U. S. Merit Systems Protection Board 

1120 Vermont Avenue, NW 

Washington, DC 20419 

Sirs: 

In accordance with 5 U.S.C. 1206, we are pleased to submit the Thirteenth Annual Report 

of the U.S. Merit Systems Protection Board. The report reviews the significant activities of the 

Board during Fiscal Year 1991. 

During the fiscal year, administrative judges in the Board's regional offices issued almost 

8,400 decisions on appeals, stay requests, and addendum cases. The 3-member bipartisan Board 

issued over 1, 800 decisions on review of administrative judges' decisions and in reopened cases. 

In this same period, 95 percent of final Board decisions reviewed by the U.S. Court of Appeals 

for the Federal Circuit were unchanged. 

The Board issued just over 50 decisions in original jurisdiction cases--complaints and stay 

requests filed by the Special Counsel, requests to review regulations of the Office of Personnel 

Management (OPM), and proposed actions against administrative law judges. This number 

includes 24 decisions in agencies' proposed furloughs of administrative law judges in anticipation 

of a sequester at the beginning of Fiscal Year 1991. 

During the fiscal year, the Board published two reports of merit systems studies and completed one review of OPM significant actions. One of the merit systems studies reviewed the use of 

pay setting and reassignment flexibilities in the Senior Executive Service, and the other examined 

the Title 38 personnel system in the Department of Veterans Affairs. The OPM significant action 

review, which was to be published early in Fiscal Year 1992, assessed OPM initiatives to help 

Federal employees balance their work and family responsibilities. 

The Fiscal Year 1991 Annual Report also includes a special section on the Board's 

activities, since it was established by the Civil Service Reform Act of 1978, in fulfillment of its 

mission to conduct studies of Federal merit systems and to review the significant actions of OPM. 

Respectfully submitted, 

The President 

The President of the Senate 

The Speaker of the House of Representatives 
MERIT SYSTEMS PROTECTION BOARD

TABLE OF CONTENTS 

Page 

Board Mission and Organization 7 

Mission 7 

Board Members 8 

Board Organization 10 

Regional Officials 13 

Highlights of Fiscal Year 1991 Activities 15 

Reviews of OPM Significant Actions 

and Merit Systems Studies 16 

Adjudication: Appellate Jurisdiction 26 

Jurisdiction 26 

Regional Offices 27 

Headquarters 35 

Special Panel 40 

Adjudication: Original Jurisdiction 42 

Litigation 45 

Outreach Activities 46 

Administration, Finance, and Human Resources 49 

Administration 49 

Financial Statement 50 

Human Resources 50 

Appendix A - Significant Board Decisions 

Appellate Jurisdiction Cases 53 

Appendix B - Significant Board Decisions 

Original Jurisdiction Cases 64 

Appendix C - Significant Litigation 66 
MERIT SYSTEMS PROTECTION BOARD

BOARD MISSION AND ORGANIZATION 

MISSION 

The U.S. Merit Systems Protection Board is an independent, quasi-judicial agency in the 

Executive branch that serves as the guardian of Federal merit systems. The Board's mission is to 

ensure that Federal employees are protected against abuses by agency management, that Executive 

branch agencies make employment decisions in accordance with the merit system principles, and that 

Federal merit systems are kept free of prohibited personnel practices. The Board has a statutory 

mandate to adjudicate appeals from personnel actions for the nation's largest employer. It has 

worldwide jurisdiction, wherever Federal civil servants are found. Additionally, under the Hatch 

Political Activities Act, it exercises jurisdiction over state and local government employees in 

federally-funded positions. 

The Board accomplishes its mission by: 

Hearing and deciding employee appeals from agency personnel actions (appellate 

jurisdiction); 

Hearing and deciding cases brought by the Special Counsel involving alleged abuses of the 

merit systems, and other cases arising under the Board's original jurisdiction; 

Conducting studies of the civil service and other merit systems in the Executive branch to 

determine whether they are free of prohibited personnel practices; and 

Providing oversight of the significant actions and regulations of the Office of Personnel 

Management (OPM) to determine whether they are in accord with the merit system 

principles. 

The Board was established by Reorganization Plan No. 2 of 1978, which was codified by the Civil 

Service Reform Act of 1978 (CSRA), Public Law No. 95-454. The CSRA, which became effective 

January 11, 1979, replaced the Civil Service Commission with three new independent agencies: the 

Office of Personnel Management, which manages the Federal workforce; the Federal Labor 

Relations Authority, which oversees Federal labor-management relations; and the Board. 

The Board assumed the employee appeals function of the Civil Service Commission and was 

given the new responsibilities to perform merit systems studies and to review the significant actions 

of OPM. The CSRA also created the Office of Special Counsel, which investigates allegations of 

prohibited personnel practices, prosecutes violators of civil service rules and regulations, and 

enforces the Hatch Act. Although established as an office of the Board, the Special Counsel 

functioned independently as a prosecutor of cases before the Board. In July 1989, the Office of 

Special Counsel became an independent Executive branch agency. 

The bipartisan Board consists of a Chairman, a Vice Chairman and a 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, non-renewable 7-year terms. 
MERIT SYSTEMS PROTECTION BOARD 

BOARD MEMBERS 

CHAIRMAN 

DANIEL R. LEVINSON became Board Chairman 

on August 15, 1986, following his nomination by 

President Reagan and confirmation by the Senate. 

At the time of his appointment, Mr. Levinson was 

General Counsel of the U.S. Consumer Product 

Safety Commission, a position he had held since 

March 1985. Previously, he served for two years as 

Deputy General Counsel of the Office of Personnel 

Management. Prior to joining OPM, Mr. Levinson 

was, for six years, an associate and partner in the 

Washington, DC law firm of McGuiness & Williams, 

where he represented primarily private sector 

management in a wide variety of employment law 

matters. 
VICE 

CHAIRMAN

ANTONIO C. AMADOR joined the Board as 

Vice Chairman on November 1, 1990, following 

his nomination by President Bush and 

confirmation by the Senate. At the time of his 

appointment, Mr. Amador was Deputy Director, 

Program Review Branch, Employment 

Development Department of the State of 

California. Previously, he served as Director of the

California Youth Authority, as Chairman of the 

Youthful Offender Parole Board in California, and 

as a police officer in the Los Angeles Police 

Department. Mr. Amador received his law 

degree from the McGeorge School of Law, 

University of the Pacific.

MEMBER

JESSICA L. PARKS took the oath of office as a 

Member of the Board on May 18, 1990, following her 

nomination by President Bush and confirmation by the 

Senate. At the time of her appointment, Ms. Parks was 

Associate Regional Counsel for Litigation and Program 

Enforcement for the U.S. Department of Housing and 

Urban Development in Atlanta, Georgia. From 1982 to 

1985, she served as an administrative judge in the Board's 

Atlanta Regional Office. Previously, she was Agency 

Counsel for the Craven County Department of Social 

Services in New Bern, North Carolina. She has also been in 

private practice in Jacksonville, North Carolina and was 

an associate in the firm of Bowers and Sledge in New 

Bern. 
BOARD ORGANIZATION 

Offices of the Board 

The Chairman, Vice Chairman, and Member adjudicate the cases brought to the Board. 

Each heads his/her individual office. The Chairman, by statute, is the chief executive and 

administrative officer of the Board. 

Office of the Chairman 

The Office of Equal Employment Opportunity plans, implements, and evaluates the 

Board's equal employment opportunity (EEO) programs. It processes complaints of alleged 

discrimination, including precomplaint counseling and issuance of proposed dispositions of 

complaints. The office also furnishes advice and assistance on affirmative action initiatives to the 

Board's managers and supervisors. The Director, Office of EEO, reports directly to the Chairman. 

The Office of the General Counsel is legal counsel to the Board. The office provides 

advice to the Board and its organizational components on matters of law arising in day-to-day 

operations. It represents the Board in litigation, prepares proposed decisions and orders in 

enforcement cases, processes requests to review OPM regulations, and drafts proposed final 

decisions for the Board in original jurisdiction cases. The office manages legislative policy and 

congressional relations functions for the Board. It is also responsible for conducting the Board's 

ethics program. The General Counsel reports directly to the Chairman. 

The Office of the Inspector General is the Board's internal auditor. The independent 

Inspector General plans and directs audits, investigations, and internal control evaluations in 

compliance with the requirements of the Office of Management and Budget and the U.S. General 

Accounting Office. The Inspector General evaluates the programs and operations of the Board in 

order to promote economy and efficiency, to prevent and detect fraud and abuse, and to advise 

the Chairman of any deficiencies detected. The Inspector General reports directly to the Chairman. 

Office of the Executive Director 

The Executive Director manages the operations and programs of the Board's headquarters 

and regional offices under authority delegated by the Chairman. This delegation includes the 

authority to make final decisions in the areas of personnel management, fiscal management, 

document security, procurement and contracts, and general administrative support services. The 

Executive Director reports directly to the Chairman. 

The Office of Regional Operations manages the appellate functions of the MSPB regional 

offices and reviews the quality of initial decisions issued by administrative judges in the regional 

offices. The 11 MSPB Regional Offices are located in Atlanta, Boston, Chicago, Dallas, Denver, 

New York, Philadelphia, St. Louis, San Francisco, Seattle, and Washington, DC. These offices receive 

and process the initial appeals filed with the Board. Administrative judges in the regional offices have 

the primary function of adjudicating appeals and issuing fair, timely, and well-reasoned decisions. 
Lucretia F. Myers Executive Director 

The Office of Appeals Counsel assists the Board in 

adjudicating petitions for review from initial decisions issued 

by administrative judges in the regional offices. The office 

receives and analyzes the petitions, researches applicable 

laws, rules and precedents, and submits proposed opinions to 

the Board for final adjudication. It also processes interlocutory 

appeals of rulings made by administrative judges in the 

regional offices, makes recommendations to the Board on 

motions filed during the review process, makes recommendations on reopening appeals on the Board's own motion, and 

provides research and policy memoranda to the Board on 

legal issues. 

The Office of the Administrative Law Judge hears cases 

governed by the Administrative Procedure Act and other cases 

assigned by the Board. 

The Office of the Clerk of the Board performs the 

Board's ministerial functions to facilitate timely adjudication. These include receiving and 

processing petitions for review and actions under the Board's appellate and original jurisdiction 

authorities, ruling on certain procedural matters, and issuing the Board's Opinions and Orders. The 

Clerk is also responsible for the Board's records, mail, correspondence, document security, and 

reports management programs. The office certifies official records to the courts and Federal 

administrative agencies, maintains the Board's law library, and administers the Board's Freedom of 

Information Act, Privacy Act, and Government in the Sunshine Act programs. 

The Office of Policy and Evaluation carries out the Board's statutory responsibility to 

conduct special studies of the civil service and other merit systems, including annual oversight 

reviews of the Office of Personnel Management. Reports of these studies are submitted to the 

President and the Congress, as 

required by law. 

Michael W. Crum, 

Deputy Executive 

Director, and Barbara

B. Wade, Director, 

Information 

Resources 

Management 

Division 
The Office of Management Analysis develops and coordinates internal management 

programs and projects. The office also manages the Board's public affairs program and produces 

the agency's annual report to the President and the Congress, the annual report on the Board's 

decisions in appellate and original jurisdiction cases, and public information publications. 

The Office of Administration manages the Board's administrative operations. It is 

made up of three divisions: The Financial and Administrative Management Division 

administers the budget, accounting, procurement, property management, physical security, and 

general services functions of the Board. The Human Resources Management Division manages 

personnel programs and assists managers, employees, and applicants for employment. It 

administers staffing, classification, employee relations, performance management, payroll, 

personnel security, and training functions. The Information Resources Management Division 

develops, implements, and maintains the Board's automated information systems in order 

to help the Board manage its caseload efficiently and carry out its administrative responsibilities. 
REGIONAL OFFICIALS 

Thomas J. Lanphear 

Director, Office of 

Regional Operations

R. J. Payne 

Regional Director

Atlanta Office

William Carroll 

Regional Director 

Boston Office 

Martin W. Baumgaertner 

Regional Director 

Chicago Office

Paula A. Latshaw 

Regional Director 

Dallas Office

Gail E. Skaggs 

Regional Director 

Denver Office

Sean P. Walsh 

Regional Director

New York Office

Lonnie Crawford 

Regional Director 

Philadelphia Office

Earl A. Witten 

Regional Director 

St. Louis Office 

Denis Marachi 

Regional Director 

San Francisco 

Office

Carl Berkenwald

Regional Director 

Seattle Office 

P.J. Winzer 

Regional Director 

Washington, DC Office
Atlanta Regional Office -- Alabama, Florida, Georgia, Mississippi, North Carolina, and South Carolina 

Boston Regional Office -- Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and 

Vermont 

Chicago Regional Office -- Illinois (all locations north of Springfield), Indiana, Michigan, Ohio, and 

Wisconsin 

Dallas Regional Office -- Arkansas, Louisiana, Oklahoma, and Texas 

Denver Regional Office -- Arizona, Colorado, Kansas, Montana, Nebraska, Nevada, New Mexico, 

North Dakota, South Dakota, Utah, and Wyoming 

New York Regional Office -- New York, Puerto Rico, Virgin Islands, and the following counties in New 

Jersey: Bergen, Essex, Hudson, Hunterdon, Morris, Passaic, Somerset, Sussex, Union, and Warren 

Philadelphia Regional Office -- Delaware, Pennsylvania, Virginia (except cities and counties served 

by Washington Regional Office - see below), West Virginia, and the following counties in New Jersey: 

Atlantic, Burlington, Camden, Cape May Cumberland, Gloucester, Mercer, Middlesex, Monmouth, 

Ocean, and Salem 

St. Louis Regional Office -- Illinois (Springfield and all locations south), Iowa, Kentucky, Missouri, 

and Tennessee 

San Francisco Regional Office -- California 

Seattle Regional Office -- Alaska, Hawaii, Idaho, Oregon, Washington, and Pacific overseas areas 

Washington Regional Office -- Washington, DC, Maryland, all overseas areas not otherwise 

covered, and the following cities and counties in Virginia: Alexandria, Arlington, Fairfax City, Fairfax 

County, Falls Church, Loudoun, and Prince William 
HIGHLIGHTS OF FISCAL YEAR 1991 ACTIVITIES 

Fiscal Year 1991 was marked, at both the regional office and headquarters 

levels of the Board, by an increase in the numbers of both decisions issued and 

receipts of new cases. The increase is attributable primarily to the expansion of the 

Board's jurisdiction by legislation enacted in recent years—particularly the 

Whistleblower Protection Act of 1989. 

Administrative judges in the Board's regional offices issued 8,388 decisions, 

including decisions on initial appeals, stay requests, and addendum cases (requests 

for attorney fees, petitions for enforcement, and remands). This represents an 

increase of 6.9 percent over the number of decisions issued in the previous fiscal 

year. 

At headquarters, the Board issued 1,838 decisions on petitions for review (PFRs) 

of initial decisions in both appeals and addendum cases, requests to review stay 

rulings, and reopened cases. This represents a 21.7 percent increase over the 

previous fiscal year. 

During Fiscal Year 1991, receipts of initial appeals in the regional offices 

increased 13 percent over the previous fiscal year. At headquarters, receipts of 

PFRs were up 8.5 percent. 

The Board, with two new members, made a concerted effort to reduce the 

number of cases pending at headquarters and to complete action on overage cases. 

In spite of the increase in receipts of PFRs during the fiscal year, the Board was able 

to reduce the number of pending cases (including PFRs, reviews of stay rulings, and 

reopenings) from 1,021 on October 1, 1990 to 784 

at the end of the fiscal year. 

Pictured to the left, Vice Chairman Amador is welcomed to the 

Board, November 1990. 

The Board issued 51 decisions in cases under 

its original jurisdiction, a 13.3 percent increase 

over the previous fiscal year. These cases 

included complaints brought by the Special 

Counsel, Special Counsel stay requests, requests 

to review OPM regulations, and proposed actions 

against administrative law judges. 

The Board continued to issue precedential 

decisions interpreting provisions of the 

Whistleblower Protection Act during Fiscal Year 

1991. In addition, the Board added significantly to 

the case law dealing with performance-based actions, harmful procedural error, 

handicap discrimination, disability retirement, sexual harassment, security 

clearances, and elections under the Federal Employees Retirement System (FERS). 
During Fiscal Year 1991, the Board issued two reports of merit systems studies 

and completed one review of OPM significant actions. One of the merit systems 

studies reviewed the use of pay setting and reassignment flexibilities in the Senior 

Executive Service, and the other examined the Title 38 personnel system in the 

Department of Veterans Affairs. The OPM significant action review, which was 

completed and sent to the Government Printing Office for publication at the end of 

the fiscal year, assessed OPM initiatives to help Federal employees balance their 

work and family responsibilities. The following special section of this annual report 

provides an overview of the Board's activities, since enactment of the CSRA, to fulfill 

its statutory merit systems studies and OPM oversight function. 
REVIEWS OF OPM SIGNIFICANT ACTIONS 

AND MERIT SYSTEMS STUDIES 

HISTORICAL PERSPECTIVE 

In 1883, the Congress passed the Pendleton Act, which established a merit-based employment 

system for the Federal Government. Passage of this legislation was in reaction to the increasingly 

evident ineffectiveness of political patronage, or the "spoils system," as a means of filling Federal 

career positions. 

Since that time, the influence and sophistication of the merit-based civil service system has 

grown considerably. The basic premise of that system, however, has remained the same—that it is 

in the public interest to have a Government workforce that is hired, retained, promoted, and 

rewarded on the basis of demonstrated job-related competency and accomplishments. 

It was within this historical framework that the Congress, in enacting the Civil Service Reform 

Act, assigned to the Board the important responsibilities of conducting oversight reviews of the 

Office of Personnel Management and studies of the civil service and other merit systems. The 

reviews of OPM recognize the importance of that agency, as the Government's central personnel 

agency and the President's personnel management advisor, to the merit system. 

The results of these MSPB studies and reviews are reported to the President and the Congress. 

In the language of the CSRA, the merit systems studies are to include an assessment of "whether 

the public interest in a civil service free of prohibited personnel practices is being adequately 

protected." The Board's studies of the significant actions and regulations of OPM are to determine 

whether they are in accord with merit system principles and free of prohibited personnel practices. 

THE OPERATION OF THE MERIT SYSTEMS STUDIES AND OPM 

OVERSIGHT FUNCTION 

The Board's legislative mandate with regard to its studies and OPM oversight function is broad 

in scope and gives the Board a great deal of discretion in deciding what to review and how to 

review it. Typically, the Board solicits potential study topics from a wide variety of sources in 

developing its OPM oversight and studies agenda. 

Within the Board, the studies function is performed by the Office of Policy and Evaluation 

(OPE). On behalf of the Board, OPE develops a studies agenda—updated approximately every 12 to 

18 months—concentrating on those topics and human resources management issues to which the 

Board believes it can make the greatest contribution or on which it can have the greatest impact. In 

developing the agenda, OPE: 

Solicits the views and recommendations of a large cross-section of interested and informed 

individuals and organizations; 

Selects those OPM activities for review that appear to have been the most "significant" 

for the merit system; and 

Develops study proposals for consideration by the three Board members. 
Upon approval of a studies agenda by the Board, OPE develops a research plan for each study. Each 

plan may incorporate one or more of the following methodologies: 

Literature Review and Synthesis. Analysis of reports, publications, and other documents prepared by other reviewers and organizations. This is typically the first step taken 

in any study. In some cases, there may be very little existing data available, and a major 

purpose of the study becomes the establishment of baseline data. 

Survey Research. The development, distribution, and analysis of surveys soliciting 

information from current and former Federal employees on their experiences, 

opinions, and attitudes. Such surveys may be on a specific topic, such as the 

Board's studies of sexual harassment, or they may cover a broad array of topics 

and issues, such as those covered by the Board's Merit Principles Survey, 

administrated every three years to a random cross-section of over 20,000 Federal 

employees governmentwide. 

Interrogatories. Requests to agencies or the Office of Personnel Management for 

written responses to a structured set of questions. Interrogatories are often only 

one component of data gathering, but can provide significant information and 

official agency viewpoints. 

On-site Visits. Visits to agency headquarters or installations. These, typically, are 

combined with individual or group interviews and reviews of written program and 

policy issuances. 

Statistical Analyses of Relevant Data Bases. OPM and each individual agency 

typically maintain one or more computerized data bases relevant to human 

resources management. This includes, for example, OPM's Central Personnel Data 

File (CPDF) and other centralized OPM data files maintained for the Senior 

Executive Service (SES) and the Performance Management and Recognition 

System (PMRS). Information from these data systems can provide useful 

background or baseline information on a number of topics, such as employee turnover and retention or performance rating distributions. 

Focus Groups and Advisory Committees. Joint discussions with groups of informed 

commentators or individuals representative of a selected portion of the Federal 

population. This is an effective way of gathering information on newly emerging 

human resources management concerns or issues. In addition, a formal advisory 

group of subject matter experts can develop information and views on a selected 

topic over a period of time. 

Comparative Studies. Studies to compare and contrast merit systems that operate 

under significantly different laws, rules, or regulations in order to determine if 

there are useful lessons to be learned. Recent efforts include a comparison of the 

Canadian federal public service with that of the United States. 
THE RESULTS AND IMPLICATIONS OF BOARD REPORTS 

The Board's reports on the results of its studies are addressed to the President and the 

Congress, as required by law. They also are reviewed by a large secondary audience 

of Federal agency officials, employee and public interest groups, labor unions, 

academicians, state, local and foreign governments, and other individuals and organizations 

with an interest in public personnel administration. 

Since issuing its first report in early 1981, the Board has reviewed a wide array of topics 

and issues with far-ranging implications. Some of the overall findings and implications of 

Board studies since the agency began operations are described below. 

Significant Actions of the Office of Personnel Management 

The Board's reviews of OPM significant actions provide an overview of OPM activities 

dating back to its establishment in 1978 by the CSRA. The Board has monitored OPM 

through a series of program and policy transitions, and, in addition to specific findings and 

recommendations in a number of program areas, a number of general observations have 

emerged. For example: 

OPM clearly is intended to be a leader within the Federal civil service system, 

especially in the area of personnel policy development and program guidance. The 

Board found, however, that early cutbacks in funding and staff resources lessened 

OPM's ability to fulfill that role. By the late 1980's and early 1990's, however, OPM 

was judged to have made significant progress in recapturing some of the lost 

initiative, especially in selected areas, such as Federal pay reform. 

Prior to 1978, the Federal personnel system had become highly centralized and 

somewhat inflexible, and was seen as non-responsive to the legitimate needs of the 

agencies. Accordingly, the Board generally has encouraged and supported OPM's 

efforts to provide greater decentralization and delegation of personnel authorities to 

Federal agencies. Although progress in this regard has been uneven since 1978, the 

general trend has been in the direction of providing agencies with greater flexibility 

and broader options in the management of their human resources. 

OPM's statutory charter requires it to establish and maintain an aggressive oversight 

program to ensure that delegated authorities are executed properly and merit 

principles maintained. The Board has reviewed OPM's efforts in this regard 

periodically and has suggested ways to improve upon those efforts. 
Special Studies of the Civil Service and Other Merit Systems 

Evangeline W. Swift, 

Director, and John M. 

Palguta, Deputy Director, 

Office of Policy and 

Evaluation 

Either as part of its review of an OPM "significant action" or in a stand-alone study, the 

Board has provided careful analysis and findings on a wide range of merit system issues. 

Among the subjects covered, often with periodic updates over a period of several years, 

are: 

Recruitment and Selection. The Board has found that the Government frequently has 

been at a competitive disadvantage in its ability to recruit its fair share of the "best 

and brightest." The Board also has found that OPM, in its desire to streamline the 

hiring process, grant greater flexibility to agencies, and respond to legal challenges to 

its examination procedures, has been in danger of moving too far from the concept of 

open recruitment and merit-based selection practices. The Board argues for a careful 

balance between competing pressures in this regard. 

Delegation and Decentralization of Federal Personnel Management Authorities. The Board has 

found that although more authorities have been delegated appropriately to agencies by OPM, 

some agencies have been reluctant to re-delegate those authorities further down within the 

agency. 

Federal Compensation Issues. The Board has watched closely and reported on compensation 

issues leading up to the passage of pay reform legislation in 1991. The Board will be following 

the progress and effect of pay reform implementation as it is phased in over a number of 

years. 

Quality of the Federal Workforce. Heightened interest in knowing whether the quality of 

Federal employees has declined over time led to the formation of a joint Advisory Committee 

on Federal Workforce Quality Assessment, co-chaired by MSPB and OPM. In addition, the 

Board initiated separate studies to examine workforce quality within selected Federal 

occupations. 

Turnover and Retention. While not unexpectedly finding that many Federal employees who 

resign from the Government do so in pursuit of better pay and advancement opportunities in 

the private sector, the Board also found that others left for reasons under the control of 

agency management, such as unhappiness with the work environment. 
Sexual Harassment. In two related studies issued seven years apart, the Board 

conducted and then built upon a first-of-its-kind survey to measure the prevalence of sexual 

harassment in the Federal workplace. The survey revealed that sexual harassment was a 

more pervasive problem than originally thought, but that there are actions that Federal 

agencies can take to address that problem. 

Whistleblowing. The Board is concerned about instances of reprisal against employees who 

"blow the whistle" on Federal fraud, waste, and mismanagement. In 1980, and again in 1983, 

the Board conducted precedent-setting reviews of whistleblowing in the Federal workplace, 

which found that most employees with knowledge of illegal or wasteful activities did not report 

those activities. Non-reporting was based, in part, on fear of reprisal, but more on a belief that 

nothing would be done to correct the activity. 

Senior Executive Service. The Board periodically has solicited the opinions and experiences of 

members of the Senior Executive Service. Studies have focused on the operation of the SES 

system itself, including pay-setting and reassignment practices. Among other findings in this 

area, the Board has noted that periodic compression of SES salaries at various points over 

time has had a detrimental effect on the service. Further, the expectation of increased mobility 

of executives across agency lines and within agencies has not been realized. 

Alternative Merit Systems. The majority of civilian employees in the Executive branch operate 

under a set of personnel laws codified in title 5 of the U.S. Code. There are other merit 

systems, even within the Executive branch, that operate under a different set of laws, rules, 

and regulations. State, local, and some foreign governments also have developed merit-based 

personnel systems. The Board has examined alternative systems covering employees in direct 

health care occupations in the Department of Veterans Affairs and employees of the 

Tennessee Valley Authority. A recent study compares the U.S. and Canadian civil service 

systems. In reviewing these alternative systems, the Board has found that generally they 

conform to merit principles while operating in a substantially different manner. The Board has 

suggested that some of these operating differences could be adapted beneficially in the title 5 

system. 

Performance Management. Board reviews pertaining to this broad topic have explored issues 

such as the viability of pay for performance and the effectiveness of performance appraisal 

systems. The Board has found that while the concepts underlying much of the Federal 

approach to performance management are sound, the methods chosen for the implementation 

of those concepts frequently have fallen short of their objectives for a variety of reasons. 

Position Classification and Qualification Systems. Related to both compensation practices and 

recruitment and selection issues, the Board's review has found that the Government's 

approach to the qualifications rating process was working well, but that substantial 

weaknesses were evident in the Federal position classification system. While some of the latter 

problems may be amenable to administrative remedies, there were some larger issues—pay 

comparability among them—that needed to be addressed through legislation. 
Other Topics and Issues. The Board also has reviewed and reported on a wide range 

of other topics germane to the effective and efficient operation of the Federal civil 

service system, such as: 

reduction in force regulations and practices; 

temporary appointments to the civil service and potential merit-system implications; 

selection practices used for first-line supervisors; 

Federal agency policies or procedures for employee involvement in organizational 

problem identification and resolution; and 

employee job satisfaction. 

IMPACT OF MSPB STUDIES AND REPORTS 

By helping to promote and maintain a civil service based on merit principles and free of 

prohibited personnel practices, the ultimate purpose of the Board's reports is to enhance the 

efficiency and effectiveness of Government. In this regard, the impact of the Board's reports 

has been evident on several levels. 

The results of the Board's studies have been the subject of discussion during 

congressional hearings and have been used in the setting of basic public personnel policies. 

They also have been used to augment and support the professional research of other 

organizations and individuals concerned with public personnel policy. The Board's findings on 

sexual harassment, Federal recruitment and selection practices, the operation of the Senior 

Executive Service, compensation and pay-for-performance initiatives, and other major 

issues are regarded as authoritative and influential. 

When asked about the value of the Board's studies during Senate appropriations 

hearings a few years ago, the then-Director of the Office of Personnel Management stated 

that "we believe they can contribute to an overall understanding of how the personnel 

system is operating in Government. We have at times used information in MSPB reports in 

assessing program performance and 

considering possible regulatory changes." This constructive relationship with OPM has 

continued over the years. 

The results of the Board's studies and the often unique data included in its reports are 

referenced frequently in professional journals and papers, local and national media, 

newsletters, conferences, and training classes. Through these means, the Board's reports 

increase the public awareness of important issues and inject objective data and analysis into 

the public debate. 

Because the Board's reports and underlying data are in the public domain, the Board 

responds to thousands of requests each year for copies of its reports. Some individual 

reports, such as the two ground-breaking studies of sexual harassment released in 1981 and 

1988, have accounted alone for over ten thousand requests for reports. In addition, data 

tapes generated during survey research efforts are filed with the National Archives and 

made accessible to other researchers. 
According to one detailed outside review of the Board's reports and studies, which 

recently appeared in a highly respected journal of public administration: "The [Board's] 

surveys are models for similar projects among state and local governments, and also serve 

as the basis for academic studies. The availability of these surveys...enables scholars to 

engage in a wonderful array of secondary analyses....The Merit System Protection 

Board's reports offer valuable insights into the functioning of the federal civil service 

system. They are relatively short, yet crammed with information." 

Often, the recommendations resulting from the Board's studies are addressed to Federal 

agency heads and directors of personnel. Over time, many agencies have adopted these 

recommendations in whole or in part and have initiated actions to address identified 

concerns. On request, Board staff have also provided advice, consultation, and additional 

agency-specific data to a number of agencies to assist them in their management 

improvement efforts. This affirmative response on the part of individual agencies has had a 

positive impact on the vitality and effectiveness of the civil service system. 

REPORTS ISSUED AND STUDIES INITIATED IN FISCAL YEAR 1991 

The major findings and recommendations of the reports of merit systems studies issued 

by the Board in Fiscal Year 1991 are summarized below: 

Senior Executive Service Pay Setting and Reassignments: Expectations vs. 

Reality -This report examined how major Federal departments and agencies have 

used key flexibilities of the Senior Executive Service to manage assignments and pay 

for approximately 8,000 senior Executive branch managers. It concluded that 

common reference to the SES as a rank-inperson system may be misleading, 

because the SES lacks both a defined career ladder and established ranks that 

distinguish among the different members. 

Although Federal agencies have made significant use of the SES reassignment 

flexibilities to move individuals to different executive positions within each 

agency, other opportunities are used less often. There are relatively few transfers of 

SES members between agencies, and agencies seldom use SES reassignments to 

enhance careers or to develop skills. 

Finally, little use has been made of SES pay flexibilities to recognize differences in 

personal qualifications and contributions among SES members. The report sees this 

as partly attributable to pay compression within the SES levels. It suggests that, 

since the (then expected) 1991 SES pay increase should create a large and meaningful difference between the lowest and highest SES pay rates, an opportunity is 

presented to improve on SES pay administration. 

The report recommended: 

Maintaining the current flexibilities for SES reassignment and pay setting and 

monitoring their use over the next two to three years to determine if they are being 

used to improve the administration of Government; 
Using the 1991 SES pay increase as a catalyst for reexamining past agency pay-setting 

practices and revising those practices where beneficial to Government operations; 

Making maximum use of SES reassignments to provide career enhancement and to 

further the goals of executive development and training; and 

Increasing the use of transfers between agencies for the dual purposes of enhancing 

mission accomplishment through the infusion of new ideas and providing an energizing and 

broadening "change of pace" to the executives involved. 

The Title 38 Personnel System in the Department of Veterans Affairs: An Alternate Approach 

- This study reviewed the title 38 personnel system that covers 75,000 health care 

professionals in 12 occupations in the Department of Veterans Affairs (VA) medical care 

system. This system is unusual both because of its size and its relationship with the regular 

civil service. Employees covered under title 38 work side-by-side with and, in some cases, 

are supervised by the same supervisors as employees covered under the regular title 5 civil 

service. 

Keith Bell, Senior Research Analyst, Office of Policy and Evaluation 

The Board's research included reviews of both the 

history and the law and regulations governing the title 38 

system. In addition, the Board conducted interviews with 

field managers at eight VA medical centers in high cost 

areas to determine how the title 38 provisions operate in 

highly competitive labor markets and how managers deal 

with two different personnel systems. 

Major findings and recommendations from this 

review of the title 38 system include: 

The system uses boards of peers and other health 

professionals to recommend major personnel actions, 

including the qualifications of individual applicants and 

employees, the initial hiring of employees, the 

promotions and incentive awards of current employees, 

and the disciplining of employees within the system. 

Title 38 uses a modified rank-in-person system in which employees are graded and 

paid on the basis of their professional qualifications rather than the positions to which 

they are assigned. 

Managers at VA field locations liked the title 38 system's flexibilities and experienced 

little difficulty in administering two personnel systems. 

The title 38 provisions for peer boards to make key personnel decisions should be 

considered for other occupations. 

The use of rank-in-person provisions for other professional occupations in the Federal 

Government should be considered in lieu of the current classification system. 
The major findings and recommendations of the OPM significant action review completed in 

Fiscal Year 1991 are summarized below:

Balancing Work Responsibilties and Family Needs: The Federal Civil Service Response -

This study addressed a number of work and family benefit programs that affect Federal civilian 

employees. Specifically, it considered both past accomplishments and future possibilities in the 

areas of child care, elder care, alternative work schedules, part-time employment, flexiplace, 

leave-sharing programs, cafeteria benefit plans, and other emerging benefit areas. 

The report noted that specific work and family benefit programs have limited applicability, that 

is, any given program may be useful to only a small subset of employees. Accordingly, the 

report spotlighted the role that Federal agencies have in assessing the needs of their employees. 

The report also assessed OPM leadership in managing the Government's work and family 

benefit programs. It concluded that, while OPM has undertaken some praiseworthy initiatives, 

there remain a number of unmet challenges, unanswered opportunities, and unresolved policy 

issues that need to be dealt with at several levels of Government. 

Finally, the report posed the question of whether, and if so, how, the Federal Government 

should seek to position itself as a "model employer" in the work and family benefits area. 

The report made a number of substantive recommendations for action by OPM and Federal 

agencies. For OPM, these included: 

changing its regulations to permit some use of sick leave by Federal civilian employees to care 

for sick or elderly dependents; 

initiating action to institute a "cafeteria" benefits approach for employee benefits; 

working with Federal agencies to encourage the greatest beneficial use of work and family 

benefit programs currently available; and 

adopting a "Federal Government as model employer" orientation. 

Suggested areas of emphasis for agencies included: 

assessing the needs of employees regarding work and family benefits; 

evaluating whether further subsidies for onsite child care would enhance their mission 

accomplishment, and if so indicated, taking appropriate action to implement such subsidies; 

and 

expanding the utility of work and family programs as a potential method of increasing 

workforce efficiency and effectiveness. 

The Board initiated the following studies during the fiscal year: 

To Meet the Needs of the Nations: Staffing the U.S. Civil Service and the Public Service 

of Canada - This study describes and compares merit staffing in the competitive U.S. Civil 

Service and its Canadian counterpart, the Public Service of Canada. The report also contains 

information about labor relations and pay practices in the two systems. 

A Study of the Federal Blue-collar Workforce - An introduction to and focus on the Federal bluecollar workforce in six different agencies. Using interviews and discussion groups, the study identifies 

important blue-collar issues from the perspectives of line managers, supervisors, employees, 

personnel staff, and unions. The final report will include discussions on downsizing, performance 

management, pay, classification, training, total quality management (TQM), safety, and other topics.
A Study of Contract Specialists - A study of the quality of work performed by contract 

specialists in the Federal Government. The study includes surveys of incumbents, supervisors, 

Senior Executive Service members, and private businesses that provide contracted 

goods or services to the Government. The main objective of the study is to determine whether 

the quality of Federal procurement specialists is adequate to meet the demands of the job. The 

study will also attempt to identify training needs and is intended to assist the Office of 

Management and Budget's Office of Federal Procurement Policy in its attempts to improve 

the overall quality of the procurement workforce. 

A Study of the Efforts of Federal Agencies to Manage Change in the Human Resources 

Arena - A study of how Federal agencies are managing the changes occurring as a result of 

shifting demographics and the evolving nature of Federal jobs. The study will examine, in 

particular, how agencies are reacting to and dealing with some of the predictions contained in 

the Hudson Institute's report, "Civil Service 2000," and cited in OPM's "Strategic Plan for 

Federal Human Resources Management." The thrust of this effort will be to identify and share 

examples of agency successes in grappling with the issues that are reshaping the Federal work 

environment as the next century approaches. 

Frederick L (Lit) Foley, Assistant Director, Office of 

Policy and Evaluation 

Assessing the Quality of Federal First-line 

Supervisors - A study of the quality and 

effectiveness of first-line supervisors in the 

Federal Government. Through the 

administration of surveys to first-line 

supervisors, second-level supervisors, and 

non-supervisory employees, the study will 

define the tasks and behaviors critical to 

effective supervisory performance and will 

determine whether the three groups of 

survey respondents hold differing views 

concerning the overall effectiveness of 

supervisors. The findings of this study 

should provide a useful baseline for the 

future assessment of quality in the Federal 

workforce. 

The Federal Personnel Office: Is It Doing The Right Job? - A study of the unfavorable 

perceptions some Federal managers have of their personnel offices, conducted 

through on-site interviews and a survey to determine what may be missing from this 

important link in the human resources management chain and what might be done to 

help make the system work more satisfactorily. 

The Office of Personnel Management's Oversight and Compliance Responsibilities -A 

study of OPM's oversight and compliance responsibilities, with emphasis on the 

functions of its Agency Compliance and Evaluation office. The study will focus on the 

current and future needs in this program area in view of the greater responsibilities 

being delegated to line managers. 
Career Opportunities for Women in the Federal Government - A study to examine the 

status of women in the Federal Government. The assessment will try to ascertain if 

there is a "glass ceiling" hindering the movement of women into management; if so, 

what form it takes; and at what level it may be found. The study will include an 

analysis of the occupational and grade distribution of men and women over time and a 

survey of men and women to examine differences in career development. 

The Office of Personnel Management and the Research and Demonstration Project 

Authority - A study to determine whether the intent of title 6 of the Civil Service 

Reform Act is being met. That provision of the Act authorized the OPM to "establish 

and maintain research programs to study improved methods and technologies in 

Federal personnel management" and to "...conduct and evaluate demonstration 

projects to determine whether a specified change in personnel management policies or 

procedures would result in improved Federal personnel management." The report will 

examine the extent and effectiveness of this authority in bringing about constructive 

change in the Federal personnel system. 

ASSESSING THE QUALITY OF THE FEDERAL WORKFORCE 

In addition to its individual studies dealing with the quality of selected portions of the 

Federal workforce, the Board has contributed to the important work being done in this 

area through its continuing collaboration with the Office of Personnel Management in a 

special advisory committee organized to address this issue. 

In November 1990 and May 1991, MSPB and OPM co-sponsored meetings of the 

Advisory Committee on Federal Workforce Quality Assessment, a group established in 

early 1990 and co-chaired by the MSPB Director of Policy and Evaluation and the OPM 

Assistant Director for Research and Development. Its membership includes 24 individuals 

from a diverse group of Federal agencies, local government, the private sector, academia, 

labor unions, and professional associations. Committee goals include suggesting 

alternative models for assessing workforce quality and providing advice on existing efforts 

to improve workforce quality and collect quality data. 

 

Office of Policy and Evaluation Staff 
In the meetings held during Fiscal Year 1991, the committee discussed current efforts to 

examine workforce quality in specific occupational areas, including computer specialist and 

engineering and science occupations. The committee provided advice regarding elements 

of the Board's studies of workforce quality among first-line supervisors and procurement 

specialists. In addition, the committee addressed in detail the elements of OPM's workforce 

quality model, including in its discussion the issues of individual and group outcomes as well 

as worker productivity and customer satisfaction. 

In August 1991, the Committee initiated work on its final report, which is expected to 

include recommendations on how the Government should proceed with efforts to implement 

a quality assessment system. The report will provide Government decision makers with the 

information they need to make sound decisions on matters of public personnel policies and 

practices. 

THE MERIT SYSTEMS STUDIES AND OPM OVERSIGHT STAFF 

The Office of Policy and Evaluation consists of a staff of analysts and support personnel. 

The professional staff has broad experience and expertise in public personnel management, 

personnel research psychology, and personnel law. In addition to its combination of skills 

and abilities, the OPE staff has an average of over 15 years of Federal service per staff 

member. 
ADJUDICATION: APPELLATE JURISDICTION 

JURISDICTION 

Appealable Actions 

Under the CSRA, most Federal employees are entitled to appeal to the Board from 

certain personnel actions taken by Federal agencies. Certain other actions are appealable 

under OPM regulations. Appealable actions include adverse actions (removals, suspensions 

of more than 14 days, reductions in grade or pay, and furloughs of 30 days or less), 

performance-based removals or reductions in grade, denials of within-grade increases, 

certain reduction in force (RIF) actions, denials of restoration to duty or reemployment 

rights, removals from the SES for failure to be recertified, and OPM determinations in 

employment suitability and retirement matters. 

Under the Whistleblower Protection Act of 1989, additional personnel actions may 

result in an appeal to the Board under certain circumstances. Included are actions that may 

be the subject of a prohibited personnel practice complaint to the Special Counsel, such as 

appointments, promotions, details, transfers, reassignments, and decisions concerning pay, 

benefits, awards, education, or training. Such an action may be appealed to the Board only if 

the appellant alleges that the action was taken because of his or her whistleblowing, and if 

the appellant first filed a complaint with the Special Counsel and the Special Counsel did not 

seek corrective action from the Board. 

Eligible Employees 

For the Board to have jurisdiction over an appeal of a personnel action, it must 

possess jurisdiction over both the action and the individual filing the appeal. The employees 

and others (e.g., applicants for employment, annuitants in retirement cases) who may 

appeal specific actions to the Board vary in accordance with the law and regulations 

governing the specific action. For some actions, classes of employees, such as political 

appointees, and employees of specific agencies are excluded. 

Since the CSRA became effective, employees in the competitive service and 

preference-eligible employees in the excepted service have had the right to appeal adverse 

actions to the Board. In 1987, nonpreference-eligible supervisors and managers in the Postal 

Service gained Board appeal rights for adverse actions. 

Under the Civil Service Due Process Amendments, which became effective in 

August 1990, approximately 100,000 additional employees in the excepted service—

including attorneys, scientists, teachers, and others hired non-competitively—gained the 

right to appeal both adverse actions and performance-based actions to the Board. To be 

eligible to appeal, these excepted service employees must have completed two years 

current continuous service in an Executive agency. Employees in certain entities, including 

the Postal Service and the intelligence agencies, are excluded from the coverage of this 

law. 

Legislation 

For the first time in several years, the Congress enacted no legislation during Fiscal 

Year 1991 that would expand the jurisdiction of the Board. The Congress considered several 

bills, however, that would have an impact on the Board's jurisdiction or procedures. 
Among them were bills introduced in both the House and Senate to extend the protections of 

the Whistleblower Protection Act to employees of Government corporations. A measure was 

introduced in the House to extend Board appeal rights to the approximately 52,000 civilian 

technicians in the National Guard. Another measure, introduced in the House, would permit 

the Board to mitigate penalties in adverse actions against career members of the Senior 

Executive Service. There had been no action on these bills by the end of the fiscal year. 

In addition, the House passed, and the Senate had under consideration at the end of 

the fiscal year, legislation that would give the Board statutory jurisdiction over appeals 

involving reemployment rights of Federal employees following military service. The Board's 

present authority over such appeals is granted by OPM regulation. 

REGIONAL OFFICES 

Appellate Procedures 

Appeals to the Board must be filed in writing with the Board regional office having geographic 

jurisdiction within 20 days of the effective date of the action. Where the notice of action does not 

set an effective date, the appeal must be filed within 25 days of the date of the notice. 

Different time limits apply to appeals of actions allegedly based on whistleblowing, where the 

appellant has first filed a complaint with the Special Counsel. As noted above, an appellant must file 

with the Special Counsel first if the complaint is based on an action that is not otherwise appealable 

to the Board and may file with the Board only after exhausting the procedures of the Office of 

Special Counsel. Appeals that reach the Board in this way are termed "individual right of action" or 

"IRA" appeals. 

An IRA appeal may be filed with the Board within 65 days after the date of a written notice from 

the Special Counsel stating that the office will not seek corrective action. A direct appeal to the Board 

is also authorized if 120 days have passed since the filing of the complaint with the Special Counsel, 

and the Special Counsel has not advised the appellant that the office will seek corrective action on his 

or her behalf. 

F. Lamont Liggett, Administrative Judge in the San Francisco Regional Office, poses a question at the 3rd 

National Administrative Judges' Conference. 
Where an appeal includes a whistleblower allegation and is based on an action that is 

otherwise appealable to the Board, the appellant may file directly with the Board or may first file a 

complaint with the Special Counsel. If the appellant chooses to file directly with the Board, the 

time limits for filing are the same as for all other direct appeals to the Board (20 or 25 days, 

depending on the kind of action). If the appellant chooses to file with the Special Counsel first, the 

time limits for filing with the Board are the same as for an IRA appeal. In either case, such an 

appeal is termed an "otherwise appealable action" or "OAA" appeal. 

Under the Whistleblower Protection Act, an appellant may also ask the Board to stay a 

personnel action allegedly based on whistleblowing. A stay request may be filed when an appellant 

is eligible to file a whistleblower appeal, and it may be filed before, at the same time as, or after the 

appeal is filed. Stay requests are filed in writing with the Board regional office having geographic 

jurisdiction. By law, stay requests must be decided within 10 days of receipt of the request. 

After an appeal has been received, the regional office issues an order acknowledging receipt of 

the appeal and raising any questions of timeliness or jurisdiction. The appeal is then assigned to an 

administrative judge for adjudication. The agency is required to provide its evidentiary file to the 

appellant and the administrative judge. The appellant and the agency then have the opportunity to 

present additional information for the administrative judge's consideration. 

Once jurisdiction and timeliness have been established, the appellant has a right to a hearing on 

the merits. During prehearing conferences, issues are defined and narrowed, stipulations to undisputed facts are obtained, and the possibility of settlement is discussed. If a hearing is held, each party 

has the opportunity to call and cross-examine witnesses, present evidence, and make arguments to 

the administrative judge. Hearings, which generally are open to the public, are fully recorded by a 

court reporter, with copies of the record available to the parties. Once the record is closed, an initial 

decision is issued by the administrative judge. The Board's established policy calls for the 

administrative judge to issue an initial decision on an appeal within 120 days from the date the 

appeal was filed. 

Decisions Issued in Fiscal Year 1991 

In Fiscal Year 1991, administrative judges in the Board's regional offices issued 8,388 

decisions. Of this number, 7,525 were initial decisions on appeals and 86 were decisions on stay 

requests. The administrative judges also issued 777 addendum case decisions, i.e., requests for 

attorney fees, remands, and compliance (or enforcement) cases. 

Of the initial appeals decided during the fiscal year, 471 were whistleblower appeals. Of this 

number, 196 were IRA appeals and 275 were OAA appeals. 

Overall, the number of decisions issued in the regional offices represented an increase of 6.9 

percent over the previous fiscal year. Decisions on initial appeals only were up 8.6 percent from the 

previous fiscal year. 

The regional offices averaged 74 days to issue decisions on initial appeals. As shown in the 

chart below, 98.9 percent of all initial appeals were decided within 120 days. 
Case Processing Timeliness FY 1991 

FY 1991 

Types of Initial Appeals Decided in FY 1991 

Total number of initial appeals: 7,525 

*Includes various actions NOT otherwise appealable to the Board - and 

threatened or proposed actions - that may form the basis of an IRA appeal 

after the appellant has exhausted the procedures of OSC. 

I n i t i a l A p p e a l s ( e x c l u d i n g stay requests and addendum cases). 
Fifty-two percent of the initial appeals decided were adverse action cases. The 

remaining cases involved retirement matters, reductions in force, terminations of 

probationary employees, performance actions, and other appealable actions. The chart 

above shows the breakdown of initial appeals decided by the type of action appealed. 

Although the breakdown by type of action generally is consistent with the previous 

fiscal year, two exceptions should be noted. The percentage of the total represented by 

RIF appeals increased from 3 percent to 7 percent, and the number of such appeals 

almost tripled, as a result of increased agency RIF activity. The number of IRA appeals, 

based on various actions not otherwise appealable to the Board, increased to the point that such 

appeals now represent 3 percent of the total. 

There were 2,033 settlements of initial appeals in Fiscal Year 1991, or 50 percent of the 

appeals that were not dismissed for lack of jurisdiction or timeliness. The Board continues to 

emphasize alternative dispute resolution procedures because, properly used, they promote 

equitable settlements that protect the rights of the parties while providing the single most 

cost-effective means of dispute resolution. Cost savings are achieved principally in salaries, 

travel expenses, and court reporting fees. 

The Board's administrative judges use a wid range of alternative dispute resolution techniques 

They make use of the prehearing conference stage of the appeals process to facilitate exchanges 

between the parties, suggesting possible solutions and helping the parties reach a voluntary 

agreement. Because these processes are voluntary, the parties surrender no rights if an agreement is 

not reached, and the case proceeds to adjudication. 

The settlement rate in Fiscal Year 1991 was comparable to that in the three previous fiscal 

years. The chart above shows settlement rates since Fiscal Year 1984. 

Of the 2,015 appeals that were adjudicated, 79 percent affirmed the agency action. Decisions 

in the remaining appeals that were adjudicated included reversals, which overturned the agency 

action, and mitigations, which reduced or modified the penalty imposed by the agency. 

Eight Year Trend in Settlement Rates FY 1984 - FY 1991

Percentage of initial appeals not dismissed for lack of jurisdiction or timeliness.
The following chart shows the breakdown by disposition of all appeals decided in Fiscal 

Year 1991. 

Overall Percentages of Dispositions of 

Initial Appeals Decided in FY 1991 

Total number of initial appeals: 7,525. Percentages do not total 100% because of rounding. 

At the Regional Directors' Conference are (left to 

right) Gail E. Skaggs, Regional Director, Denver 

Office, and P.J. Winzer, Regional Director, 

Washington Office.
The following table shows the disposition of appeals decided in Fiscal Year 1991 by 

agency. 

Initial Appeals Decided in FY 1991: 

By Selected Agencies 

Number 

Agency Decided

Percent 

Dismisse

Number 

Not 

Dismisse

Percent 

Settled

Number 

AdjudicatedPercent 

Affirmed

Percent 

Reverse

Percent

Mitigate

d! 

Postal Service 1,556 47% 832 69% 262 65% 22% 13%

OPM 1,496 34% 990 11% 880 84% 13% 3%

Navy 826 46% 444 61% 172 74% 17% 9%

Army 729 44% 407 56% 179 79% 14% 7%

VA 455 51% 222 68% 72 78% 15% 7%

Air Force 438 44% 247 55% 112 77% 13% 10%

Treasury 404 67% 132 64% 48 90% 2% 8%

Interior 267 72% 74 53% 35 63% 29% 9%

TVA 234 31% 161 68% 52 90% 6% 4%

Justice 208 58% 88 60% 35 66% 17% 17%

Defense 165 47% 88 60% 35 74% 14% 12%

HHS 130 52% 63 75% 16 75% 19% 6%

Agriculture 125 42% 72 64% 26 92% 4% 4%

Transportation 117 62% 44 46% 24 62% 38% 0%

Labor 52 48% 27 56% 12 100% 0% 0%

GSA 50 42% 29 59% 12 83% 17% 0%

Commerce 40 55% 18 78% 4 100% 0% 0%

HUD 31 52% 15 73% 4 75% 25% 0%

EEOC 20 40% 12 67% 4 50% 25% 25%

FDIC 19 42% 11 46% 6 50% 50% 0%

SBA 17 53% 8 50% 4 100% 0% 0%

Energy 17 41% 10 80% 2 50% 50% 0%

Smithsonian 16 50% 8 75% 2 100% 0% 0%

EPA 13 77% 3 67% 1 100% 0% 0%

Education 8 63% 3 67% 1 100% 0% 0%

State 7 71% 2 100% 0 0% 0% 0%

GPO 7 57% 3 100% 0 0% 0% 0%

FEMA 6 50% 3 33% 2 100% 0% 0%

National Archives 5 60% 2 0% 2 100% 0% 0%

NRC 5 20% 4 75% 1 100% 0% 0%

Other Agencies 62 58% 26 59% 10 100% 0% 0%

TOTAL 7,525

46%

4,048

50%

2,015

79%

15% 6%

Note 1. The selected agencies shown include all Executive agencies with at least 5 cases. Executive agencies, for 

purpose of this figure, include the U.S. Postal Service and other governmental entities over which the Board has 

jurisdiction. 

Note 2. Because of the small number of cases involved, some percentages must be interpreted with caution. 

Note 3. The large number of initial appeals for the Office of Personnel Management reflects the special 

jurisdiction this agency has in retirement and suitability issues. 
Of the 86 stay requests decided in Fiscal Year 1991, 73 were filed in cases where 

the action appealed was allegedly based on whistleblowing. The remaining 13 were filed in 

non-whistleblower cases and were not granted because the Whistleblower Protection Act 

does not authorize stays in such cases. Of the 73 stay requests in whistleblower cases, 7 

were granted, and the remainder were dismissed or denied. 

In addition to the decisions on initial appeals and stay requests issued in Fiscal Year 

1991, the regional offices issued decisions in 777 addendum cases. This number included 

280 requests for attorney fees, 406 enforcement cases alleging that there was not full 

compliance with a Board decision, and 91 cases remanded to the regional offices. The 

settlement rate for addendum cases was 39 percent of the cases not dismissed. 

Case Receipts and Trends 

Receipts of initial appeals in Fiscal Year 1991 increased 13 percent over the previous 

fiscal year. The increase was apparent throughout the Board's regional offices, with several 

of those offices processing more appeals than in any year since the appeals from air traffic 

controllers fired in 1981 caused a substantial increase in caseload throughout the Board. 

The impact of expanded Board jurisdiction under the Civil Service Due Process Amendments of 1990 began to be felt during Fiscal Year 1991. The Board's regional offices 

reported receiving approximately 100 appeals from excepted service employees who 

gained appeal rights under the Act. 

Over 100 adverse action appeals were received as a result of the application of the 

Financial Institutions Recovery, Reform, and Enforcement Act (FIRREA), enacted in 1989. 

Under that Act, several thrift institution regulatory agencies were abolished and their 

employees transferred to other agencies, including the Comptroller of the Currency and the 

newly established Office of Thrift Supervision (OTS)both agencies of the Treasury 

Department. As a result of this transfer, several thousand employees gained Board appeal 

rights. 

The FIRREA also directed the Comptroller of the Currency and the Director of OTS to 

implement restructured pay systems for the employees of those agencies. As a result of 

the new pay systems implemented early in 1991, many employees of these agencies 

appealed to the Board, claiming a constructive or actual reduction in grade or pay. 

The regional offices noted several trends in appeals during the fiscal year. The Atlanta 

office experienced a significant increase in reduction in force appeals from the Tennessee 

Valley Authority. The Denver office also reported an increase in RIF appeals and an increase 

in the number of appeals of performance-based actions as well. 

The Dallas office experienced an increase in both reduction in force and whistleblower 

appeals. A RIF at the Red River Army Depot resulted in over 60 RIF appeals to the Dallas 

office in the first quarter of the fiscal year. 

The Boston office noted an increase in appeals from Postal Service employees, including managers and supervisors. Approximately 41 percent of the appeals processed by the 

office were Postal Service appeals. 
The Seattle office received a significant number of appeals from individuals who were 

indefinitely suspended by their agencies, pending a decision whether to initiate 

proceedings to revoke a security clearance or after initiation of such proceedings. These 

cases were significant because the suspensions were effected prior to actual revocation of 

the security clearances. 

The Washington office received most of the appeals filed by newly eligible excepted 

service employees and the appeals resulting from the application of the Financial 

Institutions Recovery, Reform, and Enforcement Act. The office also noted increased 

appeals as a result of RIF actions in Department of Defense agencies. 

Looking toward the future, the San Francisco office anticipates a large number of RIF 

appeals during Fiscal Year 1992 as a result of the downsizing of military installations in the 

region. The St. Louis office also anticipates an increase in RIF appeals next fiscal year as a 

result of an expected major RIF action at Ft. Knox. 

Because of the widespread interest in the restoration to duty rights of Federal 

employees who served in Operation Desert Storm, the Board set up procedures to monitor 

any appeals filed by returning veterans claiming that they were denied restoration or were 

restored improperly. According to OPM, approximately 20,000 Federal employees were 

mobilized for military service in the Persian Gulf. By the end of the fiscal year, only 10 

appeals had been filed alleging denial of restoration to duty or improper restoration. 

Significant Activities 

During the fiscal year, the Board conducted a pilot project for a more streamlined program to 

review the quality of initial decisions issued by its administrative judges. Quality review teams made 

on-site evaluation visits to the Dallas, Philadelphia, and St. Louis regional offices. These teams were 

composed of a regional director from an office not being reviewed, an administrative judge from 

another regional office, and a staff attorney from the Office of Regional Operations. 

During their visits, the quality review teams discussed the results of their review of the initial 

decisions issued by the office's administrative judges and conducted in-depth reviews of randomly 

selected, recently closed case files. The results of this pilot project are undergoing review so that 

decisions can be made regarding the future direction of the quality review program. 

 

At the 3rd National Administrative Judges' Conference are (left to right) Lonnie Crawford, Regional Director, Philadelphia 

Office; Chief Judge Aubrey Robinson, U.S. District Court for the District of Columbia; and Thomas J. Lanphear, Director, 

Office of Regional Operations. 
The Board's Third National Administrative Judges' Conference was held in Baltimore in 

July 1991. Administrative judges from the regional offices participated in training sessions 

with staff from the Washington headquarters and heard presentations from outside 

speakers on such subjects as the Americans with Disabilities Act, the Whistleblower 

Protection Act, settlement, legal opinion writing, issues involved in security clearance cases, 

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

A number of the Board's administrative judges completed courses at the National 

Judicial College (NJC). In addition, one administrative judge continued to serve as a faculty 

member of the NJC. 

HEADQUARTERS 

Procedures for Petitions for Review 

An administrative judge's initial decision on an appeal becomes the final decision of the Board 

unless a party files a petition for review with the Board within 35 days of the date of the initial 

decision or the Board reopens the case on its own motion. The Board may grant a petition for review 

when it is established that the initial decision of the administrative judge was based on an erroneous 

interpretation of statute or regulation, or that new and material evidence is available that, despite 

due diligence, was not available when the record was closed. 

When an appellant prevails in an appeal, interim relief is provided pending the outcome of any 

petition for review, unless the administrative judge determines that interim relief is not appropriate. 

An exception to interim relief is also available if the administrative judge's decision requires the 

return of the appellant to the workplace and the agency determines that such a return would be 

unduly disruptive. When an agency files a petition for review of an initial decision that provided 

interim relief to the appellant, the agency must furnish evidence that it has provided appropriate 

interim relief. If such evidence is not provided, the Board will dismiss the petition for review. 

Petitions for review are filed with the Office 

of the Clerk at Board headquarters by either 

party, or, under certain circumstances, by the 

Office of Personnel Management or the Office of 

Special Counsel as an intervenor. The Board also 

has the discretion to reopen and consider an 

initial decision on its own motion. 

The Board's decision on a petition for 

review constitutes the final administrative action. 

Further appeal then may be available in the 

United States Court of Appeals for the Federal 

Circuit or, in cases involving allegations of 

certain types of discrimination, with a U.S. 

District Court or the Equal Employment 

Opportunity Commission (EEOC). 

Pictured to the right, Katherine Dress, Confidential Advisor to the Chairman (left), and Cameron P. 

Quinn, Counsel to the Chairman 
The Director of the Office of Personnel Management may intervene or petition the full Board 

for reconsideration of a final decision. The OPM Director also may seek judicial review of a Board 

decision involving the interpretation of a civil service law, rule, or regulation affecting personnel 

management where the Board decision will have a substantial impact on a civil service law, rule, 

regulation, or policy. 

Decisions Issued in Fiscal Year 1991 

In Fiscal Year 1991, the Board issued 1,838 decisions on petitions for review of initial decisions, 

requests to review stay rulings, and reopenings. The total number of decisions represented an 

increase of 21.7 percent over the previous fiscal year. 

Of the total, 1,503 were decisions on petitions for review of initial decisions on appeals, and 189 

were decisions on petitions for review in addendum cases. The number of decisions on PFRs only 

represented an increase of 17.3 percent over the previous fiscal year. 

Ten of the decisions issued by the Board were on requests to review rulings by administrative 

judges on stay requests filed by whistleblowers. The Board denied four, and the remainder were 

dismissed.

The Board also decided 136 cases that it reopened. This figure does not include cases 

where the Board denied a PFR and simultaneously reopened the case on its own motion; 

such cases are included in the number of PFRs decided. The reopenings consisted of 121 

cases the Board reopened on its own motion, 2 reopened at the request of the Director, 

OPM, and 13 court remands. 

The Board's decisions on 87.6 percent of the petitions for review of initial decisions on 

appeals left the initial decision unchanged. During Fiscal Year 1991, 95 percent of final 

Board decisions reviewed by the United States Court of Appeals for the Federal Circuit were 

unchanged. 

Receipts of PFRs were up 8.5 percent over the previous fiscal year. In spite of this 

increase in receipts, the Board's productivity during the fiscal year resulted in a reduction in 

the number of pending cases (including PFRs, reviews of stay rulings, and reopenings) from 

1,021 on October 1, 1990 to 784 at the end of the fiscal year. 

Issues Addressed in Fiscal Year 1991 

During Fiscal Year 1991, the Board set important precedent in several areas of 

concern to Federal employees and retirees. (See Appendix A for summaries of significant 

Board decisions on appeals issued during Fiscal Year 1991, including the cases cited below.) 

Board Decisions and Receipts: FY 1991* 

*Includes decisions and receipts of PFRs of initial decisions on appeals, PFRs of initial decisions in 

addendum cases, reopenings, and requests to review rulings on stay requests. 
Robert Hernandez, Executive Assistant to the 

Vice Chairman (left), and Yolanda Haro, Confidential 

Assistant to the Vice Chairman 

The Board continued to develop case law 

under the Whistleblower Protection Act of 

1989. In Williams v. DOD and OPM, the Board 

held that filing an EEO complaint does not 

constitute a whistleblowing disclosure 

protected under the WPA. The Act protects the 

disclosure of information reasonably believed 

to evidence a violation of law, rule, or 

regulation. A separate statutory provision, 

however, protects the filing of EEO complaints. 

Consequently, the Board held that it has no 

authority to grant a stay request where 

retaliation for filing EEO complaints is the basis 

for the request. In Fisher v. DOD and Coffer v. 

Navy, the Board applied the same reasoning to 

retaliation for filing grievances and unfair labor practice complaints, which are protected by 

the same statutory provision that protects the filing of EEO complaints. 

In Horton v. Navy, the Board held that the right to file an IRA appeal under the WPA is 

not limited by an appellant's pursuing EEO administrative remedies simultaneously. As the 

Board explained, there otherwise would be a conflict between the two separate statutory 

schemes, and the appellant's right to seek a stay would be delayed. 

In Ruffin v. Army, the Board held that, in order to demonstrate entitlement to WPA 

protection for a whistleblowing disclosure, the appellant mustprove that the agency official 

responsible for the action against the appellant was aware of the whistleblowing. Otherwise, 

the Board held, the appellant cannot make the statutorily required showing that the 

disclosure was a contributing factor in the agency's action. When actual knowledge is 

present, proximity in time between the knowledge of the protected disclosure and the 

personnel action is a factor that evidences a retaliatory motive, the Board noted. 

The Board held in Mack v. USPS that the remedies and burdens unique to the WPA do 

not apply to Postal Service employees because the Postal Service, by statutory definition, is 

not a covered agency. Therefore, the Board ruled, such appeals from USPS employees will 

be analyzed under the burden of proof generally applicable prior to the WPA. 

In Gergick v. GSA, the Board ruled that, under the legal theory of "continuing 

wrongs," the WPA applies to the last in a series of allegedly retaliatory actions that 

occurred after the effective date of the Act. 

The Board issued a number of decisions interpreting the new provision for interim 

relief, that is, restoration of a prevailing appellant to duty and/or pay status between the 

date of the initial decision and the date on which the Board issues a final decision on the 

agency's petition or cross petition for review. In Wallace v. LISPS, the Board ruled that the 

agency must show compliance with the administrative judge's order for interim relief when 

it files its petition for review. Otherwise, the Board will dismiss the petition summarily as 

provided by regulation. 
Judy L. Bowes, Confidential Assistant to the Member 

(left), and Anne E. Broker, Legal Counsel to the 

Member 

The Board continued to add to the 

case law concerning disability retirement 

appeals. In Dec v. OPM, the Board held that, 

in disability retiremen appeals, the test to 

be applied in deciding whether an employing 

agency could have accommodated an 

employee's handicapping condition, without 

separating him, is whether the 

employing agency was unable to reasonably 

accommodate the condition—not whether 

the agency refused to accommodate the 

employee. 

In Stevenson-Phillips v. OPM, the Board held that receipt of a disability retirement 

application by a former employing agency within the filing deadline of one year after 

separation does not constitute constructive receipt by OPM. Consistent with the Supreme 

Court's decision in OPM v Richmond, the Board found that OPM cannot be estopped from 

enforcing the 1-year statutory deadline, despite any mistakes by the former employing 

agency in processing the application. 

The Board issued two significant decisions in FERS election cases—Moriarty v. OPM and 

Webb v. OPM. The Board noted that OPM regulations allowed CSRS employees to transfer to 

FERS retroactively after the "open season" from July 1, 1987 to December 31, 1987 only if 

the FERS transfer handbook was unavailable to them or if reasons beyond their control 

prevented them from making an election during the "open season." The Board held in 

Moriarty that an employee, to whom the FERS transfer handbook was available and to whom 

uncertain but not misleading information about pending pension offset legislation was 

provided by his employing agency, was not unable to make a proper election. In Webb, the 

Board held that the standard for determining whether an election among retirement options 

is voidable as a result of misinformation is whether a reasonable person would be confused 

under the circumstances. 

In Stanley v. Justice, the Board further refined the standard for determining whether 

an employee is a "handicapped person" against whom discrimination is prohibited by 

statute. On a case-by-case basis, the Board will inquire into whether the particular 

impairment involved "substantially limits" the employee's ability to work or otherwise 

constitutes a "significant barrier to employment." Relevant considerations, the Board found, 

are the number and type of jobs from which the employee is disqualified, the geographical 

area to which he has reasonable access, and his job expectations and training. The Board 

ruled that the handicap must foreclose generally the type of employment involved, not just 

the demands of a particular job. In Konieczko v. LISPS, 

the Board ruled that, in the absence of a finding of 

handicap discrimination, an agency is under no 

obligation to reassign an employee unless an agency 

regulation requires it. 

William H. DuRoss III, Director, Office of Appeals Counsel
Robert E. Taylor, Clerk of the Board, with Vice 

Chairman Amador 

With regard to performance-based 

actions under Chapter 43, the Board held 

in Ortiz v. Justice that the validity of 

performance standards is properly 

addressed, despite the fact that the issue 

was not raised by the parties or 

identified during the prehearing 

conference. As to performance-based 

actions under Chapter 75, the Board 

determined in Graham v. Air Force that 

the validity test applied to an agency's 

ad hoc performance standard (where an 

employee's Chapter 43 performance 

standards do not apply) is whether the standard is reasonable and provides for accurate 

measurement. In Bowling v. Army, the Board held that, in appeals of performance-based 

actions under either Chapter 43 or Chapter 75, the agency must establish an objective 

systematic method for selecting examples of alleged unacceptable performance, so that a 

reasonable person might conclude that the employee's performance fell below a specified 

percentage requirement. 

Kevin Taugher, Personnel Management Specialist (left), and Kathleen O'Sullivan, 

Library Director
During this fiscal year, the Board issued its decision in Anderson v. DOT, the reopening 

of appeals from 116 former air traffic controllers whose removal for participation in the 1981 

strike the Board sustained in 1983. The appellants claimed that the report of the House 

Subcommittee on Investigations and Oversight established that the evidence relied on by 

the agency to undertake their removal actions, and to support the actions on appeal to the 

Board, was manufactured and otherwise tainted so as to be completely unreliable. The 

Board found that it had the authority to reopen an appeal where its decision was obtained 

by fraud, concealment, or misrepresentation by a party, even though many years had 

passed and even where the Federal Circuit had affirmed the Board's 1983 decision, as here. 

The Board found, however, that the appellants in this case made no such showing. The 

Board considered similar contentions when the appeals were originally before it, and no 

appellant, then or now, alleged individual harm. The Board noted its disapproval of the 

extent to which the agency had secretly altered its documentary submissions, but concluded 

that the appellants simply failed to prove any material alteration. 

Headquarters Appellate Cases 

Three types of appellate jurisdiction cases are processed originally at Board 

headquarters, rather than in a regional office. These are appeals from MSPB employees, 

appeals involving classified national security information, and petitions to review an 

arbitrator's award. 

In the case of appeals from MSPB employees and appeals involving classified national 

security information, the Board's Administrative Law Judge hears the case and issues the 

initial decision. Unless a petition for review is filed and the Board considers the case, the 

decision of the Administrative Law Judge becomes the final decision. Arbitration cases are 

decided by the Board in the first instance, with no intermediary. 

All cases involving classified information relating to national security, whether 

appellate or original jurisdiction, are adjudicated by the Administrative Law Judge. No 

decisions were issued on such appeals in Fiscal Year 1991, although three cases involving 

national security information were pending at the end of the fiscal year. 

No MSPB employee appeals were decided during the fiscal year. One such appeal was 

filed, however, and was pending at the end of the fiscal year. 

Office of Appeals Counsel attorneys, Jill Nelson (left) 

and Ray Angelo 

The Board issued decisions in five cases 

involving review of arbitrators' awards. The Board 

also decided one attorney fee case arising from a 

decision on review of an arbitrator's award. 

Significant Activities 

To further improve the adjudicatory process, 

headquarters attorneys visited the Board's regional 

offices to share current and developing trends in 

Board law and practice with administrative judges 

and to receive the judges' input into how those practices and procedures work when applied in "real 

world" situations. The exchange between headquarters and regional attorneys in this year's 

Administrative Judges' Conference was similarly useful. 
During this fiscal year, headquarters attorneys who prepare recommended decisions for the 

Board's consideration began using a newly installed local area network that connects their personal 

computers to each other and to a central storage device. The new system allows the attorneys to 

share and revise draft documents more easily and offers new and faster methods of computerassisted legal research. 

SPECIAL PANEL 

The Special Panel was established by the Civil Service Reform Act of 1978 as a 

separate entity to resolve disputes between the Merit Systems Protection Board and the 

Equal Employment Opportunity Commission in "mixed cases." These are cases that involve 

both a matter appealable to the Board and an issue of discrimination. The Special Panel 

consists of one Board Member designated by the MSPB Chairman, one EEOC Commissioner 

designated by the EEOC Chairman, and a third individual appointed by the President to 

serve as Chairman of the Special Panel. President Reagan appointed Barbara Mahone as 

Chairman of the Special Panel on October 18, 1985. During Fiscal Year 1991, there were no 

cases referred to or decided by the Special Panel. 
Steps in Processing Initial Appeals and Petitions for 

Review 

Filing of Appeal by Appellant Within 20 days of effective date 

of agency personnel action

MSPB Regional Office

Appeal received 

Appeal acknowledged 

Appeal entered in Case Management System 

Case file requested from agency 

Appeal assigned to administrative judge 

(If appropriate, show cause order issued re: jurisdiction or timeliness) 

1-3 days from receipt of appeal

Agency response and case file received 

Discovery 

begins 

Prehearing conference scheduled 

Notice of hearing issued 

(If show cause order issued, response received)

10 - 25 days from receipt of appeal

Prehearing motions filed and rulings issued 

Attempts to achieve settlement (various methods) 

Discovery completed 

Prehearing conference held (more than one may be held to facilitate 

settlement) 

Witnesses identified 

If no hearing, close of record set

10 - 60 days from receipt of appeal

Hearing held 

Record closed 60 - 75 days from receipt of appeal

Initial Decision issued Within 120 days from receipt of 

appeal 

Filing of Petition for Review (PFR) by Appellant or Agency (or OSC or OPM as 

intervenor) 

Board Headquarters

Within 35 days of date of Initial 

Decision

PFR received 

PFR acknowledged 

PFR entered in Case Management System 

Case file requested from Regional Office 

(If appropriate, show cause order issued 

re: jurisdiction, timeliness, or deficiency of PFR)

1 - 3 days from receipt of PFR

Response to PFR filed 

Or Cross-PFR filed 

Case file received 

(If show cause order issued, response filed)

Within 25 days of date of service 

of PFR 

If Cross-PFR received Additional 25 days from date of 

service of Cross-PFR

If Extension of Time request received and granted Additional time specified in Order 

granting EOT

Final Decision issued (Board time standard for 

issuance of Final Decisions is 

110 days)

Filing of Appeal with U.S. Court of Appeals for the Federal Circuit Within 30 days of the party's receipt of 

(or, in discrimination cases, with the appropriate U.S. District Court or EEOC) Board Final Decision

_________________________________________________ 

 
ADJUDICATION: ORIGINAL JURISDICTION 

Jurisdiction 

Cases that arise under the Board's original jurisdiction include: 

Corrective and disciplinary actions brought by the Special Counsel against agencies or 

Federal employees who are alleged to have committed prohibited personnel practices, 

or to have violated certain civil service laws, rules or regulations; 

Requests for stays of personnel actions alleged by the Special Counsel to result from 

prohibited personnel practices; 

Disciplinary actions brought by the Special Counsel alleging violation of the Hatch Act; 

Certain proposed actions brought by agencies against administrative law judges; 

Requests for review of regulations issued by the Office of Personnel Management, or of 

implementation of OPM regulations by an agency; and 

Informal hearings in cases involving proposed performance-based removals from the 

Senior Executive Service. 

Original Jurisdiction Procedures 

Original jurisdiction complaints are filed in writing with the Office of the Clerk at Board 

headquarters. Employees against whom Hatch Act or other Special Counsel disciplinary 

action complaints are filed have 35 days to respond and are entitled to a hearing. An 

administrative law judge against whom an agency proposes an action also has 35 days to 

respond and is entitled to a hearing. These cases are assigned to the Board's Administrative 

Law Judge, who issues a recommended decision to the Board for final action. 

Special Counsel stay requests and requests for regulation review are decided by the 

Board. An initial stay request may be granted by a single Board member. 

In SES performance-based removal cases, the Administrative Law Judge holds an 

informal hearing, but the Board does not issue a decision. The record of the hearing is 

forwarded to the employing agency, OPM, and the Special Counsel for whatever action may 

be appropriate. 

Addendum cases (requests for attorney fees, petitions for enforcement, and remands) 

arising out of Board decisions in original jurisdiction cases are also included in the Board's 

original jurisdiction caseload. 

Appeals from Board decisions in Special Counsel cases (other than Hatch Act cases 

involving state or local employees in federally-funded positions) and other original 

jurisdiction cases are filed with the United States Court of Appeals for the Federal Circuit. In 

Hatch Act cases involving state or local employees in federally-funded positions, the 

employee may appeal the Board's decision to the appropriate U.S. district court. 

Decisions Issued in Fiscal Year 1991 

During Fiscal Year 1991, the Board issued 51 decisions in original jurisdiction cases. Of 

these, 27 were decisions in proposed actions against administrative law judges, 5 were 

decisions in Special Counsel disciplinary actions, 17 were decisions on Special Counsel stay 

requests (3 initial requests and 14 requests for extensions), and 2 were decisions on requests 

for review of OPM regulations. 
The number of decisions in original jurisdiction cases represents a 13.3 percent increase 

over the 45 decisions (including addendum decisions) issued the previous fiscal year. 

Compared to Fiscal Year 1990, the Special Counsel filed fewer stay requests (including 

extensions) in Fiscal Year 1991. There were no decisions in Hatch Act cases in Fiscal Year 

1991, compared to 10 such decisions the previous fiscal year. The number of decisions in 

proposed actions against administrative law judges, however, increased significantly. 

Actions Against Administrative Law Judges 

The large number of decisions in actions against administrative law judges in Fiscal 

Year 1991 was the result of agencies' proposed furloughs of their administrative law judges 

to meet the requirements of a sequester that was anticipated to begin October 1, 1990. 

Unlike other Federal employees, administrative law judges may not be furloughed for 30 

days or less until they first have been given the opportunity for a hearing and a decision by 

the Board. An agency proposing to furlough its administrative law judges first files a 

complaint with the Board. The Board notifies the affected administrative law judges, who 

may then respond to the complaint and request a hearing. The Board's Administrative Law 

Judge issues a recommended decision—after a hearing, if one is requested—and the parties 

then may file exceptions to the recommended decision prior to issuance of a final decision 

by the Board. A furlough may be authorized upon a showing of good cause. 

In the final weeks of Fiscal Year 1990, the Board received 23 complaints from agencies 

proposing to furlough a total of 1,053 administrative law judges. Because the furloughs 

would need to be effected soon after October 1 in the event of a sequester, it was necessary 

for the Board to adopt expedited procedures to complete the processing of these cases. The 

time limits for the administrative law judges to respond to the complaint and for the parties 

to file exceptions to the recommended decision were much shorter than under the Board's 

normal procedures for such cases. Because the Board's Administrative Law Judge could not 

be expected to adjudicate all of the cases in the time involved, the Board hired six retired 

administrative law judges to assist in adjudicating the cases. 

Hearings were held in September and October 1990, and recommended decisions 

were issued. By the end of Fiscal Year 1990, one final Board decision had been issued. The 

Board then issued 24 final decisions during Fiscal Year 1991 to complete all of these 

furlough cases. (More than one decision was issued where a complaint was split.) In all 

cases, there was either a settlement or a decision by the Board that the potential loss of 

funds constituted good cause for the proposed furloughs. As it turned out, no furloughs were 

effected because the enactment, on November 5, 1990, of the Omnibus Budget 

Reconciliation Act removed the threat of sequestration. 

In addition to its decisions in the administrative law judge furlough cases, the Board 

issued three decisions in other cases involving actions against administrative law judges in 

Fiscal Year 1991. One case was withdrawn and one was dismissed for lack of jurisdiction. 

In the third case, which was dismissed pursuant to a settlement, the Board authorized the 

30-day suspension provided for in the settlement agreement. 

Special Counsel Disciplinary Actions 

The Board issued five decisions in Special Counsel disciplinary actions during Fiscal 

Year 1991. Three of these cases involved reprisal for whistleblowing and were the first cases 

filed by the Special Counsel under the Whistleblower Protection Act. In Special Counsel v. 

Marple and Special Counsel v. Eidmann, the Board ordered the demotion of the 

respondents. In Special Counsel v. Hathaway, the Board ordered the respondent suspended. 
The two remaining cases were brought against three respondents each. The cases 

were settled with respect to all respondents. 

Special Counsel Stay Requests 

Decisions were issued in Fiscal Year 1991 on 3 Special Counsel initial requests for stays 

and on 14 requests by the Special Counsel for extensions of stays previously granted. All of 

the initial requests were brought on behalf of whistleblowers, and all were granted by a 

Board member. The requests for extensions of stays were made in five cases (four of which 

were filed during Fiscal Year 1990), all involving whistleblowers, and all were granted by the 

Board. 

Review of OPM Regulations 

During the fiscal year, the Board decided two cases involving a request for review of 

an OPM regulation or implementation of an OPM regulation by an agency. In one case, the 

petitioner also had filed an appeal of a RIF action. When his RIF appeal was settled, the 

request for regulation review was dismissed in accordance with the settlement agreement. 

In the other case, the Board denied the request for regulation review. 

Addendum Cases 

During the fiscal year, the Board's Administrative Law Judge issued two initial 

decisions on requests for attorney fees arising from the administrative law judge furlough 

cases. Because the respondents did not show that they had prevailed, the requests for fees 

were denied. One of these initial decisions became final when no request for review by the 

Board was filed. The other was pending before the Board at the end of the fiscal year. 

SES Performance-Based Removals 

There were no informal hearings before the Administrative Law Judge in SES 

performance-based removal cases during Fiscal Year 1991. 

(See Appendix B for summaries of significant Board decisions issued in original 

jurisdiction cases during Fiscal Year 1991.) 

Other Activities 

The Office of the Administrative Law Judge continued to handle, through a 

reimbursable interagency agreement, Department of Education salary offset cases. These 

cases involve employees in default of federally-insured student loans who are being required 

to satisfy their debts. 

Edward J. Reidy, 

Administrative Law 

Judge (left), and Betty 

D. Cannon, Secretary 
LITIGATION 

Litigation 

Fiscal Year 1991 marked the Board's second year operating under the provisions of the 

Whistleblower Protection Act of 1989. One provision of the Act gave the Board an expanded 

role in its primary reviewing court, the U. S. Court of Appeals for the Federal Circuit. The 

Board now defends its decisions in all Federal Circuit cases except those involving the 

merits of the underlying personnel action or a request for attorney fees. 

The number of cases the Board defends in the Federal Circuit expanded dramatically 

during Fiscal Year 1991 as actions that were begun after the effective date of the 

Whistleblower Protection Act reached the judicial review stage. In Fiscal Year 1991, the 

Board defended 96 cases, compared to only 21 in Fiscal Year 1990. 

The Board also defends appeals of decisions issued under its original jurisdiction 

authority. All of these cases are appealed to the Federal Circuit, except Hatch Act cases 

involving employees of state and local governments, which are heard by Federal district 

courts. Original jurisdiction cases typically involve complex issues such as the extent of the

Special Counsel's jurisdiction and novel issues involving prohibited personnel practices and Hatch Act 

violations. Other litigation includes cases in which OPM petitions for review in the Federal Circuit and 

cases filed in the various Federal district courts when the Board is a defendant.

Llewellyn M. Fischer, General Counsel
Related Activities 

During Fiscal Year 1991, the Board monitored over 800 cases involving appeals of decisions 

issued under its appellate jurisdiction. These cases are filed in the United States Court of Appeals for 

the Federal Circuit. Although the agency against which the appeal is filed is the named respondent, 

and the Department of Justice defends the agency, the Board monitors this litigation closely. Board 

activities in connection with monitored litigation include evaluating the case to determine if intervention is appropriate, responding to inquiries, assisting in drafting any briefs, preparing a case 

summary and chronology, and analyzing the published decision. 

(See Appendix C for summaries of the significant litigation activities of the Board during Fiscal 

Year 1991.) 

OUTREACH ACTIVITIES 

The Board's outreach programs to major constituencies continued in Fiscal Year 1991 to enhance 

its reputation as a fair and impartial adjudicator and as an authoritative resource on civil service 

matters. The Board members and headquarters and regional staff addressed groups, participated in 

seminars and conferences, conducted training programs, and published articles in order to further 

an understanding of the Board's policies and procedures, developments in Board case law, and 

important issues in Federal personnel law. 

Personal Appearances, Meetings, and Instruction 

The regional directors and administrative judges delivered more than 130 speeches at meetings 

and conferences attended by thousands of participants. In addition to comprehensive training sessions 

on Board practices and procedures, the Board's regional personnel addressed such topics as the 

Whistleblower Protection Act, the Civil Service Due Process Amendments, effective advocacy at MSPB 

hearings, adverse actions, reductions in force, reasonable accommodation in handicap discrimination 

cases, and mixed case jurisdiction. 

Member Parks and Vice 

Chairman Amador with 

Chief Justice William 

Rehnquist, United 

States Supreme Court 
 Because of the callup of numerous Federal employee members of Reserve and 

National Guard units to serve in Operation Desert Storm, there was substantial interest 

throughout the country in the restoration to duty rights of these employees. Regional office 

personnel in several cities performed extensive outreach with the National Committee for 

Employer Support of the Guard and Reserve to explain these rights. 

The Board members and headquarters attorneys participated in over 60 outreach 

activities to inform agencies, unions, and other interested segments of the public about the 

Board, its authorities, jurisdiction, practices, procedures, and significant decisions. Many of 

the presentations focused on the Whistleblower Protection Act. Other topics addressed 

included settlement, reduction in force actions, and handicap discrimination. 

The studies staff participated in almost 40 conferences, seminars, and symposia to 

discuss human resources management issues and to report on the results and implications 

of the Board's studies and OPM oversight. Among the topics addressed were employee 

turnover in the Federal Government, pay for performance, changes in Federal hiring 

practices, measurement of workforce quality, and the glass ceiling. 

In September 1991, the Board, the Equal Employment Opportunity Commission, the Federal 

Labor Relations Authority, the Office of Personnel Management, and the Office of Special Counsel 

jointly sponsored the Federal Dispute Resolution Conference. Board staff made presentations at the 

conference on such topics as SES recertification, mixed cases, performance management, sexual 

harassment, and remedies in EEO, personnel, and labor law. The Board also staged a mock hearing to 

demonstrate Board appellate procedures. 

The Board participated in the annual Federal Circuit Judicial Conference by sponsoring an 

afternoon breakout session. Staff also were involved in various programs sponsored by OPM and by 

the Justice Department Legal Education Institute (LEI). A number of Board attorneys serve as LEI 

program instructors on a regular basis. Several regional offices sponsored programs for practitioners 

before the MSPB. In addition, the Board members and staff addressed meetings of representatives of 

various Federal agencies, employee organizations, professional associations, and bar associations. 

Representation in Organizations 

The Merit Systems Protection Board is a member of the Small Agency Council (SAC), the 

voluntary association of Federal agencies that employ fewer than 6,000 people. Chartered in 1986, the 

Small Agency Council now represents more than 90 small agencies. The Board's Deputy Executive 

Director serves on the SAC Executive Committee and represents both MSPB and SAC on the 

President's Council on Management Improvement Systems Committee. 

The SAC training seminar series has been especially beneficial to MSPB employees. The program 

is funded by voluntary contributions from member organizations. For its $1,000 contribution in Fiscal 

Year 1991, the Board was able to send over 50 employees at all ranks to valuable courses and 

seminars. 

The Board is represented in the Public Employees Roundtable, the President's Council on 

Management Improvement, and the Interagency Committee on Voluntarism. During the fiscal year, 

MSPB participated in the celebration of Public 

Service Recognition Week with an exhibit on the Mall and coordinated a blood drive involving 

several small Federal agencies. 

The Board's Director of Administration represents MSPB as a member of the Board of Directors 

of the National Capital Area CASU (Cooperative Administrative Support Units). This Board coordinates 

the efforts of agencies to combine their administrative resources to take advantage of economies of 

scale. 

In addition, several regional directors and administrative judges serve on the Federal Executive 

Board (FEB) and FEB committees in their cities. During Fiscal Year 1991, the Director of the Chicago 

Regional Office served as Chairman of the Chicago FEB. Regional personnel in Philadelphia, St. Louis, 

and Seattle served as chairs or members of FEB committees in those cities. 
Publications and Articles 

In spring 1991, the Board issued its annual report on case decisions, which provided detailed 

statistical information on the decisions issued by the Board and its administrative judges in Fiscal Year 

1990. The report included information on initial appeals, petitions for review, and addendum cases. In 

addition to total numbers, various breakdowns were provided by type of appeal, agency. disposition. 

and case processing time. 

Paul D. Mahoney, Director, Office of Management Analysis 

The report on case decisions also provided information 

on appeals involving such special interest issues as 

whistleblowing, sexual harassment, agency drug testing, AIDS, 

and accommodation of employees handicapped by drug and/or 

alcohol abuse. The report reviewed Board decisions in cases 

arising under its original jurisdiction, cases that the Board 

reopened on its own motion, cases in which OPM requested 

reconsideration, and discrimination cases that were appealed to 

the Equal Employment Opportunity Commission. 

The Board's series of public information publications 

continued in Fiscal Year 1991 to serve as an effective outreach 

vehicle to Federal employees and agency representatives. The 

Board responded to numerous requests for copies of 

"Questions & Answers About Appeals" and "Questions & 

Answers About Whistleblower Appeals." The former publication provides information on the Board's 

appellate jurisdiction and its procedures for appeals generally, while the latter publication provides 

information on the special provisions applicable to whistleblower appeals under the Whistleblower 

Protection Act of 1989. Both publications are intended primarily for Federal employees and are written 

in a "plain English" question and answer format. 

The Board reprinted these 

publications twice during the fiscal 

year. Each time, agencies were 

invited to order copies directly 

from the Government Printing 

Office. In addition to the copies 

distributed by the Board directly, 

agencies ordered approximately 

13,000 copies of "Questions & 

Answers About Appeals" and 

18,000 copies of "Questions & 

Answers About Whistleblower 

Appeals." In addition, one 

agency arranged for a separate 

printing of 20,000 copies of 

"Questions & Answers About 

Whistleblower Appeals" for 

distribution to its employees. MSPB Public Information Series

During the fiscal year, the Chairman published an article in the Federal Times discussing the 

Board's expanded jurisdiction under legislation enacted in recent years. Board attorneys published two 

articles in the Federal Circuit Bar Journal, one examining the evolution of Federal employee appeal 

rights and the other summarizing significant Board decisions. Members of the studies staff published 

articles in nine professional journals, including the Review of Public Personnel Administration and 

Federal Managers Quarterly. 
International Visitors Program 

The Board's international visitors program is conducted at Board headquarters by the Board 

members and senior staff. The program is responsive to requests from foreign visitors who wish to 

learn about merit system principles and the Board's practices and procedures. During Fiscal Year 

1991, the Board made presentations to approximately 45 visitors from a number of countries, including 

Australia, Nepal, Taiwan, Ethiopia, and Uganda. The visitors included governors, lieutenant governors, 

heads of agencies, inspectors general, staff directors, and staff attorneys. Many of these individuals 

visited the Board during a time when their countries were in the process of developing or revising an 

appeals system. 

ADMINISTRATION, FINANCE, AND HUMAN RESOURCES 

ADMINISTRATION 

Improvement Objectives 

During Fiscal Year 1991, the Board continued to enhance management efficiency and 

effectiveness through its focus on management improvement objectives. The four major 

improvement objectives are: 

To ensure the quality of decisions and the adjudicatory process; 

To enhance the merit systems studies and OPM oversight functions; 

To improve the effectiveness of outreach activities; and 

To continue to improve management efficiency and effectiveness. 

Program and Management Reviews 

During Fiscal Year 1991, the Board conducted Administrative Program and 

Management Reviews, in accordance with the requirements of OMB Circular No. A-123, in 

its San Francisco and Seattle regional offices and in the Office of the General Counsel and 

the Office of Policy and Evaluation at headquarters. These reviews, conducted on a 5-year 

cycle, cover both administrative management of the office plus program management if the 

office has delegated responsibility for a program. The reports of these reviews have proven 

extremely beneficial in improving the quality of administrative and program functions. 

During the fiscal year, the Inspector General evaluated the Board's internal controls 

over its management and operations in accordance with OMB Circular A-123. In addition, 

the Inspector General issued reports on case tracking workload data and graphs, physical 

security of headquarters, and accuracy of data in the Federal Procurement Data System. 

Two audits were conducted of headquarters and regional office imprest funds, and interim 

reports were issued. Allegations received on the Inspector General Hotline resulted in 11 

preliminary investigations that were referred toother agency inspectors general for action, 3 

internal investigations that were closed for lack of substance, and 1 internal investigation 

that was pending at the close of the fiscal year. 

Automated Systems 

The new automated Case Management System became operational in July 1991. The 

redesigned system, which was begun four years ago, includes many enhancements to the 

prior automated system. For the first time, original jurisdiction cases are tracked in the 

system, and litigation cases are now included in the same system as appeals and original 

jurisdiction cases. The new system includes several new features, including easy-to-use 

screens for data entry, automated creation of address sheets and certificates of service, and 

automated docket number assignment. 
Based on a study completed in Fiscal Year 1990, the Board implemented a new 

nationwide telecommunications network to replace the minicomputers located in each 

regional office. The new network permits all regional office staff to be on-line with the 

central minicomputer in headquarters at all times. Installation of the new network 

eliminated the cost of maintaining minicomputer hardware and software in each regional 

office and reduced administrative support costs in the regional offices. The new network 

also permits the Board to use its own facilities to communicate with the 

National Finance Center, thus reducing commercial telecommunications charges. 

Darrell L. Netherton, Director of 

Administration (left), and Frank E. Hagan, 

Assistant to the Director 

Other Management Activities 

In a reorganization at headquarters, the 

offices of Equal Employment Opportunity, General 

Counsel, and Inspector General were placed 

directly under the Chairman. This reorganization 

emphasizes the Board's commitment to its equal 

employment opportunity, internal control, and ethics programs. In order to provide more consistent 

and efficient management of the Board's public affairs program, the Board's public information and 

media relations functions were centralized in the Office of Management Analysis. 

The design for the Board's relocated Atlanta Regional Office was selected as a 1991 Government 

Workplace Benchmark Honoree. The award was presented at the Government Workplace Conference 

in Washington, DC, and an article featuring award recipients was published in Government Workplace 

Magazine. 

Information Resources Management Division 

Staff (left to right), Howard K. Schuyler, Computer 

Programmer! Analyst; Barbara B. Wade, Director; 

and Nick Ngo, Computer Programmer/Analyst

T. Paul Riegert, Inspector General
FINANCIAL STATEMENT 

The income and expenses of the Merit Systems Protection Board for Fiscal Year 1991 (October 1, 

1990, through September 30, 1991) are shown below. All figures are in thousands of dollars. 

INCOME 

Appropriations 22,564 

 Reimbursements - 

Civil Service Retirement 1,500 

 & Disability Trust Fund 

Reimbursements - Other 34 

 (interagency agreement and 

 reimbursable detail) 

Total income 24,098 

EXPENSES 

Direct obligations: 

Personnel compensation 

Full-time permanent 12,915 

Other than full-time permanent 925 

Other personnel compensation 333 

Subtotal, personnel compensation 14,173 

Personnel benefits 2,086 

Travel of persons 557 

Transportation of things 68 

Rental payment to GSA 1,850 

Rental payments to others 49 

 Communications, utilities, 

and miscellaneous charges 640 

Printing and reproduction 93 

Other services 1,479 

Supplies and materials 304 

Equipment 1,176 

Subtotal, direct obligations 22,475 

Reimbursable obligations 1,534 

Total obligations 24,009 

BALANCE 89 
HUMAN RESOURCES 

The full-time equivalent (FTE) employment for the Board in Fiscal Year 1991 was 302. In the 

previous fiscal year, the FTE was 299. 

The representation of women and minorities in the Board's workforce continues to be impressive. Women and minorities are not clustered in lower grades, and the Board's representation of these 

groups in professional occupations is high. The following table shows the percentages of female and 

minority attorneys, as well as the percentage representation of these groups in the Board's workforce 

as a whole. 

MSPB EMPLOYMENT BY MALE/FEMALE AND MINORITY/MAJORITY 

Attorneys

No. in Percent of 

 Attorney Attorney 

 Workforce Workforce

Male 80 60.6 

Female 52 39.4

Total 132 100 

Minority * 26 19.6 

Majority 106 81.4 

Total 132 100 

MSPB (Entire Agency) 

No. in Percent of 

 Workforce Workforce 

Male 128 42 

Female 177 58 

Total 305 100 

Minority * 105 34 

Majority 200 66 

Total 305 100 

* Excluding White/Female Data as of September 30, 1991 

During Fiscal Year 1991, the Office of Equal Employment Opportunity participated in local and 

national special emphasis program conferences. Representatives attended national conferences 

sponsored by Federally Employed Women, the Hispanic Association of Colleges and Universities, Blacks 

in Government, the National Bar Association, and Perspectives on Employment of Persons with 

Disabilities. The representatives used these opportunities to distribute information about the Board's 

mission and to discuss employment opportunities at MSPB. 

Recruitment was targeted at increasing the Board's representation of minorities, women, and 

individuals with disabilities. The focus of recruiting remains on minority job fairs and law school 

consortia in which a high percentage of minorities are represented. The focus also continues on 

recruiting from law schools from various geographic areas nationwide. 
Financial and Administrative Management Division 

staff (left to right), Dwayne Collins, Office 

Automation Clerk; Rachel Campbell, Budget 

Assistant; and Darnell Mallory, Clerk Typist 

Bentley M. Roberts, Deputy Director, Office of 

Management Analysis (left), and Janice E. Fritts, 

Director, Office of Equal Employment Opportunity 

Michael Hoxie, Director (left), and Vanessa Gray, 

Correspondence Clerk, Information Services 

Division of the Office of the Clerk of the Board 

Awards 

In January 1991, the Chairman presented 

the Theodore Roosevelt Award, the Board's 

highest honor, to John M. Palguta, Deputy 

Director of the Office of Policy and Evaluation. 

The award was established in Fiscal Year 1988 

to honor Board employees who demonstrate 

distinguished performance or leadership in 

support of the Board's mission to protect Federal merit systems through its adjudicatory and studies 

functions. 
The Board Members with 1990 Recipients of the Chairman's Honor Awards for Excellence 

At the annual awards ceremony, 19 other Board employees were honored with the 

Chairman's Awards for Excellence. During Fiscal 

Year 1991, the Board granted over 250 Performance Awards, Quality Step Increases, 

Performance Bonuses, and Special Act or Service Awards to its employees. 

In June 1991, Paula A. Latshaw, Chief Administrative Judge/Regional Director of the Board's 

Dallas Regional Office, was honored by Federally Employed Women with the Mary D. Pinkard Leader in 

Federal Equity (LIFE) Award. Among other achievements, Ms. Latshaw was recognized for her work, as 

Chairman of the Dallas-Fort Worth Federal Executive Board, in obtaining the sponsorship agreement of 

59 different Federal agencies for the Federal Child Care Center in downtown Dallas. 

Carolyn L.Smith, 

Equal Opportunity Specialist, Office of Equal Employment 

Opportunity 
APPENDIX A - SIGNIFICANT BOARD DECISIONS 

APPELLATE JURISDICTION CASES 

This appendix contains summaries of significant appellate jurisdiction cases decided by 

the Board during Fiscal Year 1991. 

Board decisions are published in West Publishing Company's United States Merit 

Systems Protection Board Reporter. The M.S.P.R. citations below are to that publication. 

WHISTLEBLOWER PROTECTION ACT 

Jurisdiction 

NOTE: The first three decisions summarized below turn on the distinction between two sections 

of 5 U.S.C. 2302, "Prohibited personnel practices." Under 5 U.S.C. 2302(b)(8), it is a prohibited 

personnel practice to take a personnel action because of an individual's whistleblowing activities. Under 

5 U.S.C. 2302(b)(9), it is a prohibited personnel practice to take a personnel action because of, 

among other things, an individual's exercising an appeal, complaint, or grievance right. For ease of 

reference, these sections are referred to as (b)(8) and (b)(9), respectively, in the summaries below. 

Williams v. Department of Defense and OPM,NY075290S0119 (January 7, 1991) 46 

M.S.P.R. 549 (1991) 

See NOTE above. 

The Board granted OPM's request for reconsideration of the Board's decision granting 

a stay of the appellant's removal. The Board initially granted the stay, ruling that the 

appellant had raised a whistleblowing allegation under (b)(8) when he asserted that he had 

been the victim of reprisal for having filed EEO complaints. On reconsideration, however, the 

Board reversed its earlier position and found that if (b)(8) were read as broadly as in the 

first decision in this case, it would render (b)(9) superfluous. Noting that the wording of the 

two sections suggested protection for distinctly different activities, the Board determined 

that only (b)(9), the more directly applicable provision, was intended to apply to the filing of 

EEO complaints. 

The Board further noted that the legislative history of the Whistleblower Protection Act 

indicates that the Congress intended to limit the stay provisions of the Act to personnel 

actions allegedly based on "a prohibited personnel practice described in section 

2302(b)(8)." Based on the statute as a whole and its legislative history, the Board held that 

the filing of an EEO complaint did not constitute whistleblowing under (b)(8). Accordingly, 

because a stay may be granted only of actions based on whistleblowing, the Board 

concluded that consideration of a stay in this case was beyond its jurisdiction. 

Fisher v. Department of Defense,PH122190W0645 (April 12, 1991) 47 M.S.P.R. 585 

(1991) 

See NOTE above. 

Relying on its decision in Williams, the Board held that the appellant's contention that 

he was subject to a personnel action because of his filing of EEO complaints constituted an 

allegation under (b)(9), not (b)(8). Applying the same reasoning to the appellant's 

additional allegation concerning his filing of grievances, the Board found that it too 

constituted a (b)(9) contention and not one under (b)(8). Because the Whistleblower 

Protection Act provides for the filing of an individual right of action appeal only where the 

appellant claims that the action was based on "a prohibited personnel practice described in 

section 2302(b)(8)," the Board determined that it lacked jurisdiction to consider the appeal. 
Coffer v. Department of the Navy, SF122190W0579/W0695 (August 21, 1991) 50 

M.S.P.R. 54 (1991) 

See NOTE above. 

Also relying on its decision in Williams, the Board held that, as with EEO complaints 

and grievances, unfair labor practice complaints are protected by (b)(9), not (b)(8). Thus, 

the filing of an unfair labor practice complaint does not constitute whistleblowing. 

Ruffin v. Department of the Army,PH122190W0426 (May 15, 1991) 48 M.S.P.R. 74 

(1991) 

The Board agreed with the administrative judge's determinations that the appellant's 

disclosures to the Inspector General formed a proper basis for jurisdiction under the WPA 

but that the appellant had not shown that these disclosures were a contributing factor in the 

agency's action. While not challenging the administrative judge's finding that the deciding 

officials were unaware of his whistleblowing, the appellant contended that one employee's 

disclosure to these officials of the nature of his resignation satisfied the contributing factor 

test. The Board found, however, that even if that person were aware of the disclosures, 

the only information he disclosed in this case was what a settlement agreement specifically 

obligated him to tell. Because the contributing factor test is met by a showing that the 

deciding official was aware of the whistleblowing, and the appellant made no such showing 

here, the Board found no basis for an inference that retaliation played any part in the 

agency's action. 

Horton v. Department of the Navy,SF122190W0828 (March 26, 1991) 47 M.S.P.R. 475 

(1991) 

The Board held that the plain language of the WPA provision setting forth the time 

limits for an individual to appeal to the Board after seeking Special Counsel review does not 

condition the right to file an IRA appeal on the exhaustion of EEO administrative remedies. 

Thus, the Board concluded that the right to file an IRA appeal is independent of the EEO 

complaint process. To hold otherwise would create a conflict between the different statutory 

sections governing IRA appeals and EEO complaints and also would delay the appellant's 

right to seek a stay under the WPA. 

The Board found this construction of the law supported by the legislative history of 

the CSRA as well as the WPA. Specifically, it noted that the Special Counsel's right to seek 

corrective action before the Board was not dependent on the appellant's exhaustion of the 

administrative EEO process or on the procedures governing "mixed cases" and that, in 

passing the WPA, the Congress viewed the IRA right as a separate and distinct cause of 

action from the right concerning otherwise appealable actions. In short, the Board found no 

evidence that the Congress intended to impose any exhaustion requirements on IRAs 

beyond those set out in the WPA. 

Mack v. United States Postal Service,NY075289110594 (June 5, 1991) 48 M.S.P.R. 

617 (1991) 

The Board held that the WPA provisions applying to appeals of personnel actions 

allegedly based on whistleblowing do not apply to Postal Service employees because the 

Postal Service is not an "agency" as defined in the prohibited personnel practices statute at 5 

U.S.C. 2302(a). Thus, the Board found that the administrative judge erred in considering the 

stay request filed by the appellant, a former employee of the Postal Service, under the WPA. 
The Board noted that the appellant had a right to appeal a removal action under 5 

U.S.C. Chapter 75. It noted further that in Butler v. USPS it had found that although the 

Postal Service is not an "agency" as defined in 5 U.S.C. 2302(a), a Postal Service employee 

with a right to appeal to the Board could, nonetheless, raise as an affirmative defense in 

such an appeal a prohibited personnel practice described in section 2302(b). On this basis, 

the Board concluded that the appellant could raise an affirmative defense of whistleblower 

retaliation. 

With respect to the appellant's appeal, the Board found that the administrative judge 

erred in applying the lower burden of proof applicable to whistleblower claims under the 

WPA. Thus, when the Board hears an allegation of reprisal for whistleblowing from a Postal 

Service employee, it will analyze it under the burden of proof generally applicable prior to 

the WPA. 

Gergick v. General Services Administration, SL122190W0030 (July 25, 1991) 49 

M.S.P.R. 384 (1991) 

The savings provision of the WPA excludes from its coverage actions begun by 

agencies before the WPA took effect on July 9, 1989. In this case, the Board applied the 

theory of continuing wrongs to find that the WPA applies to the last in a series of allegedly 

retaliatory actions that occurred after July 9, 1989, even though some actions in the series 

occurred prior to that time. To hold otherwise, the Board held, would insulate agency 

misconduct that began before the effective date of the WPA,even when new instances of the 

misconduct were initiated after the WPA became effective. 

Individual Right of Action 

McDaid v. Department of Housing and Urban Development, AT122190W0400 (December 

6, 1990) 46 M.S.P.R. 416 (1990) 

The Board addressed the burdens of proof applicable to an IRA appeal and noted that 

an appellant must first show by preponderant evidence that his protected disclosure was a 

contributing factor in the agency's decision to take (or not take, etc.) a personnel action. 

The Board examined the evidence on the issue in this case and found that it was undisputed 

that the appellant had made a disclosure of an alleged violation of regulations by his former 

supervisor to the agency's regional inspector general. Although that supervisor had issued a 

counseling notice to the appellant, she played no part in the suspension action, and the 

Board found that the appellant had not shown that the proposing official in the suspension 

action had actual or constructive knowledge of the protected conduct. Further, the appellant 

failed to show that the deciding official, who had actual knowledge of the disclosure, acted 

within a time period reasonably evidencing a retaliatory motive. In addition, the Board found 

that no other facts sufficed to establish by preponderant evidence that the protected conduct 

was a contributing factor in the decision to take the action. Even assuming, however, that 

the contributing factor test were met, the Board found that the agency had shown by clear 

and convincing evidence that it would have taken the same action in the absence of the 

protected disclosure. 

(See Appendix B for summaries of decisions in whistleblower cases brought by the 

Office of Special Counsel.) 
INTERIM RELIEF 

Wallace v. United States Postal Service,SL07529010400 (May 24, 1991) 48 M.S.P.R. 

270 (1991) 

The administrative judge reversed the appellant's removal and ordered the agency to 

provide interim relief in accordance with 5 U.S.C. 7701(b)(2) if it filed a petition for review. 

The Board noted that its regulations require the submission of proof of interim relief with 

the agency's petition for review. Further, the regulations specify that failure to submit 

evidence showing that it has granted interim relief or that it will not be granted, but that the 

appellant will be returned to a full pay and benefit status, "will result in dismissal of the 

agency's petition or cross petition for review." Accordingly, because the agency did not 

indicate that it complied with the interim relief order or that it had, instead, restored the 

appellant to a pay status, the Board dismissed the agency's petition for review. 

DISABILITY RETIREMENT 

Dec v. OPM, PH831E9010016 (January 31, 1991) 47 M.S.P.R. 72 (1991) 

The appellant applied for a disability retirement annuity on the basis that she suffered 

from a hearing loss which made it difficult for her to perform her duties. The Board found 

that its administrative judge applied the wrong standard in deciding whether the appellant's 

condition could be accommodated by her employing agency. The relevant question in 

disability retirement appeals is not whether the employing agency has refused to 

accommodate an employee, but whether the employing agency is unable to reasonably 

accommodate the employee. The Board remanded the appeal for findings on this issue. 

Hite v. OPM, DA831E8810440 (May 1, 1991) 48 M.S.P.R. 27 (1991) 

The Board held that its administrative judge erred in finding that the appellant was not 

entitled to a disability retirement annuity because she was not totally disabled and her 

condition was not sufficiently "serious." The correct test for determining whether an 

employee can perform "useful and efficient service" is whether she can demonstrate 

acceptable performance of the critical elements of her job and maintain satisfactory 

attendance and conduct. 

Here, the appellant presented evidence to show that she could not perform critical 

aspects of her job because of her back injury. The Board found no persuasive reason to 

discredit the opinions of the appellant's doctors and the agency on this issue. It 

concluded that this evidence, along with the other evidence of record, showed that the 

appellant was entitled to a disability retirement annuity. 

Zabalveitia v. OPM, SF08319010378 (May 8, 1991) 48 M.S.P.R. 48 (1991) 

OPM terminated the appellant's disability retirement annuity in 1987 after it found that 

he had recovered. Ten months later, the appellant filed a second disability retirement 

application, based on an allegedly disabling injury he suffered while on disability retirement. 

The Board found that the appellant was not entitled to apply for a second disability 

retirement annuity. Under 5 U.S.C. 8337(b), an applicant for a disability retirement annuity 

must be an employee, not an annuitant. Because this provision allows an employee to 

submit application only before separation or within one year after that date, OPM could not 

accept the appellant's application. Employees and annuitants are defined separately in the 

statute, and this distinction is preserved throughout the statute. 

The Board also found that the appellant was not qualified for a discontinued service 

annuity under 5 U.S.C. 8337(e). This section was intended to allow a recovered annuitant to 

obtain an immediate annuity only if he met the age and service requirements of 5 U.S.C. 

8336. 
Stevenson-Phillips v. OPM, BN08318610100 (May 31, 1991) 48 M.S.P.R. 527 (1991) 

The appellant filed a disability retirement application with her former employing 

agency within one year of her separation. The agency failed to submit the application to 

OPM within the 1-year time limit required by 5 U.S.C. 8337(b). Relying on the statutory 

language, the Federal Personnel Manual, and the instructions on the application, the Board 

found that receipt of the application by the employing agency did not constitute constructive 

receipt by OPM. Citing the Supreme Court decision in Office of Personnel Management v. 

Richmond, the Board also found that OPM could not be equitably estopped from enforcing 

the 1-year deadline, despite the agency's mistakes. Absent a claim of incompetence, section 

8337(b) provides for no discretion in applying the deadline. 

Vice Chairman Amador issued a dissenting opinion, stating that he would have found 

that the appellant's filing with her former employing agency constituted a constructive filing 

with OPM. 

FERS ELECTION CASES 

Moriarty v. OPM, DC08468910097 (March 13, 1991) 47 M.S.P.R. 280 (1991) 

After retiring under CSRS on December 18, 1987, the appellant asked to transfer to 

FERS retroactively. The request was denied by OPM, and he appealed to the Board. 

CSRS employees were given one opportunity, from July 1, 1987 to December 31, 1987, 

to transfer to FERS. However, in 1988, OPM promulgated 5 CFR 846.204(a), which allowed a 

person who did not elect FERS coverage to change his election if the FERS transfer 

handbook was unavailable to him or he was unable, for cause beyond his control, to make 

the election. 

Here, the appellant was given a copy of the transfer handbook. Moreover, the 

documents the appellant was given were not misleading and set forth the information that 

was then available. Although the appellant's employing agency appeared to have 

interpreted the OPM issuances as endorsing the option of staying in CSRS rather than 

transferring to FERS, the appellant could not have been harmed by the mischaracterization 

because he had a copy of the information itself. Also, it was within the appellant's control to 

track the progress of the pending Social Security public pension offset legislation through 

Congress to see if he would be subject to the offset if he transferred to FERS. The record 

does not show why he could not have postponed his retirement for four days, until after 

Congress and the President acted to finalize the law on December 22, 1987, then make his 

election within the next nine days, prior to the expiration of the deadline. 

Accordingly, the Board ruled that the appellant did not show that he was misled or 

given misinformation that rendered him unable to make a proper election. 

Webb v. OPM, AT08468910174 (March 13, 1991) 47 M.S.P.R. 275 (1991) 

In this case, the Board held that the standard for determining whether an election 

among retirement options is voidable as a result of misinformation is whether a reasonable 

person would have been confused under the circumstances. The Board found that the 

appellant had at her disposal all of the information then available, so that her decision to 

remain in CSRS was not the result of confusion brought about by improper or inadequate 

information. Similarly, statements by her employing agency that it was uncertain of 

all of the ramifications of electing FERS were not unreasonable or misleading, given the state 

of the law when the appellant retired on October 3, 1987. The uncertainty surrounding FERS 

and the pending pension offset legislation did not constitute a reason beyond the appellant's 

control that deprived her of the opportunity to make an informed choice. Thus, the Board 

ruled that she was not eligible to elect FERS coverage retroactively. 
HANDICAP DISCRIMINATION 

"Handicapped" Employee 

Stanley v. Department of Justice,CH07528910620 (April 16, 1991) 48 M.S.P.R. 1 

(1991) 

The administrative judge reversed the appellant's removal for physical inability to 

perform his duties as a correctional officer, finding that the medical evidence did not show 

that he was unable to perform in that capacity. The administrative judge found that, to the 

extent that the evidence did support such a showing, the agency had not shown why it could 

not accommodate the appellant, as it had others, by limiting his exposure to risk and stress 

while still allowing him to perform within his position description. 

On review, the Board stated that the determination of whether an employee is a 

"handicapped person" is to be made on a case-by-case basis, inquiring whether the 

particular impairment "substantially limits" the employee's ability to work or otherwise 

constitutes "a significant barrier to employment." Relevant considerations are the number 

and type of jobs from which the person is disqualified, the geographical area to which he 

had reasonable access, and his job expectations and training. The handicap must 

foreclose generally the type of employment involved, not just the demands of a particular 

job. Applying those tests here, the Board found that the appellant is handicapped. His 

medical condition had not affected his performance at the time of his removal, but the 

agency perceived him as a safety risk and removed him for it. Further, since his work background was in law enforcement, the agency's reasons would make it difficult or impossible 

for him to secure other employment consistent with his job expectations and training. 

The Board ruled that the appellant is also a qualified handicapped person because he 

was able to perform his job up to his removal and, even if there was some safety risk, the 

agency did not show why it was willing to accommodate others in correctional officer 

positions but not the appellant. The Board reversed the removal action. 

Joyner v. Department of the Navy,PH07529010513 (April 16, 1991) 47 M.S.P.R. 592 

(1991) 

The administrative judge sustained the appellant's removal for physical inability to 

perform the duties of his position, after finding that the appellant was not a handicapped 

employee or that, if he was, he had failed to show that his handicap could be 

accommodated. The Board disagreed in part, finding that the appellant had shown that he is 

a handicapped person under EEOC regulations. Although prior cases have held that a person 

is not considered handicapped if he is not generally "foreclose[d from] ... the type of 

employment involved," none uses the test the administrative judge did, namely, that an 

employee cannot be considered handicapped unless he is unable to perform "other lines of 

work." Because the type of work the appellant performed in his light duty capacity was not 

the same type as his usual machinist job, and because of the limitations imposed on him by 

his doctor, the Board found that the appellant was a handicapped employee. 

It found also, however, that he was not a qualified handicapped employee because he 

had not shown that his handicap could be accommodated. The Board found further that the 

agency was not required to retain the appellant indefinitely until a suitable vacant position 

was found. The vacancies that occurred before his removal relate to his earlier light duty 

assignments, but an earlier light duty assignment does not establish an employee's 

entitlement to continued light duty once it is established that his handicap is permanent. 
Accommodation 

Konieczko v. United States Postal Service,SF07528810849 (April 4, 1991) 47 M.S.P.R. 

509 (1991) 

The administrative judge reversed the agency's removal of the appellant for physical 

inability to perform the duties of his job, finding that it had failed to reassign him to an 

available vacant position. The administrative judge found no handicap discrimination, 

however, because she concluded that the agency acted properly in light of the medical 

evidence it had when it sought alternative employment for him. 

On review, the Board ruled to the contrary that, in the absence of a finding of handicap 

discrimination, an agency is under no general obligation to reassign an employee unless an 

agency regulation requires it. The Board found that the administrative judge's error was not 

prejudicial, however, because the removal action could not be sustained as a result of the 

agency's failure to accommodate the appellant's handicap. It found that the appellant had 

established a prima facie case of handicap discrimination by showing that he has an 

impairment that substantially limits his "major life activity" of work, that he was removed 

because of it, and that he articulated a reasonable accommodation under which he could 

have performed the essential functions of a position. 

The Board noted that the agency had misinterpreted the medical restrictions on the 

appellant, but found that the agency bears the burden if it misinterprets any nonconclusory 

evidence. It was undisputed that the agency had three vacant window clerk jobs available, 

for which the appellant was not considered because the agency found them subject to the 

bidding rights of clerk craft employees. The Board stated that EEOC had recently held that, 

where an agency shows that its nondiscriminatory collective bargaining agreement (CBA) 

precludes it from effecting a reassignment, that suffices to establish undue hardship. The 

Board deferred to the EEOC view because it rests on Title VII law and modified prior Board 

decisions to the contrary to be consistent with this decision. 

The Board found no undue hardship here, however, because the agency only argued 

that its CBA gave preference to others, not that it precluded the appellant's reassignment. 

Indeed, it noted that the agreement provides for such reassignments. The Board ruled that, 

because the appellant was not medically precluded from performing the duties of a window 

clerk, such reassignment would have been a reasonable accommodation. The agency's 

failure to offer it, therefore, resulted in a finding of handicap discrimination, and so the 

Board reversed the removal action. 

DISPARATE IMPACT DISCRIMINATION — STATISTICAL PROOF 

Stern v. Federal Trade Commission,DCO3518910441 (October 18, 1990) 46 M.S.P.R. 

328 (1990) 

The appellant was separated from her part-time attorney position by a reduction in 

force. The Board first discussed the appellant's argument that she had presented statistical 

evidence of disparate impact discrimination. She contended that the agency's facially 

neutral employment practice, focusing its RIF action on part-time employees, had a 

disparate impact on women, older employees, and older women. The Board rejected the 

agency's responding argument that, because the RIF action was not a "practice," but simply 

an "ad hoc decision," it could not constitute an employment practice. The Board reasoned 

that a subjective or discretionary employment practice may be analyzed under the disparate 

impact approach in appropriate cases. It noted, however, that the administrative judge 

correctly found that part-time workers are not a protected class, so that to the extent that 

the appellant has tried to show that they were targeted for separation, she must focus on 

the connection between that status and the age and sex of those workers to make out a 

claim under Title VII. The Board also noted that the appellant's part-time status did not 

result from either her age or sex, but from an alleged handicap, so that her attempt to 

assert that she was discriminated against as a result of her membership in the protected 
classes was "questionable." 

The Board rejected the appellant's statistical evidence of discrimination against 

women and older employees, finding that the sample was too small to be statistically 

significant. She argued that the sample was large enough because there were 208 

employees in her former bureau before the RIF. The Board found, however, that the focus 

should be the number separated, not the number of employees. Even if the numbers were 

not too small to be of use, the Board found the numbers not sufficiently probative to 

constitute a prima facie case. It also noted that, because the agency offered the appellant 

continued part-time employment if she increased her hours, statistics concerning part-time 

employees alone would not be relevant, and that, if attorneys rather than all employees in 

the bureau were considered, the statistics would not support a claim of sex discrimination. 

The Board found that, using agency-wide statistics, fewer women than men were 

separated and employees over 40 were separated at only a slightly higher rate than were 

those under 40. It also noted that the RIF regulations require a somewhat mechanical 

approach, not allowing for the consideration of EEO factors, and that they require the 

placement of part-time employees in separate competitive levels. The Board found that the 

appellant had not established disparate treatment discrimination and affirmed the RIF 

action. 

EVIDENCE 

Anderson, et al. v. Department of Transportation, CH075281F0873 (October 30, 1990) 

46 M.S.P.R. 341 (1990) 

The appellants, 116 former air traffic controllers whose removals for participation in 

the 1981 strike were sustained by the Board, requested reopening of their appeals. They 

contended that, as a result of the lengthy inquiry of the House Subcommittee on 

Investigations and Oversight, they believed that the evidence upon which the agency relied 

in taking these actions was manufactured and otherwise tainted so as to be completely 

unreliable. 

The Board, with Chairman Levinson having recused himself because of his duties 

while serving as Deputy General Counsel of OPM during the period in question, 

denied the request. The Board held that it had the authority to reopen appeals at any 

reasonable time and that, where the earlier decision was obtained by fraud, concealment, or 

misrepresentation by a party, it could reopen even though many years had passed. In such 

cases, the balance would shift from "the desirability of finality" to "the public interest in 

reaching the right result." That the Board's decision was affirmed on review by the court 

would not bar reopening under the doctrine of res judicata. If the circumstances were as 

posited by the appellants, it would have the authority to reconsider and reverse its earlier 

decision. 

On the merits, however, the Board found no basis for reopening the appeals because 

fraud was not shown. After issuance of the first initial decision, the Board had remanded the 

cases for the taking of further argument and evidence on just the types of record alterations 

later pointed to by the House Subcommittee. Quoting from the remand decision by the 

administrative judge, its own decision on petition for review of that decision, and the 

decision of the Federal Circuit on review, the Board found that the appellants' arguments 

were heard and fully considered years before; that no appellant, then or now, had made an 

allegation of individual harm by asserting that he was either not absent or not scheduled to 

work as charged; that the Subcommittee Report does not suggest that the agency 

committed harmful error when it altered any of its records, but indicates that the 

changes were made to correct records that were incomplete because of the circumstances of 

the strike; and that although perhaps the extent of the alterations pointed out by the 

Subcommittee was not known to the Board, the Board gave full consideration to the 

agency's recordkeeping in rendering its decision. 
The Board stated that it certainly did not condone the agency's actions in submitting 

altered records on appeal or in testifying falsely to conceal such alterations. It concluded, 

however, that the House Subcommittee Report focuses on the extent of the alterations 

rather than their significance to the legal issues on appeal. Thus, the Board ruled that the 

appellants failed to establish any material alterations of the evidence because the dispositive 

facts as found by the Board and the court were known and fully considered at the time. 

PERFORMANCE-BASED ACTIONS 

Chapter 43 

Ortiz v. Department of Justice,CH04329010299 (January 31, 1991) 46 M.S.P.R. 692 

(1991) 

The agency demoted the appellant based on charges of unacceptable performance 

under Chapter 43. On appeal, the administrative judge found the appellant's performance 

standards to be invalid as "backwards" standards under the Federal Circuit's decision in 

Eibel v. Navy. On review, the Board found that, although the validity of the standards had 

not been raised by the parties and was not specifically identified during the prehearing 

conference, the issue was not "new" and should not have come as a surprise to the 

agency. The Board found no merit to the agency's argument that the administrative judge 

should not have ruled on the validity of the standard without first giving it the opportunity 

to argue the merits of an "absolute standard." 

Noting that an invalid standard cannot be rehabilitated by calling it an absolute 

standard, the Board found that the standard would have to be rewritten to be a valid 

standard before it could be considered as a valid absolute standard. Moreover, the Board 

found that the agency did not communicate to the appellant that the standard was absolute. 

Chapter 75 

Graham v. Department of the Air Force,AT07528910198 (October 19, 1990) 46 

M.S.P.R. 227 (1990) 

The Board found that the appellant's removal from his position as a Medical Officer 

under Chapter 75 for loss of his medical credentials was analogous to a performance-based 

action under Chapter 75 and that only the standards applicable to such an action should 

apply. Thus, the establishment of valid performance standards was not a prerequisite to 

taking the instant action. Moreover, even though in a Chapter 75 action, agencies must prove 

the standards against which the appellant's performance was measured, the Board's 

cases simply require that the agency's standard, which may be ad hoc, be reasonable and 

provide for accurate measurement. The Board found that the standards applied in this case 

met this requirement, even though the appellant did not have a specific set of standards 

governing the performance deficiencies found, and testimony indicated that there were no 

specific standards of care addressing each diagnostic entity. 

Bowling v. Department of the Army,DA07528810494-1 (March 25, 1991) 47 M.S.P.R. 

379 (1991) 

The Board held that, in a removal for unacceptable performance under Chapter 75, 

although it was reasonable for the agency to base its decision on a sample of the appellant's 

work, the action could not be sustained because the agency did not establish an objective 

systematic method for selecting the examples of alleged unacceptable performance. The 

Board found that the agency would be required to meet this standard in a Chapter 43 action 

and that it was reasonable to impose a similar requirement under Chapter 75. 
BACK PAY AWARDS 

Harrington v. United States Postal Service,BN075288C0056 (March 22, 1991) 47 

M.S.P.R. 415 (1991) 

The Board found that the appellant was entitled to back pay for the full 19 

months of his improper suspension. The agency regulation in effect when the appellant's 

suspension began did not require that he look for replacement work during the first 12 

months of the time he was not earning pay from the agency. The Board found that this was 

the regulation that applied, even though the rule was changed during the back pay period. 

The changed regulation could not apply before it was effective, and there was no evidence 

that the appellant was made aware of it while he was off the rolls. Further, the appellant 

was entitled to back pay for the remainder of his suspension because he submitted 

evidence of his unsuccessful efforts to find employment during that time. 

HARMFUL PROCEDURAL ERROR 

Stephen v. Department of the Air Force, BN315H8710028 (April 26, 1991) 47 M.S.P.R. 

672 (1991) 

The administrative judge reversed the appellant's separation, finding that she had 

completed her probationary period when she was terminated and that the agency's failure 

to provide her with the procedural protections of 5 U.S.C. Chapter 43 or 75 constituted 

harmful error. On review, the Board relied on the Supreme Court's decision in Cleveland 

Board of Education v. Loudermill to hold that, if the agency fails to provide prior notice of 

the charges, an explanation of its evidence, and an opportunity to respond, its action must 

be reversed because it violates the employee's constitutional right to minimum due process. 

The Board further held that, when an appealable action is unlawful in its entirety, i.e., there 

is no legal authority for the agency's action, the Board will reverse the action as "not in 

accordance with law" under 5 U.S.C. 7701(c)(2)(C). 

Re-examining the issue of harmful error, the Board held that, when an action meets 

minimum due process requirements and is lawful in its entirety, the Board will reverse the 

action on the basis of harmful error only when the appellant proves that the agency's 

procedural error, whether regulatory or statutory, likely had a harmful effect upon the 

outcome of the case before the agency. The Board, therefore, modified earlier decisions in 

accordance with this ruling. 

Applying these rules to this case, the Board found that the appellant received 

minimum due process and that the removal action was in accordance with law. Because the 

appellant had not submitted a written response to the agency's action, and the record 

lacked evidence as to the effect of the agency's procedural error on the outcome of the case 

before the agency, the Board remanded the case to the regional office for presentation of 

evidence and argument on the issue of harmful error. 

The Board also determined that the appellant was entitled to back pay for the 17 days 

of the required 30-day notice period that she did not receive pay. The Board noted that the 

purpose of the 30-day notice requirement is to provide the employee with a right to receive 

pay during that entire time. Thus, the Board held that an employee is entitled to back pay 

under the Back Pay Act for the full 30-day notice period, even if the underlying action is 

sustained. It overruled prior inconsistent cases. 
PHYSICAL INABILITY TO PERFORM 

Morgan v. United States Postal Service & OPM, PH07528710588 (June 5, 1991) 48 

M.S.P.R. 607 (1991) 

The Board denied OPM's petition for reconsideration and reaffirmed its previous 

decision. In that decision, the Board found that, under Street v. Army, the appellant's 

removal for physical inability to perform the duties of her job could not be sustained 

because she had recovered sufficiently, during the pendency of her appeal, to be able to 

return to work. Removal under those circumstances did not promote the efficiency of the 

service. 

The Board noted that it has de novo review authority over the actions appealed to it 

and that it can consider evidence of subsequent events that sheds light on the circumstances 

at the time the agency acted, including evidence of an improvement in physical condition, 

because such evidence relates to whether the removal promotes the efficiency of the 

service. The Board found that it must avoid upholding a removal for physical incapacitation 

when, during the course of the appeal before the regional office, it is clear that the appellant 

is no longer incapacitated. If a removal action for physical inability were not based on the 

incapacity being permanent, or at least long-lasting, the agency could just grant leave to 

allow the employee to recover. 

SUCCESSIVE REMOVALS 

Parker v. United States Postal Service,SL07528810363/CO213 (October 18, 1990) 46 

M.S.P.R. 214 (1990) 

The appellant's April 1988 removal was reversed by the administrative judge on its 

merits. When the appellant filed a petition for enforcement of the decision, the 

administrative judge found that he was not eligible for reinstatement because he had been 

removed again, in May 1988, for AWOL occurring before the first removal was effective. The 

administrative judge dismissed the appellant's appeal of the second removal because the 

first removal was still effective. The appeal was refiled after the reversal of the first 

action, and the administrative judge then sustained the second removal. On petition for 

review from both initial decisions, the Board joined the appeals and addressed the May 

removal first because the decision on the compliance action was largely contingent on the 

finding made as to the second removal. 

With respect to the second removal, because the appellant was still an employee at 

the time of the misconduct leading to it, the Board rejected his argument that the second 

removal can have no effect until he is restored to the full status quo ante after reversal of 

the first removal. Agencies are not precluded from taking legitimate personnel actions 

pending Board disposition of earlier actions if valid reasons exist for the later action. 

The Board found that the second removal could have no effect until: (1) the agency either 

rescinded the first removal or modified it so as to restore the appellant to duty on a date 

prior to the effective date of the second removal, or (2) a final decision of the Board or a 

court reversed that first removal. It then found that the reversal of the first removal had the 

effect of resurrecting the second, which the administrative judge properly adjudicated. 

As to the compliance initial decision, the Board found that because the second removal 

was proper, the appellant was not entitled to reinstatement as a remedy for the reversal of 

the first action. 
JURISDICTION AND TIMELINESS 

Popham v. United States Postal Service,SE07529010105, SE34439010107 (August 30, 

1991) 50 M.S.P.R. 193 (1991) 

In Funk v. Army, 44 M.S.P.R. 320 (1990), the Board held that an appeal could not be 

dismissed for untimeliness or on other procedural grounds without a determination first on 

the issue of Board jurisdiction over the appeal. In Popham, the Board modified Funk, 

holding that in an appeal that is arguably within the Board's jurisdiction, the case may be 

resolved on timeliness or other procedural grounds where the interests of fairness and 

judicial economy would not be served by addressing the issue of jurisdiction, because the 

case would have to be dismissed regardless of the outcome on the issue of jurisdiction. 

Chairman Levinson dissented. He argued that the Board must make a determination of 

jurisdiction over an appeal before dismissing it on timeliness or other procedural grounds. 

SEXUAL HARASSMENT 

Hillen v. Department of the Army and Office of Special Counsel,DC07528510324-2 

(September 18, 1991) 50 M.S.P.R. 293 (1991) 

The agency removed the appellant, based on three charges of sexual harassment. The 

administrative judge reversed the agency action, and the Board affirmed the initial decision, 

modifying it to set forth the correct standards to be applied to claims of sexual harassment. 

Consistent with the Supreme Court's decision in Meritor and the Federal Circuit's 

decision in Downes, the Board held that to establish hostile environment sexual harassment, 

as distinct from quid pro quo harassment, there must be a showing that the conduct at issue 

is sufficiently pervasive to alter the conditions of employment and create an abusive working 

environment, and that it is sufficiently severe and persistent to seriously affect the 

psychological well-being of an employee. 

More specifically, the Board held that there must be a showing that the conduct 

occurred, that it was of a sexual nature, that it was unwelcome, and that it unreasonably 

interfered with an employee's work performance or created an intimidating, hostile, or 

offensive work environment. The Board held further that proof of "sexual intent" is not a 

requirement for proof of a sexual harassment charge under Title VII and that the 

conduct need not consist of explicit sexual advances. 

INDEFINITE SUSPENSION AND ENFORCED LEAVE BASED ON 

SUSPENSION OF SECURITY CLEARANCE 

Jones & McDaniel v. Department of the Navy, PH07529010116 & -0117 (July 5, 

1991)48 M.S.P.R. 680 (1991) 

The Board ruled that an agency may suspend an employee indefinitely pending inquiry 

into his security clearance, despite the absence of reasonable cause to believe that he is 

guilty of a crime, but that the agency, in so doing, must afford the employee minimal due 

process. The Board noted that the Federal Circuit and the Board have accepted the extension 

of indefinite suspensions, originally limited to periods of inquiry into criminal misconduct, to 

other types of conduct. The Board also observed that OPM, the agency charged with 

regulating adverse actions, has authorized indefinite suspensions on bases other than 

criminal misconduct. Although the Board has jurisdiction over such indefinite 

suspensions, it lacks the authority, under the Supreme Court's decision in Egan, to review 

the merits of a suspension of an employee's security clearance that constitutes the basis of 

an idefinite suspension. The Board stated that it will consider, nonetheless, whether an 

employee was afforded minimal due process in the suspension of a security clearance. 
Chairman Levinson dissented in part. He found no basis for the Board to require 

minimal due process for the suspension of a security clearance, as opposed to the revocation 

of a security clearance. 

Alston v. Department of the Navy,AT07529010238 (July 5, 1991) 48 M.S.P.R. 694 

(1991) 

The Board ruled that an agency may place an employee on enforced leave pending 

inquiry into his security clearance, but that the agency's action will be reversed if it fails to 

afford the employee minimal due process in the suspension of his security access. Relying on 

its decision regarding indefinite suspensions in Jones & McDaniel, the Board held that 

enforced leave, which may be deemed a constructive indefinite suspension, was appropriate 

pending a security clearance investigation, and that the same limited review authority by 

the Board applied. 

Chairman Levinson dissented in part for the same reason expressed in Jones & 

McDaniel. 
APPENDIX B - SIGNIFICANT BOARD DECISIONS 

ORIGINAL JURISDICTION CASES 

This appendix contains summaries of significant original jurisdiction cases decided by 

the Board during Fiscal Year 1991. 

Board decisions are published in West Publishing Company's United States Merit 

Systems Protection Board Reporter. The M.S.P.R. citations below are to that publication. 

WHISTLEBLOWER PROTECTION ACT -SPECIAL COUNSEL STAY 

REQUESTS 

Special Counsel v. Department of the Navy, HQ12149010034 (November 2, 1990) 46 

M.S.P.R. 274 (1990) 

The Board held that an employee is protected under the WPA when he asserts that he 

has not made a protected disclosure, but that the agency took retaliatory action against him 

because it believes that he has. The Board found that the plain language of the WPA does 

not limit the protections of the statute to employees who actually make protected 

disclosures, because it prohibits an agency official from taking a personnel action against 

"any" employee because of a disclosure of information by "an" employee and does not 

require an individual to engage in protected activity to be protected by the statute. Further, 

the purposes of the WPA indicate that it should not be limited to those who actually make 

protected disclosures. Based on the legislative history, the Board noted that a primary 

purpose of the WPA was to encourage whistleblowers and that failure to protect those 

against whom management acted because it believed they had made disclosures would 

have a chilling effect on those who might make disclosures themselves. 

Special Counsel v. Department of the Army, HQ12149110007 (April 22, 1991) 48 

M.S.P.R. 13 (1991) 

The Special Counsel requested a stay of the expiration of the temporary appointment 

of an employee, which was alleged to be in reprisal for six acts of whistleblowing by him. 

The Special Counsel's request was also based on conversations allegedly overheard by the 

involved employee and another employee that tended to support the existence of a 

retaliatory motive. The Board found that it would not be inappropriate under these 

circumstances to stay the action. 

The Board noted that it has the authority to stay an action after its effective date, 

which would be necessary in this case. Although the expiration of an appointment is not an 

"action," the Board further noted that 5 U.S.C. 2302(b)(8) requires that an agency not "take 

or fail to take" an action because of whistleblowing, and here the expiration of the 

appointment resulted from the agency's failure to take a personnel action to extend it. 

WHISTLEBLOWER PROTECTION ACT - SPECIAL COUNSEL 

DISCIPLINARY ACTIONS 

Special Counsel v. Hathaway, HQ12159010005 (August 16, 1991) 49 M.S.P.R. 595 

(1991) 

This was the first complaint for disciplinary action filed by the Special Counsel under 

the Whistleblower Protection Act. In the eight-count complaint, the Special Counsel charged 

the respondent with four counts of engaging in prohibited personnel practices in violation of 

5 U.S.C. 2302(b)(8) by taking personnel actions against an employee because of the 

employee's whistleblowing. In the other four counts, the Special Counsel presented an 

alternative theory that the same personnel actions violated 5 U.S.C. 2302(b)(9), which 

prohibits taking personnel actions because of—among other things—an individual's 

cooperating with or disclosing information to an agency Inspector General or the Special 

Counsel. 
The Board noted that, in the WPA, the Congress, for the first time, set out a standard 

for determining the causal connection between protected disclosures (whistleblowing) and 

personnel actions taken in violation of 2302(b)(8). Previously, the Board applied different 

standards in Special Counsel corrective action and disciplinary action cases. Here, the Board 

held that the same standard, as set forth in the WPA, would be applied to both corrective 

actions and disciplinary actions brought by the Special Counsel. 

The Board further held that: (1) where a decision maker has already determined to 

take a personnel action against an employee when he discovers that the employee is a 

whistleblower, he does not commit a prohibited personnel practice when he carries out the 

action despite the discovery; and (2) a denial of training is a personnel action for the 

purposes of the statute only if the training may reasonably be expected to lead to a 

personnel action. 

With respect to the Special Counsel's alternative theory of violation of 2302(b)(9), the 

Board held that (b)(9) covers disclosures to an Inspector General or the Special Counsel that 

do not meet the precise terms of the actions described under (b)(8). Because the Board 

found that the disclosures here fell within the scope of (b)(8), it concluded that they were 

not covered also by (b)(9). 

The Board sustained one of the eight counts, finding that the employee's protected 

disclosure was a contributing factor in the respondent's action against him and violated 5 

U.S.C. 2302(b)(8). The Board ordered the respondent suspended for 30 days. 

Special Counsel v. Eidmann,HQ12159010007 (August 16, 1991) 49 M.S.P.R. 614 

(1991) 

In this decision, the Board established that the savings provision of the Whistleblower 

Protection Act is controlled in a Special Counsel discliplinary action by the date on which the 

complaint is filed. The Board ruled, therefore, that the WPA applied to this case, even 

though the events that formed the basis of the complaint occurred prior to the effective date 

of the WPA. 

The Board held that the respondent violated 5 U.S.C. 2302(b)(8), which prohibits 

taking a personnel action because of an individual's whistleblowing, when he terminated an 

employee's appointment in reprisal for protected disclosures. The Board ordered a twograde demotion for a period of two years. 

Special Counsel v. Marple,HQ12069010011 (July 29, 1991) 49 M.S.P.R. 528 (1991) 

The Board held that the WPA applied here for the same reason set forth in Special 

Counsel v. Eidmann above. 

The respondent was charged with taking a personnel action against an employee in 

reprisal for her testimony before a Senate subcommittee. The Board found that the 

testimony was a contributing factor in the decision and ordered the respondent demoted 

two grades for a period of one year. 
APPENDIX C - SIGNIFICANT LITIGATION 

Significant litigation involving the Board during Fiscal Year 1991 included the 

following: 

Artmann v. Department of the Interior, 926 F.2d 1120 (Fed. Cir. 1991) 

The court affirmed the Board's decision dismissing the petitioner's appeal for lack of 

jurisdiction because he did not establish that his reassignment from a subsequently upgraded 

position was a constructive demotion. In doing so, the court approved the Board's decision 

in Russell v. Department of the Navy, 6 M.S.P.R. 698 (1981), which formulated the test for 

determining whether a reassignment at the same grade constitutes a "constructive 

demotion." Russell held that reassignment from a position which, because of the issuance of 

a new classification standard or correction of a classification error, is worth a higher grade is 

a constructive demotion. 

Cruz v. Department of the Navy, 934 F.2d 1240 (Fed. Cir. 1991) (en banc) 

The court held that an allegation that a proposed removal was tainted by reprisal does 

not render the proposed removal appealable to the Board. The court affirmed the Board's 

decision dismissing the appeal for lack of jurisdiction. 

The issue was whether Cruz's resignation in the face of a proposed removal was 

coerced and whether his allegation of reprisal for filing EEO complaints made the case a 

"mixed" one under 5 U.S.C. 7702. The court found that the Board has authority to determine 

whether a resignation is voluntary and that voluntariness should be determined by objective 

facts, not the subjective motives of the employee or the agency. The court ruled that once 

the Board found the resignation voluntary, it concluded correctly that it lacked jurisdiction 

over the appellant's claims and neither notification of mixed case appeal rights or transfer of 

the case to the district court was warranted. 

Felzien v. Office of Personnel Management, 930 F.2d 898 (Fed. Cir. 1991) 

The court held that the petitioner's duties of maintaining and using communications 

systems and equipment near fire sites qualified him as a firefighter within the contemplation 

of 5 U.S.C. 8331(21) and entitled him to early retirement credit under 5 U.S.C. 8336(c)(1) 

and 8339(d)(1). The court reversed the Board's decision that the petitioner was not entitled 

to retirement credit as a firefighter for his work as a forest electronics technician. 

Perez v. Merit Systems Protection Board, 931 F.2d 853 (Fed. Cir. 1991) 

The court affirmed the Board's decision that an agency's placing an employee in 

absent-without-leave status was not an appealable adverse action because the employee 

voluntarily chose not to report for work. The court rejected the argument that the agency's 

action was a "constructive suspension" for more than 14 days and thus an appealable action 

under 5 U.S.C. 7511 et seq. 

Phillips v. General Services Administration, 924 F.2d 1577 (Fed. Cir. 1991) 

The issue was whether the Board has authority to make an award of attorney fees for 

services before the court in connection with judicial review of a Board decision. The court 

held that applications for fees generated by work before the court under the Back Pay Act 

must be directed to the court. 
Sannier, et al v. Merit Systems Protection Board,931 F.2d 856 (Fed. Cir. 1991) 

Holding that the petitioners did not provide sufficient evidence to substantiate their 

allegations of constructive removal, the court affirmed the Board's decision dismissing the 

appeal for lack of jurisdiction. This case involved the appeal of an alleged constructive 

removal by three administrative law judges, employees of the Social Security 

Administration, who claimed that, because of the perception that their office's productivity 

was low, the agency had invoked "punitive" measures, such as public criticism and 

diminished support staff, amounting to a constructive removal. The court held that, even if 

the facts recounted by the petitioners were taken as true, these facts did not amount to a 

constructive removal within the Board's jurisdiction. 

Spruill v. Merit Systems Protection Board, No. 91-3245 (Fed. Cir. filed August 5, 1991) 

In this issue of first impression under the Whistleblower Protection Act, the Board dismissed the petitioner's individual right of action appeal for lack of jurisdiction because his 

claim that he was suspended for three days in reprisal for filing an EEO complaint is not a 

protected whistleblowing activity under 5 U.S.C. 2302(b)(8), and, therefore, is not an 

appealable action under 5 U.S.C. 1221(a). The Board declined to read section 2302(b)(8), 

which protects an employee from reprisal for disclosing information the employee 

reasonably believes evidences a violation of any law, rule, or regulation, literally because a 

literal reading would be inconsistent with the structure of the statute and would render 5 

U.S.C. 2302(b)(9) meaningless. Further, the Board concluded that its interpretation was 

supported by the legislative history of the Whistleblower Protection Act, which demonstrates 

that allegations concerning EEO matters were intended to be excluded from the Board's 

jurisdiction in individual right of action appeals. The petitioner argued before the court that 

the plain language of section 2302(b)(8) required the Board to adjudicate his appeal. (The 

case was pending before the court at the end of the fiscal year.) 

Stewart v. United States Postal Service, 926 F.2d 1146 (Fed. Cir. 1991) 

The court vacated the Board's decision dismissing the petitioner's appeal of his 

removal based on a finding that he had waived his appeal rights in a "last chance" 

settlement agreement. The court held that "[w]here an employee raises a nonfrivolous 

factual issue of compliance with a last chance agreement, the board must resolve that issue 

before addressing the scope and applicability of the appeal rights waiver." (Emphasis in 

original.) 

Wood v. Merit Systems Protection Board, 938 F.2d 1280 (Fed. Cir. 1991) 

The court held that the petitioner did not sustain a reduction in grade as a result of 

reclassification of her position. The court affirmed the Board's decision dismissing for lack of 

jurisdiction the petitioner's claim that the U.S. Postal Service improperly reduced her grade 

and pay. The decision established that a decrease in "annual equivalent salary" is not an 

appealable action when it results from the Postal Service's reducing the number of hours 

that the postal office operates. 

Addison v. Department of Health and Human Services, No. 91-3097 (Fed. Cir. Sept. 

25, 1991) 

The court affirmed the Board's decision, which held that an agency may remove an 

employee based on incidents of unacceptable performance that occurred before a failed 

performance improvement plan as long as the performance related to the same critical 

element and occurred during the one year period preceding the date of the notice of 

removal. In affirming Addison, the court adopted and approved the reasoning of the Board's 

landmark decision in Brown v. Veterans Administration, 44 M.S.P.R. 635 (1990), which first 

addressed the evidence of unacceptable performance that may be relied upon to sustain a 

demotion or removal brought under 5 U.S.C. Chapter 43. 
Gromo V. Office of Personnel Management, No. 91-3071 (Fed. Cir. September 19, 

1991) 

The petitioner, a retired widower, timely requested a survivor annuity benefit upon his 

remarriage. The annuity became effective in June 1986, after a five-month delay. Because 

the annuity was required by statute to commence retroactively in the month of January, one 

year following the petitioner's remarriage, OPM notified the petitioner that his annuity would 

be reduced in order to collect an $820 overpayment. 

The petitioner sought a waiver of the overpayment on the grounds that he had 

continued to make payments unnecessarily on four life insurance policies until he was 

notified of the effective date of the survivor benefit. The Federal Circuit reversed the 

Board's decision sustaining OPM's finding that recovery would not be against equity and 

good conscience and found that the Board's decision was an abuse of discretion. The court 

required OPM to waive recovery of the $820 overpayment. 

Davis v. Office of Personnel Management, 938 F.2d 1283 (Fed. Cir. 1991) 

The Department of the Navy placed the petitioner's deceased husband in enforced 

leave status and ultimately removed him as a result of physical problems. The employee 

appealed both actions to the Board, but died during the appeal process. Although the Board 

upheld the removal, it found that the enforced leave status was improper and ordered back 

pay and benefits to be paid to the employee's estate. The petitioner filed applications for a 

disability annuity on her late husband's behalf and a survivor annuity on her own behalf. The 

court affirmed the Board's decision sustaining OPM's denial and held that OPM reasonably 

interpreted the applicable statute, 5 U.S.C. 8341(b)(1) and (d), to mean that an employee 

must personally file an application for a disability annuity.