good cause for such actions. The administrative law judge 
42 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

assigned to the adjudicate this case found that the USERRA claims concerning the previously 

litigated removal action were barred by res judicata, and rejected the appellant’s argument that his 

retroactive placement on LWOP was a reduction in pay or suspension covered by 5 U.S.C. § 7521. 

She granted relief on some but not all of the remaining USERRA claims. On review, the Board 

declined the appellant’s request to reopen Jennings I, and agreed with the administrative law judge 

that the appellant’s USERRA claims concerning his removal were barred by res judicata. However, 

the Board noted that an agency’s retroactive placement of an employee on LWOP without the 

employee’s consent may constitute an appealable suspension, even though such an action may not 

be “disciplinary” in the traditional sense of the word. The Board further observed that, under 

5 C.F.R. § 1201.142, an administrative law judge who alleges that an agency took an action in 

violation of 5 U.S.C. § 7521 may file a complaint with the Board, which will be adjudicated in the 

same manner as agency complaints seeking actions against administrative law judges. Accordingly, 

the Board remanded the case with instructions to address the following questions: (1) whether the 

case involved an action covered by 5 U.S.C. § 7521; and (2) if so, whether there was good cause for 

the action. 

Attorney Fees

Rumsey v. Department of Justice, 2016 MSPB 28, 123 M.S.P.R. 502 (2016). This case highlights the 

differences in analyzing attorney fees cases dealing with whistleblower issues and those decided 

under 5 U.S.C. § 7701. Unlike fees under section 7701, fees under section 1221 in whistleblowing 

cases are payable directly to the appellant and there is no “interest of justice” requirement. While 

one of the appellant’s attorneys agreed to represent the appellant for free, the appellant still 

remained eligible for an award. That the attorney had never before litigated a Board case was 

considered, and the lodestar was adjusted down for the appellant’s limited success (only two of the 

several claims of retaliation made were supported) but the Board, agreeing with the administrative

judge, held that an award of fees for challenging whistleblower retaliation was in the public interest.

Krafsur v. Social Security Administration, 2015 MSPB 55, 122 M.S.P.R. 679 (2015): At issue in this case 

was whether the petitioner, an administrative law judge, was entitled to attorney fees when the Board 

dismissed the agency’s misconduct complaint against him as withdrawn. The Board explained that in 

proceedings involving actions against administrative law judges under 5 U.S.C. § 7521, it may award 

attorney fees pursuant to the Equal Access to Justice Act, which requires a petitioner to demonstrate 

that he is a “prevailing party” to establish entitlement to attorney fees. Under Buckhannon Board & 

Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), an 

appellant is considered to have prevailed only if he obtains an enforceable order resulting in a 

“material alteration of the legal relationship of the parties.” Applying this standard, the Board held 

that the petitioner was not a prevailing party because its final order did not award him any relief on 

the merits or materially alter the parties’ legal relationship, as the order did not prohibit the agency 

from refiling a new complaint based on the same charges. 

Doe v. Pension Benefit Guaranty Corporation, 2015 MSPB 57, 123 M.S.P.R. 1 (2015): Previously, the 

Board reversed the agency’s action placing the appellant on enforced leave but did not order the 

agency to provide the appellant back pay. Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R. 579 

(2012). The appellant subsequently filed a petition for enforcement in which she alleged that the 

agency improperly failed to provide her with back pay for the time she was on enforced leave. The 

administrative judge issued a compliance initial decision finding that the agency was in compliance 

because the Board’s decision did not order the agency to pay the appellant back pay. The Board 

denied the appellant’s petition for review of the compliance initial decision but reopened and 

modified its earlier Opinion and Order in the merits appeal to order the agency to pay the appellant 
43 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

back pay for when she was on enforced leave. The appellant then petitioned for attorney fees 

incurred in connection with the petition for enforcement. The Board held that the appellant was not 

a prevailing party entitling her to an award of attorney fees in the compliance proceeding because 

she did not achieve any degree of relief in that proceeding. The Board further held that, to the extent 

that the appellant secured some degree of relief in persuading the Board to reopen its prior Opinion 

and Order to require the agency to provide back pay, she should seek an award of attorney fees 

from the administrative judge after the Board issued a final decision in the merits phase of 

her appeal. 

Montalvo v. U.S. Postal Service, 2015 MSPB 56, 122 M.S.P.R. 687 (2015): The appellant requested 

attorney fees incurred in connection with a petition for enforcement of a settlement agreement that 

resolved his removal appeal. The agreement provided that the appellant could ask that the agency 

issue retired law enforcement credentials upon his submission of documentation sufficient to 

establish that he was eligible to receive them. The administrative judge found that the agency 

breached the agreement by failing to retain a medical professional who was qualified to assess the 

appellant’s mental capacity to carry a concealed firearm, and he ordered the agency to employ one. 

His finding of noncompliance became final when the agency did not timely file either evidence of 

compliance or a petition for review, and the matter was referred to the Board for processing under 

the enforcement provisions of 5 C.F.R. § 1201.183(c). Subsequently, the agency submitted evidence 

showing that it obtained an assessment of the appellant’s mental status from a forensic psychologist, 

and the Board dismissed the petition for enforcement, finding that the agency complied with the 

administrative judge’s order and thereby cured its breach of the agreement. The appellant then filed 

a request for attorney fees incurred in connection with the compliance proceedings, and the 

administrative judge awarded him attorney fees. The agency filed a petition for review, alleging that 

the appellant was not the prevailing party because an appellant may be deemed a prevailing party 

only if he obtains an enforceable order resulting in a material alteration of the legal relationship of 

the parties. The Board rejected this argument, noting that this standard does not apply to attorney 

fees requests in compliance proceedings, where an appellant may qualify as a prevailing party even in 

the absence of a Board order finding the agency in noncompliance or an agreement settling 

compliance matters. The Board further held that, in any event, the appellant did obtain an order 

finding the agency in noncompliance, which became final when the agency failed to submit evidence 

of compliance or a petition for review by the final date of the initial decision. The Board’s final order 

dismissing the petition for enforcement did not reverse the finding of noncompliance but, rather, 

found that the agency subsequently had cured its breach. 

Board Procedures

Hess v. U.S. Postal Service, 2016 MSPB 5, 123 M.S.P.R. 183 (2016): The appellant filed a removal 

appeal and raised a claim of whistleblower reprisal. After the agency rescinded the removal, the 

administrative judge dismissed both the removal action and the whistleblower reprisal claim as 

moot. On review, the Board found that the administrative judge properly dismissed the removal 

claim as moot because the agency restored the appellant to the status quo ante by rescinding the 

removal and returning her to the nonpay status she occupied before her removal. As for the 

appellant’s whistleblower reprisal affirmative defense, the Board noted that a claim of whistleblower 

reprisal generally is not rendered moot by an agency rescinding the challenged action because of the 

appellant’s entitlement to seek damages and attorney fees. The Board found that this rule did not 

apply here because, as a Postal Service employee, the appellant was not entitled to any award of 

attorney fees or damages for alleged whistleblower reprisal under 5 U.S.C. § 1221. Therefore, the 

Board found, there was no additional relief that the Board could order in connection with the 
44 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

appellant’s claim of whistleblower reprisal should she prevail on the merits of the claim, and the 

administrative judge properly dismissed the appellant’s whistleblower reprisal claim as moot. 

Hau v. Department of Homeland Security, 2016 MSPB 33, 123 M.S.P.R. 620 (2016): In a prior Board 

appeal, the appellant alleged that the agency violated USERRA by creating a hostile work 

environment. During the processing of that appeal, the appellant resigned. The administrative judge 

in that case denied corrective action, finding that the appellant was not subjected to a hostile work 

environment based on his military service. The appellant then filed a second USERRA appeal, in 

which he claimed that his resignation was involuntary because of the same alleged hostile work 

environment. The administrative judge dismissed the appeal as barred by res judicata. On review, the 

Board vacated the initial decision and instead dismissed the appeal for lack of jurisdiction. The 

Board found the appellant’s allegation of a constructive discharge was predicated entirely on the 

previously adjudicated claim that he was subjected to a hostile work environment based on his 

military service, and that he was collaterally estopped from relitigating that issue. Hence, the Board 

lacked jurisdiction over the new appeal, because the appellant could not make even a nonfrivolous 

allegation that the agency denied him retention in employment based on his military service. In 

reaching that conclusion, the Board overruled Boechler v. Department of the Interior, 109 M.S.P.R. 619 

(2008), in which it held that a finding that an appellant failed to prove a claim by preponderant 

evidence did not preclude a finding in a subsequent appeal that he made a nonfrivolous allegation 

sufficient to establish jurisdiction. The Board found that it would defy logic to proceed to the merits 

phase of the case when the appellant was barred from presenting any of his arguments on the 

merits, and that doing so would cause unnecessary costs to the parties, make the Board complicit in 

the vexation of multiple lawsuits, waste the Board’s resources, and potentially lead to 

inconsistent decisions. 

Significant Opinions Issued by the U.S. Courts of Appeals in FY 2016

Cahill v. Merit Systems Protection Board, 821 F.3d 1370 (Fed. Cir. 2016): In Cahill, the Federal Circuit 

reversed a Board decision which dismissed the appellant’s whistleblower appeal for lack of 

jurisdiction. The appellant alleged before the Board that he made whistleblowing disclosures during 

a group meeting with his management, his management team leads, and his project leads but the 

Board dismissed the appellant’s appeal on the basis that his allegation was not sufficiently specific to 

establish that any of the officials involved in personnel actions taken against him knew of his prior 

whistleblowing disclosures. The Federal Circuit found that, based on the facts of the appellant’s 

case, his allegation was sufficiently specific and plausible to constitute a nonfrivolous allegation that 

at least one of the officials charged with retaliating against him attended the group meeting, or knew 

what the appellant disclosed during the meeting. 

Daniels v. Merit Systems Protection Board, 832 F.3d 1049 (9th Cir. 2016): In Daniels, a decision issued by 

the U.S. Court of Appeals for the Ninth Circuit pursuant to the “All-Circuit Review” provision of 

the Whistleblower Protection Enhancement Act of 2012 (WPEA), the Court affirmed the Board’s 

decision, which held that an agency ruling or adjudication, even if erroneous, cannot reasonably be 

construed as the type of wrongdoing specified in 5 U.S.C. § 2302(b)(8)(A). In its decision, the Ninth 

Circuit agreed with a Federal Circuit decision which reached the same result (Meuwissen v. Department 

of the Interior, 234 F.3d 9 (Fed. Cir. 2000)) and found that the passage of the WPEA did not 

supersede Meuwissen in this regard. The Ninth Circuit determined that the WPEA affected only the 

holding from Meuwissen that disclosures of information already known are not protected. 

De Santis v. Merit Systems Protection Board, 826 F.3d 1369 (Fed. Cir. 2016): In 1996, Congress stripped 

Federal Aviation Administration (FAA) employees of all Board appeal rights, but in 2000, it restored 
45 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Board appeal rights for any action that had been appealable to the Board in 1996. In 2013, the FAA 

hired the appellant, but terminated him 1 month later during his probationary period. The appellant 

appealed his termination under regulations applicable to competitive-service positions, but the 

Board dismissed his appeal because his position was in the excepted service. The appellant 

contended that the FAA should have construed his position as what it would have been classified 

in 1996, which was in the competitive service. The Federal Circuit disagreed and affirmed the 

Board’s decision, holding that an FAA employee’s appeal rights are dictated by what rights the 

employee’s current status would have given him in 1996. 

Dean v. Department of Labor, 808 F.3d 497 (Fed. Cir. 2015): In Dean, the Federal Circuit held that the 

Board has jurisdiction to consider violations of 5 U.S.C. §§ 3302(1) and 3308 pursuant to 

section 3330a of VEOA because sections 3302(1) and 3308 are statutes relating to veterans’ 

preference. In so holding, the Federal Circuit affirmed the Board’s implicit finding that 

section 3302(1) is a statute relating to veterans’ preference, but reversed the Board’s explicit finding 

that section 3308 is not a statute relating to veterans’ preference. The court further determined that 

the placement of the “Recent Graduate” Wage and Hour Specialist position into the excepted 

service as part of the Pathways Recent Graduates Program and the program’s minimal education 

requirement of a college degree did not violate the appellant’s veterans’ preference rights under 

either section 3302(1) or section 3308, given that there was ample justification in the record showing 

a rational basis for that educational requirement. The court affirmed the Board’s denial of 

corrective action. 

Einboden v. Department of the Navy, 802 F.3d 1321 (Fed. Cir. 2015): In Einboden, the Federal Circuit 

affirmed the Board’s decision in a furlough appeal. The appellant was a Navy employee whose salary 

was paid out of working capital funds, not appropriations. The agency furloughed the appellant for 

no more than 11 days due to sequestration, and he appealed to the Board, claiming that the agency 

should not have furloughed him because the funding for his position was not subject to 

sequestration. The Board’s decision affirmed the AJ’s decision to sustain the furlough, but then-Vice 

Chairman Wagner dissented, holding that it was reasonable for the Department of Defense to 

consider its budget situation holistically, rather than to isolate each individual department’s situation. 

The Federal Circuit affirmed the Board’s decision, holding that the Navy’s decision to furlough the 

appellant was not shown to be unreasonable, and that the Navy was not obligated to implement 

sequestration in the same manner as other Department of Defense subagencies. 

Hicks v. Merit Systems Protection Board, 819 F.3d 1318 (Fed. Cir. 2016): In Hicks, the Federal Circuit 

held that the section of the WPEA that authorized individual right of action (IRA) appeals based on 

reprisal for activity protected by 5 U.S.C. § 2302(b)(9) did not have retroactive effect. The appellant 

alleged before the Board that the agency removed her in 1990 due to her filing a prior MSPB appeal 

regarding previous discipline. The Board dismissed her appeal for lack of jurisdiction based on a 

finding that in 1990, the Whistleblower Protection Act did not authorize IRA appeals due to reprisal 

for activity protected by 5 U.S.C. § 2302(b)(9), and that the WPEA, which did authorize such 

appeals, did not retroactively apply to events that took place before the effective date of its passage. 

The Federal Circuit agreed, holding that the expansion of IRA appeal rights to include prohibited 

personnel practices under 5 U.S.C. § 2302(b)(9) did not retroactively apply to events taking place 

prior to the WPEA’s effective date. 

Kerrigan v. Merit Systems Protection Board, 833 F.3d 1349 (Fed. Cir. 2016): In Kerrigan, the Federal 

Circuit held that 5 U.S.C. § 8128(b) does not bar the Board from reviewing the Department of 

Labor’s (DOL) Office of Workers’ Compensation Benefit determinations in whistleblowing appeals. 

The appellant appealed the DOL’s termination of his workers’ compensation benefits, alleging that 
46 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

the DOL terminated those benefits in retaliation for his protected whistleblowing disclosures. The 

Board found that it lacked jurisdiction over the appeal because 5 U.S.C. § 8128(b) vests with the 

DOL exclusive jurisdiction over reviewing workers’ compensation benefit determinations. The 

Board also stated that the appellant failed to nonfrivolously allege that his protected whistleblowing 

disclosures were a contributing factor in the DOL’s decision to terminate his benefits. The Federal 

Circuit agreed that the appellant failed to make a nonfrivolous allegation that his protected 

whistleblowing disclosures were a contributing factor to the DOL’s decision and affirmed the 

Board’s dismissal on this basis, but found that 5 U.S.C. § 8128(b) did not bar the Board’s review of 

the termination of the appellant’s workers’ compensation benefits. 

Lal v. Merit Systems Protection Board, 821 F.3d 1376 (Fed. Cir. 2016): In Lal, the Federal Circuit 

reversed the Board’s decision dismissing for lack of jurisdiction the appellant’s appeal. The appellant 

was hired under 42 U.S.C. § 209(f), which provides that appointments under the section can be

made without regard to the civil service laws. The Board held that this section meant that the 

appellant lacked the right to appeal in the event that she was removed from the position, but the 

Federal Circuit disagreed. The court held that, while the section placed the appellant in the excepted 

service, it did not exempt her from being covered by the Civil Service Due Process Amendments of 

1990, which provided appeal rights to certain excepted-service employees. 

McCarthy v. Merit Systems Protection Board, 809 F.3d 1365 (Fed. Cir. 2016): In McCarthy, the Federal 

Circuit affirmed the Board’s denial of the petitioner’s motion to reopen his Board appeal. While the 

petitioner’s appeal of his Board decision in a whistleblowing case was pending before the Federal 

Circuit, the WPEA became effective. The petitioner contended that, prior to the enactment of the 

WPEA, four disclosures he made in 2009 would not have been considered as protected disclosures, 

but under the WPEA, they would. As a result, the petitioner requested that the Board reopen his 

appeal so that the additional four disclosures could be considered in the context of his appeal. The 

Clerk of the Board denied the petitioner’s request in a letter, and he appealed this denial to the 

Federal Circuit. The court held that, due to the intervening change in governing law, the court could 

review the Board’s denial of the petitioner’s request to reopen his appeal, but the court still affirmed 

the Board’s denial of his request because he did not first exhaust his administrative remedies with 

the Office of Special Counsel concerning the four disclosures. 

Perry v. Merit Systems Protection Board, 829 F.3d 760 (D.C. Cir. 2016): In Perry, the Board initially 

dismissed the appellant’s appeal for lack of jurisdiction, and the petitioner appealed the decision to 

the D.C. Circuit. The Board then requested that the matter be transferred to the Federal Circuit, 

because the D.C. Circuit did not have jurisdiction over the petitioner’s appeal under the WPEA.

The petitioner responded by arguing that because his initial Board appeal alleged discrimination, his 

case actually should be transferred to District Court pursuant to Kloeckner v. Solis, 568 U.S. _, 133 S. 

Ct. 596 (2012), in which the Supreme Court held that Federal employees challenging an agency 

action appealable to MSPB who claim the action was discriminatory should seek review in district 

court, rather than with the Federal Circuit, regardless of whether the MSPB decided the case on 

procedural grounds or on the merits. The D.C. Circuit agreed with the Board, finding that because 

the Board dismissed the petitioner’s appeal for lack of jurisdiction, Kloeckner did not apply, and the 

petitioner’s appeal must be heard by the Federal Circuit. 

Rainey v. Merit Systems Protection Board, 824 F.3d 1359 (Fed. Cir. 2016): In Rainey, the Federal Circuit 

affirmed a Board decision dismissing for lack of jurisdiction the appellant’s appeal alleging that the 

Department of State retaliated against him for his refusal to obey an order. The appellant alleged 

that he did not obey the order because it would have forced him to violate a regulation, but the 

Board held that the right to disobey a provision of the Whistleblower Protection Act, located at 
47 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

5 U.S.C. § 2302(b)(9)(D), only protected employees who refused to obey an order that would require 

them to violate a law, and did not similarly cover violations of rules or regulations. The Federal 

Circuit agreed with the Board, finding that the term “law” in section 2302(b)(9)(D) refers only to 

statutes, and not to rules or regulations. 

Rosario-Fabregas v. Merit Systems Protection Board, 833 F.3d 1342 (Fed. Cir. 2016): In Rosario-Fabregas, 

the Federal Circuit affirmed the Board’s decision establishing a new test to determine whether an 

employee has been constructively suspended. The appellant alleged in a Board appeal that he was 

constructively suspended because the agency would not allow him to return to work until he 

provided sufficient medical documentation. The Board found that, to establish that he was 

constructively suspended, the appellant needed to show that his absence was involuntary by proving 

that: (1) he lacked a meaningful choice in the matter; and (2) the agency’s wrongful action deprived

him of the meaningful choice. The Board further found that the agency’s refusal to not allow the 

appellant to return to work without proper medical documentation was not wrongful, and thus 

dismissed the appeal for lack of jurisdiction. The court agreed with the Board’s holding on both the 

new test and the application of the test and affirmed the decision.
48 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

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49 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

SUMMARY OF MERIT SYSTEMS STUDIES ACTIVITY IN FY 2016

In addition to adjudicating appeals, MSPB is charged with conducting studies of the civil service 

and merit systems. MSPB’s high-quality, objective merit systems studies provide value by assessing 

current management policies and practices, identifying innovative and effective merit-based 

management policies and practices, and making recommendations for improvements. These 

factors also help reduce the occurrence and costs of PPPs that negatively affect agency and 

employee performance. Overall, this benefits American taxpayers in terms of decreased 

Governmentwide costs and increased confidence that the Government is doing its job and 

appropriately managing the workforce.

MSPB research was cited in a wide range of online and print publications. Notably, MSPB’s merit 

systems studies reports were cited in a number of policy-making sources. The MSPB report on fair 

and open competition was cited in the GAO report regarding the need for OPM to improve 

oversight of hiring authorities on Federal hiring. MSPB’s reports on improving first level supervision

and employee engagement were cited in a GAO report on lessons learned for engaging Millennials 

and other age groups. In Congressional testimony on the floor of the House, Representative Tammy 

Duckworth cited MSPB’s report on sexual orientation in the workplace in support of H.R. 4668.

The MSPB report on veterans’ hiring was cited in Senate Report 114-25 in support of reinstating the 

rule prohibiting the appointment of a military member to a civilian position within 180 days of their 

retirement from the military.

During FY 2016, MSPB merit systems studies’ staff conducted 21 outreach events with Federal 

employees, supervisors and managers, agency representatives and attorneys, and international 

visitors regarding Federal merit systems, the statutory roles of MSPB, and issues, findings, and 

recommendations from merit system studies and OPM oversight. For example, studies’ staff 

members were invited to present on employee engagement at the Potomac Forum, as well as OPM’s 

Engagement webinar. MSPB studies’ staff members were invited to educate the Chief Human 

Capital Officer (CHCO) Council on the merit system principles and the Federal Asian Pacific 

American Council (FAPAC) on fair and equitable treatment. Federal News Radio aired several 

interviews with MSPB studies’ staff regarding recently released reports including employee 

engagement, and SES training. 

In FY 2016, MSPB published three merit systems study reports:

 The Merit System Principles: Guiding the Fair and Effective Management of the Federal Workforce

 Preventing Nepotism in the Federal Civil Service

 Training & Development for the Senior Executive Service: A Necessary Investment

In FY 2016, MSPB published other products, including:

 Issues of Merit (IoM) newsletters – Newsletters inform Federal leaders, employees, and 

stakeholders about merit systems and Federal management issues and practices through 

articles that discuss current MSPB research and reports, noteworthy agency practices, and 

Federal HR policies and initiatives.

 Noteworthy – These articles on selected merit systems or workforce management topics are 

posted on the MSPB website at a time or in a format the IoM does not readily 

accommodate. Topics included indefinite suspensions and performance management. 
50 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

 Research Highlights – These are one-page summaries of published MSPB studies. Several 

Research Highlights also have been compiled into a “catalog” of MSPB studies.

Summaries of Reports Released in FY 2016

 The Merit System Principles: Guiding the Fair and Effective Management of the Federal Workforce

(September 2016) discusses how well Federal agencies are perceived to be supporting the 

merit system principles (MSPs) and evaluates agency efforts to educate leaders, supervisors, 

and employees about the MSPs and how to implement them. MSPB found many employees, 

at all levels, lack knowledge about how to adhere to the MSPs and avoid prohibited 

personnel practices (PPPs). That knowledge gap is, at least in part, the consequence of 

inadequate education. In an MSPB survey of agencies, 20 percent of respondents said that 

nonsupervisory employees and political appointees receive no systematic training on the 

MSPs. Accordingly, the report recommends steps to improve MSP education and adherence 

and provides guidance to promote greater understanding of the MSPs. (All MSPs and PPPs)

 Preventing Nepotism in the Federal Civil Service (June 2016) explains the prohibitions against 

nepotism in the Federal civil service and steps that agencies and employees can take to 

protect the service from nepotism. The prohibitions have distinct origins (criminal statute, 

civil service statute, and regulations governing ethical conduct) and address different, but

often overlapping, behaviors. Nevertheless, the measures to avoid impropriety are shared in 

common: (1) consult with the agency’s ethics advisor; (2) disclose any potential conflict of 

interest; and (3) seek permission for recusal from an employment matter involving a relative 

or person in a covered relationship. (Related MSPs: 1, 2, 4, and 8; PPPs: 6, 7, and 10.)

 Training & Development for the Senior Executive Service: A Necessary Investment (December 2015), 

also summarized in the FY 2015 Annual Report, examines current practices on how career 

senior executives—who manage major programs and organizations and provide continuity 

during Presidential transitions—are trained and developed. Unfortunately, the review 

indicates that the “systematic development” envisioned in the Civil Service Reform Act of 

1978 is more vision than reality. To that end, the report contains information to help 

agencies determine a development strategy that aligns with agency goals and resources and 

effectively addresses executive’s training needs. In addition, the report discusses common 

barriers to SES training and offers strategies to mitigate them. (Related MSPs: 4, 5, and 7.)

FY 2016 Noteworthy Articles

MSPB also issued, in electronic form, two shorter documents on topical issues:

 Indefinite Suspensions and Potentially Criminal Behavior: Using Reasonable Cause to Act (May 

2016)summarizes agency authority and relevant case law for instances when an employee 

appears to have engaged in serious criminal conduct. One purpose of this article was to 

inform current debate over adverse action procedures and protections by educating Federal 

administrators and policymakers on existing agency authority to address such conduct in a 

manner that both protects the public interest and comports with an employee’s statutory and 

Constitutional rights. (Related MSPs: 2, 4, and 5.)
51 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

 Performance Management Is More than an Appraisal (December 2015) draws the important but 

often-overlooked distinction between a formal performance appraisal (which is required, on 

an annual basis, for almost all career Federal employees) and performance management, which 

includes supporting and improving employee performance. One purpose of this publication 

is to remind Federal agencies and policymakers that necessary efforts to address poor 

performance should not come at the expense of supporting good employees who perform 

well. Accordingly, this publication outlines activities, such as providing constructive and 

future-oriented performance feedback, that are valuable regardless of statutory requirements 

or the structure of the formal appraisal system. 

FY 2016 Issues of Merit Newsletter Topics

MSPB published three editions of the IoM. Newsletter articles covered topical issues, such as a 

discussion of the role of the USAJobs job posting system in Federal hiring and perennial concerns

about proper understanding and use of the probationary period. The newsletter also addressed a 

wide range of stakeholders in Federal human capital management. For example, one article outlined 

high-level concerns about how to effectively formulate and implement HR policy in a decentralized 

Federal Government, while another provided practitioner-oriented guidance on the appropriate use 

of screen-out elements (“selective factors”) in an employment examination.

2016 Merit Principles Survey (MPS)

MSPB administered the MPS in July 2016 to over 120,000 Federal employees in 24 agencies. The 

web-based survey was compliant with all IT and information security requirements. MSPB sought to 

obtain perceptions and experiences regarding the health of merit in the workplace, occurrence of 

PPPs, and other topics in support of MSPB’s studies program. The 2016 MPS covered various topics 

including recruitment, human resource (HR) services, employee engagement, fair treatment and 

nondiscrimination, retention, sexual and non-sexual harassment, and addressing poor performance. 
52 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

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53 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

SIGNIFICANT ACTIONS OF THE U.S. OFFICE OF PERSONNEL MANAGEMENT 

IN FY 2016

As required by statute,6 MSPB reviews and reports on the significant actions of OPM, including an 

analysis of whether those actions are in accord with MSPs7and free from PPPs.8 OPM’s actions 

broadly affect the Federal workforce, multiple Federal agencies, and applicants for Federal jobs. 

Almost all of OPM’s actions have the potential to impact the effectiveness and efficiency of the 

Federal workforce (MSP 5) and/or fair and equitable treatment in a variety of contexts (MSP 2). A 

particular OPM action, depending on its nature, has the potential to affect or involve other specific 

MSPs. Those specific MSPs are noted in the “Significance” section of the action, when appropriate. 

In addition to tracking OPM’s actions in FY 2016, we also requested and received input from OPM 

on the status of selected significant actions.9 

Factors Affecting the U.S. Office of Personnel Management

This review should be read in the context of issues and developments that directly affect OPM and 

can indirectly affect the nature and scope of the OPM policy initiatives that are the primary focus of 

MSPB’s review. 

OPM Leadership. As OPM tries to find long-term solutions to Federal HR challenges, it did so in 

FY 2016 without a confirmed Director or Deputy Director. Since July 2015, OPM has been led by 

Acting Director Beth F. Cobert, following the resignation of Katherine Archuleta. Ms. Cobert was 

nominated, but not confirmed, as the permanent OPM Director. In a February 2016 memorandum, 

the OPM Inspector General stated that Acting Director Cobert was prohibited from serving in that 

capacity as of the date the President nominated her to serve as the permanent Director because she 

had not been serving as a “first assistant” at OPM, based on a ruling by the D.C. Circuit in SW 

General, Inc. v. National Labor Relations Board regarding the Federal Vacancies Reform Act.10 The 

Inspector General also indicated that the actions Acting Director Cobert had taken during that 

timeframe were invalid.11 OPM has not had a Deputy Director since 2011. 

As OPM continued to respond to the data breaches that were disclosed in 2015, it did so without a 

permanent Chief Information Officer for much of FY 2016. The CIO who was in place during the 

data breach retired in February 2016 and a new CIO was named in August 2016.

National Background Investigation Bureau (NBIB). On October 1, 2016 the NBIB was 

established as the primary service provider of background investigations for the Federal 

Government, and replaced OPM’s Federal Investigative Service (FIS). Last year, in light of the 

breach of the systems where background investigations data were stored, the Administration 

initiated a 90-Day Suitability and Security review. This review was to re-examine reforms to the 

Federal background investigations process, assess additional enhancements to further secure 

 

6 5 U.S.C. § 1206.

7 5 U.S.C. § 2301.

8 5 U.S.C. § 2302.

9 This analysis is not a comprehensive digest of OPM activities, as OPM has many programs and responsibilities that do not directly affect MSPs and 

PPPs. Also, this summary does not discuss in detail every OPM significant action that was underway or completed in FY 2016. Instead, it should be

read in conjunction with previous MSPB reports of OPM’s significant actions. If we previously commented on a significant action in progress that 

was completed in FY 2016 we will not repeat those comments here. Also, where we have commented on operational OPM programs in the past, and 

no significant changes have been made to those programs, our previous comments remain applicable.

10 796 F.3d 67, 74 (D.C. Cir. 2015), reh’g & reh’g en banc denied (Jan. 20, 2016).

11 Patrick E. McFarland memorandum for Beth F. Cobert, “Violation of the Federal Vacancies Reform Act,” February 10, 2016. The U.S. Supreme 

Court has agreed to hear an appeal of a lower court ruling that was the basis of the OPM Inspector General’s memorandum (Greg Stohr, “President’s 

Temporary Appointments Get Top U.S. Court Review,” Bloomberg.com, June 20, 2016).
54 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

information networks and systems, and determine improvements that could be made to the way the 

Government conducts background investigations for suitability, security, and credentialing. 

Following the review, the Administration announced a series of actions to modernize and strengthen 

the way the Federal Government conducts background investigations for Federal employees, 

members of the Armed services, and contractors, and to protect sensitive data. These changes 

included the establishment of NBIB. Unlike with FIS, the Department of Defense will assume the 

responsibility for the design, development, security, and operation of the background investigations 

IT systems for NBIB.12

Evolution of OPM Structure and Finances. As we noted in our FY 2011 review of OPM 

significant actions,13 the Federal civil service has become much more complex over the past three to 

four decades. Authorities and flexibilities available under Title 5 of the United States Code have 

proliferated, as have modifications and alternatives to the Title 5 framework. Yet the employees who 

work in what are often regarded as OPM’s core functions, such as HR policy and agency oversight, 

account for a diminishing portion of OPM’s staff and resources.

Two OPM Program Divisions set HR policy and provide agency oversight,14 including: (1) offering 

policy direction and leadership in designing, developing, and implementing Governmentwide HR

systems and programs for recruitment, pay, leave, performance management and recognition, 

employee development, work/life/wellness programs, and labor and employee relations; (2) 

providing technical support to agencies for the full range of HR management policies and practices, 

including veterans’ employment; (3) evaluating agencies’ HR programs; (4) ensuring Federal agency 

HR programs are effective and meet merit system principles and related civil service requirements; 

and (5) working directly with Federal agencies to improve or change agency programs that are not in 

compliance with Federal HR policies and regulations.

Approximately 20 percent (about $55 million) of OPM's FY 2017 discretionary budget request 

pertains to these two Program Divisions.15 OPM’s 2017 request of full-time employee equivalents 

(FTE) for these two Program Divisions is a reduction of what was enacted in 2012 by approximately 

16 percent, while OPM’s total FTE increased over the same timeframe by approximately 9 percent.16

OPM’s largest source of funding is the $1.7 billion17 Revolving Fund which is comprised of fees paid 

by agencies to OPM for services OPM provides. These services include background investigations, 

HR services, and related tools and technologies such as USAJobs.18 

Other OPM mission areas are as varied as providing Federal observers to monitor the election 

process in areas designated by the U.S. Attorney General under the Voting Rights Act of 1965 (as 

amended),19 implementing and overseeing the Multi-State Plan Program which was established 

under the Patient Protection and Affordable Care Act,20 and administering the Civil Service 

Retirement System and the Federal Employee Retirement System serving 2.5 million Federal retirees 

and survivors who receive monthly annuity payments.21

 

12 U.S. Office of Personnel Management, Congressional Budget Justification Fiscal Year 2017, February 2016, p. 233.

13 U.S. Merit Systems Protection Board, Annual Report for FY 2011, April 30, 2012, p. 45.

14 These two Program Divisions are Employee Services and Merit System Accountability and Compliance.

15 U.S. Office of Personnel Management, Congressional Budget Justification Fiscal Year 2017, February 2016, pp. 14-15.

16 See OPM Congressional Budget Justifications for FY 2013 and FY 2017 showing a 2012 FTE enactment of 425.6 for these two Program Divisions 

and 5,672.6 for OPM and a 2017 FTE request of 357.9 for these two Program Divisions and 6,191.7 for OPM.

17 U.S. Office of Personnel Management, Congressional Budget Justification Fiscal Year 2017, February 2016, p. 6.

18 U.S. Office of Personnel Management, Congressional Budget Justification Fiscal Year 2017, February 2016, p. 5.

19 OPM Program Divisions – Merit System Accountability and Compliance.

20 OPM Program Divisions – Healthcare and Insurance.

21 OPM Program Divisions – Retirement Services.
55 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Stakeholders should recognize that attention within the Federal human capital arena often focuses 

on OPM’s HR policy and leadership—matters such as hiring reform, employee pay and benefits, 

and performance management and recognition—but that the balance of OPM’s resources are 

concentrated in other areas.

New Significant Actions of the U.S. Office of Personnel Management

Guidance on the Placement of Political Appointees in the Career Service During the 2016 Presidential Election 

Period

In January 2016, Acting Director Cobert sent a memorandum to heads of executive agencies and 

departments reminding them that during this Presidential election year they need to ensure that all 

personnel actions remain free of political influence and that actions comply with all relevant civil 

service laws, rules, and regulations. Agencies must seek prior approval from OPM of all competitive 

and nonpolitical excepted service appointments that involve the appointment or conversion of a 

current or former political appointee, Schedule C employee, or noncareer SES member.22 

OPM noted that the two most common reasons for denying agency requests have been when the 

career job appeared to have been created or tailored solely for the benefit of the current or former 

political appointee, or when competition for the career job was limited inappropriately.23

As a result of the March 2016 enactment of Public Law 114-136, the Edward “Ted” Kaufman and 

Michael Leavitt Presidential Transitions Improvements Act, Acting Director Cobert issued a second 

memorandum on August 11, 2016, regarding political appointees and career civil service positions. 

Public Law 114-136 requires OPM to provide information about the decisions it issues regarding 

agency requests to appoint current and recent political appointees to covered civil service positions. 

It also expands OPM’s pre-appointment review coverage and adds new data reporting requirements. 

The August memorandum outlined revised procedures necessary to comply with these new 

requirements.24

Significance

As guarding against undue political influence in the career civil service is a foundational value of the 

Federal merit systems, ensuring that personnel actions are made without regard to political affiliation 

relates to a number of MSPs. For instance, MSPs 1 and 8 require, respectively, that selection be 

based on relative ability, knowledge and skill; and that employees be protected against coercion for 

partisan political purposes. 

Although the number of political appointees that agencies convert to career positions appears to be 

relatively small, OPM’s efforts in this area remain vital to ensuring that appointments and other 

personnel actions are made without regard to political affiliation or other nonmerit factors. In June 

2010, the Government Accountability Office (GAO) released a review of the conversions of 

employees from political to career positions during the period from May 2005 to May 2009.25

 

22 Beth F. Cobert memorandum for Heads of Executive Departments and Agencies, “Appointments and Awards During the 2016 Presidential 

Election Period,” January 11, 2016.

23 Beth F. Cobert memorandum for Heads of Executive Departments and Agencies, “Appointments and Awards During the 2016 Presidential 

Election Period,” Attachment 1, January 11, 2016.

24 Beth F. Cobert memorandum for Heads of Executive Departments and Agencies, “Political Appointees and Career Civil Service Positions,” August 

11, 2016. 

25 U.S. Government Accountability Office, “Conversions of Employees from Political to Career Positions, May 2005 – May 2009,” GAO-10-688, 

June 2010.
56 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

During that four-year period, GAO found that the 42 departments it reviewed converted 139 

individuals from political to career positions. GAO recommended that OPM review only 5 of the 

117 conversions that were made at the GS-12 level or higher. In these five cases, GAO noted that 

agencies may not have adhered to MSPs, followed proper procedures, or may have engaged in PPPs

or other improprieties. 

A September 2016 GAO report detailed its review of political conversions to career positions for 

the period January 1, 2010 to October 1, 2015. GAO reviewed 30 agencies and found that 69 

individuals had been converted from political appointments to career positions during this 

timeframe. Agencies implemented 17 of these conversions without receiving prior approval from 

OPM as required by OPM policy. OPM completed post-appointment reviews of 13 of these 17 

conversions—approving 9 and denying 4. Of the four conversions that were not reviewed, OPM or 

the agency determined that the review was not needed in three cases because the individual was no 

longer in the career position. A review of the fourth case was ongoing.26

Strengthening the Senior Executive Service (SES)

In December 2015, President Obama issued Executive Order 13714, “Strengthening the Senior 

Executive Service,” to strengthen the recruitment, hiring, and development of the Federal 

Government’s senior executives. In addition to establishing the Subcommittee to Strengthen the 

Senior Executive Service under the President’s Management Council, the executive order outlined a 

number of requirements, including:

 Increasing the aggregate spending on agency executive awards to 7.5 percent of aggregate

agency executive salaries in fiscal year 2017 from the current 4.8 percent. 

 Setting the pay of executives who supervise General Schedule (GS) employees to result in 

executive compensation exceeding the rates of pay of the subordinate GS employees.

 Tasking OPM to review the current Qualifications Review Board (QRB) process to 

determine alternatives to the lengthy essay requirement for application to executive 

positions, and to advise agencies about ways to streamline their initial application

requirements to SES positions.

 Requiring agency heads to change the way they hire SES members based on the outcome of 

OPM’s review and guidance it issues.

 Increasing the number of members of the SES who rotate to ensure the mobility of the 

corps while improving talent development, mission delivery, and collaboration.

During FY 2016, OPM undertook a number of actions to implement Executive Order 13714, 

including:

 Rotations. Issuing guidance to implement the executive rotations requirement of the 

executive order. OPM’s guidance, which outlines the scope of the various requirements for 

agency executive rotation plans, is an initial step in assisting agency compliance with the 

executive order. In addition, OPM will provide agencies continuing support through 

forums, development of technology to support the agency talent and succession 

management requirement, and other tools and resources.27 OPM plans to coordinate a 

 

26 U.S. Government Accountability Office, “Actions are Needed to Help Ensure the Completeness of Political Conversion Data and Adherence to 

Policy,” GAO-16-859, September 2016.

27 Beth F. Cobert memorandum for Heads of Executive Departments and Agencies, “Executive Order Guidance—Strengthening the Senior Executive 

Service: Implementing the Executive Rotations Requirement,” January 29, 2016.
57 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

pilot program in fiscal year 2017 among various agencies to facilitate interagency SES 

rotations.28

 Onboarding. Issuing guidance regarding the executive onboarding requirement of the 

executive order that agencies shall implement for all executive positions. The guidance 

outlines the requirements and flexible framework that will guide agencies in providing the 

critical support to executives throughout their first year of service in new positions.29 In 

FY 2017, OPM plans to conduct a baseline survey to assess current and future SES 

onboarding programs and to inform hiring, development, and management of SES 

personnel. The survey will be initially administered to SES members who onboarded 

within the past 2 years to establish baseline data.30

 Hiring Process. Completing an evaluation of the QRB process and issuing guidance on 

materials acceptable for QRB consideration, including those that will provide an alternative to 

the traditional Executive Core Qualifications narrative statement commonly used by agencies 

for QRB submissions. This guidance also provides information to agencies on streamlining 

their initial hiring processes and highlights a number of valuable opportunities for training, 

partnering, and piloting of additional assessments. OPM plans to design and test additional 

innovations to improve the SES hiring process and the QRB process. These innovations will 

include developing enhanced leadership assessment methods and alternative methods of 

documenting executive qualifications during the agency hiring process, and enabling the 

selection of SES members without the traditional heavy reliance on written materials.31 

 FAQs. Issuing answers to frequently asked questions (FAQs) regarding the executive order. 

The FAQ guidance will help answer questions that managers, HR staff, and executives may 

have about implementing the executive order as well as with previous OPM guidance 

implementing the executive order.32

Significance

The importance of the SES to overall Federal operations cannot be overstated. The SES was 

established with the passage of the Civil Service Reform Act (CSRA) of 1978. The CSRA envisioned 

the SES as a corps of executives who would possess a broad Government perspective and would be 

capable of serving in multiple leadership positions across Government agencies. The purpose of the 

SES was “to ensure that the executive management of the Government of the United States is 

responsive to the needs, policies, and goals of the Nation and otherwise is of the highest quality.”33

The decisions made by members of the SES can have broad implications. Approximately one-third 

of career senior executives manage more than 200 employees or are responsible for budgets that 

exceed $100 million.34

As of September 2015, more than 70 percent of the current members of the SES were eligible for 

immediate retirement, with an additional 15 percent projected to become retirement-eligible in the 

next 5 years.35 Given this high rate of possible retirements, improving the SES is an important 

 

28 Based on an August 31, 2016 update from OPM requested by MSPB for this review of OPM significant actions.

29 Beth F. Cobert memorandum for Heads of Executive Departments and Agencies, “Executive Order Guidance—Strengthening the Senior Executive 

Service: Implementing the Executive Onboarding Requirement,” February 12, 2016.

30 Based on an August 31, 2016 update from OPM requested by MSPB for this review of OPM significant actions.

31 Beth F. Cobert memorandum for Heads of Executive Departments and Agencies, “Executive Order—Strengthening the Senior Executive Service: 

Guidance on Qualifications Review Board Submission Methods,” March 11, 2016.

32 Beth F. Cobert memorandum for Heads of Executive Departments and Agencies, “Answers to Frequently Asked Questions Regarding the 

Executive Order to Strengthen the Senior Executive Service,” June 28, 2016.

33 5 U.S.C. § 3131.

34 U.S. Merit Systems Protection Board, Training and Development for the Senior Executive Service: A Necessary Investment, December 2015, pp. 6-7.

35 MSPB analysis of data from OPM’s Central Personnel Data File, for members of the career and noncareer SES serving under continuing 

appointments.
58 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

endeavor for at least two reasons—it provides a unique opportunity to shape the future of SES 

membership and framework and it will hopefully entice some current valued members of the SES to 

stay with the Federal Government as they see these efforts come to fruition.

Previous MSPB research has found that development activities like the rotational assignments 

outlined by the OPM guidance may improve an employee’s level of engagement36 and may provide 

executives the opportunities to improve competencies where improvement is needed or to build 

upon existing strengths.37 Similarly, robust onboarding programs can foster higher levels of 

employee engagement from an employee’s first day on the job.38 In addition, a sizeable portion (30 

percent) of career senior executives report that their development needs are not being met.39 The 

executive training requirements included as part of OPM’s Executive Onboarding Program 

Framework can help fill these executive training needs. 

Streamlining the executive hiring process and making it easier for applicants to apply is certainly a 

worthy goal. It is vital, however, that OPM ensure that any new application procedures and 

executive assessments result in highly qualified individuals being referred to the QRB for 

consideration. OPM’s ongoing efforts to reform and modernize the SES indirectly relate to all the 

MSPs given the responsibility of the SES for leading employees and making personnel decisions. 

In addition to strengthening the SES through a focus on hiring and development as required by 

Executive Order 13714, there appear to be other areas where OPM could help agencies strengthen 

their corps of executives. For instance, results from the latest SES exit survey show that agency work 

environment and organization culture present persistent challenges to a more effective SES. Results 

from the exit survey include the following insights:

 Executives exhibited less pride in their agencies and for the SES than in previous iterations 

of the survey;

 Almost three-quarters (72 percent) of executives who were leaving indicated their agencies 

made no effort to encourage them to stay; and

 When asked the extent to which a variety of reasons contributed to their leaving the agency, 

issues with the work environment (e.g., senior leadership, political environment, 

organizational culture) contributed the most to the decision.40

OPM notes in the survey report that agencies may have the power to influence whether highperforming SES members ultimately choose to leave the agency. OPM should consider ways it can 

help agencies accomplish this goal.

Closing Mission-Critical Skills Gaps

During FY 2016, OPM continued its efforts to assist agencies in closing mission critical skills gaps. 

In partnership with the CHCO Council, OPM revalidated the need to continue working to close 

skills gaps in the following Governmentwide high-risk mission critical occupations: Economist; HR 

Specialist; Auditor; Acquisition; Cybersecurity; and the Science, Technology, Engineering, 

 

36 U.S. Merit Systems Protection Board, The Power of Federal Employee Engagement, September 2008, p. 41.

37 U.S. Merit Systems Protection Board, Training and Development for the Senior Executive Service: A Necessary Investment, December 2015, p. 37.

38 U.S. Merit Systems Protection Board, The Power of Federal Employee Engagement, September 2008, p. 41.

39 U.S. Merit Systems Protection Board, Training and Development for the Senior Executive Service: A Necessary Investment, December 2015, pp. 57-59.

40 Beth F. Cobert memorandum for Chief Human Capital Officers and HR Directors, “Release of the 2016 Governmentwide SES Exit Survey 

Report,” June 15, 2016, Attachment p. 1. Survey results covered the period from August 2014 through July 2015.
59 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

Mathematics (STEM) functional areas. An Occupational Leader representing each Governmentwide 

mission critical occupation has partnered with a CHCO to develop a strategy to address the root 

causes for why an occupation has been deemed at risk. In addition, each CHCO has identified their 

agency-specific mission critical occupations that they will address for skills gap closure.41 

OPM provided training to a number of agencies on how to conduct a root cause analysis, link 

strategies to address root causes, develop an action plan, and develop outcome-oriented metrics. 

Agency action plans require agencies to identify which root causes they will be focusing on as well as 

milestones and metrics.42

Significance

GAO maintains an ongoing program to focus attention on Government operations that are high 

risk due to their greater vulnerabilities to fraud, waste, abuse, and mismanagement or that are in 

need of transformation to address economy, efficiency, or effectiveness challenges.43 In 2001, GAO 

added strategic human capital management to its high-risk list due to a number of shortcomings at 

multiple agencies involving key elements of modern human capital management.44 In 2011, GAO 

narrowed the scope of the human capital management high-risk area to focus on the most 

significant challenges that remain in closing agencies’ current and emerging critical skills gaps to 

effectively and efficiently fulfill their missions.45

GAO has noted that an agency’s skills gap can manifest itself in at least two ways—a staffing gap in 

which an agency has an insufficient number of individuals to complete its work or a competency gap 

in which an agency does not have individuals with the proper skills or abilities to successfully 

accomplish the work.46 GAO identified a number of factors related to human capital that threaten 

the performance of Federal agencies and the closing of critical skills gaps including: a potential wave 

of employee retirements, current budget and long-term fiscal pressures, declining levels of employee 

satisfaction, and the changing nature of Federal work, which requires advanced degrees and other 

skills in many positions.47

As OPM works with agencies to develop strategies to close these skills gaps, it should pay careful 

attention to which of those skills are trainable and which need expanded recruitment efforts. In 

working to close agency skills gaps, agency leaders should keep in mind that previous MSPB 

research found that some competencies needed by Federal employees may be more responsive to 

training than others. Our research indicates that knowledge competencies are highly trainable; 

language, social, and reasoning competencies are moderately trainable; and motivation and mental 

style competencies are less trainable. Due to misperceptions about the trainability of various 

competencies, employees may avoid training that would help them or seek training that might prove 

to be frustrating and unsuccessful.48 Agency leaders should develop strategies to close agency skills 

gaps only after determining the extent to which skills gaps in their agencies can be closed by 

training/retraining current employees or which can only be closed by hiring new employees who 

already possess the necessary skills. 

 

41 Beth F. Cobert memorandum for Chief Human Capital Officers, “Closing Skills Gaps: Strategy, Reporting and Monitoring,” April 15, 2016.

42 Based on an August 31, 2016 update from OPM requested by MSPB for this review of OPM significant actions.

43 U.S. Government Accountability Office, “High-Risk Series An Update,” GAO-15-290, February 2015, p. 1.

44 U.S. Government Accountability Office, “High-Risk Series An Update,” GAO-01-263, January 2001, p. 18.

45 U.S. Government Accountability Office, “High-Risk Series An Update,” GAO-11-278, February 2011, p. 22.

46 U.S. Government Accountability Office, “OPM and Agencies Need to Strengthen Efforts to Identify and Close Mission-Critical Skills Gaps,” 

GAO-15-223, January 2015, pp. 1-2.

47 Id., p. 7.

48 U.S. Merit Systems Protection Board, Making the Right Connections—Targeting the Best Competencies for Training, February 2011, pp. i-ii.
60 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

OPM’s effort to assist agencies close mission-critical skills gaps relates to the MSPs regarding 

recruitment of employees (MSP 1), retention of employees (MSP 6), and training employees (MSP 7).

OPM Significant Actions Discussed in Previous MSPB Annual Reports

This section lists selected OPM significant actions discussed in previous MSPB Annual Reports that 

were completed or remained underway in FY 2016. This year’s report does not discuss these actions 

in detail because further action or results are pending or the intent and significance of the final 

action is essentially unchanged from the (previously reviewed) proposed action. The table below lists 

the action, its current status, and the previous MSPB Annual Report which discussed the action. 

OPM Action 2016 Status Year 

Discussed

Federal hiring OPM launched the Hiring Excellence Campaign49 201550

Human Capital Framework OPM issued a proposed rule on February 8, 

201651

201152

 

49 Blog by Beth Cobert, “Bringing Together HR Staff and Hiring Managers to Attract America’s Top Talent,” June 23, 2016.

50 See U.S. Merit Systems Protection Board, Annual Report for FY 2015, February 29, 2016, pp. 56-57, discussing OPM recruitment initiatives related to 

its Recruitment, Engagement, Diversity, and Inclusion (REDI) Roadmap, a precursor to the current Hiring Excellence Campaign.

51 Personnel Management in Agencies (Proposed rule), 81 Fed. Reg. 6,469 (February 8, 2016).

52 U.S. Merit Systems Protection Board, Annual Report for FY 2011, April 30, 2012, pp. 60-61.
61 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

FINANCIAL SUMMARY

Fiscal Year 2016 Financial Summary53

as of

September 30, 2016

(dollars in thousands)

FY 16 Appropriations

FY 2016 Appropriation $ 44,490

Civil Service Retirement and Disability Trust Fund 2,345

Total $ 46,835

Obligations Charged to FY 2016 Funds

Personnel Compensation $ 23,257

Personnel Benefits 6,883

Transportation of Things 3

Travel of Persons 257

Rents, Communications and Utilities 4,057

Printing and Reproduction 2

Other Services 2,413

Supplies and Materials 139

Equipment/Lease Improvements 1,013

Reimbursable Obligations 2,345

Total $ 40,369

 

53 This summary shows financial activity (appropriations and obligations by category) for FY 2016. Additional financial information in available in the 

FY 2016 Annual Financial Report available on MSPB’s website. 

.
62 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

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63 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

LIST OF ABBREVIATIONS AND ACRONYMS

AC Air conditioning

ADA Americans with Disabilities Act of 1990

ADR Alternative Dispute Resolution

AFR Annual Financial Report

AIB Administrative Investigative Board

AJ Administrative Judge

ALJ Administrative Law Judge

APR-APP Annual Performance Report and Annual Performance Plan

CB Clerk of the Board

CBPO Customs and Border Protection

CEU Continuing Education Units

CFR Code of Federal Regulations

CHCO Chief Human Capital Officer Council

CIO Chief Information Officer

CLE Continuing Legal Education

CMS/LM Case Management System/Law Manager

COOP Continuity of Operations Plan

CSC Civil Service Commission

CSRA Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111

CSRS Civil Service Retirement System

DC District of Columbia

DCMA Defense Contract Management Agency

DHS Department of Homeland Security

DoDI Department of Defense Instruction

DMS Document Management System

DoD Department of Defense

DoI Department of the Interior

DoL Department of Labor

DWOP Dismissal without Prejudice

ED Executive Director

EEO Equal Employment Opportunity

EEOC Equal Employment Opportunity Commission

EPA Environmental Protection Agency

EVS Federal Employee Viewpoint Survey

FAA Federal Aviation Administration

FAPAC Federal Asian Pacific American Council

FAQ Frequently Asked Questions

FECA Federal Employees’ Compensation Act

FERS Federal Employees’ Retirement System 

FEVS Federal Employee Viewpoint Survey

FIS Federal Investigative Service

FLRA Federal Labor Relations Authority

FOIA Freedom of Information Act

FRCP Federal Rules of Civil Procedure

FTC Federal Trade Commission

FTE Full Time Equivalent

FY Fiscal Year
64 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

GAO Government Accountability Office

GC General Counsel

GPRAMA Government Performance and Results Act Modernization Act of 2010

GS General Schedule

GSA General Services Administration

HQ Headquarters

HR Human Resources

IHS Indian Health Service

IoM Issues of Merit

IRA Individual Right of Action

IS Internal Survey

IT Information Technology

LGBT Lesbian, Gay, Bisexual, and Transgender

LWOP Leave without pay

MAP Mediation Appeals Program

MPS Merit Principles Survey

MSP Merit System Principles

MSPB Merit Systems Protection Board

NBIB National Background Investigative Bureau

NDAA National Defense Authorization Act

NFFE National Federation of Federal Employees

NUWC Naval Undersea Warfare Center

OAA Otherwise Appealable Action

OEEO Office of Equal Employment Opportunity

OGE Office of Government Ethics

OGR House Committee Oversight and Government Reform

OMB Office of Management and Budget

OPM Office of Personnel Management

OSC Office of Special Counsel

PDA Pregnancy Discrimination Act of 1978

PFE Petition for Enforcement

PFR Petition for Review

PIO Performance Improvement Officer

PPP Prohibited Personnel Practices

QRB Qualification Review Board

RFI Request for Information

RFQ Request for Quote

RIF Reduction-in-Force

SES Senior Executive Service

SLA Service Level Agreement

STEM Science, Technology, Engineering, Mathematics

STSO Supervisory Transportation Security Officer

TBD To be determined

TSA Transportation Security Administration

TSO Transportation Security Officer

USDA Department of Agriculture

USERRA Uniformed Services Employment and Reemployment Rights Act

USPS U.S. Postal Service

VA Department of Veterans Affairs

VEOA Veterans Employment Opportunity Act
65 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

VERA Voluntary Early Retirement Authority

VSIP Voluntary Separation Incentive Plan 

VTC Video Teleconference

WB Whistleblower

WPA Whistleblower Protection Act of 1989

WPEA Whistleblower Protection Enhancement Act of 2012
66 Merit Systems Protection Board Annual Report for FY 2016 January 18, 2017

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