Annual Report

for FY 2023

May 1, 2024
ii Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

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iii Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Foreword

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

Protection Board (MSPB) submits this Annual Report (AR) on its significant actions during fiscal 

year (FY) 2023.

We invite customers and stakeholders to send comments to improve MSPB’s ARs to:

Cynthia Ferentinos, Ph.D.

Performance Improvement Officer (PIO)

Office of Policy and Evaluation

U.S. Merit Systems Protection Board 

1615 M Street, NW

Washington, DC 20419

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

Toll Free: 1-800-209-8960

Fax: 202-653-7130

Information about MSPB’s FY 2023 program performance results (as required under the 

Government Performance and Results Act Modernization Act of 2010 (GPRAMA)) is available in 

the Annual Performance Report and Annual Performance Plan (APR-APP) for FY 2023-2025. 

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

for FY 2023. MSPB’s ARs, AFRs, and GPRAMA documents are posted on the Plans, Budget & 

Performance page on MSPB’s website (www.mspb.gov) when they are released. 

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

studies listservs, or follow us on X (formerly Twitter) @USMSPB.
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v Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Table of Contents

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

Introduction................................................................................................................... 2

About MSPB.....................................................................................................................................................................2

MSPB’s Mission and Vision...........................................................................................................................................2

Board Members................................................................................................................................................................3

Status of Board Member Nomination..........................................................................................................................4

MSPB Offices and Their Functions.............................................................................................................................4

MSPB Organizational Chart ..........................................................................................................................................6

Fiscal Year 2023 in Review ............................................................................................ 6

Adjudication......................................................................................................................................................................6

Merit Systems Studies......................................................................................................................................................7

Review of the Office of Personnel Management.......................................................................................................7

Outreach, Merit Systems Education, and References to MSPB’s Work................................................................7

Legislative and Congressional Relations Activity.......................................................................................................8

Internal Management Challenges and External Factors...........................................................................................8

Case Processing Statistics for FY 2023.......................................................................... 9

Summary of Cases Decided by MSPB .........................................................................................................................9

Cases Processed in the Regional and Field Offices.................................................................................................10

Cases Processed at Headquarters................................................................................................................................16

Significant Decisions Issued by the Board in FY 2023 ............................................... 22

Significant Court Opinions Issued in FY 2023............................................................ 25

Significant Opinions Issued by the U.S. Court of Appeals for the Federal Circuit...........................................25

Significant Opinions Issued by Other Circuit Courts.............................................................................................26

Potentially Relevant Decisions by the Supreme Court............................................................................................26

Summary of Merit Systems Studies Activity in FY 2023 ............................................. 28

Publications Issued ........................................................................................................................................................28

MSPB Surveys Administered.......................................................................................................................................28

Merit Systems Studies Outreach and External References.....................................................................................29

Review of the U.S. Office of Personnel Management................................................. 30

Review of OPM’s Significant Actions........................................................................................................................30

Review of the Rules and Regulations of OPM.........................................................................................................33

MSPB FINANCIAL SUMMARY ............................................................................... 34

List of Abbreviations and Acronyms ........................................................................... 35
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1 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

U.S. MERIT SYSTEMS PROTECTION BOARD

FISCAL YEAR 2023 ANNUAL REPORT

MESSAGE FROM THE CHAIRMAN

I am pleased to submit MSPB’s Annual Report for FY 2023 in accordance with 5 U.S.C. § 1206. Following the 

five-year lack of a quorum of Board members, MSPB resumed its full range of statutory responsibilities on 

March 3, 2022, including deciding cases at agency headquarters (HQ) and issuing merit systems studies reports. 

In FY 2023, MSPB continued to focus on reducing the inherited inventory which accumulated when the Board 

was unable to vote on any petitions for review (PFRs) of initial decisions, although MSPB continued processing 

initial appeals and issuing decisions in the regional and field offices (RO/FOs). 

I was honored to join the Board on June 1, 2022, as a Member and thereafter as Vice Chairman and Acting 

Chairman until I was confirmed as Chairman by the U.S. Senate on March 6, 2024, and sworn in as such on 

March 14, 2024. I am proud to serve with Vice Chairman Raymond A. Limon, who previously held the roles of 

MSPB’s Vice Chairman and Acting Chairman, and with MSPB’s dedicated employees. Working to quickly 

process an unprecedented volume of pending cases during MSPB’s significant information technology (IT) 

modernization efforts, which coincided with reduced staffing levels, proved to be particularly challenging for the 

agency. I offer my deep and sincere appreciation for the contributions of all MSPB employees, managers, and 

leaders whose efforts are reflected in this report.

In FY 2023, MSPB’s administrative judges (AJs) issued 4,572 decisions, including addendum cases and stay 

requests. During FY 2023, MSPB also decided 1,484 cases at HQ, reducing the inherited inventory to 1,884 

cases (approximately half of the original inherited inventory of 3,793 cases). MSPB expects to resolve the 

remaining inventory cases in FY 2024 and FY 2025. Case processing statistics for the cases decided in the 

RO/FOs and at HQ are provided in the Case Processing Statistics for FY 2023 section. MSPB issued 38 

precedential decisions at HQ, some of which are summarized in the Significant Decisions Issued by the 

Board section of this report. We have also included a summary of Significant Court Opinions Issued in 

FY 2023 covering Significant Decisions Issued by the U.S. Court of Appeals for the Federal Circuit (CAFC) 

and Significant Decisions Issued by Other Circuit Courts on issues relevant to MSPB’s jurisdiction and 

substantive case law, as well as a section on Potentially Relevant Decisions by the Supreme Court.

During FY 2023, MSPB issued three editions of its Issue of Merit (IoM) newsletter and published reports regarding 

sexual harassment in Federal workplaces and perceptions of prohibited personnel practices (PPPs). The Summary 

of Merit Systems Studies Activity in FY 2023 provided additional details. The section on the Review of the U.S. 

Office of Personnel Management summarized our work reviewing the rules, regulations, and significant actions of 

the Office of Personnel Management (OPM). 

As we look forward to the confirmation of a third Board member to restore the Board to its full complement, 

Vice Chairman Limon and I are committed to working with all MPSB employees and our stakeholders to 

accomplish our mission to protect merit system principles (MSPs) and promote a workforce free from PPPs.

Cathy A. Harris

Chairman

May 1, 2024
2 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

INTRODUCTION

This MSPB Annual Report for FY 2023 includes adjudication case processing statistics for the 

RO/FOs and for HQ; summaries of significant Board cases and court opinions relevant to MSPB’s 

work; summaries of MSPB’s merit systems studies activity; and a summary of MSPB work reviewing 

the rules, regulations, and significant actions of OPM.

1 The report also contains information about 

MSPB’s financial status, outreach and education activities, and legislative and congressional relations 

activities. The report briefly references the most significant internal management challenges and 

external factors that affect MSPB’s work; more complete descriptions are included in the APR-APP

for FY 2023-2025.

About MSPB

MSPB was created by the Civil Service Reform Act of 1978 (CSRA) to continue the adjudication 

functions of the Civil Service Commission, thus providing independent review and due process to 

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

procedures, issue subpoenas, call witnesses to testify at hearings, and enforce compliance with final 

MSPB decisions. MSPB also was granted broad authority to conduct independent, objective studies of 

the Federal merit systems and Federal human capital (HC) management issues. In addition, MSPB was 

given the authority and responsibility to review and act on OPM’s regulations, and to review and 

report on OPM’s significant actions.2 The CSRA also codified for the first time the values of the 

Federal merit systems as MSPs, and proscribed, as contrary to MSPs, specific actions and practices as 

PPPs.

3 Since the enactment of the CSRA, Congress has given MSPB jurisdiction to hear cases and 

complaints filed under a variety of other laws.4 More information about MSPB’s jurisdiction can be 

found in the agency’s Strategic Plan at www.mspb.gov. 

MSPB’s Mission and Vision

Mission To protect the merit system principles and promote an effective Federal 

 workforce free of prohibited personnel practices. 

 

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

managed, providing excellent service to the American people.

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

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

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

§ 1206, MSPB also is responsible for annually reviewing and reporting on OPM’s significant actions. 3 Title 5 U.S.C. § 2301 and § 2302, respectively.

4 These include the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) 38 U.S.C. § 4301 et seq.; the Veterans 

Employment Opportunities Act of 1998 (VEOA), 5 U.S.C. § 3309 et seq.; the Whistleblower Protection Act of 1989 (WPA), Pub L. 101-12, 103 Stat. 

16; the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. 112-199; and other laws listed in this and previous ARs.
3 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Board Members

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

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

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

Cathy A. Harris: Chairman, March 2024 to present; Vice 

Chairman and Acting Chairman, June 2022 to March 2024 

Cathy A. Harris was confirmed by the Senate on May 25, 2022, and 

sworn into her duties as a member of the Board on June 1, 2022. 

She was designated Vice Chairman on June 6, 2022. On March 6, 

2024, her separate Chairman nomination was confirmed by the U.S. 

Senate, and she was sworn in as Chairman on March 14, 2024. 

Previously, Ms. Harris was co-manager of the firm of Kator, Parks, 

Weiser & Harris, PLLC, in Washington, DC. She served as the 

Chair of the firm’s Sexual Harassment and LGBT Practice sections. 

Ms. Harris has practiced employment law, including before MSPB, 

for over two decades. She has extensive experience in the litigation 

and settlement of Federal sector employment class actions and has 

represented individual employees and Federal agencies. Ms. Harris 

graduated from the George Washington University Law School in Washington, DC, with honors in 

1997, where she was a member and editor on the George Washington Law Review. She received 

the Michael D. Cooley award for most successfully maintaining her compassion, vitality, and 

humanity during law school and was elected to give the salutatory address at commencement. 

Ms. Harris received her undergraduate degree from Brown University in 1994. Prior to joining 

Kator, Parks, Weiser & Harris, PLLC, she was an Assistant District Attorney in the New York 

County District Attorney’s Office. Ms. Harris also served as an Adjunct Professor at the George 

Washington University Law School from 2001 to 2004. 

Raymond A. Limon: Vice Chairman, March 2024 to present; 

Board Member, June 2022 to March 2024; Vice Chairman and 

Acting Chairman, March 2022 to June 2022

Raymond A. Limon was confirmed by the Senate on March 1, 2022, 

and sworn into his duties as a member of the Board on March 4, 

2022. He subsequently served as Vice Chairman and Acting 

Chairman between March 2022 and June 2022, when Ms. Harris was 

confirmed as a member of the Board and designated Vice Chairman. 

From June 2022 to March 10, 2024, Mr. Limon continued to serve 

as a Board Member. On March 11, 2024, Mr. Limon was again

designated by President Biden as Vice Chairman of MSPB. Prior to 

his service with MSPB, Mr. Limon served as the Deputy Assistant 

Secretary for Human Capital and Diversity and the Chief Human 

Capital Officer (CHCO) and was a career member of the Senior 

Executive Service (SES) at the Department of the Interior (DOI). 

His Directorate managed DOI's strategic human capital policies and procedures, Human 

Resources (HR) evaluations and oversight programs, occupational safety and health programs, and 

employee development and leadership programs, all of which served DOI’s more than 70,000 

employees in more than 350 occupations and 2,400 locations. Before joining DOI, Mr. Limon led 
4 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

the State Department’s Civil Service HR Management office. He also served as the CHCO at the 

Corporation for National and Community Service (e.g., AmeriCorps, VISTA, Senior Corps, etc.) 

and chaired the Small Agency HR Council, representing approximately 100 Federal agencies and 

organizations. Earlier, Mr. Limon was an attorney at OPM’s Office of General Counsel, 

specializing in employment litigation and regulatory reviews; and served as OPM’s Director of the 

Office of Administrative Law Judges (ALJs), managing the Government-wide personnel system 

for ALJs. He received his J.D. from Indiana University, Bloomington and is a former Peace Corps 

Volunteer (Honduras).

Status of Board Member Nomination

Board Member Tristan L. Leavitt departed MSPB at the end of his term in February 2023. On 

July 11, 2023, President Biden nominated Henry J. Kerner as Member. After a nomination hearing 

on November 30, 2023, Mr. Kerner was reported favorably out of the Senate Committee on 

Homeland Security and Governmental Affairs (HSGAC) and placed on the Senate calendar. His

nomination was returned to the President at the end of the 1st session of the 118th Congress. On 

January 8, 2024, the nomination was sent to the Senate, and on January 17, 2024, it was reported 

favorably out of HSGAC and placed on the Senate calendar.

MSPB Offices and Their Functions

MSPB is headquartered in Washington, DC, and has six ROs and two FOs located throughout the 

United States. For FY 2023, the agency was authorized to employ 235 full-time equivalents (FTEs) to 

conduct and support its statutory duties. However, the agency was funded at a level sufficient to 

support only 190 FTEs. 

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

chief executive and administrative officer. The Director of the Office of Equal Employment 

Opportunity (EEO) reports directly to the Chairman; otherwise, the directors of the offices described 

below report to the Chairman through the Executive Director.

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

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

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

assigned by MSPB. In FY 2023, the functions of this office were performed under interagency 

agreements by ALJs at the Federal Trade Commission (FTC) and the U.S. Coast Guard.

The Office of Appeals Counsel (OAC) conducts legal research and prepares proposed decisions 

for the Board to consider for cases in which a party files a PFR of an initial decision issued by an AJ 

and in most other cases to be decided by the Board. The office prepares proposed decisions on 

interlocutory appeals of AJs’ rulings; makes recommendations on reopening cases on the Board’s 

own motion; and provides research, policy memoranda, and advice on legal issues to the Board.

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

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

information center, coordinates media relations, operates MSPB’s library and online information 

services, and administers the Freedom of Information Act and privacy programs. It also certifies 

official records to the courts and Federal administrative agencies; and manages MSPB’s records 

systems, website content, and the Government in the Sunshine Act program.
5 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

The Office of Equal Employment Opportunity (EEO) plans, implements, and evaluates MSPB’s 

EEO programs. It processes complaints of alleged discrimination brought by agency employees and 

provides advice and assistance on affirmative employment initiatives to MSPB’s managers and 

supervisors. The EEO Director also coordinates MSPB’s Diversity and Inclusion Council.

The Office of Financial and Administrative Management (FAM) administers the budget, 

accounting, travel, time and attendance, HR, procurement, property management, physical security, 

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

programs, including reviewing agency internal controls. It also administers the agency’s crossagency servicing agreements with the Department of Agriculture’s (USDA) National Finance 

Center (NFC) for payroll services, the Department of the Treasury’s Bureau of the Fiscal Service

(BFS) for accounting services, and USDA’s Animal and Plant Health Inspection Service (APHIS) 

for HR services.

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

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

represents MSPB in litigation; prepares proposed decisions for the Board to enforce certain final 

MSPB decisions or orders, and in response to requests to review OPM regulations, and for other 

assigned cases; and coordinates the agency’s legislative policy and congressional relations functions. 

The office also drafts regulations, administers MSPB’s ethics program, performs the inspector 

general function, and plans and directs audits and investigations. 

The Office of Information Resources Management (IRM) develops, implements, and maintains 

MSPB’s IT systems and enterprise applications, and manages MSPB’s cybersecurity program. These 

services help MSPB manage its caseload efficiently and carry out its administrative and research 

responsibilities.

The Office of Policy and Evaluation (OPE) carries out MSPB’s statutory responsibility to 

conduct special studies of the civil service and other Federal merit systems. Reports of these studies 

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

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

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

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

agency and is responsible for coordinating MSPB’s performance planning and reporting functions 

required by GPRAMA.

The Office of Regional Operations (ORO) oversees the agency’s six ROs and two FOs, which 

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

Program. AJs in the RO/FOs are responsible for adjudicating assigned cases and for issuing fair, 

well-reasoned, and timely initial decisions.
6 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

MSPB Organizational Chart

FISCAL YEAR 2023 IN REVIEW

Adjudication

In FY 2023, 4,572 cases were decided in the RO/FOs, including addendum cases and stay requests, 

and ALJs issued 11 decisions. Between October 1, 2022, and September 8, 2023,5 the Board at HQ 

decided 1,484 cases. Statistical information on MSPB’s case processing activity for the RO/FOs and 

at HQ is provided in the section Case Processing Statistics for FY 2023.

6

The Board issued a number of precedential decisions, some of which are summarized in the section

on Significant Decisions Issued by the Board in FY 2023. Precedential Board decisions involved 

topics such as performance-based actions, actions under 38 U.S.C. § 714, penalty determination, 

medical inability to perform, election of remedies, interim relief, and whistleblower protections. We 

have also provided summaries of significant opinions relevant to the Board’s work that were issued 

in FY 2023 by the Supreme Court, the CAFC, and other Federal appellate courts. Those summaries 

are provided in the section on Significant Court Opinions Issued in FY 2023. The opinions cover 

topics such as the Appointments Clause of the Constitution, differential pay, removal, due process, 

and whistleblowing. 

5 On August 4, 2023, MPSB announced the implementation of its new e-Appeal system. The transition to the new system required downtime 

beginning on September 9, 2023. The new e-Appeal was implemented on October 16, 2023. As such, the fiscal year ended on September 8, 2023, for 

reporting purposes.

6 In accordance with the WPEA, information about FY 2023 whistleblower cases is available in MSPB’s APR-APP for FY 2023-2025, which is posted 

on MSPB’s website at www.mspb.gov.

CHAIRMAN MEMBER

General

Counsel

Equal

Employment

Opportunity

Clerk of the 

Board

Administrative 

Law Judge

Regional

Operations Appeals Counsel Policy and 

Evaluation

Regional Offices

Atlanta, Chicago,

Dallas,

Philadelphia,

Oakland, and

Washington, DC

VICE CHAIRMAN

Field Offices

Denver and

New York

Financial and

Administrative 

Management

Information

Resources 

Management

Executive 

Director

HR management services are provided by USDA’s APHIS Business Services. Payroll services are provided by 

USDA’s NFC. Accounting services are provided by the Department of the Treasury’s BFS. In FY 2023, ALJ 

functions were performed under interagency agreements by ALJs employed by the FTC and the U.S. Coast Guard. 

U.S. Merit Systems Protection Board
7 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Merit Systems Studies

In FY 2023, MSPB published two reports, one research brief, and three editions of its Issues of Merit

(IoM) newsletter. Summaries of publications and other studies-related activities are contained in the 

Summary of Merit Systems Studies Activity section of this report. 

Review of the Office of Personnel Management

MSPB has authority to review the rules, regulations, and significant actions of OPM, and 

information about these reviews is provided in the Review of the U.S. Office of Personnel 

Management section of this report. In accordance with statute, MSPB’s annual report must contain a 

review of OPM’s significant actions and an assessment of the degree to which these actions support 

MSPs and prevent PPPs. Therefore, this portion of the report also includes a Review of OPM 

Significant Actions, covering topics such as proposed regulations for upholding civil service 

protections and MSPs when employees involuntarily transfer from the competitive service to the 

excepted service or within the excepted service; leadership on Diversity, Equity, Inclusion, and 

Accessibility (DEIA) initiatives; Fair Chance to Compete for Jobs Act of 2019 final regulations; 

OPM’s Skills-Based Job Qualifications Initiative; and Closing Skills Gaps Closeout Report. Legal 

review of OPM rules and regulations is carried out through the adjudication function. These reviews 

are rare, and noteworthy information about this function is provided in the Review of Rules and 

Regulations of OPM section of this report.

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

MSPB’s education and outreach efforts are designed to enhance the understanding of the concept of 

merit, ensure that MSPs are applied consistently throughout the Government, reduce the likelihood 

of PPPs, and promote stronger merit-based management practices. MSPB outreach also promotes 

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

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

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

provide value to the taxpayer and are summarized in the Summary of Merit Systems Studies Activity 

in FY 2023.

In FY 2023, MSPB staff conducted 129 outreach events with a variety of customers and 

stakeholders. Events were both in-person and virtual on topics such as merit systems and meritbased management; Federal disciplinary policies; MSPB regulations, procedures, results, and legal 

precedent; and results of merit systems studies. Events were conducted with Federal executive 

branch departments and agencies, Federal court organizations, Federal Executive Boards, affinity 

groups, and a variety of legal groups (bar and other attorney associations, national institutes, and law 

schools). MSPB presented at major legal and research conferences such as the Federal Dispute 

Resolution conference, Federal Circuit Bar Association events, and the Chicago-Kent College of 

Law’s annual Federal Sector Labor Relations and Labor Law Program. During FY 2023, MSPB also 

hosted an official delegation from the Ghana Public Services Commission (PSC) to discuss 

workforce management issues, MSPs, PPPs, and MSPB’s jurisdiction and decision-making process.

MSPB’s work and other activities were cited over 300 times in over 60 different print and online 

sources. Several significant citations of studies work are included in the Merit Systems Studies 

section of this report. Additional information about MSPB’s outreach and education activities and 

references to its work can be found in MSPB’s APR-APP for FY 2023-2025. 
8 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Legislative and Congressional Relations Activity 

During FY 2023, MSPB staff monitored and analyzed legislative activity relevant to MSPB’s 

jurisdiction and adjudication of appeals.7

As in past years, the National Defense Authorization Act (NDAA), the annual Department of 

Defense policy bill, has been the primary vehicle for new laws affecting civilian employee policy and 

often also impacting MSPB. On December 23, 2022, the James. M. Inhofe NDAA for FY 2023 (Pub. 

L. 117-263) was enacted, providing an avenue for Federal Bureau of Investigation (FBI) employees to 

bring whistleblower reprisal claims to MSPB. Such claims previously were exclusively subject to an 

internal FBI appeals process. Section 5304 of the NDAA provides an FBI employee who alleges 

reprisal for protected whistleblower activities the right to appeal a final determination or corrective 

action order to MSPB under 5 U.S.C. § 1221. It also allows for an appeal to MSPB under § 1221 if no 

final determination or corrective action order has been made or issued within 180 days of the FBI’s 

receipt of the allegation of reprisal. By expanding MSPB’s whistleblowing jurisdiction to include 

employees not previously eligible to file appeals under § 1221, this change likely will increase the 

number of complex cases adjudicated by the Board.

Other Congressional/Legislative Activity

MSPB staff conducted five briefings for congressional staff during FY 2023. In addition to the 

annual budget briefings and introductory briefings for staff of the House and Senate Appropriations 

Committees, MSPB briefed staff from the Senate Judiciary and the House Oversight and Reform 

(now Oversight and Accountability) committees on then-pending legislation providing MSPB appeal 

rights to FBI whistleblowers. MSPB staff also briefed the HSGAC Majority Counsel on 

cybersecurity matters.

Internal Management Challenges and External Factors

Significant internal challenges in FY 2023 that affected MSPB’s ability to carry out its mission 

included the inherited inventory of PFRs at HQ caused by the lack of a quorum of Board 

members, inadequate staffing, especially regarding adjudication and merit systems studies, and IT 

modernization. External challenges included changes in law, jurisdiction, and appeals processes. 

More detailed information about MSPB’s internal challenges and external factors can be found in 

MSPB’s APR-APP for FY 2023-2025.

7 Bills that expired at the end of the 118th Congress are not summarized here.
9 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

CASE PROCESSING STATISTICS FOR FY 20238

Summary of Cases Decided by MSPB

Table 1: FY 2023 Summary of Cases Decided By MSPB

Cases Decided in MSPB Regional and Field Offices

 Appeals 4,135

 Addendum Cases1 416

 Stay Requests2 21

TOTAL Cases Decided in RO/FOs 4,572

Cases Decided by Administrative Law Judges (ALJs) - Original 

Jurisdiction3 11

 Cases Decided by the Board

 Appellate Jurisdiction:

 Petitions for Review (PFRs) - Appeals 1,252

 Petitions for review (PFRs) - Addendum Cases 118

 Reviews of Stay Request Rulings 0

 Requests for Stay of Board Order 0

 Reopenings 6

 Court Remands 2

 Compliance Referrals 67

 EEOC Non-concurrence Cases 2

 Arbitration Cases 7

 Subtotal - Appellate Jurisdiction 1,454

 Original Jurisdiction4 29

 Interlocutory Appeals 1

 TOTAL Cases Decided by the Board 1,484

 TOTAL Decisions (Board, ALJs, RO/FOs) 6,067

1 Includes 101 requests for attorney fees, 117 compliance cases, 16 court remand cases, 145 Board remand cases, 29 

requests for compensatory damages (discrimination cases only), and 8 requests for consequential damages. 2 Includes 16 stay requests in whistleblower cases and 5 in non-whistleblower cases. 3 Initial Decisions by ALJ. Case type breakdown: 1 Disciplinary Action - Hatch Act case, 2 Actions Against SES, and 8 Proposed Actions 

Against ALJs.

4 Final Board Decisions. Case type breakdown: 6 Requests for Regulation Review, 9 Requests for Stay (OSC Filed), 1 

Disciplinary Action - Hatch Act, and 13 Proposed Actions Against ALJ’s.

8 As noted earlier, for reporting purposes, the fiscal year effectively ended on September 8, 2023.
10 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Cases Processed in the Regional and Field Offices

Table 2: Disposition of Appeals Decided in the Regional and 

Field Offices, by Type of Case

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

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

Adverse Action by Agency 1,457 704 48.3 753 51.7 465 61.8 288 38.3

Termination of Probationers 461 432 93.7 29 6.3 28 96.6 1 3.5

Reduction in Force 2 1 50.0 1 50.0 1 100.0 0 0.0

Performance 97 25 25.8 72 74.2 48 66.7 24 33.3

Acceptable Level of 

Competence (ALOC)3 20 11 55.0 9 45.0 2 22.2 7 77.8

Suitability 61 29 47.5 32 52.5 24 75.0 8 25.0

CSRS Retirement: Legal 113 73 64.6 40 35.4 0 0.0 40 100.0

CSRS Retirement: Disability 3 3 100.0 0 0.0 0 0.0 0 0.0

CSRS Retirement: 

Overpayment 25 8 32.0 17 68.0 11 64.7 6 35.3

FERS Retirement: Legal 183 132 72.1 51 27.9 2 3.9 49 96.1

FERS Retirement: Disability 603 559 92.7 44 7.3 1 2.3 43 97.7

FERS Retirement: 

Overpayment 159 80 50.3 79 49.7 55 69.6 24 30.4

FERCCA 6 2 33.3 4 66.7 0 0.0 4 100.0

Individual Right of Action 383 261 68.2 122 31.9 61 50.0 61 50.0

USERRA 72 41 56.9 31 43.1 20 64.5 11 35.5

VEOA 51 31 60.8 20 39.2 3 15.00 17 85.00

Other4 439 423 96.4 16 3.6 11 68.75 5 31.25

Total 4,135 2,815 68.0 1,320 31.9 732 55.5 588 44.6

1 Percent Dismissed and Not Dismissed are of the number Decided.

2 Percent Settled and Adjudicated are of the number Not Dismissed. 3 ALOC means an employee is effectively performing the duties and responsibilities of his or her assigned job, which warrants 

advancing the employee’s rate of pay to the next higher step at the grade of the employee’s position. If an employee’s performance 

is not at an ALOC, then the agency must, under most circumstances, deny his or her within-grade increase. 4 “Other” appeals include Restoration to Duty (26), Miscellaneous (359), and additional types such as Reemployment Priority, 

Employment Practices, and others.
11 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Figure 1: Type of Appeals Decided in the RO/FOs

Total Number of Appeals: 4,135

2

3

6

20

25

51

61

72

97

113

159

183

383

439

461

603

1457

0 200 400 600 800 1000 1200 1400 1600

Reduction in Force

CSRS Retirement: Disability

FERCCA

Acceptable Level of Competence (WIGI)

CSRS Retirement: Overpayment

VEOA

Suitability

USERRA

Performance

CSRS Retirement: Legal

FERS Retirement: Overpayment

FERS Retirement: Legal

Individual Right of Action

Other

Termination of Probationers

FERS Retirement: Disability

Adverse Action by Agency
12 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Figure 2: Dispositions of Initial Appeals Not Dismissed by RO/FOs

Total Number of Appeals that were Not Dismissed: 1,320

Figure 3: Dispositions of Initial Appeals Not Dismissed or Settled by RO/FOs

Based on 588 Appeals Adjudicated on the Merits
13 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Table 3: Disposition of Appeals by Agency

(in descending order by number of decided appeals)

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

# # % # % # % # % 

Office of Personnel Management3 1,114 859 77.1 255 22.9 87 34.1 168 65.9

Department of Veterans Affairs 522 352 67.4 170 32.6 102 60.0 68 40.0

Department of the Army 334 212 63.5 122 36.5 84 68.9 38 31.1

United States Postal Service 322 209 64.9 113 35.1 81 71.7 32 28.3

Department of the Navy 286 185 64.7 101 35.3 60 59.4 41 40.6

Department of Defense 232 160 69.0 72 31.0 42 58.3 30 41.7

Department of Homeland 

Security 207 115 55.6 92 44.4 48 52.2 44 47.8

Department of the Treasury 159 122 76.7 37 23.3 24 64.9 13 35.1

Department of Justice 154 87 56.5 67 43.5 32 47.8 35 52.2

Department of the Air Force 144 97 67.4 47 32.6 25 53.2 22 46.8

Department of Health and 

Human Services 109 72 66.1 37 33.9 25 67.6 12 32.4

Department of Agriculture 108 65 60.2 43 39.8 18 41.9 25 58.1

Department of the Interior 83 43 51.8 40 48.2 30 75.0 10 25.0

Social Security Administration 65 52 80.0 13 20.0 6 46.2 7 53.8

Department of Commerce 64 37 57.8 27 42.2 12 44.4 15 55.6

Department of Transportation 45 28 62.2 17 37.8 9 52.9 8 47.1

Department of Labor 29 21 72.4 8 27.6 6 75.0 2 25.0

Department of Energy 16 13 81.3 3 18.8 3 100.0 0 0.0

Equal Employment Opportunity 

Commission 15 8 53.3 7 46.7 3 42.9 4 57.1

Department of State 14 9 64.3 5 35.7 3 60.0 2 40.0

General Services Administration 13 9 69.2 4 30.8 3 75.0 1 25.0

Department of Housing and 

Urban Development 11 8 72.7 3 27.3 1 33.3 2 66.7

National Aeronautics and Space 

Admin 10 8 80.0 2 20.0 2 100.0 0 0.0

Small Business Administration 9 7 77.8 2 22.2 1 50.0 1 50.0

Environmental Protection Agency 6 1 16.7 5 83.3 4 80.0 1 20.0

Government Publishing Office 6 5 83.3 1 16.7 1 100.0 0 0.0

Agency for International 

Development 5 3 60.0 2 40.0 2 100.0 0 0.0

Department of Education 5 2 40.0 3 60.0 2 66.7 1 33.3

Federal Deposit Insurance 

Corporation 5 2 40.0 3 60.0 1 33.3 2 66.7
14 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Table 3: Disposition of Appeals by Agency (continued)

(in descending order by number of decided appeals)

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

# # % # % # % # % 

Securities and Exchange 

Commission 4 2 50.0 2 50.0 2 0.0 0 0.0

Smithsonian Institution 4 1 25.0 3 75.0 1 33.3 2 66.7

Federal Housing Finance 

Agency 3 1 33.3 2 66.7 2 100.0 0 0.0

National Credit Union 

Administration 3 2 66.7 1 33.3 1 100.0 0 0.0

U.S. Agency for Global Media 3 2 66.7 1 33.3 0 0.0 1 0.0

Corporation for National and 

Community Service 2 2 100.0 0 0.0 0 0.0 0 0.0

Federal Reserve System 2 0 0.0 2 100.0 1 50.0 1 50.0

International Boundary and 

Water Comm: U.S. and Mexico 2 0 0.0 2 100.0 2 100.0 0 0.0

National Archives and Records 

Admin 2 1 50.0 1 50.0 1 100.0 0 0.0

National Mediation Board 2 1 50.0 1 50.0 1 100.0 0 0.0

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

Office of Special Counsel 2 2 100.0 0 0.0 0 0.0 0 0.0

Architectural and 

Transportation Barriers 

Compliance Board 1 1 100.0 0 0.0 0 0.0 0 0.0

Armed Forces Retirement 

Home 1 0 0.0 1 100.0 1 0.0 0 0.0

Court Services and Offender 

Supervision Agency for DC 1 1 100.0 0 0.0 0 0.0 0 0.0

Executive Office of the 

President, Office of 

Administration 1 1 100.0 0 0.0 0 0.0 0 0.0

Federal Mediation and 

Conciliation Service 1 1 100.0 0 0.0 0 0.0 0 0.0

Federal Permitting 

Improvement Steering Council 1 0 0.0 1 100.0 1 100.0 0 0.0

National Foundation for the 

Arts and the Humanities 1 0 0.0 1 100.0 1 100.0 0 0.0

National Transportation Safety 

Board 1 0 0.0 1 100.0 1 100.0 0 0.0

Office of the Director of 

National Intelligence 1 1 100.0 0 0.0 0 0.0 0 0.0

Peace Corps 1 1 100.0 0 0.0 0 0.0 0 0.0

Pension Benefit Guaranty 

Corporation 1 1 100.0 0 0.0 0 0.0 0 0.0

Postal Rate Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

TOTAL 4,135 2,815 68.1 1,320 31.9 732 55.5 588 44.5
15 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

1 Percent Dismissed and Not Dismissed are of the number Decided.

2 Percent Settled and Adjudicated are of the number Not Dismissed. 3 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the administrator of the 

Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS).

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

by Agency

Adjudicated1 Affirmed Reversed Mitigated/

Modified Other

# # % # % # % # % 

Office of Personnel 

Management2 168 126 75.0 30 17.9 0 0.0 12 7.1

Department of Veterans Affairs 68 54 79.4 9 13.2 2 2.9 3 0.0

Department of Homeland 

Security 44 37 84.1 4 9.1 3 6.8 0 0.0

Department of the Navy 41 39 95.1 1 2.4 1 2.4 0 0.0

Department of the Army 38 27 71.1 9 23.7 2 5.3 0 0.0

Department of Justice 35 25 71.4 7 20.0 3 8.6 0 0.0

United States Postal Service 32 26 81.3 4 12.5 1 3.1 1 3.1

Department of Defense 30 17 56.7 12 40.0 1 3.3 0 0.0

Department of Agriculture 25 21 84.0 4 16.0 0 0.0 0 0.0

Department of the Air Force 22 20 90.9 2 9.1 0 0.0 0 0.0

Department of Commerce 15 13 86.7 2 13.3 0 0.0 0 0.0

Department of the Treasury 13 9 69.2 3 23.1 1 7.7 0 0.0

Department of Health and 

Human Services 12 9 75.0 3 25.0 0 0.0 0 0.0

Department of the Interior 10 6 60.0 4 40.0 0 0.0 0 0.0

Department of Transportation 8 7 87.5 1 12.5 0 0.0 0 0.0

Social Security Administration 7 6 85.7 0 0.0 1 14.3 0 0.0

Equal Employment Opportunity 

Commission 4 3 75.0 0 0.0 1 25.0 0 0.0

Department of Housing and 

Urban Development 2 0 0.0 2 100.0 0 0.0 0 0.0

Department of Labor 2 2 100.0 0 0.0 0 0.0 0 0.0

Department of State 2 1 50.0 1 50.0 0 0.0 0 0.0

Federal Deposit Insurance 

Corporation 2 2 100.0 0 0.0 0 0.0 0 0.0

Smithsonian Institution 2 2 100.0 0 0.0 0 0.0 0 0.0

Department of Education 1 1 100.0 0 0.0 0 0.0 0 0.0
16 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

by Agency (continued)

Adjudicated1 Affirmed Reversed Mitigated/Modified Other

# # % # % # % # %

Environmental Protection 

Agency 1 1 100.0 0 0.0 0 0.0 0 0.0

Federal Reserve System 1 1 100.0 0 0.0 0 0.0 0 0.0

U.S. Agency for Global 

Media 1 1 100.0 0 0.0 0 0.0 0 0.0

TOTAL 588 458 77.9 98 16.7 16 2.7 16 2.7

1 Adjudicated, i.e., not dismissed or settled. As a reminder, the data represent cases decided between October 1, 2022, and 

September 8, 2023. Therefore, these data are not comparable to full-year results contained in other ARs. 2 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the administrator of CSRS

and FERS. 

Percentages may not total 100 because of rounding.

Cases Processed at Headquarters

Table 5: Disposition of PFRs of Initial Decisions by Type of Case

Decided Dismissed Settled Denied

Denied; 

Further 

Analysis1

 Granted

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

Adverse Action by Agency 599 37 6.2 58 9.7 410 68.5 5 0.8 89 14.9

Termination of Probationers 15 0 0.0 1 6.7 11 73.3 0 0.0 3 20.0

Reduction in Force 1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0

Performance 47 5 10.6 2 4.3 13 27.7 0 0.0 27 57.5

Acceptable Level of 

Competence (ALOC)2 9 1 11.1 0 0.0 6 66.7 0 0.0 2 22.2

Suitability 9 0 0.0 0 0.0 8 88.9 0 0.0 1 11.1

CSRS Retirement: Legal 43 3 7.0 1 2.3 32 74.4 0 0.0 7 16.3

CSRS Retirement: 

Overpayment 5 0 0.0 0 0.0 4 80.0 0 0.0 1 20.0

FERS Retirement: Legal 23 1 4.4 0 0.0 19 82.6 0 0.0 3 13.0

FERS Retirement: Disability 28 1 3.6 0 0.0 20 71.4 0 0.0 7 25.0

FERS Retirement: 

Overpayment 20 1 5.0 1 5.0 11 55.0 1 5.0 6 30.0

FERCCA 3 0 0.0 0 0.0 3 100.0 0 0.0 0 0.0

Individual Right of Action 228 18 7.9 20 8.9 124 54.4 1 0.0 65 2.9

USERRA 33 4 12.12 0 0.00 23 69.7 0 0.0 6 18.2

VEOA 70 5 7.14 1 1.4 54 77.1 3 4.3 7 10.0

Other3 119 4 3.36 7 5.9 98 82.4 0 0.0 10 8.4

Total 1,252 80 6.39 91 7.27 837 66.85 10 0.80 234 18.69
17 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

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

an issue sua sponte, i.e., of the Board’s own accord (5 C.F.R § 1201-117(a)). This definition applies also to Table 6 and Figures 4, 5, 

and 7. 

2 ALOC means an employee is effectively performing the duties and responsibilities of his or her assigned job, which warrants 

advancing the employee’s rate of pay to the next higher step at the grade of the employee’s position. If an employee’s performance is 

not at an ALOC, then the agency must, under most circumstances, deny his or her within-grade increase.

3 Includes cases such as restoration cases, short suspension cases, and miscellaneous cases. 

Percentages may not total 100 due to rounding.

Figure 4: Types of PFRs

Total Number of PFRs: 1,252
18 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Figure 5: Disposition of PFRs of Initial Decisions

Total Number of PFRs: 1,252

Figure 6: Disposition of PFRs Granted

Based on 234 PFRs Granted

10

80

91

234

837

0 100 200 300 400 500 600 700 800 900

Denied but Reopened

Dismissed

Settled

Granted

Denied

1

10

15

40

168

0 20 40 60 80 100 120 140 160 180

Agency Action Mitigated

Other

Initial Decision Affirmed

Initial Decision Reversed

Case Remanded
19 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Figure 7: Disposition of PFRs Denied: Further Analysis

Based on 10 PFRs Denied; Further Analysis

“Other” includes forwarding the case for docketing of new claims 

and/or vacating the initial decision.

0

0

2

3

5

0 1 2 3 4 5 6

Initial Decision Affirmed

Agency Action Mitigated

Initial Decision Reversed

Case Remanded

Other
20 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Table 6: Disposition of PFRs of Initial Decisions, by Agency

Decided Dismissed Settled Denied

Denied; 

Further 

Analysis1

 Granted

# # % # % # % # % # % 

Department of Veterans 

Affairs

252 15 6.0 46 18.3 143 56.8 1 0.4 47 18.7

Office of Personnel 

Management2 127 6 4.7 2 1.6 95 74.8 1 0.8 23 18.1

Department of the Army 126 6 4.8 10 7.9 82 65.1 1 0.8 27 21.4

United States Postal Service 106 2 1.9 3 2.8 84 79.3 1 0.9 16 15.1

Department of Homeland 

Security

97 11 11.3 7 7.2 61 62.9 0 0.0 18 18.6

Department of Defense 88 7 8.0 2 2.3 66 75.0 1 1.1 12 13.6

Department of the Navy 64 5 7.8 8 12.5 39 60.9 0 0.0 12 18.8

Department of Justice 50 6 12.0 2 4.0 36 72.0 1 2.0 5 10.0

Department of the Air Force

44 2 4.6 2 4.6 26 59.1 1 2.3 13 29.6

Department of the Interior 41 3 7.3 2 4.9 27 65.9 1 2.4 8 19.5

Department of the Treasury 38 2 5.3 0 0.0 28 73.7 1 2.6 7 18.4

Department of Agriculture 33 1 3.0 1 3.0 21 63.6 0 0.0 10 30.3

Department of Health and 

Human Services

25 2 8.0 1 4.0 18 72.0 1 4.0 3 12.0

Department of 

Transportation

23 1 4.4 0 0.0 17 73.9 0 0.0 5 21.7

Social Security 

Administration

22 3 13.6 0 0.0 15 68.2 0 0.0 4 18.2

Department of Commerce 20 2 10.0 2 10.0 11 55.0 0 0.0 5 25.0

Department of Labor 11 1 9.1 1 9.1 6 54.6 0 0.0 3 27.3

Environmental Protection 

Agency

11 2 18.2 0 0.0 6 54.6 0 0.0 3 27.3

National Aeronautics and 

Space Admin

8 0 0.0 0 0.0 7 87.5 0 0.0 1 12.5

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

Department of Housing and 

Urban Development

6 0 0.0 0 0.0 4 66.7 0 0.0 2 33.3

Department of Energy 5 0 0.0 0 0.0 5 100.0 0 0.0 0 0.0

Equal Employment 

Opportunity Commission

5 0 0.0 0 0.0 5 100.0 0 0.0 0 0.0

Office of Special Counsel 5 0 0.0 0 0.0 5 100.0 0 0.0 0 0.0

Small Business 

Administration

5 0 0.0 0 0.0 4 80.0 0 0.0 1 20.0

Department of Education 4 1 25.0 0 0.0 1 25.0 0 0.0 2 50.0
21 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Table 6: Disposition of PFRs of Initial Decisions, by Agency (continued)

Decided Dismissed Settled Denied

Denied; 

Further 

Analysis1

 Granted

# # % # % # % # % # % 

General Services 

Administration

4 0 0.0 0 0.0 2 50.0 0 0.0 2 50.0

Securities and Exchange 

Commission

3 2 66.7 0 0.0 0 0.0 0 0.0 1 33.3

Federal Communications 

Commission

2 0 0.0 0 0.0 2 100.0 0 0.0 0 0.0

Federal Deposit 

Insurance Corporation

2 0 0.0 0 0.0 1 50.0 0 0.0 1 50.0

Federal Reserve System 2 0 0.0 0 0.0 1 50.0 0 0.0 1 50.0

Nuclear Regulatory 

Commission

2 0 0.0 0 0.0 2 100.0 0 0.0 0 0.0

Tennessee Valley 

Authority

2 0 0.0 0 0.0 2 100.0 0 0.0 0 0.0

Administrative 

Conference of the United 

States

1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0

Agency for International 

Development

1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0

Armed Forces 

Retirement Home

1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0

Committee for Purchase 

from People Who Are 

Blind and Severely 

Disabled

1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0

Federal Labor Relations 

Authority

1 0 0.0 0 0. 1 100.0 0 0.0 0 0.0

Federal Trade 

Commission

1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.

Government Publishing 

Office

1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0

Government of the 

District of Columbia

1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0

National Archives and 

Records Admin

1 0 0.0 1 100.0 0 0.0 0 0.0 0 0.0

National Science 

Foundation

1 0 0.0 1 100.0 0 0.0 0 0.0 0 0.0

Other 1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0

Selective Service System 1 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0

TOTAL 1,252 80 6.4 91 7.3 837 66.9 10 0.8 234 18.7

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

issue sua sponte, i.e., of the Board’s own accord (5 C.F.R § 1201-117(a)). This definition applies also to Table 5 and Figures 4, 5, and 

7.

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

FERS.
22 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

SIGNIFICANT DECISIONS ISSUED BY THE BOARD IN FY 2023

Actions Against Administrative Law Judges (ALJs)

Jarboe v. Department of Health & Human Services, 2023 MSPB 21: The Board determined that a sitting 

ALJ may not bring a constructive removal appeal under 5 U.S.C. § 7521. Because the respondent 

had not been reassigned or separated from his ALJ position, the Board dismissed his appeal for lack 

of jurisdiction. 

Jarboe v. Department of Health & Human Services, 2023 MSPB 22: The Board affirmed the initial 

decision that found good cause for the respondent’s removal and clarified that under 5 U.S.C. 

§ 7521, the Board does not “select” or make the “choice” of penalty. Rather, the employing agency 

retains discretion to take the Board-approved action, impose a lesser sanction, or take no action at 

all, overruling prior decisions wherein it stated that the Board selects or chooses the penalty, 

including Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 47 (2010), aff’d, 635 F.3d 526 (Fed. 

Cir. 2011), and Social Security Administration v. Steverson, 111 M.S.P.R. 649, ¶ 18 (2009), aff’d, 383 F. 

App’x 939 (Fed. Cir. 2010).

Levinson v. Social Security Administration, 2023 MSPB 20: The Board found good cause to remove the 

respondent under 5 U.S.C. § 7521(a) and clarified that when it finds good cause, it does not bind a 

petitioner agency to take the proposed action but merely authorizes it to do so, thereby overruling

prior decisions to the extent that its findings suggested that the Board takes, or directs an employing 

agency to take, an action against an ALJ under 5 U.S.C. § 7521. 

Actions Under 38 U.S.C. § 714

Davis v. Department of Veterans Affairs, 2022 MSPB 45: The Board expanded upon its prior holding in 

Wilson v. Department of Veterans Affairs, 2022 MSPB 7, concluding that the procedures of 5 U.S.C. 

§ 7702 and the Board’s implementing regulations apply when an appellant raises for the first time in 

his Board appeal allegations that the agency violated equal employment opportunity statutes. 

Ledbetter v. Department of Veterans Affairs, 2022 MSPB 41: For actions under 38 U.S.C. § 714, the 

Board found that the following circumstances justify a waiver of a filing deadline: (1) the statute or 

regulation itself specifies circumstances in which the time limit will be waived; (2) an agency’s 

affirmative misconduct precludes it from enforcing an otherwise applicable deadline under the 

doctrine of equitable estoppel unless the application of equitable estoppel would result in the 

expenditure of appropriated funds in contravention of statute; or (3) an agency’s failure to provide a 

mandatory notice of election rights warrants the waiver of the time limit for making an election.

Election of Remedy

Brookins v. Department of the Interior, 2023 MSPB 3: Generally, when an employee is covered by a 

collective bargaining agreement that includes within-grade increase denials in its negotiated grievance 

procedures, those procedures are the employee’s exclusive remedy. 5 U.S.C. § 7121(a)(1). Under the 

CSRA as originally enacted, the only exception allows for Board appeals in cases where the 

employee alleges that he has been affected by a PPP under 5 U.S.C. § 2302(b)(1), i.e., prohibited 

discrimination. 5 U.S.C. § 7121(d). Here, the Board recognized that in 1994, Congress amended 

5 U.S.C. § 7121 by adding a new subsection (g), which provides another exception for cases in which 

employees allege that they have been affected by a PPP other than under 5 U.S.C. § 2302(b)(1), 

overruling prior cases to the extent they held otherwise.

Requena v. Department of Homeland Security, 2022 MSPB 39: Pursuant to 5 U.S.C. § 7121(g), an 

employee subjected to an action appealable to the Board who alleges that the contested action was 
23 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

taken in reprisal for whistleblowing may elect to pursue a remedy through only one of the following 

remedial processes: (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed under an 

applicable negotiated grievance procedure; or (3) a complaint seeking corrective action from the 

Office of Special Counsel (OSC). Generally, whichever option the appellant selects first is a binding 

election. In this case, the Board clarified that supervisors and management officials are excepted 

from the election of remedies provision of 5 U.S.C. § 7121(g) and overruled several prior Board 

decisions to the contrary. 

Interim Relief

Schmitt v. Department of Veterans Affairs, 2022 MSPB 40: The Board held that the Department of 

Veterans Affairs Accountability and Whistleblower Protection Act of 2017 precludes an award of 

interim relief. The Board found that Congress expressly precluded an appellant who appealed a 

removal under § 714 from receiving pay or benefits of employment until the issuance of a final 

decision by the CAFC and that this timeframe spans the period during which interim relief would 

apply. 38 U.S.C. § 714(d)(7). 

Stewart v. Department of Transportation, 2023 MSPB 18: The Board found that the AJ lacked the 

authority to address interim relief in an erratum. When an appellant prevails in an adverse action 

appeal under 5 U.S.C. § 7701 but the initial decision is silent on the issue of interim relief, an agency 

is required to provide interim relief by operation of the statute. While an AJ is expected to address 

interim relief in the initial decision, an AJ’s failure to do so does not relieve the agency of its 

statutory interim relief obligation. Regardless of whether an initial decision contains or omits a 

required statement on interim relief, the Board will exercise its discretionary authority to dismiss an 

agency’s petition or cross-petition for review for failure to provide interim relief in light of all the 

relevant facts and circumstances. 

Medical Inability to Perform

Haas v. Department of Homeland Security, 2022 MSPB 36: The Board recognized that 5 C.F.R. § 339.206 

provides that an employee may not be removed from a position subject to medical standards “solely 

on the basis of medical history,” which the Board interpreted to mean that the only basis for 

concluding that an employee is medically unable to perform the core duties of his position is the fact 

that his medical records reflect that, at some time in the past, he was classified as having, was 

examined for, or was treated for the medical condition or impairment in question. The Board 

clarified that the proper standard for removing an employee from a position with medical standards 

based on a current medical condition requires that the agency prove either a nexus between the 

employee’s medical condition and observed deficiencies in his performance or conduct, or a high 

probability, given the nature of the work involved, that his condition may result in injury to himself 

or others, overruling prior cases to the extent that they applied 5 C.F.R. § 339.206 to charges of 

medical inability when the appellant was removed based on his current medical condition or 

impairment.

Penalty Determination

Chin v. Department of Defense, 2022 MSPB 34: The Board found that the AJ correctly sustained the 

larceny charge against the appellant for taking approximately $5.00 worth of food from the cafeteria 

without paying for it. However, it did not defer to the agency’s penalty selection, explaining that,

under the case law of the Board and the CAFC, the de minimis nature of a theft may be a significant 

mitigating factor when the appellant has a satisfactory work record and no prior discipline. The 

Board found that the deciding official failed to properly consider these or other relevant mitigating 

factors under Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), and determined that 

the appellant’s 30 years of discipline-free service, his satisfactory work record, including after the 
24 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

incident, the de minimis nature of the theft, and the fact that the appellant did not have custody or 

control over the stolen items as part of his official duties were relevant mitigating factors. The Board 

concluded that, under the circumstances, the maximum reasonable penalty was a 90-day suspension.

Thomas v. Department of the Army, 2022 MSPB 35: The Board agreed that the AJ properly sustained the 

charge of conduct unbecoming a supervisor where the appellant was charged with: (1) repeatedly 

making unwanted and inappropriate comments to his female subordinate employees that made them 

uncomfortable; and (2) spending a significant amount of time in his office with a female subordinate 

employee, alone and with his door closed, engaging in personal conversations in a manner that could 

be construed as favoritism. The Board disagreed with the AJ’s decision to mitigate the penalty, 

finding that removal was appropriate due to the seriousness of the appellant’s misconduct because 

his behavior was divisive, made subordinates uncomfortable, poisoned the working environment, 

and contributed to an employee’s decision to resign. The Board determined his misconduct to be 

exceptionally serious due to his role as a supervisor and his position as a Supervisory Human 

Resources Specialist. 

Restoration Following a Work-related Injury

Desjardin v. U.S. Postal Service, 2023 MSPB 6: The Board found that the agency violated the appellant’s 

restoration rights under 5 C.F.R. § 353.301(d) because it failed to conduct a proper search for vacant 

positions within the local commuting area. When the Board finds that an agency has violated 

5 C.F.R. § 353.301(d), the proper remedy is for the agency to conduct an appropriate search of the 

local commuting area retroactive to the date of the appellant’s request for restoration and to 

consider him for any suitable vacancies. An appellant may be entitled to backpay only if the agency’s 

retroactive search uncovers a position to which it could have restored him. The Board will

adjudicate discrimination and retaliation claims as affirmative defenses and not as “independent 

claims” in connection with denials of restoration over which it has jurisdiction.

Whistleblower Protection

Abernathy v. Department of the Army, 2022 MSPB 37: The Board declined to overturn its precedential 

decisions in Weed v. Social Security Administration, 113 M.S.P.R. 221, ¶ 8-12 (2010), and Greenup v. 

Department of Agriculture, 106 M.S.P.R. 202, ¶ 8-9 (2007), and found that the appellant’s disclosures, 

which he made when working as a contractor, were not excluded from whistleblower protection 

simply because he was neither a Federal employee nor an applicant for Federal employment when 

he made them. The Board stressed that its finding was applicable to any individual who makes a 

whistleblowing disclosure at any time before becoming a Federal employee or applicant for 

employment. The Board recognized that a new statutory provision, 5 U.S.C. § 2302(f)(1)(F), 

comports with its precedent on this topic but declined to determine its applicability in this case as it 

was not material to the outcome.

Fisher v. Department of the Interior, 2023 MSPB 11: The Board clarified that, under 5 U.S.C. 

§ 2302(b)(9)(C), any disclosure of information to OSC or an agency’s Office of Inspector General is 

protected regardless of its content as long as such disclosure is made in accordance with applicable 

provisions of law. When the events at issue in this appeal took place, 5 U.S.C. § 2302(b)(9)(D) made 

it a PPP to take an action against an employee for “refusing to obey an order that would require the 

individual to violate a law,” which the CAFC held extended only to orders that would require an 

individual to take an action barred by statute. Rainey v. Merit Systems Protection Board, 824 F.3d 1359, 

1361-62, 1364-65 (Fed. Cir. 2016). While this matter was pending before the Board, the Follow the 

Rules Act (FTRA) was enacted, amending § 2302(b)(9)(D) by inserting after “law” the words “rule, 

or regulation.” The Board determined that the FTRA does not apply retroactively. Accordingly, the 

Board held that the appellant’s claims that the agency retaliated against him for refusing to obey 
25 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

orders that would require him to violate agency rules or regulations are outside the scope of preFTRA 5 U.S.C. § 2302(b)(9)(D). 

Salazar v. Department of Veterans Affairs, 2022 MSPB 42: The Board found that the NDAA for 

FY 2018 modified 5 U.S.C. § 2302(f)(2) to clarify that disclosures made in the normal course of 

duties are subject to a higher burden of proof only if the employee’s principal job function is to 

regularly investigate and disclose wrongdoing, and that this clarification applies retroactively. 

Because the appellant’s principal job function was not to regularly investigate and disclose 

wrongdoing, the “extra proof requirement” in § 2302(f)(2) should not have been applied. Instead, 

disclosures made in the normal course of duties of an employee whose principal job function is not 

to regularly investigate and disclose wrongdoing fall under 5 U.S.C. § 2302(b)(8). 

SIGNIFICANT COURT OPINIONS ISSUED IN FY 2023

As a service to MSPB’s stakeholders, we have provided brief summaries of significant opinions issued 

by the CAFC and other Federal appellate courts in appeals of MSPB cases, and by the Supreme Court 

in cases that are potentially relevant to MSPB.

Significant Opinions Issued by the U.S. Court of Appeals for the Federal Circuit 

Constitution/Appointments Clause

McIntosh v. Dep’t of Defense, et al., 53 F.4th 630 (Fed. Cir. 2022): The CAFC held that the Board’s 

statutory structure did not provide AJs with the authority necessary to render them principal 

officers. The court declined to consider the appellant’s argument that the AJ was an inferior officer 

because the appellant had waived it; but found that even if the AJs were inferior officers, the Board 

had issued an order ratifying their appointments that remedied any Appointments Clause issues. 

Finally, the court affirmed the Board’s decision sustaining the removal.

Differential Pay

Kluge v. Department of Homeland Security, 60 F.4th 1361 (Fed. Cir. 2023): The appellant was a 

commissioned officer in the U.S. Army Reserve and a civilian employee of the Department of 

Homeland Security (DHS) who was ordered to active duty for approximately 7 months in 2011. He

filed an appeal seeking the recovery of differential pay for himself and similarly situated service 

members. The court affirmed MSPB’s final order denying class certification, holding that the Board 

is not bound by all the criteria in Federal Rule of Civil Procedure 23. 

Nordby v. Social Security Administration, 67 F.4th 1170 (Fed. Cir. 2023): The appellant, an Army 

Reservist who was called to active duty under section 12301(d), challenged under USERRA the 

agency’s denial of his request for differential pay under 5 U.S.C. § 5538(a) to account for the pay 

difference between his military and civilian compensation. The CAFC affirmed the AJ’s dismissal of 

the appeal for failure to state a claim, agreeing that the appellant was not entitled to differential pay 

under 5 U.S.C. § 5538(a) because the statute authorizes differential pay only to those ordered to 

active duty under 10 U.S.C. § 12304b or a provision of law referred to in 10 U.S.C. § 101(a)(13)(B).

Removal/Due Process

Rueter v. Department of Commerce, 63 F. 4th 1357 (Fed. Cir. 2023): The appellant was removed for 

misconduct and argued that the agency violated his due process rights by engaging in ex parte 

communications about his case. On appeal, citing Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368 (Fed. 

Cir. 1999), the court reaffirmed that the introduction of new and material information via ex parte

communications to a deciding official deprives an employee of the guarantee of due process. 
26 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Finding that the Board had correctly applied the Stone factors and that for each challenged 

communication either no new and material information was provided to the deciding officer or the 

communications were not of the type likely to result in undue pressure on the deciding officer, the 

court affirmed the Board’s decision. 

Whistleblowing/Reasonable Belief

Edenfield v. Department of Veterans Affairs, 54 F.4th 1357 (Fed. Cir. 2022): In this IRA appeal, the AJ 

found that the appellant did not make a protected disclosure. The CAFC held that the appellant’s 

disclosure was protected because the definition at issue was “ambiguous at best,” and both parties’ 

interpretations were reasonable. The court also found that the AJ should not have considered the 

information and explanation that the appellant received after he made his disclosure. The court

emphasized that, when considering whether a purported whistleblower has a reasonable belief, the 

Board must look to the information that would have been available or ascertainable by a 

disinterested observer at the time of the disclosure. Thus, the court reversed and remanded the 

appeal for further proceedings.

Significant Opinions Issued by Other Circuit Courts 

Mixed Cases/Exhaustion of Administrative Remedies

Crowe v. Dep’t of the Army, 74 F.4th 1011 (9th Cir. 2023): The appellant filed with MSPB 

discrimination claims regarding his removal and filed through his agency’s EEO process other 

discrimination claims involving issues preceding his removal. Although he attempted to combine 

these claims in a single district court appeal, the district court held that he failed to exhaust the preremoval claims (brought through the EEO process) because he did not consolidate them with his 

removal claim at the Board. Following the briefing, including an amicus brief by MSPB, the 9th

Circuit held, in pertinent part, that because MSPB lacked statutory authority to hear the pre-removal 

claims, the appellant was not required to exhaust them before MSPB.

Mixed Cases/Judicial Appeal Deadlines

Robinson v. DHS OIG, 71 F.4th 51 (D.C. Cir. 2023): Overruling its longstanding precedent in King v. 

Dole, 782 F.2d 274 (D.C. Cir. 1986), the court held that the mixed-case 30-day judicial filing deadline 

set forth in 5 U.S.C. § 7703(b)(2) is a nonjurisdictional claims-processing rule. The court further held 

that as a nonjurisdictional claims-processing rule, the deadline could be subject to equitable tolling. 

The court declined to apply equitable tolling under the circumstances of the petitioner’s case, 

however, and affirmed the district court’s order dismissing the case as untimely filed.

Whistleblowing/Knowledge-Timing Test & Carr Factors

Mikhaylov v. Department of Homeland Security, 62 F.4th 862 (4th Cir. 2023): The appellant alleged that 

the agency suspended him in retaliation for certain protected disclosures. On appeal, the court 

affirmed the AJ’s findings and adopted the Carr factors, which the CAFC and MSPB have long used 

to evaluate whether an agency has carried its evidentiary burden to show that it would have taken 

the same personnel action in the absence of the appellant’s whistleblowing. 

Potentially Relevant Decisions by the Supreme Court 

Axon Enterprise, Inc. v. FTC, 143 S.Ct. 890 (2023): Petitioners filed suit in different district courts, 

bringing constitutional separation of powers challenges regarding their agency-level proceedings. 

Both district courts dismissed the claims on jurisdictional grounds, holding that the applicable

statutes required that constitutional challenges be raised through the relevant agency review 

schemes. The Supreme Court held that the relevant statutory review schemes did not require the 
27 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

constitutional claims to be brought first to the agencies under the existing Thunder Basin review 

scheme (which set forth a three-prong test for making this determination: (1) whether precluding 

district court jurisdiction could foreclose all meaningful judicial review of the claim; (2) whether the 

claim is wholly collateral to the statute’s review provisions; and (3) whether the claim is outside the 

agency’s expertise).

Ohio Adjutant General’s Department v. FLRA, 143 S.Ct. 1193 (2023): In this case involving Federal 

Labor Relations Authority (FLRA) jurisdiction, the Supreme Court held that the Ohio National 

Guard and Adjutant General act as a Federal agency when they hire and supervise dual-status 

technicians who work in both civilian and military roles for the National Guard. The Court noted 

the unique status of dual-status technicians, who serve as civilian employees when assisting the 

National Guard but who also, as a condition of that employment, must maintain membership in the 

National Guard and wear a uniform while working. The Court held that state adjutants general act 

on behalf of an agency of the Federal Government, the Department of Defense, with respect to 

their supervision of civilian technicians, and, therefore, are subject to FLRA’s authority to enforce 

the rights and obligations of Federal civilian employees.
28 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

SUMMARY OF MERIT SYSTEMS STUDIES ACTIVITY IN FY 2023

In addition to adjudicating appeals, MSPB is charged with conducting studies of the civil service and 

merit systems. MSPB’s high-quality, objective studies provide value by assessing current 

management policies and practices, identifying innovative and effective merit-based approaches to 

current workplace issues, and making recommendations for improvements. Overall, this benefits 

American taxpayers by decreasing Government-wide costs and increasing confidence that the 

Government is doing its job and appropriately managing the workforce.

Publications Issued

Issues of Merit Newsletter

MSPB published 3 newsletter editions with articles on a variety of HC topics covering 7 MSPs and

all 14 PPPs. Newsletter topics included preventing PPPs, suggested practices for hiring and 

performance appraisals, and supporting the HR workforce.

Merit Systems Studies Reports

MSPB completed two study reports in FY 2023, Perceptions of Prohibited Personnel Practices: An Update

and Sexual Harassment in Federal Workplaces: Understanding and Addressing the Problem, and one research

brief, Sexual Harassment in Federal Workplaces: 2021 Update.

Perceptions of Prohibited Personnel Practices: An Update summarizes data from surveys conducted in 2010, 

2016, and 2021 to track the prevalence of PPPs. OPE tracks employee perceptions related to PPPs 

in response to 5 U.S.C. § 1204, which instructs MSPB to “report to the President and to the 

Congress as to whether the public interest in a civil service free of prohibited personnel practices is 

being adequately protected.” This report updated our 2011 report and 2019 research brief on the 

state of PPPs in Federal workplaces. Twenty-nine percent of employees reported that they either 

observed or experienced at least one PPP. Discrimination based on race, sex, and age are 

consistently perceived more frequently than the other bases for discrimination. Compared to the 

2010 survey baseline, PPP perceptions increased in 2016, but most PPPs returned in 2021 to near 

their baselines. The two exceptions are perceptions of: (1) discrimination based on political 

affiliation, and (2) coercion of political activity, both of which have doubled since 2010. The report 

explained the negative effects that this may have on recruitment, retention, and employee 

engagement, making a business case for addressing PPPs.

Sexual Harassment in Federal Workplaces: Understanding and Addressing the Problem evaluates the

prevalence of sexual harassment in Federal workplaces and Federal agency efforts to prevent and

respond to such harassment. This study presents results from MSPB’s 2016 Merit Principles Survey

(MPS), which indicated that approximately 21% of women and almost 9% of men responding to the

MPS had experienced one or more forms of sexual harassment during the preceding two years, with

rates varying by agency. The 2021 update provided additional information from MSPB’s 2021 MPS

and found that 18% of women and 8% of men indicated on the survey that they had experienced

sexual harassment within the prior two years.

MSPB Surveys Administered

In FY 2023, MSPB administered the Federal HR Workforce Survey to almost 35,000 HR specialists 

and assistants in 20 Federal agencies. The survey was conducted from February through June 2023. 
29 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

The purpose of the survey was to learn about the professional experiences of HR specialists and 

assistants so MSPB can identify strategies to improve HR capabilities and better support HR staffs 

Government-wide. MSPB is in the process of analyzing the data for distribution as part of the 

upcoming report on “Preparing the HR Workforce for the Present and Future."

Merit Systems Studies Outreach and External References

During FY 2023, MSPB studies staff conducted nine outreach events with Federal organizations and 

the White House Council on Gender Policy regarding sexual harassment and fair and equitable 

treatment research. MSPB’s merit systems studies publications or survey data were referenced more 

than 45 times in over 15 sources, including online sources, scientific research journals, a book, and a 

Government Accountability Office (GAO) report. Notable citations to MSPB’s studies work include

a GAO report, VA Equal Employment Opportunity: Increased Attention Needed to Improve Program 

Effectiveness and academic articles in public policy journals. 
30 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

REVIEW OF THE U.S. OFFICE OF PERSONNEL MANAGEMENT

As required by statute,9 MSPB reviews and reports on the significant actions of OPM, including an 

analysis of whether those actions are in accord with MSPs and free from PPPs.10 This annual 

analysis is based on those OPM activities that the Board determines are significant11 and is a general 

review of the policies and effectiveness of OPM, not an investigation of the internal operation of 

OPM and its employees.12 In addition, MSPB has authority to review OPM rules and regulations 

upon request, or on its own motion, to determine if the regulations or the implementation of the 

regulations would cause a person to commit a PPP.13

Review of OPM’s Significant Actions

To determine OPM’s significant actions14 for FY 2023, OPE identified key sources15 to review and 

documented potential significant actions from that assessment. OPE also communicated with OPM, 

asking it to submit what it considered to be its most significant actions. From a pool of nearly 200 

potential significant actions, OPE narrowed the list to 10 significant actions based on criteria related 

to adhering to the definition of a significant action, being a well-defined initiative, and having 

evidence of impact or potential impact on MSPs and/or PPPs. Actions were not included if they 

were too new or too recently implemented to judge the potential impact on MSPs/PPPs. Following 

additional research and analysis, OPE finalized a list of five significant actions and noted their 

implications for MSPs and PPPs.16 Below is a discussion of OPM’s FY 2023 significant actions and 

those we are actively monitoring in FY 2024.

Upholding Civil Service Protections and Merit System Principles: Proposed Regulations

On September 18, 2023, OPM proposed a rule primarily intended to reinforce and clarify civil 

service protections related to the involuntary movement of Federal employees and positions from 

the competitive service to the excepted service or from one excepted service schedule to 

another. The intent of the rule is to “clarify and reinforce longstanding civil service protections and 

merit system principles,” including employee due process and appeal rights. The proposed rule also 

describes procedures agencies must follow before and when moving employees or positions from 

the competitive service to the excepted service or between excepted service schedules. The rule 

establishes new MSPB appeal rights in connection with such movement if the movement is 

involuntary and the moving agency asserts that moved employees will lose previously accrued due 

process protections.

As written, the proposed rule has the potential to strengthen adherence to MSPs and PPPs by: 

treating employees fairly and equitably without regard to political affiliation (MSP 2); ensuring the 

9 5 U.S.C. § 1206.

10 5 U.S.C. § 2301(b) and 5 U.S.C. § 2302(b), respectively.

11 Committee on Conference, Civil Service Reform Act of 1978, Conference Report to Accompany S. 2640, 95th Cong., 2nd Sess., 1978, H. Rept. 

No. 95-1717, p. 133. 12 Senate Committee on Governmental Affairs, Civil Service Reform Act of 1978, Report to Accompany S. 2640, 95th Cong., 2nd Sess., 

1978, S. Rept. No. 95-969, p. 32. 13 5 U.S.C. § 1204(a)(4) and 5 U.S.C. § 1204(f)(1-4)

14 An OPM significant action is defined as an activity performed by OPM that has broad impact on how the Federal Government manages the 

workforce. Significant actions can consist of regulations, rules, policies, programs, guidance, consultative services, oversight activities, or other major 

activities performed by OPM. They can be actions that are proposed, in progress, or completed. The actions may originate from a third party, such as 

the Office of Management and Budget, but require OPM to play a significant role in the implementation or oversight of the activities. 15 The sources reviewed to identify significant actions were the Federal Register, OPM’s website, and CHCO transmittals.

16 Research on implications for MSPs and PPPs included regulatory and policy analyses; literature reviews of peer-reviewed research, public policy 

research, and media sources; and requests from MSPB to OPM for data and other information.
31 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

Federal workforce is used efficiently and effectively (MSP 5); retaining employees on the basis of 

performance (MSP 6); protecting employees against coercion for partisan political purposes (MSP 

8); prohibiting discrimination against an employee or applicant based on political affiliation (PPP 1); 

and prohibiting attempts to coerce employees’ political activity or retaliate against them for such 

activity (PPP 3).

The short-term impact of this rule change is that it provides a strong statement from the chief HR

agency and personnel policy manager of the Federal Government supporting a merit-based, 

nonpartisan workforce and presents the legal impediments to divesting Federal employees of their 

due process rights. The long-term impact is less clear given that we cannot predict whether such 

schedule changes will be attempted in future years. In addition, we do not know if there will be 

attempts to repeal the regulations by a new administration. 

Leadership on DEIA Initiatives

Diversity, equity, inclusion, and accessibility in the Federal workforce are priorities for the 

Administration. OPM undertook several initiatives in FY 2023 to support these priorities and 

establish a national strategy for DEIA in the Federal Government. The most significant actions were 

to launch the Chief Diversity Officers Executive Council; release the first annual Government-wide 

Diversity, Equity, Inclusion, and Accessibility Annual Report; create a new DEIA Federal Employee 

Viewpoint Survey index; and host two national DEIA-related events to build toward Governmentwide DEIA training.

Consistent with the MSPs, these activities attempt to improve the Government’s ability to recruit 

from qualified individuals to achieve a workforce from all segments of society (MSP 1); treat 

applicants and employees in a fair and equitable manner (MSP 2); ensure the Federal workforce is 

used efficiently and effectively (MSP 5); and protect against discrimination (PPP 1). 

OPM’s activities support Executive Order (EO) 14035, Diversity, Equity, Inclusion, and Accessibility in 

the Federal Workforce, issued on June 25, 2021. The EO asserts that mounting evidence shows that 

diverse, equitable, inclusive, and accessible workplaces are higher-performing organizations.

Therefore, the EO directs OPM to take steps to ensure the Federal Government is a model for 

diversity, equity, inclusion, and accessibility, where all employees are treated with dignity and respect. 

While it will take time to measure the long-term impact of OPM’s DEIA activities, its leadership 

role in organizing the Federal community around DEIA are significant steps in ensuring adherence 

to the MSPs and avoidance of PPPs. 

Fair Chance to Compete for Jobs Act of 2019: Final Regulations

On October 2, 2023, OPM implemented regulations regarding the Fair Chance to Compete for Jobs 

Act of 2019, applying so-called “ban-the-box” policies in the Federal hiring process. With a few 

exceptions, the new regulations prohibit Federal agencies and contractors from asking about an 

applicant’s criminal history until after a conditional employment offer has been made. In addition, 

the regulations establish a process for handling complaints related to potential violations. The intent 

of the change in policy is to eliminate the initial barriers for those with a criminal history, focus the 

hiring process on applicant abilities and qualifications, and ultimately expand the talent pool. 
32 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

After the conditional offer is made, candidates complete the Declaration for Federal Employment 

(i.e., OF-306), which asks standardized questions about past convictions and ongoing charges. The 

employer can still withdraw the conditional job offer, if warranted, based on the suitability review. 

In alignment with MSPs, this policy emphasizes recruiting candidates based on their skills and 

potential (MSP 1) and promoting equitable treatment across all applicants (MSP 2). Additionally, it 

addresses critical PPPs by seeking to eliminate discrimination based on non-merit factors (PPP 4) 

and preventing biases, particularly against veterans (PPP 8). By adopting this approach, the Act 

contributes to building a diverse and inclusive Federal workforce, more representative of the 

broader society.

Research on effects of similar “ban-the-box” policies in various states and municipalities has shown 

a trend in reducing biases against those with a criminal history during the initial stages of hiring. 

Studies indicate that delaying background checks increases the likelihood that individuals with 

criminal records will receive job offers.17 The immediate effect of the Act is intended to strengthen 

fair hiring practices across Federal agencies by focusing on qualifications rather than criminal 

history. In the long term, it is anticipated to lead to a more balanced and diverse Federal workforce

by removing the “litmus test” of criminal history and allowing decisionmakers to evaluate each 

candidate more fully without automatically excluding individuals with criminal histories before 

reaching the suitability review stage. Given the potential far-reaching impacts of this legislation, it is 

essential for OPM to continuously monitor effects on Federal hiring practices.

OPM’s Skills-Based Job Qualifications Initiative

In 2023, OPM introduced an updated handbook as part of the Federal Workforce Competency 

Initiative, marking a shift towards skills-based qualifications in Federal hiring. This initiative, which 

focuses on job-related skills over traditional educational credentials, was informed by feedback from 

over 90,000 Federal employees and supervisors. The handbook serves as a guide for agencies in 

workforce planning, recruitment, and hiring.

The initiative aligns with key MSPs by emphasizing recruitment based on ability and potential (MSP 

1) and ensuring fair and equitable treatment of candidates (MSP 2). It also addresses PPPs by 

reducing biases related to educational background (PPP 4), thus promoting a more inclusive Federal 

workforce and enhancing diversity (PPP 8).

There is research indicating that skills-based hiring, as endorsed by both the Administration and a 

2020 executive order, can effectively place talent and retain high performers. Case studies from 

various sectors, including healthcare, have shown a reduction in turnover rates, suggesting similar 

positive outcomes for the Federal workforce.18 The initiative's broader societal implications include 

increasing inclusivity in Federal recruitment, ensuring fairer representation, and reducing 

unintentional biases. 

The immediate outcome of this initiative is the introduction of the updated handbook, guiding 

agencies in workforce competencies. Long-term, it aims to reshape Federal recruitment, making it 

17 Shimizu, S. (2018). Beyond the box: Safeguarding employment for arrested employees. Yale LJF, 128, 226; Shoag, D., & Veuger, S. (2021). Ban-thebox measures help high-crime neighborhoods. The Journal of Law and Economics, 64(1), 85-105. 18 Škrinjarić, B. Competence-based approaches in organizational and individual context. Humanities and Social Science Communications, 9, 28 (2022). 

https://doi.org/10.1057/s41599-022-01047-1; Fuller, J., Langer, C., & Sigelman, M. (2022). Skills-based hiring is on the rise. Harvard Business Review, 11 

Cantrell, S., Griffiths, M., Jones, R., & Hiipakka, J. (2022). The skills-based organization: a new operating model for work and the workforce. Deloitte 

Insights, Sep, 8.
33 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

more inclusive and equitable, potentially increasing employee retention and participation of 

disadvantaged groups. 

Closing Skill Gaps Closeout Report

On October 27, 2022, OPM released the Closing Skills Gaps Closeout Report. From 2016 to 2020, OPM

collaborated with Chief Human Capital Officers (CHCO) Council agencies to close agency-specific 

and Government-wide skills gaps in high-risk mission critical occupations (MCOs). The results 

should support the Government’s ability to recruit and select qualified individuals (MSP 1) in highrisk MCOs. They also help ensure the Federal workforce is used efficiently and effectively (MSP 5) 

by closing skills gaps.

OPM and the participating agencies identified 37 agency-specific and 5 Government-wide high-risk 

MCOs for gap closure. Due to the collaborative effort, OPM’s report indicates great progress in 

addressing those MCOs. The efforts resulted in 86% of CHCO agencies having mitigated one or 

more high-risk MCO factors. The Government-wide MCOs saw similar success, with the removal 

of two Government-wide high-risk MCOs (i.e., 0511-Auditor and 0110-Economist). OPM 

acknowledges that there is more work to be done, but this effort helped develop a structure around 

closing skill gaps, including a 4-year cycle of the closing skills gaps initiative.

Monitoring for FY 2024

As part of MSPB’s review of OPM’s significant actions, we identified several initiatives OPM started 

in FY 2023 that were in the preliminary stages of development. These are items MSPB will continue 

to monitor in the future, in addition to new initiatives for FY 2024. They include the following: 

• Hiring modernization efforts, including pooled hiring through shared certificates;

• Response to hiring needs in Science, Technology, Engineering, and Mathematics (STEM)

occupations, including evaluating the impact of the Federal rotational cyber workforce program

and the final regulations regarding STEM term appointments;

• Leadership on Federal Future of Work initiatives;

• Issuance of a validated artificial intelligence competency model to support talent acquisition;

• Proposed rule on the Pathways Program;

• Proposed rule for the “Rule of Many,” a new, congressionally mandated system for scoring and 

ranking Federal job applicants; and

• Recently finalized regulation.

Review of the Rules and Regulations of OPM

MSPB has authority to review OPM rules and regulations upon request, or on its own motion, to 

determine if the regulations or the implementation of the regulations would cause a person to 

commit a PPP.19 These rare requests are processed under HQ adjudication procedures for original 

jurisdiction cases. In FY 2023, one case requesting review of OPM regulations was received, and six 

such cases were decided, including all but one of the cases that had been pending at the end of 

FY 2022. There were two regulation review cases pending at the end of FY 2023, including the case 

filed in FY 2023 and a case filed in FY 2018.

19 5 U.S.C. § 1204(a)(4) and 5 U.S.C. Section 1204(f)(1-4).
34 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

MSPB FINANCIAL SUMMARY

Fiscal Year 2023 Financial Summary

as of September 30, 2023

(dollars in thousands)

Financial Sources

FY 2023 Appropriation $ 49,655

Civil Service Retirement and Disability Trust Fund 2,345

Total Financial Sources $ 52,000

Obligations Charged to FY 2023

Personnel Compensation $ 27,652

Personnel Benefits 9,667

Travel of Things 9

Travel of Persons 148

Rents, Communications and Utilities 5,085

Printing and Reproduction 25

Other Services 4,092

Supplies and Materials 59

Equipment 716

Reimbursable Obligations 249

Total Obligations Incurred $ 47,702
35 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

LIST OF ABBREVIATIONS AND ACRONYMS

AFR MSPB Annual Financial Report

AJ Administrative judge

ALJ Administrative law judge

ALOC Acceptable level of competence

APHIS USDA’s Animal and Plant Health Inspection Service

APR-APP MSPB’s Annual Performance Report and Annual Performance Plan

AR Annual Report

BFS Treasury’s Bureau of the Fiscal Service

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

CHCO Chief Human Capital Officer

CSRA Civil Service Reform Act of 1978

CSRS Civil Service Retirement System

DEIA Diversity, Equity, Inclusion, and Accessibility

DHS Department of Homeland Security

DOI Department of the Interior

EEO Equal employment opportunity

EEOC Equal Employment Opportunity Commission

FAM MSPB’s Office Financial and Administrative Management

FBI Federal Bureau of Investigation

FERS Federal Employees Retirement System

FERCCA Federal Erroneous Retirement Coverage Corrections Act

FLRA Federal Labor Relations Authority

FOs MSPB’s field offices

FTC Federal Trade Commission

FTRA Follow the Rules Act

FY Fiscal year

GAO Government Accountability Office

GPRAMA Government Performance and Results Act Modernization Act of 2010

HC Human capital

HQ MSPB’s headquarters

HR Human resources

HSGAC Senate Homeland Security & Governmental Affairs Committee

IoM MSPB’s Issues of Merit newsletter

IRA Individual right of action

IRM MSPB’s Office of Information Resources Management

IT Information technology

MCO Mission Critical Occupation

MPS MSPB’s Merit Principles Survey
36 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

MSPs Merit system principles

MSPB Merit Systems Protection Board

NDAA National Defense Authorization Act

NFC USDA’s National Finance Center

OAC MSPB’s Office of Appeals Counsel

OCB MSPB’s Office of the Clerk of the Board

OGC MSPB’s Office of General Counsel

OPE MSPB’s Office of Policy and Evaluation

OPM Office of Personnel Management

ORO MSPB’s Office of Regional Operations

OSC Office of Special Counsel

PFR Petition for review

PIO Performance Improvement Officer

PPPs Prohibited personnel practices

ROs MSPB’s regional offices

SES Senior Executive Service

STEM Science, Technology, Engineering, and Mathematics

U.S.C. United States Code

USDA Department of Agriculture

USERRA Uniformed Services Employment and Reemployment Rights Act of 1994

VA Department of Veterans Affairs

VEOA Veterans Employment Opportunities Act of 1998

WIGI Within-grade increase

WPA Whistleblower Protection Act of 1989

WPEA Whistleblower Protection Enhancement Act of 2012
37 Merit Systems Protection Board Annual Report for FY 2023 May 1, 2024

U.S. Merit Systems Protection Board

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Washington, DC 20419

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