United States 

Merit Systems Protection Board

Annual Report for FY 2011

April 2012
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iii Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Foreword

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

Systems Protection Board (MSPB) provides this annual report on its significant actions 

during fiscal year (FY) 2011. This report includes summaries of the most significant Board 

decisions, relevant opinions issued by our reviewing courts during the year, case processing 

statistics, summaries of MSPB’s merit systems studies, and a summary of MSPB’s financial 

results. The report also contains a review of OPM significant actions and whether those 

actions are in accord with merit system principles and free from prohibited personnel 

practices. 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)). In addition, where there have been significant MSPB activities since the end of 

the fiscal year, the report includes updated information as a service to the reader. 

Additional information about FY 2011 program performance results and financial audit 

information is included in MSPB’s Performance and Accountability Report (PAR). This 

Annual Report and the PAR as well as other information about MSPB can be found on 

MSPB’s website: www.mspb.gov.
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v Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Table of Contents

Page

Introduction ................................................................................................................... 1

About MSPB....................................................................................................................................................1

Board Members...............................................................................................................................................2

Board Offices and Their Functions .............................................................................................................5

Organization chart...........................................................................................................................................6

Fiscal Year in Review..................................................................................................... 7

Adjudication.....................................................................................................................................................7

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

Review of the Significant Actions of the Office of Personnel Management ........................................8

Transparency, Outreach, and Merit Systems Education...........................................................................8

Review of MSPB International Activities....................................................................................................9

Legislative and Congressional Relations......................................................................................................9

Internal Management Programs..................................................................................................................10

Significant External Trends and Issues......................................................................................................11

Significant Board Decisions and Court Opinions Issued During FY 2011..................15

Significant Decisions Issued by the Board................................................................................................15

Significant Opinions Issued by the U.S. Court of Appeals for the Federal Circuit............................23

Significant Opinions Issued by the U.S. Supreme Court........................................................................24

Case Processing Statistics............................................................................................ 27

Summary of Cases Decided by MSPB.......................................................................................................27

Regional Case Processing.............................................................................................................................28

Headquarters Case Processing ....................................................................................................................35

Summaries of Merit Systems Studies ...........................................................................41

Blowing the Whistle: Barriers to Federal Employees Making Disclosures..........................................41

Telework: Weighing the Information, Determining an Appropriate Approach.................................41

Prohibited Personnel Practices: Employee Perceptions.........................................................................42

Women in the Federal Government: Ambitions and Achievements...................................................42

MSPB Finalized 2011-2013 Research Agenda..........................................................................................43

Issues of Merit Newsletter...............................................................................................................................43

Significant Actions of the Office of Personnel Management...................................... 45

OPM in Context............................................................................................................................................45

Recruitment, Assessment, and Hiring Policy Actions.............................................................................46

Performance and Recognition Policy Actions..........................................................................................56

Other Policy Initiatives.................................................................................................................................60

Delivery of Benefits and Services...............................................................................................................65

Financial Summary...................................................................................................... 67
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1 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

U.S. Merit Systems Protection Board

Fiscal Year 2011 Annual Report

Introduction

In accordance with section 1206 of Title 5, United States Code, this annual report provides 

information on MSPB’s significant actions during FY 2011. This report includes summaries 

of the most significant Board decisions and relevant Court opinions issued during the year, 

case processing statistics, summaries of MSPB’s merit systems studies, summaries of the 

significant actions of the Office of Personnel Management (OPM), and a summary of 

MSPB’s financial results. The report also contains a review of the Board’s legislative and 

congressional relations activities, a summary of international activities, a review of internal 

management issues, and a review of external factors that affect our work. When there have 

been significant activities or events since the end of the FY, the report includes updated 

information as a service to our stakeholders. 

About MSPB

The U.S. Merit Systems Protection Board has its origin in the Pendleton Act of 1883 which 

was passed following the assassination of President Garfield in 1881 by a frustrated Federal

job seeker. The Pendleton Act created the Civil Service Commission (CSC) and provided the 

foundation for improvements in Government efficiency and effectiveness by helping to 

ensure that a stable, highly qualified Federal workforce, free from partisan political pressure, 

was available to provide effective service to the American people. 

Over time, it became clear that the CSC could not properly, adequately, and simultaneously 

set managerial policy, protect the merit systems, and adjudicate employee appeals. Concern 

over the inherent conflict of interest in the CSC’s role as both rule-maker and judge was a 

principal motivating factor behind the passage of the Civil Service Reform Act of 1978

(CSRA). The CSRA replaced the CSC with three new agencies: MSPB as the successor to 

the Commission; the Office of Personnel Management (OPM) to serve as the President’s 

agent for Federal workforce management policy and procedure; and the Federal Labor 

Relations Authority to oversee Federal labor-management relations.

1

MSPB inherited the adjudication functions of the CSC by providing due process to 

employees and agencies as an independent, third-party adjudicatory authority for employee 

appeals of adverse actions and retirement decisions. Since the CSRA, Congress has given 

jurisdiction to MSPB to hear cases and complaints filed under a variety of other laws.2 MSPB

was given the authority to develop its adjudicatory processes and procedures, issue 

 

1 Bogdanow, M., and Lanphear, T., History of the Merit Systems Protection Board, Journal of the Federal 

Circuit Historical Society, Volume 4, 2010.

2 Including the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 

et seq.; the Veterans Employment Opportunity Act (VEOA), 5 U.S.C. § 3309 et seq.; the Whistleblower 

Protection Act (WPA), Pub. L. No. 101-12, 103 Stat. 16; 5 U.S.C. § 4304; 5 U.S.C. § 7513; and those set out at 

5 C.F.R. § 5 Code of Federal Regulations (C.F.R.) § 1201.3.
2 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

subpoenas, call witnesses, and enforce compliance with final MSPB decisions. MSPB was 

also given broad new authority to conduct independent, objective studies of the Federal

merit systems and Federal human capital management issues. In addition, MSPB was given 

the authority and responsibility to review and act on the regulations of OPM and review and 

report on the significant actions of OPM.

3

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, non-renewable 

7-year terms. The Board Members adjudicate the cases brought to the Board. The Chairman,

by statute, is the chief executive and administrative officer of MSPB.

SUSAN TSUI GRUNDMANN

Chairman

November 2009 to Present

Susan Tsui Grundmann was nominated by President 

Barack Obama to serve as a Member and Chairman of 

the U.S. Merit Systems Protection Board on July 31, 

2009. She was confirmed by the U.S. Senate on 

November 5, 2009, and sworn in on November 12, 2009. 

Chairman Grundmann’s term expires on March 1, 2016. 

Previously, Ms. Grundmann served as General Counsel 

to the National Federation of Federal Employees 

(NFFE), which represents 100,000 Federal workers 

nationwide and is affiliated with the International 

Association of Machinist and Aerospace Workers. At 

NFFE, she successfully litigated cases in the U.S. District Court for the District of Columbia 

and the U.S. Court of Appeals for the District of Columbia. In 2004, Ms. Grundmann 

represented NFFE and other labor unions in the statutory “meet and confer” process with 

officials from the Department of Homeland Security (DHS) and the Office of Personnel 

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

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

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

coordinated response to proposed personnel changes at the Department of Defense (DoD). 

In addition to DoD employees, Ms. Grundmann represented employees in the Forest 

Service, Department of Agriculture, Passport Service, Veterans Administration, General 

Services Administration, and some 25 additional Federal agencies. From 2003 to 2009, she 

was a regular instructor on Federal sector labor and employment law at the William W. 

 

3 Pursuant to Title 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 (PPP). Pursuant to 5 U.S.C. § 1206, MSPB is 

also responsible for annually reviewing and reporting on the significant actions of OPM.
3 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Winpisinger Education Center in Placid Harbor, Maryland. Prior to joining NFFE, Ms. 

Grundmann served as General Counsel to the National Air Traffic Controllers Association. 

She began her legal career as a law clerk to the judges of the Nineteenth Judicial Circuit of 

Virginia, and later worked in both private practice and at the Sheet Metal Workers National 

Pension Fund. Chairman Grundmann earned her undergraduate degree at American 

University and her law degree at Georgetown University Law Center. 

ANNE M. WAGNER

Vice Chairman

November 2009 to Present

Anne M. Wagner was nominated by President Barack 

Obama to serve as a Member of the U.S. Merit 

Systems Protection Board with the designation of Vice 

Chairman on July 31, 2009. Her nomination was 

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

and she was sworn in November 12, 2009. Ms. 

Wagner’s term expires on March 1, 2014.

Ms. Wagner came to the Merit Systems Protection 

Board after serving as General Counsel of the 

Personnel Appeals Board of the U.S. Government 

Accountability Office (GAO). Prior to that, Ms. 

Wagner was appointed by the U.S. Comptroller General to serve a five-year statutory term as 

a Member of the GAO Personnel Appeals Board. Ms. Wagner began her career as a staff 

attorney in the Office of the General Counsel of the General Services Administration, where 

she primarily handled labor and employment issues. From there, she went on to become an 

Assistant General Counsel for the American Federation of Government Employees 

(AFGE), AFL-CIO, the largest Federal sector labor organization representing more than 

600,000 Federal and District of Columbia government employees. In her nearly twenty years 

with AFGE, she led precedent setting litigation and handled cases arising under the full array 

of laws governing Federal employment. Ms. Wagner graduated from the University of Notre 

Dame and received her J.D. from the George Washington University, National Law Center. 

She is admitted to practice law in the District of Columbia, Maryland, and Illinois as well as 

before various Federal courts, including the U.S. Supreme Court. 
4 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

MARY M. ROSE

Vice Chairman 

January 2006 – November 2009 

Board Member 

November 2009 to March 1, 2012

Mary M. Rose was sworn in as a Board Member on 

December 28, 2005, following her confirmation by the 

Senate on December 17, 2005. She was designated by 

President Bush as Vice Chairman of the U.S. Merit 

Systems Protection Board on January 27, 2006, and 

served in that role until November 2009 when a new 

Vice Chairman was sworn in. Mrs. Rose’s appointment 

as Board Member expired on March 1, 2011. In 

accordance with statute Mrs. Rose continued to serve 

as a Member of the Board until March 1, 2012.

Prior to joining the Board, Mrs. Rose was appointed by President Bush to serve as Vice 

Chairman of the Federal Salary Council. She was Chairman of the Federal Prevailing Rate 

Advisory Committee where she advised the Director of the U.S. Office of Personnel

Management on Federal pay, benefits, and other policy issues. Previously, Mrs. Rose served 

as Deputy Associate Director of the Office of Presidential Personnel at the White House. 

She served four years as the Elected Clerk of the Circuit Court, Anne Arundel County, 

Maryland. Mrs. Rose has also served as Assistant Director for Executive Administration, 

Office of Personnel Management; Director of Personnel, White House Personnel Office; 

and Deputy Undersecretary for Management at the Department of Education. Her private 

sector experience includes positions as a consultant with an Annapolis law firm and as a 

Visiting Fellow with The Heritage Foundation where she recruited, interviewed, and 

recommended Presidential appointments to the George W. Bush transition team. Mary M. 

Rose received an R.N. degree from the Bon Secours Hospital School of Nursing, and she 

completed the Maryland Registered Nurse Recertification Program in May 2000.
5 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Board Offices and Their Functions

The agency is divided into seven headquarters offices in Washington, DC, and eight regional 

and field offices located throughout the United States. The agency is currently authorized to 

employ 226 Full-time Equivalents (FTEs) to conduct and support its statutory duties. The 

Office Directors report to the Chairman through the Executive Director.

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

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

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

other cases assigned by MSPB. The functions of this office are currently performed by ALJs 

at the National Labor Relations Board (NLRB), the Federal Communications Commission 

(FCC), and the Environmental Protection Agency (EPA) under interagency agreements.

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

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

decision issued by an Administrative Judges (AJ) and in most other cases decided by the 

Board. The office prepares proposed decisions on interlocutory appeals of rulings made by 

AJs, makes recommendations on reopening cases on the Board’s own motion, and provides 

research, policy memoranda and advice to the Board on legal issues.

The Office of the Clerk of the Board receives and processes cases filed at MSPB 

headquarters, rules on certain procedural matters, and issues MSPB decisions and orders.

The office serves as MSPB’s public information center, coordinates media relations, 

produces public information publications, operates MSPB’s library and on-line information 

services, and administers the Freedom of Information Act (FOIA) and Privacy Act 

programs. The office also certifies official records to the courts and Federal administrative 

agencies, and manages MSPB’s records systems, legal research systems, and the Government 

in the Sunshine Act program.

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

equal employment opportunity programs. It processes complaints of alleged discrimination 

brought by agency employees and provides advice and assistance on affirmative employment

initiatives to MSPB’s managers and supervisors.

The Office of Financial and Administrative Management administers the budget, 

accounting, travel, time and attendance, human resources, procurement, property 

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

coordinates internal management programs, including review of agency internal controls. It 

also administers the agency’s cross-servicing agreements with the U.S. Department of 

Agriculture (USDA), National Finance Center for payroll services, U.S. Department of the 

Treasury, Bureau of the Public Debt for accounting services, and USDA's Animal and Plant 

Health Inspection Service for human resources management services.

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

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

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

MSPB decision or order, in response to requests to review OPM regulations, and for other 
6 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

assigned cases; conducts the agency’s PFR settlement program; and coordinates the agency’s 

legislative policy and congressional relations functions. The office drafts regulations, 

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

directs audits and investigations.

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

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

and carry out its administrative and research responsibilities.

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

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

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

The office provides information and advice to Federal agencies on issues that have been the 

subject of MSPB studies. The office reviews and reports on the significant actions of OPM. 

The office also conducts special projects and program evaluations for the agency and has 

responsibility for preparing MSPB’s strategic and performance plans and performance 

reports required by the Government Performance and Results Act Modernization Act of 

2010 (GPRAMA).

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

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

Appeals Program (MAP). AJs in the regional and field offices are responsible for 

adjudicating assigned cases and for issuing fair, well-reasoned, and timely initial decisions.

Organization chart

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,

San Francisco, and 

Washington, DC 

VICE CHAIRMAN

Field Offices 

Denver and

New York

Financial and 

Administrative 

Management

Information 

Resources 

Management

Executive 

Director

Human Resources Management services are provided by the U.S. Department of 

Agriculture ( Agriculture USDA), Animal and Plant Health Inspection Service (APHIS) 

Business Services. 

Payroll services are provided by the USDA National Finance Center.

Accounting services are provided by the Department of the Treasury, Bureau of the Public Debt.

The functions of the Administrative Law Judge are performed by the Federal Communications 

Commission (FCC), the U.S. Coast Guard, and the Environmental Protection Agency (EPA)

under a reimbursable interagency agreement.

U.S. Merit Systems Protection Board
7 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Fiscal Year in Review

Adjudication

MSPB issued over 8,200 decisions in FY 2011, about 4 percent more than the 7,863

decisions issued in FY 2010. Headquarters and the regional and field offices continued to 

issue high quality initial decisions with 98% of cases left unchanged by MSPB’s reviewing 

court. However, the processing times for initial appeals and PFRs were slower than our 

targets for FY 2011. MSPB provided a full menu of successful alternative dispute resolution 

options to its customers, including settlement programs in the regions, field offices, and 

headquarters, the Mediation Appeals Program, and the availability of administrative judges 

(AJs) separately designated for settlement of a case. MSPB also continued its extensive 

outreach to its adjudication stakeholders including agencies, unions, and advocacy groups

that it initiated in FY 2010. 

The agency continued its efforts to improve the transparency of its adjudication processes 

and decisions at headquarters. In early FY 2011, the Board heard oral arguments in Aguzie, et 

al. v. Office of Personnel Management, a set of cases involving the application of Title 5, U.S.C., 

Chapter 75 to cases in which OPM initiated removal of tenured employees based on 

suitability grounds.4 The Board requested amicus briefs in several other cases and expects to 

continue to request amicus briefs and/or to hear oral arguments in cases that have 

Governmentwide impact on the Federal civil service and the merit systems. The Board 

continued to issue expanded explanations of its decisions in non-precedential final orders on 

PFRs and has made these orders available on the MSPB website. The additional information 

improves understanding of the Board’s decisions by the parties, is lauded by our reviewing 

Court, and available for others to promote understanding of our process and improve future 

appeals. MSPB is also proceeding with a complete revision of its adjudication regulations 

(CFR Parts 1201, 1208 and 1209) including extensive outreach to stakeholders.

This Annual Report contains case processing statistics, including detailed information about 

the type, origin, and disposition of cases processed by MSPB. This report also contains brief 

summaries of the most significant Board decisions issued in FY 2011 which addressed such 

issues as adverse actions, jurisdiction, retirement, discrimination, veterans’ rights, 

whistleblower protection, compliance, due process and harmful procedural error, 

performance-based actions, penalties, attorney fees, and Board procedures. In addition, the 

report includes summaries of significant opinions relevant to our work issued during FY 

2011 by the U.S. Court of Appeals for the Federal Circuit and by the U.S. Supreme Court.

Merit Systems Studies

MSPB completed four external reports addressing a variety of topics, including barriers to 

Federal employee whistleblowing, managing telework more effectively, employee 

 

4 On December 13, 2011, the Board heard oral arguments in a set of Postal Service cases involving restoration 

of employees injured on the job and the Board’s jurisdiction over such appeals. Additional information about 

this issue is included in the discussion of the external factors that affect our work. The Board’s decision in this 

case will be summarized in the FY 2012 Annual Report. For the convenience of our readers, we provide a link 

to information about the oral argument and the decision at Latham et al v. United States Postal Service.
8 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

perceptions of Prohibited Personnel Practices (PPPs), and the ambitions and achievements 

of women in the Federal Government, as well as the FY 2010 MSPB Annual Report. MSPB 

also published the Finalized 2011-2013 Research Agenda, which describes the research plans

for MSPB’s next three-year research cycle. MSPB completed four editions of the Issues of 

Merit newsletter and posted five original articles on the new studies flash feature on the 

studies webpage. Summaries of MSPB study reports and newsletter topics are provided later 

in this report.

MSPB studies continued to be referenced by policy makers and in professional literature, 

legislation, and the media. Interviews about several MSPB studies were conducted on 

Federal News Radio. MSPB Reports were used by Senate staff to draft legislation on 

improving the hiring and training of Federal supervisors; in the Chief Information Officer’s 

Council (CIOC) report on managing the information technology workforce; and in the 

Australian Government’s State of the Service Report. The MSPB website recorded over 96,000 

accesses to 72 MSPB reports, and over 13,500 accesses to 35 editions of the Issues of Merit

newsletter.

Review of the Significant Actions of the Office of Personnel Management

MSPB is responsible for providing an independent, nonpartisan review of the significant 

actions of OPM to ensure that these actions conform with Merit System Principles (MSPs)

and do not result in PPPs. MSPB reviewed OPM’s recruitment, assessment and hiring policy 

actions, including updating four elements of the Administration’s Federal Hiring Reform 

initiative, the latest update to USAJOBS, and candidate qualification requirements. MSPB 

reviewed performance and recognition actions, including certification of Senior Executive 

Service (SES) performance appraisal systems, OPM’s Performance Appraisal Assessment 

Tool, and guidance on expenditures on individual awards. MSPB also reviewed other policy 

actions such as those related to overseeing compliance with civil service law and regulation, 

guidance on incorporating telework into Federal Government dismissal and closure 

procedures, training evaluation, the development of HR University, and several affirmative 

employment initiatives. Finally, MSPB reviewed OPM’s significant actions related to the 

delivery of benefits and services, including background investigations and retirement 

benefits. More information about OPM’s significant actions is included later in this report.

Transparency, Outreach, and Merit Systems Education

In addition to the adjudication transparency efforts discussed above, MSPB continued in FY 

2011 to enhance outreach and education about the concept of merit, MSPs, and PPPs

through online activities, such as through the MSP of the Month and PPP of the Month 

sections on MSPB’s website, which are the most visited pages and the most accessed 

documents on MSPB’s website. MSPB continues to experience increases in the number of 

followers of its Twitter account (@USMSPB), and the number of downloads of our mobile 

applications (for the iPhone and Android). MSPB continues to conduct outreach with our 

customers, stakeholders, and sister agencies on the merit systems, MSPs, and PPPs, our 

adjudication processes and decisions, and our studies’ findings and recommendations. These

education and outreach efforts help enhance the understanding of merit, ensure that MSPs 

are consistently applied throughout the Government, reduce the likelihood of PPPs, 

promote better management practices, and strengthen employee engagement. This in turn 
9 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

improves employee and organizational performance, improves service to the American 

people, and provides value to the taxpayer. 

Review of MSPB International Activities

MSPB has participated in a number of international activities that are designed to help 

educate participants about the U.S. civil service. This year, MSPB hosted numerous meetings 

at MSPB headquarters to educate representatives from foreign governments about the role 

of merit in the civil service and portray the advantages of equitable treatment in managing a 

public workforce. MSPB officials met with dignitaries from different provinces in China on 

seven occasions, hosted the President and Chief Human Resources official for the Canadian 

Public Service Commission, and met with a delegation from South Korea to discuss the use 

of telework in the Federal Government. MSPB also supported the Federal Circuit Court’s 

goal of increasing international outreach by providing speakers for events such as the Bench 

and Bar and Judicial conferences.

Legislative and Congressional Relations 

On July 11, 2011, the House Ways and Means Subcommittee on Social Security and the 

House Judiciary Subcommittee on Courts, Commercial and Administrative Law held a joint 

oversight hearing on the role of ALJs at the Social Security Administration (SSA). During the 

July 11, 2011 hearing, panel members and other witnesses made several references to 

MSPB’s role in the process for disciplining ALJs. Chairman Grundmann submitted a 

statement for the hearing record that clarified MSPB’s process for adjudicating ALJ 

discipline cases and the agency’s processing times for those matters.

MSPB officials and staff held several briefings with House and Senate appropriations staff to 

discuss the FY 2011 budget request and impacts of continuing resolutions. Under the Full 

Year Continuing Appropriations Act for 2011, MSPB was subject to the 0.2% cut applied to 

all discretionary appropriations. However, while most other agencies sustained substantial 

funding reductions, MSPB was among the few agencies that were held to FY 2010 levels. 

MSPB officials also met with Senate Committee staff to consult about MSPB's new Strategic 

Plan. Senate Committee staff complimented MSPB’s broader strategic goals and objectives, 

especially strategic goal 2 involving MSPB efforts to influence policy, improve the practice of 

merit in the workplace and improve the understanding of merit. In particular, Committee 

staff supported the importance of providing educational guidance and standards to improve 

the understanding of merit systems and MSPs as a critical method of protecting and 

strengthening merit because the MSPs, unlike the PPPs, are not actionable. Committee staff 

also suggested that MSPB consider doing an after-action review of a major OPM regulatory 

change to help guide future review of OPM regulations. They were also complimentary of 

the breadth of external issues MSPB cited as affecting its appeals workload and other 

statutory functions, especially in light of the high proportion of MSPB AJs who will be 

retirement eligible in the next 2-3 years. Other than conducting an after-action review of a 

major OPM regulatory change, which we will do as part of the Annual Performance Plan for 

FY 2012, Senate Committee staff feedback did not require changes in the MSPB Strategic 

Plan.
10 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

The House and the Senate introduced separate bills titled Whistleblower Protection Enhancement 

Act of 2011, to amend the Whistleblower Protection Act (S. 743 and H.R. 3289). Both bills 

are similar to legislation introduced in previous sessions of Congress; both expand the 

protections afforded to whistleblowers, remove the exclusive jurisdiction of the Court of 

Appeals for the Federal Circuit to review Board decisions, and provide summary judgment 

authority to MSPB. One of the differences between the two bills is that the Senate bill 

provides for jury trials, while the House bill does not. The Senate bill was favorably reported 

out of the Senate Committee on Homeland Security and Governmental Affairs. No 

congressional action was taken on the House bill beyond referral to the House Committees 

on Oversight and Government Reform, House Committees on Homeland Security and 

House (Permanent Select) Committee on Intelligence.

Internal Management Programs

MSPB continued to focus on improving internal management to ensure the delivery of 

mission and achievement of goals. Additional information about our internal management 

results, including human resources, EEO, financial management, and information 

technology, can be obtained in the MPSB FY 2011 PAR. We continue to strive to be a 

model merit-based Federal agency. Because the mission of MSPB mirrors the mission of the 

Government itself regarding MSPs and PPPs, we intend to lead by example through our 

“Walking the Talk” initiative. By “walking the talk,” our daily practices demonstrate that 

guidance from MSPB is cost-effective, beneficial, and realistic. To help managers and 

employees understand and implement this initiative, MSPB continued to employ four

management concepts:

 Resource Alignment: Recognizing the agency’s full potential relies on the careful 

alignment of agency resources. As fiscal environments tighten, MSPB places greater 

importance on the administration of assets and funding to ensure that we set 

priorities appropriately and facilitate mission delivery without unnecessary expense.

 Fostering Innovation: It is a priority for MSPB to continue to embrace the 

opinions of employees, stakeholders, and critics through demonstrated openness and

a commitment to listen in order to encourage participation in agency processes and 

policies. In addition to stakeholder outreach, MSPB provides opportunities for 

employee involvement in agency policy development through participation in 

Executive Committee subcommittees.

 Minimizing Risk: Managing risk to ensure successful mission delivery remains a 

top priority to lessen the effects of uncertainty on programs, apply resources 

appropriately to minimize adverse events, and maximize the realization of beneficial 

opportunities. For these reasons, MSPB broke away from its past practice of singleyear budgeting to incorporate short- and long-term goals and contingencies that will 

shape future operations.

 Full Engagement: Employee engagement is an integral part of MSPB’s 

management efforts. Engagement assists with the identification of issues before they 

become larger problems. It can also improve operations, maximize resources, reduce 

bureaucracy, and help attract and retain the best workers. 

In FY 2011, MSPB also made considerable progress in the development of its new Strategic 

Plan for FY 2012-2016. The draft plan included an updated agency mission statement, a new 
11 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

vision statement, new organizational values, new more outcome-oriented strategic goals

covering all MSPB statutory functions, and revised long-term measures. These changes more 

thoroughly reflect MSPB’s broader role in protecting merit and preventing PPPs as intended 

by the CSRA. MSPB consulted a wide range of customers and stakeholders on the draft 

plan. Most comments complimented the revised mission and new vision and values 

statements and supported the Plan’s higher-level strategic goals and objectives. Comments 

suggested clarification and inclusion of additional detail about MSPB and its origin; our 

customers, partners, and stakeholders; our jurisdiction; the different merit systems we 

protect beyond those defined in Title 5; the scope of individuals and organizations we affect; 

and the value we bring to the workforce, Federal agencies, and the public.

MSPB’s Annual Performance Plan (APP) for FY 2012-2013 was developed beginning in FY 

2011 based on our new Strategic Plan. The APP includes more balanced measures that track 

incremental progress toward our strategic goals. In addition, MSPB developed a new internal 

management plan that strengthens our focus on effective and efficient management of 

people, money, information technology and services, and other internal processes and 

procedures. Successfully implementing these new plans will better protect merit systems, 

increase adherence to MSPs, and prevent or reduce PPPs which will ultimately result in 

better Federal management, improved Federal employee and agency performance, better 

service to the public, and increased value to American taxpayers.5

Significant External Trends and Issues

The most significant external trends or issues affecting MSPB’s ability to carry out its 

mission to protect the Federal merit systems include changes in law and jurisdiction, changes 

in management and employee flexibilities, veterans’ rights and changing demographics of the 

workforce, and continued pressure on the Federal budget. 

Changes in law and jurisdiction. One example of changes in law and jurisdiction, 

involves implementation of the Postal Service’s National Reassessment Project (NRP). Most 

Postal Service non-preference eligible employees do not have the right to appeal an adverse 

action to MSPB. However, appeals from NRP-related actions raise issues concerning the 

restoration to duty statute and regulations, which cover a much broader category of 

employees. Of note, on December 13, 2011, the Board heard oral arguments in Latham et al 

v. U.S. Postal Service, a set of cases involving restoration rights of employees suffering workrelated injuries and the Board’s jurisdiction over such cases. In this case, the Board affirmed 

the Postal Service’s obligation, based on its own rules, to restore employees who have been 

injured on the job to available work that is medically suitable, and the Board affirmed that 

MSPB has jurisdiction over appeals involving this issue.

6 To the degree that more injured 

Postal Service employees are denied restoration under the NRP, MSPB expects to continue 

to see an increasing number of restoration to duty appeals from Postal Service employees.

Depending on how this case is interpreted, it could increase the number of restoration to 

duty appeals to the Board from other Federal agencies. 

 

5 Although officially released in February 2012, the MSPB Strategic Plan, a summary of stakeholder comments 

on our strategic plan and the Annual Performance Plan for FY-2012-2013 are available at www.mspb.gov.

6 The Board’s decision in Latham et al v. U.S. Postal Service will be summarized in the FY 2012 Annual Report, 

but is linked here as a service to our stakeholders. 
12 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Changes in law, appeal rights, and appellate jurisdiction also increase the importance of 

MSPB’s statutory responsibility to promote merit and educate employees, supervisors, 

managers, and leaders on the merit systems, MSPs, PPPs, and MSPB appellate procedures, 

processes, and case law. Education on these issues, promoting merit, and sharing important 

information about appeals procedures will improve workforce management over time and 

reduce the cost of appeals to agencies, appellants, and the Government. 

Changes in Management and Employee Flexibilities. Changes in management 

flexibilities could involve employees in single agencies such as those in the 

Department of Defense (DoD) National Security Personnel System (NSPS). The 

National Defense Authorization Act (NDAA) for FY 2010 (Public Law 111-84) 

required DoD to transfer all employees and positions from NSPS by January 1, 2012. 

The repeal of the NSPS and the transfer of employees from it is likely to increase

MSPB’s workload as former NSPS employees may appeal what they claim to be 

improper reduction in pay or grade (“downgrading”) when shifted back to their old 

pay system. Of note, in January, 2012, the Board released its decision in Arrington v. 

Department of the Navy, in which it found that the transfer of the appellant from the 

NSPS resulted in her being improperly downgraded to GS-13, when prior to her 

participation in the NSPS she had been a GS-14 employee, and that under the facts of 

the case, this constituted an appealable reduction in grade.

7 This ruling may increase 

MSPB’s workload if other transferees—of whom there are roughly 226,000—appeal 

to the MSPB making similar allegations.

Management flexibilities may also be directed through administrative actions such as 

Presidential Executive Orders. For example, President Obama issued Executive Order 

13562 in December, 2010, establishing the Pathways Program. The Pathways Program 

creates a set of excepted service appointing authorities tailored to ease and encourage 

recruitment, hiring, development, and retention of students and recent graduates. The 

Pathways Program formally acknowledges a long-standing interest of Federal agencies and 

Federal managers—the ability to hire high-quality college graduates into professional and 

administrative occupations. It is unknown what impact the Pathways Program will have on 

hiring and management or if it will succeed in its goals. We note that OPM has proposed

Pathways Program regulations and plans to issue final regulations in 2012. Final regulations 

could differ considerably from the proposed regulations. More information about the 

Pathways program is contained in the Review of OPM Significant Actions section of this 

report. MSPB plans to closely follow the evolution and implementation of these programs.

Federal management flexibilities also emphasize the need for MSPB to continue its study of 

Federal merit systems and human capital management practices to ensure the flexibilities are 

implemented and operated in accordance with MSPs and are free from PPPs. Flexibilities 

and other changes in human resource management policies issued through OPM regulation 

make it imperative that MSPB strengthen its ability to exercise its statutory authority to 

review OPM regulations. Reviewing OPM regulations can save the Government in direct 

costs such as those associated with transferring employees in and out of more flexible 

systems that are later terminated, and in indirect costs associated with negative employee 

 

7 The Board’s decision in Arrington v. Department of the Navy will be summarized in the FY 21012 Annual Report 

but is linked here for the conveniences of our readers. 
13 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

perceptions of the new system and possible reductions in morale. Finally, changes in 

management flexibilities also increase the importance of MSPB’s role in promoting and 

educating employees and the public about the merit system, MSPs, and PPPs. 

Veterans’ Rights and Changing Demographics of the Federal Workforce. 

Veterans may file appeals with MSPB under various laws including Veterans' 

preference in hiring for competitive service positions (5 U.S.C. § 3304(f)(1)), the 

Uniformed Services Employment and Reemployment Rights Act (USERRA; 38 

U.S.C. § 4301 et seq.), and the Veterans Employment Opportunities Act (VEOA; 5 

U.S.C. § 3309 et seq.). Veterans who seek employment in the Federal civil service and 

are not hired have the right to seek redress for any alleged violation of their veterans’ 

preference rights before the MSPB under VEOA. VEOA provides a means of redress 

for any violation of an individual’s rights under any statute or regulation relating to 

veterans’ preference. Under USERRA, individuals who left employment in the Federal

civil service to serve in the military have the right to reemployment in the Federal civil 

service, and to challenge the terms (or denial) of reemployment before MSPB. 

USERRA also gives the right to challenge discrimination against an individual based 

on military service or the obligation to perform military service, and protection against 

reprisal for the exercise of any of the rights granted by USERRA. MSPB expects to 

continue to receive a significant number of cases under these veterans’ rights laws as 

more military members return from engagement in military conflicts.

The proportion of retirement-eligible Federal employees continues to increase. As the 

economy continues to improve, retirements will likely increase in the next few years. As 

retirements increase, we might expect to see an increase in retirement appeals. If Congress 

changes the retirement program, such as increasing the required level of employee 

contributions to their annuity, or changing the calculations for the annuity (such as basing 

the annuity on the average high five years instead of the average high three years) for current 

retirement-eligible employees, the Government could experience a surge in retirements, 

followed by a surge in retirement appeals to MSPB. Changes in Federal retirement such as 

the new authority that phases in the opportunity for employees in the Federal Employees 

Retirement System (FERS) to claim service credit toward retirement for their sick leave 

balance, and the potential to allow full-time Federal employees to phase their retirements or 

work in part-time status, may alter retirement rates, and thus may impact retirement appeals. 

As the government replaces retiring employees with relatively younger, less experienced 

employees, there is likely to be a decrease in the average age of the workforce. As this 

occurs, we may see an increase in appeals because less experienced employees typically 

experience more appealable actions than do more experienced employees. 

In addition to changes in workforce demographics, Government work has continued to shift 

from administrative processing, to knowledge-based work. Federal human resources 

management systems, many designed in the 1940s and 1950s, do not have the flexibility 

needed to manage a knowledge-based workforce effectively. Various issues, including 

recruitment and hiring, performance management and pay, and training and development 

need to be addressed to improve and maintain a diverse workforce of highly engaged and 

motivated employees who can perform agency missions and serve the public. At the same 

time, MSPs, fair treatment, and freedom from discrimination and from PPPs must be 

ensured. Improvements are also needed in the selection and training of supervisors and 
14 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

managers who must use the existing management systems to manage a modern workforce 

and achieve results for the public. These changes emphasize the need for a strong merit 

systems studies function and increased focus on promoting and educating employees and the 

public about the merit systems, MSPs, and PPPs.

The Federal Budget. Governmentwide actions to decrease Federal budgets include pay 

freezes, severe limitations in employee awards (for performance, special acts, quality step 

increases, or other purposes), and limits on within grade increases. The recently enacted 

freeze in Federal pay may increase retirement and adversely impact employee morale and 

productivity. At the same time, freezing pay may also shift employees’ attention to 

performance appraisal systems and ratings, which could in turn increase appeals to MSPB. 

Budget reductions may also increase agency use of furloughs (involuntary temporary release 

from duty without pay), reductions in force (RIF) to decrease the size of the workforce, 

hiring delays or freezes, and reductions in training and development to save money.

Reducing the workforce may lead to increases in the number of employees who are demoted 

or separated involuntarily through RIF. Historical trends indicate that increasing RIFs would 

lead to potentially large increases in the number of appeals to MSPB. 

Freezing employee pay and possible reductions in hiring and workforce training may also 

have long-term impacts on MSPs such as the efficiency and effectiveness of the workforce. 

Employees may perform better and refrain from misconduct in an effort to keep their jobs. 

On the other hand, employees may experience more workplace conflict and other behavioral 

and performance issues due to the stress caused by economic conditions over which they 

have no control. Reductions or long delays in hiring and/or reductions in workforce training 

may also impact the efficiency and effectiveness of the workforce in terms of loss of 

expertise and workforce capacity to carry out the mission, from which it could take years to 

recover. Emphasis on merit systems studies is important to continue studying the impact of 

these workforce changes on adherence to MSPs and avoidance of PPPs. It is also important 

to promote merit and educate the workforce, especially managers and leaders, about how to 

adhere to MSPs and to avoid PPPs when making management decisions such as those 

related to reducing the workforce. 
15 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Significant Board Decisions and Court Opinions Issued During FY 2011

MSPB issued a number of noteworthy decisions in FY 2011, several of which are 

summarized below. Brief summaries of selected significant opinions issued by the United 

States Court of Appeals for the Federal Circuit and the United States Supreme Court are also 

provided as a service to our stakeholders. 

Several significant decisions issued by the Board during the early part of FY 2011 were 

summarized in the Annual Report for FY 2010 (pages 20-22): 

 Conyers and Northover v. Department of Defense, 2010 MSPB 247 and 2010 MSPB 248, 

115 M.S.P.R. 572 and 115 M.S.P.R. 451 (employees occupying non-critical sensitive 

positions who did not have access to classified information were not subject to the 

limited scope of Board review set forth in Department of the Navy v. Egan, 484 U.S. 

518, 530-31 (1988)); 

 Aguzie and Barnes v. Office of Personnel Management, 2011 MSPB 10, 116 M.S.P.R. 64 

(when OPM directs an agency to remove a tenured employee pursuant to its 

authority under 5 C.F.R. part 731, the removal action is subject to the requirements 

of 5 U.S.C. chapter 75 subchapter II, including the Board appeal rights guaranteed 

under 5 U.S.C. § 7513(d));

 Dean and Evans v. Office of Personnel Management/Department of Veterans Affairs, 2010 

MSPB 213, 115 M.S.P.R. 157 (agencies violated the appellants’ veterans’ preference 

rights by using the Federal Career Intern Program); and 

 Chambers v. Department of the Interior, 2011 MSPB 7, 116 M.S.P.R. 17 (finding that the 

agency retaliated against the appellant for disclosing safety concerns to the

Washington Post and ordering her reinstatement as Chief of the U.S. Park Police)

Significant Decisions Issued by the Board

Jurisdiction

Maibaum v. Department of Veterans Affairs, 2011 MSPB 18, 116 M.S.P.R. 234: Service with the 

Postal Service may be tacked to service with an Executive agency to meet the definition of 

“employee” under 5 U.S.C. § 7511(a)(1)(B), i.e., “a preference eligible in the excepted service 

who has completed 1 year of current continuous service in the same or similar positions – (i) 

in an Executive agency; or (ii) in the United States Postal Service.” The Board had previously 

held that the term “an Executive agency” may refer to more than one agency, and that 

service in multiple Executive agencies may be combined in order to satisfy the 1-year current 

continuous service requirement. 

Rivera v. Department of Homeland Security, 2011 MSPB 57, 116 M.S.P.R. 429: Because a Federal

Career Intern Program appointment automatically terminates upon its expiration unless the 

agency takes affirmative steps to extend the appointment or convert it to the competitive 

service, such termination does not constitute an appealable adverse action.
16 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Vaughan v. Department of Agriculture, 2011 MSPB 61, 116 M.S.P.R. 493: The Board modified 

the standard governing when a claim of involuntary disability retirement will constitute a 

removal within the Board’s jurisdiction. In most such cases, the Board will continue to apply 

the standard that, to be entitled to a jurisdictional hearing, an appellant must nonfrivolously 

allege that: (1) An accommodation was available between the time the appellant’s medical 

condition arose and the date of his separation that would have allowed him to continue his 

employment; (2) the appellant communicated to the agency his desire to continue working 

but that his medical limitations required a modification of his working conditions or duties; 

and (3) the agency failed to provide him the requested accommodation. Under some limited 

circumstances, however, the Board will apply the standard that applies to other alleged 

involuntary retirements, i.e., a showing that the retirement resulted from misinformation or 

deception by the agency or was the product of coercion by the agency. The latter standard 

applied here, where the appellant alleged that the agency created a discriminatory, hostile 

work environment, which not only led to intolerable working conditions, but which caused 

or exacerbated the medical conditions underlying his disability retirement. 

Whistleblower Protections

Parikh v. Department of Veterans Affairs, 2011 MSPB 1, 116 M.S.P.R. 197: The Board found 

that the appellant established that his removal was taken in reprisal for protected 

whistleblowing disclosures and ordered the agency to restore him to employment. The 

agency had removed the appellant from his position as a staff physician at a Veterans 

Administration Medical Center based on a charge of unauthorized release and disclosure of 

private and protected patient information. The appellant admitted that a letter he sent to 

senators and congressmen contained confidential patient information, but contended that it 

was protected because he was disclosing “a substantial and specific danger to public health 

or safety” within the meaning of 5 U.S.C. § 2302(b)(8). Although the Board found that some 

of the appellant’s disclosures were not protected because they were “specifically prohibited 

by law [the Privacy Act],” it found that other disclosures were not prohibited by law, and 

constituted protected disclosures of a substantial and specific danger to public health or 

safety. The Board found that some of the disclosures were not prohibited by the Health 

Insurance Portability and Accountability Act (HIPAA), which generally prohibits healthcare 

providers from disseminating confidential patient information, because the Senators and 

Congressmen to whom the disclosures were made fell within the statutory exception for 

disclosures to a “health oversight agency or public health authority authorized by law to 

investigate or otherwise oversee the relevant conduct or conditions.” These disclosures were 

similarly not prohibited by the Privacy Act, which generally prohibits an agency from 

disclosing medical records without the written authorization of the individuals to whom the 

records pertain, because the disclosures fell with the exception for disclosures to 

congressional committees with jurisdiction over the matters disclosed. Although the agency 

argued that the appellant’s disclosures violated an agency handbook, the Board found that 

the handbook does not constitute a “law” within the meaning of the statute. 

Stiles v. Department of Homeland Security, 2011 MSPB 28, 116 M.S.P.R. 263: Although it 

ultimately found that the appellant’s disclosure was not protected because the disclosure was 

part of the appellant’s normal duties and reported through normal channels, the Board 

reversed the administrative judge’s reliance on Meuwissen v. Department of the Interior, 234 F.3d 

9 (Fed. Cir. 2000), in determining that a disclosure was not protected because the agency was 
17 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

already aware of the matter disclosed. The Board noted that it had distinguished Meuwissen in 

Askew v. Department of the Army, 88 M.S.P.R. 674 (2001). A key aspect of the Meuwissen

holding was the public nature of the information disclosed, and the Meuwissen court had 

relied on legislative history relating to the Civil Service Reform Act, whereas the legislative 

history of the Whistleblower Protection Act, passed 11 years later, rejected the notion that 

an individual who communicates wrongdoing that is “not concealed” or “already known” 

should not be protected from retaliation. 

Usharauli v. Department of Health & Human Services, 2011 MSPB 54, 116 M.S.P.R. 383: 

Scientists holding appointments under 42 U.S.C. § 209(g), which are made “without regard 

to the civil-service laws,” may bring individual right of action appeals if they are “covered 

employees” within the meaning of 5 U.S.C. §§ 1221(a) and 2105(a). 

Voorhis v. Department of Homeland Security, 2011 MSPB 67, 116 M.S.P.R. 538: To disclose what 

he believed were misleading statements by a Denver District Attorney running for governor 

about plea bargaining practices with respect to illegal immigrants charged with crimes, the 

appellant, a Criminal Investigator with the Bureau of Immigration and Customs 

Enforcement, ran searches in government databases and disclosed that information to the 

campaign of the candidate running against the District Attorney. The agency removed him 

on misconduct charges, including unauthorized queries on an official government database 

and unauthorized disclosure of information. The Board found that the appellant failed to 

prove his affirmative defense of retaliation for protected whistleblowing. The plea bargaining 

practices disclosed related to a city official, not a Federal government official, and could not 

be said to implicate the reputation and good name of the Federal government. 

Ingram v. Department of the Army, 2011 MSPB 71, 116 M.S.P.R. 525: The Board reversed the 

remand initial decision finding, contrary to the administrative judge, that the appellant 

established his claim of reprisal for protected whistleblowing on the merits, and that the 

agency had failed to establish by clear and convincing evidence that it would have taken the 

personnel actions at issue absent the protected disclosures. The Board therefore ordered 

corrective action. The appellant had reported to his supervisors that a program manager was 

about to engage in conduct contrary to the agency’s regulations in connection with a 

proposed medical simulation training event. In reversing the administrative judge’s finding 

that the appellant failed to establish that he had a reasonable belief that he was disclosing a 

violation of regulation, the Board noted, among other things, that before making the 

disclosure, the appellant had obtained an opinion from the agency’s legal department stating 

that allowing the event to proceed with videotaping and photography would violate agency 

ethical regulations and possibly compromise the trade secrets of agency contractors.

MacLean v. Department of Homeland Security, 2011 MSPB 70, 116 M.S.P.R. 562: The Board 

upheld an initial decision which sustained the appellant’s removal from his Federal Air 

Marshal (FAM) position on a charge of disclosing Sensitive Security Information (SSI) for 

disclosing to the media a Transportation Security Administration directive suspending 

overnight missions by FAMs during a period when a hijacking alert was in effect. The Board 

affirmed his removal, finding that MacLean was not a whistleblower because his disclosure 

was “specifically prohibited by law.” Under the regulations in effect at the time of the 

disclosure, information relating to the deployment of FAMs was included within the 

definition of Sensitive Security Information (SSI). The Board emphasized that it was not 
18 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

ruling that any regulation that meets certain conditions should be accorded the full force and 

effect of law, such that a disclosure in violation of the regulation would be construed as 

“prohibited by law” within the meaning of 5 U.S.C. § 2302(b)(8). The appellant’s disclosure 

of SSI was “specifically prohibited by law” because the regulation that he violated was 

promulgated pursuant to an explicit Congressional mandate that required the agency to 

prohibit such disclosures. 

McCarthy v. Department of Veterans Affairs, 2011 MSPB 74, 116 M.S.P.R. 594: The Board 

reaffirmed its longstanding position that the Whistleblower Protection Act does not mandate 

any particular sequence for trying the elements of a whistleblower case and that, in 

appropriate cases, once the Board determined it has jurisdiction, the Board may first address 

the agency’s affirmative defense that it would have taken the same action in the absence of a 

disclosure, and then, if necessary, turn to the question of whether the appellant established a 

prima facie whistleblower claim. Under the circumstances of this case, however, where the 

circumstantial evidence bearing on retaliatory motive includes the substance of the 

appellant’s allegedly protected activity as well as the extent to which the deciding official was 

aware of it, the Board found it necessary to adjudicate both the merits of the appellant’s 

prima facie case as well as the agency’s affirmative defense. The Board found that the agency 

established by clear and convincing evidence that it would have terminated the appellant’s

employment in the absence of any protected disclosures. 

Due Process of Law/Harmful Procedural Error

Pickett v. Department of Agriculture, 2011 MSPB 58, 116 M.S.P.R. 439; Thomas v. U.S. Postal 

Service, 2011 MSPB 62, 116 M.S.P.R. 453; Lopes v. Department of the Navy, 2011 MSPB 63, 116 

M.S.P.R. 470; Gray v. Department of Defense, 2011 MSPB 64, 116 M.S.P.R. 461: In each of 

these cases, the agency’s deciding official had considered matters not included in the notice 

of proposed adverse action in determining the penalty to be imposed. The Board found that 

this was improper in light of the Federal Circuit’s decision in Ward v. U.S. Postal Service, 634 

F.3d 1274 (Fed. Cir. 2011). Prior to Ward, the Board had held that where an ex parte 

communication does not relate to the charge itself, but relates instead to the penalty, it 

would not consider the error to be a denial of the constitutional right to due process, and 

that the Board would remedy the error by doing its own analysis of the penalty factors. In 

Ward, the court expressly overruled this approach and held that if the employee has not been 

given “notice of any aggravating factors supporting an enhanced penalty,” an ex parte 

communication with the deciding official regarding such factors may constitute a due 

process violation. If the ex parte communication introduced “new and material information” 

to the deciding official such that the communication “is so substantial and so likely to cause 

prejudice that no employee can fairly be required to be subjected to a deprivation of 

property under such circumstances,” then a due process violation will be found (634 F.3d at 

1279-80). If a constitutional violation has occurred, the adverse action must be reversed and 

the individual is entitled to a new constitutionally correct procedure. Even if a due process 

violation has not occurred, the Board will consider whether the agency has committed 

harmful procedural error. The Board clarified that this analysis applies to all new and 

material information considered by the deciding official, regardless of whether the deciding 

official received it via ex parte communication. 
19 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Veterans’ Rights

Jarrard v. Social Security Administration, 2010 MSPB 207, 115 M.S.P.R. 397, aff’d, No. 2011-3050

(Fed. Cir. Jan. 13, 2012): Agencies are not required to comply with the passover provisions 

of 5 U.S.C. § 3318 when making selections for Attorney Advisor positions in the Federal

government. Section 3318 only applies to certificates issued under section 3317(a). Because 

Attorney Advisor positions are in Schedule A of the excepted service and are not subject to 

an examination within the meaning of 5 U.S.C. § 3313, applicants for them are not placed on 

a certificate of eligibles within the meaning of section 3317(a). 

Williams v. Department of the Air Force, 2011 MSPB 19, 116 M.S.P.R. 245: Liquidated damages 

for willful violation of the Veterans Employment Opportunities Act (VEOA) under 5 U.S.C. 

§ 3330c(a) are in addition to damages for lost wages or benefits, and are for the same 

amount. In other words, where an employee has lost wages and benefits because of a willful 

violation of his veterans’ preference rights, he is entitled to a “double” back pay award. 

Burroughs v. Department of the Army, 2011 MSPB 30, 115 M.S.P.R. 656: The Board analogized 

the exhaustion requirement under VEOA to the exhaustion requirement for individual right 

of action appeals, finding that the purpose of the exhaustion requirement is to afford the 

Department of Labor the opportunity to conduct an investigation that might lead to 

corrective action before involving the Board in the case. Accordingly, the Board lacks 

jurisdiction to adjudicate claims that were not raised before the Department of Labor.

Harellson v. U.S. Postal Service, 2011 MSPB 3, 115 M.S.P.R. 378: The Board held that the 

Uniformed Services Employment and Reemployment Rights Act (USERRA) does not 

support a discrimination claim brought under a disparate impact theory of recovery. 

Employment Discrimination

Southerland v. Department of Defense, 2011 MSPB 91, 117 M.S.P.R. 56: A mixed motive analysis 

is not appropriate in disability discrimination claims arising under the Americans with 

Disabilities Act Amendments Act of 2008 (ADAAA); the claimant must show that the 

agency would not have taken the adverse action “but for” his actual or perceived disability. 

(The Board previously ruled in Brott v. General Services Administration, 2011 MSPB 52, 116 

M.S.P.R. 410, that the “but for” standard applies to cases governed by the law in effect prior 

to the effective date of the ADAAA.) This Opinion and Order clarified the proper analysis 

of a claim of disability discrimination in light of the EEOC’s recently issued regulations 

implementing the ADAAA. The new law and regulations liberalized the definition of 

disability and made significant changes to the analysis of these claims. In particular, when an 

appellant is not challenging an agency’s failure to provide a reasonable accommodation, the 

claim should be analyzed under the “regarded as” prong of the definition of disability, which 

does not require a showing of an impairment that substantially limits a major life activity. 

Board Procedures

Wynn v. U.S. Postal Service, 2010 MSPB 214, 115 M.S.P.R. 146: When an appellant raises an 

affirmative defense, whether by checking a box in the appeal form, identifying an affirmative 

defense by name such as “race discrimination,” “harmful procedural error,” etc., or by 
20 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

alleging facts that reasonably raise such an affirmative defense, the administrative judge must 

address the affirmative defense(s) in any close of record order or prehearing conference 

summary and order. If an appellant expresses the intention to withdraw such an affirmative 

defense, the close of record order or prehearing conference order must, at a minimum, 

identify the affirmative defense, explain that the Board will no longer consider it when 

deciding the appeal, and give the appellant an opportunity to object to withdrawal of the 

affirmative defense. In the absence of evidence establishing that an appellant has withdrawn 

or abandoned his affirmative defenses, administrative judges are required to apprise an 

appellant of the applicable burdens of proving a particular affirmative defense, as well as the 

kind of evidence the appellant is required to produce to meet his burden. 

Thomas v. Department of the Treasury, 2010 MSPB 224, 115 M.S.P.R. 224, and Mojarro v. U.S. 

Postal Service, 2010 MSPB 225, 115 M.S.P.R. 433: Although an administrative judge has wide 

discretion to dismiss an appeal without prejudice in the interests of fairness, due process, and 

administrative efficiency, the judge must exercise that discretion in a manner consistent with 

Board policy, including the policy that cases be adjudicated expeditiously. When an 

administrative judge dismisses a case without prejudice, he or she must set a date certain for 

refiling rather than leaving the refiling date open or ambiguous. 

Berkner v. Department of Commerce, 2011 MSPB 27, 116 M.S.P.R. 277: At issue in this case was 

whether the appellant’s statement to her union representative that she might kill herself and 

other employees was privileged, such that the union representative could not testify about 

the appellant’s statement. The Board acknowledged decisions by the Federal Labor Relations 

Authority (FLRA) holding that communications between employees and union 

representatives are generally protected as privileged. The cases in which the FLRA has 

recognized the privilege were factually distinguishable from this case, in that the agency was 

seeking, under threat of discipline, to require disclosure of confidential information and the 

union representatives objected to being interrogated. Here, the union representative 

voluntarily reported the appellant’s comments to the agency’s labor relations department. 

The Board sustained the appellant’s removal.

Encarnado v. Office of Personnel Management, 2011 MSPB 37, 116 M.S.P.R. 301: At issue was 

whether the appellant could make a deposit under the Civil Service Retirement System 

(CSRS) for service with the Department of the Navy, when a previous Board proceeding had 

determined that the appellant was not entitled to a retirement annuity for the same service. 

The Board dismissed the appeal on res judicata (claim preclusion) and collateral estoppel 

(issue preclusion) grounds. Res judicata precludes a party from relitigating not only issues 

that were raised in the prior appeal, but also issues that could have been raised in the prior 

appeal, as long as they involve the same cause of action and resulted in a valid, final 

judgment on the merits. The second appeal involved the same cause of action, as the 

appellant acknowledged that his goal in bringing the “deposit” appeal was to receive a 

retirement annuity for the same years of service at issue in the first appeal. Although the 

appellant may not have raised his entitlement to make a deposit to the CSRS in the earlier 

appeal, he could have done so. Under the doctrine of collateral estoppel, the appellant was 

precluded from relitigating the Board’s determination in the first appeal that his Federal

service with the Navy was not CSRS-covered service. 
21 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Williams v. U.S. Postal Service, 2011 MSPB 53, 116 M.S.P.R. 377: The Board clarified that an 

appellant’s failure to exercise basic due diligence in complying with Board orders remains a 

viable basis for dismissing an appeal for failure to prosecute, in addition to such dismissal 

when an appellant has exhibited bad faith or evidenced an intent to abandon the appeal. 

Compliance

Shelton v. Environmental Protection Agency, 2010 MSPB 216, 115 M.S.P.R. 177: The Board 

acknowledged an inconsistency in existing case law, with some decisions stating that the 

appellant bears the burden of proving that the agency breached the settlement agreement, 

whereas others state that the agency bears the burden of proving that it did not breach the 

settlement agreement. In order to show that he is the prevailing party in the compliance

phase of the proceedings, an appellant must establish that the agency materially breached the 

Board enforceable order or settlement agreement at issue. Although the appellant bears the 

ultimate burden of proving the agency’s noncompliance, the agency bears the burden of 

producing relevant, material, and credible evidence of its compliance.

Adverse Action Charges

McCauley v. Department of the Interior, 2011 MSPB 59, 116 M.S.P.R. 484: An excessive absences 

charge may include sick leave, annual leave, leave without pay (LWOP), and absence without 

leave, but may not include leave under the Family and Medical Leave Act. A required 

element of proof for an excessive absences charge is that “the employee was absent for 

compelling reasons beyond his or her control so that agency approval or disapproval was 

immaterial because the employee could not be on the job.” If an agency grants LWOP to an 

appellant even though the appellant had failed to provide requested documentation to 

support the request, the agency did not know whether the appellant was able to report to 

work, and this element of the charge was not proved. 

Performance-Based Actions

Adamsen v. Department of Agriculture, 2011 MSPB 49, 116 M.S.P.R. 331: The issue in this 

chapter 43 removal case was whether the agency proved by substantial evidence that the 

Office of Personnel Management (OPM) approved the revised performance appraisal 

system under which the appellant was removed. An agency must request and obtain 

approval from OPM when it makes significant changes to a previously approved 

performance appraisal system. “Substantial evidence” requires “more than a mere scintilla. It 

means such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.” Here, the agency did not produce a document issued by OPM approving the 

revised performance appraisal system, and the Board found that an unsworn declaration 

from a human resources specialist who was not employed at the time of the change, and 

which did not explain the factual basis for her statement that OPM approved the agency’s 

performance appraisal system, did not constitute substantial evidence. 

Penalty

Raco v. Social Security Administration, 2011 MSPB 87, 117 M.S.P.R. 1: In this appeal, the agency 

removed the appellant on a charge of conduct unbecoming a Federal employee because of 
22 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

22 discrepancies between the time she recorded on her credit hours form and the time that 

she actually departed work. Of the 22 discrepancies, 19 involved increments of time of less 

than 5 minutes, and the agency admitted that clocks in the workplace were not synchronized. 

The administrative judge mitigated the penalty to a 30-day suspension after sustaining only 3 

of the 22 specifications of misconduct. The Board agreed with the agency that it had proved 

all of the specifications of the charge, but determined that the agency improperly weighed 

the Douglas factors in determining the penalty. In particular, the Board found that the de 

minimis nature of 19 of the 22 specifications rendered unpersuasive the agency’s contention 

that the charged misconduct was a serious offense, that the appellant’s 20 years successful 

service was a mitigating factor, that the fact that the appellant mounted a defense to the 

charge did not indicate a lack of remorse or failed to admit wrongdoing, and that the penalty 

of removal was disparate compared to other employees who had engaged in similar conduct. 

Accordingly, the Board further mitigated the penalty to a 14-day suspension. 

Attorney Fees

Baldwin v. Department of Veterans Affairs, 2010 MSPB 221, 115 M.S.P.R. 413: At issue in this 

case was whether the appellant was a “prevailing party” for attorney fees purposes even 

though the Board had not decided the merits of the underlying adverse action. In its final 

decision in the underlying appeal, the Board found that the appellant established that his 

resignation was involuntary because it was based on agency misinformation. The Board 

ordered a return to the status quo ante, which meant that the appellant would be restored to 

employment, but subject to the agency’s decided removal action. The appellant petitioned 

for attorney fees, even though the propriety of the removal action had not been determined. 

The Board held that the appellant is a prevailing party because its decision on the merits 

resulted in a material alteration of the legal relationship between the parties, and that 

attorney fees were warranted in the interest of justice because the agency committed gross 

procedural error that prolonged the appellant’s ability to exercise his statutory right to file a 

Board appeal of the underlying removal action. 

Discroll v. USPS, 2011 MSPB 80, 116 M.S.P.R. 662: The Board clarified the rules governing 

the entitlement to attorney fees when an appellant prevails on some claims and during some 

phases of the litigation, but not others. Relying on Board precedent, the administrative judge 

found that, because the appellant was a prevailing party with respect to the initial decision, 

but not with respect to her petition for review, she was not entitled to an award of attorney 

fees for the time spent on the unsuccessful petition. Overruling contrary precedent, the 

Board stated that it does not determine prevailing party status on a line-item basis. An 

appellant is, or is not, a prevailing party in the case as a whole, and whether she may be 

deemed a prevailing party depends on the relief ordered in the Board’s final decision. Here, 

the appellant was a prevailing party with respect to the underlying appeal as a whole. The 

Board further held that the administrative judge erred in disallowing some hours before 

calculating the lodestar amount based on the limited nature of the appellant’s success. The 

first task is to take the hours reasonably spent on the litigation multiplied by a reasonable 

hourly fee, which results in a “lodestar” amount. Excluded in this phase are hours for which 

the prevailing party failed to provide adequate documentation, and hours that were not 

reasonably expended. In the second phase, the lodestar may be adjusted upward or 

downward based on other considerations, including the crucial factor of the “results 

obtained.”
23 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Suitability

Scott v. Office of Personnel Management, 2011 MSPB 50, 116 M.S.P.R. 356: OPM does not have 

the authority under part 731 to make suitability determinations or to take or direct suitability 

actions against an individual based solely on conduct occurring after his admission into the 

competitive service. 

Restoration to Duty

Gallo v. Department of Transportation, 2011 MSPB 6, 116 M.S.P.R. 1: This case required the 

Board to construe the language of 5 U.S.C. § 8151(a) regarding the rights of an employee 

who has recovered from a compensable injury: “In the event the individual resumes 

employment with the Federal Government, the entire time during which the employee was 

receiving compensation under this chapter shall be credited to the employee for the 

purposes of within-grade step increases, retention purposes, and other rights and benefits 

based upon length of service.” Gallo had suffered a work-related injury in 1995 while 

working as an operational Air Traffic Control Specialist (ATCS). While “indefinitely 

incapacitated” from working as an ATCS, she accepted a position in 1996 to a different 

position at the same grade level. When she fully recovered from her injury in 2000, she 

accepted an appointment as a supervisory ATCS. She argued that her pay in the new 

position was lower than it would have been had she remained in her operational ATCS 

position during her recovery, and claimed entitlement to the higher rate of pay under section 

8151(a). A majority of the Board, Vice Chairman Wagner dissenting, found that the 

appellant did not “resume employment” within the meaning of the statute because she 

continued working for the government throughout the period of her compensable injury. 

The majority found that, even if the appellant had resumed employment with the Federal

government within the meaning of § 8151(a), she would not be entitled to the increased 

compensation she seeks because such relief was not a right or benefit based upon length of 

service. 

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

Disciplinary Actions

Long v. Social Security Administration, 635 F.3d 526 (Fed. Cir. 2011): The Board’s interpretation 

of the “good cause” standard for disciplinary action against an ALJ as encompassing conduct 

that “undermines public confidence in the administrative adjudicatory process” is entitled to 

Chevron deference because the Board was given exclusive rulemaking and adjudicatory 

authority under 5 U.S.C. § 7521. Such an undermining of confidence occurs where the 

conduct creates doubts in the ALJ’s ability to carry out his responsibilities or raises concerns 

that the ALJ’s behavior will reflect poorly on the agency and its adjudicatory process. 

Evidence

Tudor v. Department of Treasury, 639 F.3d 1362 (Fed. Cir. 2011): The great deference owed to 

an AJ’s credibility determination in resolving conflicting testimony is irrelevant if the 

testimony in question is not in conflict.

Jurisdiction
24 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Carrow v. Merit Systems Protection Board, 626 F.3d 1348 (Fed. Cir. 2010): A failure by an 

employing agency to advise a new employee of the terms of his appointment does not create 

appeal rights for positions as to which Congress has not given the Board jurisdiction. The 

court declined to approve or disapprove of the Board’s Park/Exum line of cases, which held 

that an employing agency must inform an employee of the effect of a change in tenure when 

the employee relinquishes an appointment having appeal rights to accept another 

appointment within the same agency that lacks such appeal rights. 

Chadwell v. Merit Systems Protection Board, 629 F.3d 1306 (Fed. Cir. 2010): In order for an OPM 

rule to constitute an employment practice that is appealable to the Board under 5 C.F.R. 

§ 300.101, the rule must have a substantive or merits-based effect on the applicant’s 

eligibility for selection. 

Bennett v. Merit Systems Protection Board, 635 F.3d 1215 (Fed. Cir. 2011): Pursuant to 38 U.S.C. 

§ 7802(e), Veterans Canteen Services employees are excluded from the right to appeal to the 

Board. 

Timeliness

Turman-Kent v. Merit Systems Protection Board, 657 F.3d 1280 (Fed. Cir. 2011): The Board did 

not abuse its discretion by requiring Ms. Turman-Kent to provide medical evidence 

accounting for the entirety of her six-year period of delay in filing her petition for review 

with the Board. 

Veterans’ Rights

Erickson v. U.S. Postal Service, 636 F.3d 1353 (Fed. Cir. 2011): USERRA’s five-year limit on an 

employee’s absence from civilian service provides a distinct termination point for 

reemployment rights. The enactment of that statutory period makes it reasonable to assume 

that, absent clear evidence to the contrary, employees who have not exceeded that period do 

not intend to abandon their civilian positions. 

Constitutional Claims

Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011): Ex parte communications that 

introduce “new and material information,” whether material to the merits of the underlying 

charge or material to the penalty to be imposed, violate due process.

Significant Opinions Issued by the U.S. Supreme Court

Constitutional Claims

Borough of Duryea v. Guarnieri, 131 S.Ct. 2488 (U.S. 2011): A government employer’s 

retaliatory actions against an employee do not give rise to liability under the Petition Clause 

of the First Amendment unless the employee’s petition relates to a matter of public concern. 

A petition filed under an internal grievance procedure in many cases will not seek to 

communicate to the public or advance a political or social point of view beyond the 

employment context.
25 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

National Aeronautics & Space Administration v. Nelson, 131 S.Ct. 746 (U.S. 2011): The 

government may collect personal information during background checks on contractors. 

The government’s interests as employer and proprietor in managing its internal operations, 

combined with the protections against public dissemination provided by the Privacy Act, 

satisfy any interest in avoiding disclosure that may arguably have its roots in the 

Constitution.

Discrimination

Wal-Mart Stores v. Dukes, 131 S.Ct. 2541 (U.S. 2011): A plaintiff class in a Title VII action 

cannot be certified unless the party seeking class certification can prove that the class has 

common questions of law or fact. The conceptual gap between an individual’s discrimination 

claim and the existence of persons who have suffered the same injury must be bridged by 

significant proof that an employer operated under a general policy of discrimination.
26 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

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27 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Case Processing Statistics

Summary of Cases Decided by MSPB

Table 1: FY 2011 Summary of Cases Decided by MSPB

Cases Decided in MSPB Regional and Field Offices 

 Appeals 6,543

 Addendum Cases1535

 Stay Requests286

TOTAL Cases Decided in RO/FOs 7,164

Cases Decided by Administrative Law Judges (ALJs) – Original 

Jurisdiction3 14

Appellate Jurisdiction:

 Petitions for Review (PFRs) – Appeals 849

 Petitions for Review (PFRs) – Addendum Cases 97

 Reviews of Stay Request Rulings 0

 Requests for Stay of Board Order 0

 Reopenings414

 Court Remands 6

 Compliance Referrals 28

 EEOC Non-concurrence Cases 0

 Arbitration Cases 5

Subtotal – Appellate Jurisdiction 999

Original Jurisdiction

5 23

Interlocutory Appeals 2

TOTAL Cases Decided by the Board6 1,024

TOTAL Decisions (Board, ALJs, RO/FOs) 8,202

1 Includes 92 requests for attorney fees, 129 Board remand cases, 296 petitions for enforcement, 4 court 

remand cases, 11 requests for compensatory damages (discrimination cases only), and 3 requests for 

consequential damages.

2 Includes 66 stay requests in whistleblower cases and 20 in non-whistleblower cases.

3 Initial Decisions issued by ALJ. Case type breakdown: 6 actions against ALJs, 2 actions against a member of 

the SES, 5 Hatch Act cases, and 1 corrective action brought against an agency.

4 Includes 7 cases reopened by the Board on its own motion and 7 cases where OPM requested 

reconsideration.

5 Final Board decisions. Case type breakdown: 9 OSC stay requests, 4 PFRs in Hatch Act cases, 8 PFRs in 

actions against an ALJ, and 2 requests for regulation review.

6 In addition to the 1,022 cases closed by the Board with a final decision, there were 2 interlocutory appeals 

decided by the Board in FY 2011. Interlocutory appeals typically raise difficult issues or issues not previously 

addressed by the Board.
28 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Regional Case Processing

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 2744 1373 50.04 1371 49.96 932 67.98 439 32.02

Termination of Probationers 513 466 90.84 47 9.16 38 80.85 9 19.15

Reduction in Force 50 37 74.00 13 26.00 6 46.15 7 53.85

Performance 110 32 29.09 78 70.91 58 74.36 20 25.64

Acceptable Level of Competence 

(WIGI) 33 18 54.55 15 45.45 12 80.00 3 20.00

Suitability 97 58 59.79 39 40.21 26 66.67 13 33.333

CSRS Retirement: Legal 386 179 46.37 207 53.63 2 0.97 205 99.03

CSRS Retirement: Disability 28 20 71.43 8 28.57 1 12.50 7 87.50

CSRS Retirement: Overpayment 55 28 50.91 27 49.09 19 70.37 8 29.63

FERS Retirement: Legal 87 47 54.02 40 45.98 5 12.50 35 87.50

FERS Retirement: Disability 285 215 75.44 70 24.56 4 5.71 66 94.29

FERS Retirement: Overpayment 115 39 33.91 76 66.09 50 65.79 26 34.21

FERCCA 20 10 50.00 10 50.00 1 10.00 9 90.00

Individual Right of Action 236 173 73.31 63 26.69 41 65.08 22 34.92

USERRA 451 158 35.03 293 64.97 261 89.08 32 10.92

VEOA 215 136 63.26 79 36.74 13 16.46 66 83.54

Other31118 920 82.29 198 17.71 160 80.81 38 19.19

Total 6543 3909 59.74 2634 40.26 1629 61.85 1005 38.15

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

2 Percent Settled and Adjudicated are of the number Not Dismissed.

3 “Other” appeals include Restoration of Duty (554), Miscellaneous (472) and additional types such as 

Reemployment Priority, Employment Practices, and others.
29 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Figure 1: Type of Appeals Decided in the Regional and Field Offices

Total Number of Appeals: 6,543

FY11 Adverse 

Actions (2744) 

42%

FY11 Terminaton 

of Probationers 

(513) 8%

FY11 Reduction in 

Force (50) 1%

FY11 Performance 

(110) 2%

FY11 Acceptable 

Level of 

Competence (33) 

1%

FY11 Suitability 

(97) 1%

FY11 CSRS 

Retirement: Legal 

(386) 6%

FY11 CSRS 

Retirement: 

Disability (28) 0%

FY11 CSRS 

Retirement: 

Overpayment (55) 

1%

FY11 FERS 

Retirement: Legal 

(87) 1%

FY11 FERS 

Retirement: 

Disability (285) 4%

FY11 FERS 

Retirement: 

Overpayment 

(115) 2%

FY11 FERCCA (20) 

0%

FY11 Individual 

Right of Action 

(236) 4%

FY11 USERRA 

(451) 7%

FY11 VEOA (215) 

3%

FY11 Other (1118) 

17%
30 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Figure 2: Dispositions: Appeals Not Dismissed by Regional and 

Field Offices

Total Number of Appeals that were Not Dismissed: 2,634

Figure 3: Dispositions: Appeals Not Dismissed or Settled by 

Regional/Field Office

Based on 1,005 appeals adjudicated on the merits

Appeal Settled 

(1629) 62%

Action or 

Decision 

Upheld or Left 

Undisturbed 

(745) 28%

Action or 

Decision 

Overturned or 

Corrective 

Action Ordered 

(223) 8%

Mitigated (24) 

1%

Other (13) 1%

Action or 

Decision 

Upheld or Left 

Undisturbed 

(745) 74%

Action or 

Decision 

Overturned or 

Corrective 

Action Ordered 

(223) 22%

Mitigated (24) 

3% Other (13) 1%
31 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Table 3: Disposition of Initial Appeals by Agency

Agency

Decided Dismissed1

Not

Dismissed1 Settled2 Adjudicated2

# # % # % # % # %

US Postal Service 1427 974 68.3 453 31.7 340 75.1 113 24.9

Office of Personnel Management31012 560 55.3 452 44.7 99 21.9 353 78.1

Veterans Affairs 685 408 59.6 277 40.4 207 74.7 70 25.3

Army 619 313 50.6 306 49.4 227 74.2 79 25.8

Air Force 387 213 55.0 174 45.0 142 81.6 32 18.4

Homeland Security 376 215 57.2 161 42.8 88 54.7 73 45.3

Navy 375 210 56.0 165 44.0 98 59.4 67 40.6

Defense 272 165 60.7 107 39.3 61 57.0 46 43.0

Treasury 198 131 66.2 67 33.8 43 64.2 24 35.8

Justice 193 122 63.2 71 36.8 42 59.2 29 40.8

Agriculture 166 101 60.8 65 39.2 48 73.8 17 26.2

Interior 125 65 52.0 60 48.0 47 78.3 13 21.7

Health & Human Services 114 76 66.7 38 33.3 27 71.1 11 28.9

Transportation 97 59 60.8 38 39.2 24 63.2 14 36.8

Social Security Administration 86 52 60.5 34 39.5 17 50.0 17 50.0

Commerce 83 48 57.8 35 42.2 29 82.9 6 17.1

Labor 60 35 58.3 25 41.7 20 80.0 5 20.0

General Services Administration 36 24 66.7 12 33.3 10 83.3 2 16.7

Housing & Urban Development 27 14 51.9 13 48.1 10 76.9 3 23.1

Energy 25 16 64.0 9 36.0 6 66.7 3 33.3

State 24 15 62.5 9 37.5 5 55.6 4 44.4

Small Business Administration 17 13 76.5 4 23.5 3 75.0 1 25.0

Federal Deposit Insurance 

Corporation

14 10 71.4 4 28.6 3 75.0 1 25.0

Environmental Protection Agency 11 5 45.5 6 54.5 3 50.0 3 50.0

Government Printing Office 11 5 45.5 6 54.5 3 50.0 3 50.0

Smithsonian Institution 11 3 27.3 8 72.7 6 75.0 2 25.0

Education 9 7 77.8 2 22.2 0 0.0 2 100.0

Tennessee Valley Authority 9 9 100.0 0 0.0 0 0.0 0 0.0

Equal Employment Opportunity 

Commission

8 6 75.0 2 25.0 2 100.0 0 0.0

National Aeronautics and Space 

Administration

7 3 42.9 4 57.1 3 75.0 1 25.0

Armed Forces Retirement Home 6 5 83.3 1 16.7 0 0.0 1 100.0

National Archives and Records 

Administration

5 0 0.0 5 100.0 5 100.0 0 0.0

Agency for International 

Development

4 1 25.0 3 75.0 2 66.7 1 33.3

Commodity Futures Trading 

Commission

4 3 75.0 1 25.0 1 100.0 0 0.0

National Labor Relations Board 4 1 25.0 3 75.0 1 33.3 2 66.7

Broadcasting Board of Governors 3 1 33.3 2 66.7 2 100.0 0 0.0

Consumer Product Safety 

Commission

3 0 0.0 3 100.0 1 33.3 2 66.7

Judicial Branch 3 3 100.0 0 0.0 0 0.0 0 0.0
32 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Agency

Decided Dismissed1

Not

Dismissed1 Settled2 Adjudicated2

# # % # % # % # %

Nuclear Regulatory Commission 3 1 33.3 2 66.7 1 50.0 1 50.0

Pension Benefit Guaranty 

Corporation

3 3 100.0 0 0.0 0 0.0 0 0.0

Administrative Office of the US 

Courts

2 2 100.0 0 0.0 0 0.0 0 0.0

Court Services and Offender 

Supervision

2 1 50.0 1 50.0 1 100.0 0 0.0

Federal Communications 

Commission

2 2 100.0 0 0.0 0 0.0 0 0.0

International Boundary & Water 

Commission

2 0 0.0 2 100.0 1 50.0 1 50.0

Securities & Exchange 

Commission

2 1 50.0 1 50.0 0 0.0 1 100.0

Chemical Safety Hazard 

Investigation Board

1 0 0.0 1 100.0 0 0.0 1 100.0

CIA 1 1 100.0 0 0.0 0 0.0 0 0.0

Corporation for National and 

Community Service

1 1 100.0 0 0.0 0 0.0 0 0.0

Executive Residence at the White 

House

1 1 100.0 0 0.0 0 0.0 0 0.0

Federal Emergency Management 

Agency

1 1 100.0 0 0.0 0 0.0 0 0.0

Federal Retirement Thrift 

Investment Board

1 0 0.0 1 100.0 1 100.0 0 0.0

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

Other 1 1 100.0 0 0.0 0 0.0 0 0.0

Overseas Private Investment 

Corporation

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

Railroad Retirement Board 1 0 0.0 1 100.0 0 0.0 1 100.0

TOTAL 6543 3909 59.7 2634 40.3 1629 61.8 1005 38.2

1 Percentages in Columns Dismissed and Not Dismissed are of Decided.

2 Percentages in Columns Settled and Adjudicated are of Not Dismissed.

3 Most appeals in which OPM is the agency are retirement cases involving decision made by OPM as the 

administrator of the Civil Service Retirement System and the Federal Employees Retirement System.
33 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Table 4: Disposition of Initial Appeals Adjudicated on the Merits by Agency

Agency

Adjudicated1 Affirmed Reversed Mitigated 

Modified

Other

# # % # % # % # %

Office of Personnel 

Management

353 245 69.4 97 27.5 0 0.0 11 3.1

US Postal Service 113 77 68.1 33 29.2 3 2.7 0 0.0

Army 79 63 79.7 16 20.3 0 0.0 0 0.0

Homeland Security 73 60 82.2 10 13.7 2 2.7 1 1.4

Veterans Affairs 70 55 78.6 11 15.7 3 4.3 1 1.4

Navy 67 50 74.6 13 19.4 4 6.0 0 0.0

Defense 46 34 73.9 11 23.9 1 2.2 0 0.0

Air Force 32 25 78.1 6 18.8 1 3.1 0 0.0

Justice 29 18 62.1 8 27.6 3 10.3 0 0.0

Treasury 24 21 87.5 2 8.3 1 4.2 0 0.0

Agriculture 17 14 82.4 3 17.6 0 0.0 0 0.0

Social Security Administration 17 14 82.4 1 5.9 2 11.8 0 0.0

Transportation 14 8 57.1 3 21.4 3 21.4 0 0.0

Interior 13 11 84.6 2 15.4 0 0.0 0 0.0

Health & Human Services 11 9 81.8 2 18.2 0 0.0 0 0.0

Commerce 6 5 83.3 1 16.7 0 0.0 0 0.0

Labor 5 4 80.0 1 20.0 0 0.0 0 0.0

State 4 4 100.0 0 0.0 0 0.0 0 0.0

Housing & Urban 

Development

3 3 100.0 0 0.0 0 0.0 0 0.0

Energy 3 2 66.7 1 33.3 0 0.0 0 0.0

Environmental Protection 

Agency

3 3 100.0 0 0.0 0 0.0 0 0.0

Government Printing Office 3 3 100.0 0 0.0 0 0.0 0 0.0

General Services 

Administration

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

Education 2 2 100.0 0 0.0 0 0.0 0 0.0

National Labor Relations 

Board

2 0 0.0 2 100.0 0 0.0 0 0.0

Consumer Product Safety 

Commission

2 1 50.0 0 0.0 1 50.0 0 0.0

Small Business Administration 1 1 100.0 0 0.0 0 0.0 0 0.0

Federal Deposit Insurance 

Corporation

1 1 100.0 0 0.0 0 0.0 0 0.0

National Aeronautics and 

Space Administration

1 1 100.0 0 0.0 0 0.0 0 0.0

Armed Forces Retirement 

Home

1 1 100.0 0 0.0 0 0.0 0 0.0

Agency for International 

Development

1 1 100.0 0 0.0 0 0.0 0 0.0

Nuclear Regulatory 

Commission

1 1 100.0 0 0.0 0 0.0 0 0.0

International Boundary & 

Water Commission

1 1 100.0 0 0.0 0 0.0 0 0.0
34 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Table 4 continued

Adjudicated1 Affirmed Reversed Mitigated 

Modified

Other

# # % # % # % # %

Securities & Exchange 

Commission

1 1 100.0 0 0.0 0 0.0 0 0.0

Chemical Safety Hazard 

Investigation Board

1 1 100.0 0 0.0 0 0.0 0 0.0

Railroad Retirement Board 1 1 100.0 0 0.0 0 0.0 0 0.0

Tennessee Valley Authority 0 0 0.0 0 0.0 0 0.0 0 0.0

Equal Employment 

Opportunity Commission

0 0 0.0 0 0.0 0 0.0 0 0.0

National Archives and 

Records Administration

0 0 0.0 0 0.0 0 0.0 0 0.0

Commodity Futures Trading 

Commission

0 0 0.0 0 0.0 0 0.0 0 0.0

Broadcasting Board of 

Governors

0 0 0.0 0 0.0 0 0.0 0 0.0

Judicial Branch 0 0 0.0 0 0.0 0 0.0 0 0.0

Pension Benefit Guaranty 

Corporation

0 0 0.0 0 0.0 0 0.0 0 0.0

Administrative Office of the 

US Courts

0 0 0.0 0 0.0 0 0.0 0 0.0

Court Services and Offender 

Supervision

0 0 0.0 0 0.0 0 0.0 0 0.0

Federal Communications 

Commission

0 0 0.0 0 0.0 0 0.0 0 0.0

CIA 0 0 0.0 0 0.0 0 0.0 0 0.0

Corporation for National and 

Community Service

0 0 0.0 0 0.0 0 0.0 0 0.0

Executive Residence at the 

White House

0 0 0.0 0 0.0 0 0.0 0 0.0

Federal Emergency 

Management Agency

0 0 0.0 0 0.0 0 0.0 0 0.0

Federal Retirement Thrift 

Investment Board

0 0 0.0 0 0.0 0 0.0 0 0.0

Office of Management and 

Budget

0 0 0.0 0 0.0 0 0.0 0 0.0

Other 0 0 0.0 0 0.0 0 0.0 0 0.0

Overseas Private Investment 

Corporation

0 0 0.0 0 0.0 0 0.0 0 0.0

Peace Corps 0 0 0.0 0 0.0 0 0.0 0 0.0

TOTAL 1005 745 74.1 223 22.2 24 2.4 13 1.3

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

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

administrator of the Civil Service Retirement System and the Federal Employees Retirement System.

Percentages may not total 100 because of rounding.
35 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Headquarters Case Processing

Table 5: Disposition of Petitions for Review (PFR),

of Initial Decisions by Type of Case

Decided Dismissed Settled Denied Denied But

Reopened Granted

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

Adverse Action by Agency 358 30 8.38 6 1.68 239 66.76 18 5.03 65 18.16

Termination of Probationers 33 0 0.00 0 0.00 30 90.91 1 3.03 2 6.06

Reduction in Force 19 1 5.26 4

21.0

5

14 73.68 0 0.00 0 0.00

Performance 20 0 0.00 0 0.00 16 80.00 1 5.00 3 15.00

Acceptable Level of

Competence (WIGI) 2 0 0.00 0 0.00 2

100.0

0

0 0.00 0 0.00

Suitability 11 1 9.09 1 9.09 7 63.64 0 0.00 2 18.18

CSRS Retirement: Legal 71 7 9.86 0 0.00 52 73.24 2 2.82 10 14.08

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

CSRS Retirement: 

Overpayment 4 0 0.00 0 0.00 1 25.00 0 0.00 3 75.00

FERS Retirement: Legal 16 1 6.25 0 0.00 10 62.50 1 6.25 4 25.00

FERS Retirement: Disability 20 1 5.00 0 0.00 16 80.00 0 0.00 3 15.00

FERS Retirement: 

Overpayment 6 1 16.67 0 0.00 2 33.33 0 0.00 3 50.00

FERCCA 2 0 0.00 0 0.00 1 50.00 0 0.00 1 50.00

Individual Right of Action 88 1 1.14 1 1.14 60 68.18 4 4.55 22 25.00

USERRA 20 1 5.00 0 0.00 16 80.00 0 0.00 3 15.00

VEOA 55 5 9.09 2 3.64 37 67.27 4 7.27 7 12.73

Other 122 11 9.02 2 1.64 81 66.39 12 9.84 16 13.11

Total 849 60 7.07 16 1.88 585 68.90 43 5.06 145 17.08
36 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Figure 4: Types of Petitions for Review (PFR)

Total Number of Petitions for Review (PFR): 849

FY11 Adverse 

Actions (358) 42%

FY11 

Terminaton of 

Probationers 

(33) 4%

FY11 Reduction in 

Force (19) 2%

FY11 Performance 

(20) 2% FY11 Acceptable 

Level of 

Competence (2) 

0% FY11 Suitability 

(11) 1%

FY11 CSRS 

Retirement: 

Legal (71) 8%

FY11 CSRS 

Retirement: 

Disability (2) 0%

FY11 CSRS 

Retirement: 

Overpayment (4) 

0%

FY11 FERS 

Retirement: Legal 

(16) 2%

FY11 FERS 

Retirement: 

Disability (20) 2%

FY11 FERS 

Retirement: 

Overpayment (6) 

1%

FY11 FERCCA (2) 

0%

FY11 Individual 

Right of Action 

(88) 10%

FY11 USERRA (20) 

2%

FY11 VEOA (55) 

6%

FY11 Other (122) 

14%
37 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Figure 5: Disposition of Petitions for Review of Initial Decisions

Total Number of PFRs: 849

Figure 6: Disposition of Petitions for Review Granted

Based on 145 PFRs Granted

Dismissed (60) 

7%

Settled (16) 2%

Denied (585) 

69%

Denied but 

Reopened (43) 

5%

Granted (145) 

17%

Initial Decision 

Affirmed (22) 

15%

Initial Decision 

Reversed (25) 

17%

Case Remanded 

(89) 62%

Agency Action 

Mitigated (0) 

0% Other (9) 6%
38 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Figure 7: Disposition of Petitions for Review

Denied but Reopened

Based on 43 PFRs Denied but Reopened

Initial Decision 

Affirmed (16) 

37%

Initial Decision 

Reversed (1) 2%

Case Remanded 

(11) 26%

Agency Action 

Mitigated (0) 0%

Other (15) 35%
39 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

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

Decided Dismissed Settled Denied Denied But

Reopened Granted

# # % # % # % # % # %

US Postal Service 192 17 8.85 7 3.65 125 65.10 15 7.81 28 14.58

Office of Personnel 

Management1

123 11 8.94 0 0.00 83 67.48 3 2.44 26 21.14

Veterans Affairs 112 7 6.25 2 1.79 81 72.32 7 6.25 15 13.39

Army 58 7 12.07 1 1.72 37 63.79 2 3.45 11 18.97

Homeland Security 57 4 7.02 2 3.51 39 68.42 1 1.75 11 19.30

Navy 42 0 0.00 1 2.38 34 80.95 0 0.00 7 16.67

Treasury 42 3 7.14 0 0.00 35 83.33 1 2.38 3 7.14

Defense 34 2 5.88 0 0.00 23 67.65 1 2.94 8 23.53

Air Force 29 2 6.90 2 6.90 19 65.52 3 10.34 3 10.34

Justice 24 0 0.00 0 0.00 18 75.00 1 4.17 5 20.83

Agriculture 17 1 5.88 1 5.88 11 64.71 0 0.00 4 23.53

Transportation 16 0 0.00 0 0.00 11 68.75 0 0.00 5 31.25

Health & Human Services 15 1 6.67 0 0.00 10 66.67 0 0.00 4 26.67

Social Security 

Administration

13 2 15.38 0 0.00 9 69.23 2 15.38 0 0.00

Commerce 11 0 0.00 0 0.00 9 81.82 1 9.09 1 9.09

Labor 11 1 9.09 0 0.00 5 45.45 1 9.09 4 36.36

Interior 7 0 0.00 0 0.00 2 28.57 1 14.29 4 57.14

Housing & Urban 

Development

6 1 16.67 0 0.00 3 50.00 0 0.00 2 33.33

State 5 1 20.00 0 0.00 4 80.00 0 0.00 0 0.00

Environmental Protection 

Agency

3 0 0.00 0 0.00 2 66.67 0 0.00 1 33.33

International Boundary and 

Water Commission

3 0 0.00 0 0.00 1 33.33 0 0.00 2 66.67

National Aeronautics and 

Space Administration

3 0 0.00 0 0.00 2 66.67 1 33.33 0 0.00

National Labor Relations 

Board

3 0 0.00 0 0.00 3 100.00 0 0.00 0 0.00

Agency for International 

Development

2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

Commodity Futures Trading 

Commission

2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

Equal Employment 

Opportunity Commission

2 0 0.00 0 0.00 1 50.00 1 50.00 0 0.00

Federal Deposit Insurance 

Corporation

2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

General Services 

Administration

2 0 0.00 0 0.00 1 50.00 0 0.00 1 50.00

Government Printing Office 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

Small Business 

Administration

2 0 0.00 0 0.00 1 50.00 1 50.00 0 0.00

Broadcasting Board of 

Governors

1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Chemical Safety Hazard 

Investigation Board

1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Consumer Product Safety 

Commission

1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00
40 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Table 6 continued

Decided Dismissed Settled Denied Denied But

Reopened Granted

# # % # % # # # % #

Education 1 0 0.00 0 0.00 0 0.00 1 100.00 0 0.00

Energy 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Federal Housing Finance 

Board

1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Peace Corps 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Railroad Retirement Board 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Smithsonian Institution 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

TOTAL 849 60 7.07 16 1.88 585 68.90 43 5.06 145 17.08

1 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the 

administrator of the Civil Service Retirement System and the Federal Employees Retirement System.

Percentages may not total 100 because of rounding.
41 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Summaries of Merit Systems Studies

MSPB completed several reports and issued four editions of the Issues of Merit newsletter. 

Summaries of the reports and the topics contained in the newsletter are presented below. 

Blowing the Whistle: Barriers to Federal Employees Making Disclosures

This report compares data from Merit Principles Surveys conducted in 1992 and 2010 to 

describe the extent to which perceptions of retaliation against Federal employees who report 

wrongdoing remain a serious problem. The data shows that since 1992, the percentage of 

employees who perceive any wrongdoing has decreased; and for those who perceive 

wrongdoing, the frequency with which they observe the wrongdoing has also decreased. 

However, among those individuals who indicated that they reported wrongdoing and were 

identified as the source of the report, perceptions of retaliation remained a serious problem 

with approximately one-third of such respondents in both 1992 and 2010 perceiving threats 

and/or acts of reprisal. 

The report also shows that many employees remain unaware of rights and remedies available 

under whistleblower protection laws, despite the No Feat Act's mandate that agencies 

provide training on that subject. Additionally, the survey results from 1992 and 2010 indicate 

that if an agency creates a culture where its employees believe that management wants to be 

told about wrongdoing and will address issues raised by employees, then employees are more 

likely to notify management when they see a problem. The report also contained data that 

supports why agencies should do more to ensure that employees receive quality training 

about how they can disclose wrongdoing and how they can exercise their rights if they 

perceive that they have experienced retaliation for whistleblowing activities. 

Telework: Weighing the Information, Determining an Appropriate Approach

This report couples survey data from Federal employees and supervisors with other 

information to provide a holistic picture of the key benefits, concerns, and implementation 

considerations that organizations should weigh in determining how to integrate telework into 

their overall business strategy. The study confirms that telework can result in many benefits 

for organizations and employees alike. Further, and of critical importance, the findings 

indicate that the benefits of telework can occur while maintaining productivity and 

performance if telework is managed appropriately. 

A key step that organizations must take in implementing an effective telework program is 

ensuring that supervisors have the necessary skills and support to manage performance in a 

telework environment. Good performance management skills will be critical for enabling 

supervisors to make wise decisions about using telework in their work units and ensuring fair 

treatment of teleworkers and nonteleworkers. In addition, organizational leadership must 

foster a culture that is conducive to telework, and ensure that a well thought-out technology 

infrastructure is in place, allowing access to necessary business tools and continuity in work 

unit dynamics. Flexibility in perspective about telework is necessary, as is continuous 

evaluation of the effectiveness of telework in each work environment. These elements are 

critical to realizing the benefits of telework and mitigating concerns.
42 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Prohibited Personnel Practices: Employee Perceptions

The PPPs are a series of proscribed actions, codified at 5 U.S.C. § 2302(b), the commission 

of which can lead to an official being reprimanded, suspended, demoted, fired, fined, and/or 

debarred from Federal employment. In this report MSPB describes what each PPP means as 

a practical matter, how frequently Federal employees perceive each practice occurring, and 

the consequences for an agency when its employees believe that management is committing 

one or more PPPs. 

Relying upon data from Merit Principles Surveys conducted between 1992 and 2010, the

report explains that perceptions of many PPPs are at an 18-year low. However, the report 

also demonstrates that agencies should be vigilant to prevent the occurrence of PPPs, or 

even the perception that PPPs are taking place. Specifically, the survey data shows that the 

more PPPs that an employee perceives, the less likely the employee is to be engaged. The 

report reminds agencies to ensure that personnel decisions are based on the best information 

available and are merit-based. Being as transparent as possible about the decision-making 

process—both in advance and following a decision—can help dispel suspicions that 

improper motives played a role in the process. 

Women in the Federal Government: Ambitions and Achievements

This report assesses the treatment and advancement of women in the Federal Government, 

based on analyses of workforce data and Federal employee perceptions of their experiences 

and career advancement in the Federal Government. Much has changed for the better since 

MSPB’s 1992 report, A Question of Equity: Women and the Glass Ceiling in the Federal Government. 

For example, women now hold approximately 30 percent of positions in the Senior 

Executive Service, a marked improvement from only 11 percent in 1990. Within the Federal

Government, differences between women and men in education and experience continue to 

diminish. Fewer women report that they are subjected to discrimination or stereotypes, 

reflecting progress toward a workplace in which employees are selected, rewarded, and

advanced solely on the basis of their abilities and accomplishments.

Although this progress is commendable, women remain less likely than men to be employed 

in high-paying occupations and supervisory positions. Continuing occupational differences 

between women and men may complicate efforts to recruit a diverse workforce and limit 

women’s opportunities for career development and advancement. Discrimination on the 

basis of sex, although less frequent, has not yet completely disappeared from Federal

workplaces.

Therefore, agencies must continue efforts to recruit and advance qualified women, pay close 

attention to fairness in areas such as work assignment and training that can have long-term 

effects on an employee’s performance and promotability, and remain vigilant against 

prohibited discrimination. The report also found that Federal employees have considerable 

influence over their own careers, beginning with initial decisions about education and 

occupation. Accordingly, the report includes recommendations for Federal employees who 

seek advancement within the Federal service.
43 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

MSPB Finalized 2011-2013 Research Agenda 

MSPB has the statutory responsibility to conduct objective, non-partisan studies that assess 

and evaluate Federal merit systems policies, operations, and practices. Our studies are 

typically Governmentwide in scope and take a long-term perspective on merit and effective 

human capital management. The prospective nature of the studies function, in conjunction 

with MSPB’s adjudication of individual appeals and our authority to review human resources 

regulations, enables MSPB to fulfill its role as guardian of Federal merit systems and ensure 

the workforce is well managed and free from Prohibited Personnel Practices. 

MSPB published the 2011-2013 Research Agenda, which describes the potential research 

topics MSPB’s Office of Policy and Evaluation (OPE) may undertake during the next threeyear research cycle. The report has three major sections. The first section describes the 

outreach activities used to gather research suggestions from OPE stakeholders and the 

general public. This section also provides an overview of the process used to formulate 

OPE’s research agenda from this input. The second section describes the 8 major OPE 

research projects currently in progress. The final section describes the 29 new research topics 

included in the 2011-2013 research agenda. 

Issues of Merit Newsletter

MSPB’s Issues of Merit newsletter offers insights and analyses on topics related to Federal

human capital management—particularly findings and recommendations from MSPB’s 

independent research—to help improve the Government’s merit systems. The newsletter’s 

target audience includes Federal policy-makers, managers and executives, human resources 

professionals, social science researchers, and academics.

MSPB issued four editions of the Issues of Merit newsletter in fiscal year 2011. Each edition 

included findings from MSPB’s research, information to help clarify readers’ understanding 

of employment issues, and the OPE Director’s perspectives on specific human capital 

matters. Articles related to specific MSPB studies addressed topics such as employee 

engagement, the use of telework in the Federal Government, setting proper expectations for 

training, the status and advancement of women in the Federal Government, favoritism, and 

employee perceptions related to the prohibited personnel practices. 

Other articles provided insight into issues such as how to incorporate choice into reward 

systems, utilizing affinity groups to further employee career goals, using social networking in 

the hiring process, the difference between employee satisfaction and engagement, and 

involving managers more in the hiring process. The OPE Director addressed issues such as 

developing plans for disability hiring, OPM’s work in improving applicant assessment 

procedures, how to make strategic hiring decisions, and engagement strategies for tough 

economic times. 
44 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

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45 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Significant Actions of the Office of Personnel Management

As in our 2010 Annual Report, we discuss significant actions of OPM in two distinct areas: 

human capital management policy and delivery of benefits and services. This year’s review 

differs from previous reviews in two respects in order to reflect MSPB’s increased emphasis 

on its responsibility to review OPM significant actions as part of its authority to protect 

Federal merit systems. First, a broader range of actions is discussed, including selected 

actions or efforts that were initiated before FY 2011. Second, we provide additional 

information to help stakeholders place OPM and its significant actions in a broader context.

OPM in Context

Evolution of OPM Structure and Finances. OPM, like MSPB, was created by the Civil 

Service Reform Act of 1978 (CSRA). One objective of the CSRA was to make HR policy in 

the Federal Government more responsive to public concerns, Presidential leadership, and 

agency human capital needs. That objective continues to this day, as do most of the major 

functions performed by OPM when it was established in 1979, such as developing 

Governmentwide HR policy, overseeing Federal agency use of delegated authorities, 

providing staffing services, and administering the Federal employee retirement and health 

benefit programs.

However, OPM and its environment have changed greatly over the past three decades. For 

example, employment examinations that were once conducted by OPM staff with 

appropriated funds have been decentralized and delegated to agencies. At the same time, the 

Federal civil service has become much more complex. Authorities and flexibilities available 

under Title 5 of United States Code have proliferated, as have modifications and alternatives 

to the Title 5 framework.8 Yet the employees who work in what are often regarded as OPM’s 

core functions, such as HR policy and agency oversight, account for a diminishing portion of 

OPM’s staff and resources.9Stakeholders should recognize that attention often focuses on 

OPM’s HR policy and leadership—matters such as hiring reform, employee pay and awards, 

and telework—but that the balance of OPM’s resources are concentrated in other areas.10

 

8 Modifications include personnel demonstrations projects and alternative personnel systems which are created 

under the authority of Title 5 of United States Code; alternatives include personnel systems created wholly or 

partially outside that framework, such as the excepted service personnel system in the Department of 

Transportation, Federal Aviation Administration.

9 See U.S. Office of Personnel Management, Congressional Budget Justification and Performance Budget for 

FY 2012. This document shows funding requested or projected by source (e.g., appropriation, trust fund, and 

revolving fund), strategic goal, and major organization. The Employee Services organization has responsibility 

for policy leadership in the areas of hiring, pay, and employee relations; the Merit System Audit and 

Compliance organization has responsibility for oversight of agency management of human capital.

10 Id. To illustrate, OPM’s 2012 Congressional Budget Justification requested approximately $230 million in 

discretionary funds, of which approximately $130 million would be drawn from trust funds to support their 

administration (primarily retirement and health benefits). In contrast, OPM estimated that revolving fund 

obligations (e.g., HR services, background investigations, and other agency-funded activities) would exceed $1.8 

billion. Approximately 750 full-time employee equivalents (FTE) would be supported by direct appropriations, 

while approximately 3,500 FTE would be supported by revolving funds.
46 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Reliance on Information Technology. The Office of Personnel Management is the 

Federal Government’s central human resources agency. OPM’s name and mission make it 

easy to overlook the fact that OPM’s missions entail stewardship over vast financial 

resources. For example, OPM manages the Federal employee retirement trust fund and the 

Federal Employee Health, Life, and Long-term Care Insurance Programs. OPM also 

conducts suitability and security investigations for all civilian employees in all agencies. 

OPM’s success depends not only on its expertise and leadership in HR policy. To carry out 

its various statutory functions effectively, OPM must also rely on specialized databases and 

information technology systems, such as:

 USAJOBS—an Internet portal used to advertise Federal jobs and store vacancy and 

applicant information;

 e-QIP (Electronic Questionnaires for Investigations Processing)—online tools used 

to support the collection and processing of information needed to conduct 

background investigations;

 EHRI (Enterprise Human Resource Integration)—a collection of systems used to 

support workforce analysis, personnel recordkeeping (including Official Personnel 

Folders), and compensation and benefits administration throughout the Federal

workforce; and

 HCDW (Health Claims Data Warehouse)—a data warehouse used to support 

administration and improvement of the Federal Employee Health Benefits Program.

These systems operate on a massive scale and often contain sensitive information, making it 

critical that they be well-designed and properly administered. Also, given continuing 

advances in information technology and the anticipated expansion of OPM’s responsibilities, 

OPM’s reliance on such systems is certain to increase. Consequently, OPM’s ability to 

manage IT projects and systems is critical to its success. It is unlikely the framers of the Civil 

Service Reform Act viewed technology management as a core or critical function of OPM, 

but it has clearly become one. Stakeholders should recognize the importance of information 

technology—and the ability to manage that technology—when allocating functions and 

resources to OPM.

Recruitment, Assessment, and Hiring Policy Actions

Update to the President’s Hiring Reform Initiative. Below, we update four elements of 

the Administration’s Federal hiring reform initiative, which is being led by OPM; reducing 

time to hire, streamlining the application process, improving the quality of hires, including 

the ASSESS pilot, and the proposed Pathways program.11

Reducing Time to Hire

Building on recent OPM efforts to reduce hiring times,12 the President’s 

memorandum directs Federal agencies to measure time to hire and reduce the time 

 

11 President Barack Obama, Memorandum for the Heads of Executive Departments and Agencies, Subject: 

Improving the Federal Recruitment and Hiring Process, May 11, 2010.

12 For example, OPM’s End-to-End (E2E) Hiring Initiative included a road map that established the goal of 

hiring employees in 80 or fewer calendar days, as measured by the time elapsed between the initiation of a 

hiring action to an official offer of employment
47 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

needed to fill positions in mission-critical positions. OPM reported a significant 

reduction in average time to hire, from 122 days in Fiscal Year 2009 to 105 days in 

Fiscal Year 2010.

Significance

These results reflect commendable progress and illustrate that much can be done to 

eliminate unnecessary steps and “dead time” from Federal hiring processes. 

Nevertheless, a fast hiring decision should not be confused with a good hiring 

decision. OPM has recognized the need to improve the quality of applicant 

assessment and the resulting selections, but such improvement will require greater 

levels of effort and innovation than other aspects of hiring reform.

Streamlining Initial Application

The hiring reform initiative contains two requirements designed to make it easier to 

submit an initial application for a Federal job. First, agencies are to allow application 

through submission of a resume and/or cover letter. Second, agencies may not

require applicants to submit knowledge, skill, and ability (KSA) narratives as part of 

the initial application.

An OPM review of a sample of recent job postings indicates that agency compliance 

with these aspects is now commonplace. Among announcements reviewed, 92 

percent of announcements permitted application through a resume and/or basic 

application form, and 97 percent did not require narrative descriptions of specific 

KSAs as part of the initial application.13 That reflects great change, as the 

requirement for a KSA narrative was commonplace prior to the initiative.

Significance

OPM’s goal of simplifying application procedures is laudable: comprehensible and 

reasonable application requirements are essential to fair, open, and effective hiring. 

Application via submission of a resume is a common and widely accepted 

convention in private sector employment, especially for jobs in the professional and 

administrative occupations, which account for a majority of Federal jobs. Wider 

acceptance of resumes may also be beneficial from a recruiting perspective—recent 

enhancements to USAJOBS may make resumes more useful as a marketing tool for 

job applicants and a source of potential applicants for agency recruiters.

However, it remains unclear how agencies should use resumes, in either the initial or 

latter stages of the hiring process. President Obama’s memorandum instructs 

agencies to accept resumes, but neither the memorandum nor OPM guidance make 

clear whether resumes should be central, peripheral, or largely irrelevant to screening, 

referral, and selection decisions. In our view, the answer(s) to these questions are far 

from obvious.

 

13 OPM report of progress on hiring reform as of July 2011.
48 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Hiring reform does not eliminate some fundamental differences between Federal

sector and private sector hiring. Federal hiring must meet standards, including high 

levels of objectivity, fairness, and transparency and (typically) compliance with 

veterans’ preference, that are demanding and unforgiving. Such standards are 

difficult to reconcile with a primary reliance on resumes to evaluate applicants’ 

minimum or relative qualifications. Research shows that self-reported, unstructured 

descriptions of training, experience, and accomplishments14—such as those

contained in resumes—are a poor basis for identifying the applicants who are most 

likely to perform well on the job.15

Consequently, superficial conformance to private sector norms could result in 

frustration for both applicants and agencies. For example, applicants who apply for a 

Federal position with one-page resumes that highlight professional accomplishments, 

without explicit reference to the underlying competencies and behaviors, may find 

that they fare poorly in comparison to applicants who submit resumes that more 

closely resemble a traditional Federal job application. Similarly, an agency that relies 

on resumes to document an applicant’s quality of experience or level of proficiency 

may find that many of the submitted resumes lack the necessary levels of detail and 

specificity. Such frustrations are especially likely to occur when agencies use 

occupational questionnaires (questionnaires that ask applicants to evaluate and report 

their possession of job-specific education, experience, and skills) to screen and sort 

applicants for Federal jobs, and the use of such questionnaires is now widespread.16

Conversely, an applicant could spend considerable time tailoring a resume to a 

specific position, only to find that such effort was wasted because agency staff made 

little use of resumes to screen or rank candidates.

Accordingly, OPM guidance on how resumes should (and should not) be used in 

“reformed” hiring processes could be helpful. MSPB recognizes that OPM cannot 

shoulder this burden alone, as application and assessment procedures can vary both 

across and within Federal agencies. Moreover, the primary responsibility for 

determining and communicating the purpose of a resume in any given job 

competition remains, as it must, with the employing Federal agency.

Improving Quality of Hire, the ASSESS Pilot Program and Shared Registers

Another aspect of hiring reform, which has been overshadowed by procedural 

changes such as simplifying application requirements and reducing time to hire, is 

improving the quality of those hired. Progress in this area, although difficult to 

measure,17 has been less rapid than progress in other areas. Managerial involvement, 

 

14 MSPB expects structured assessments of training and experience (T&E) to retain a central role in much 

hiring. Accordingly, MSPB is currently conducting research on T&E assessments in the hiring process and 

plans to discuss the proper role and conduct of such assessments in an upcoming report.

15 A brief explanation of why this is so can be found in U.S. Merit Systems Protection Board, A Call to Action: 

Improving Selection of First-Level Supervisors, Washington, DC, May 2010, pp. 11-13.

16 Indeed, a visitor who selects “Elimination of Written Essays (KSAs)” heading on the home page of OPM’s 

hiring reform web site will find links to material on “How to Convert a Crediting Plan to an Occupational 

Questionnaire” and “How to Write an Occupational Questionnaire.”

17 We note that the measure used—managerial satisfaction with referrals—is subjective and may be influenced 

by factors unrelated to hiring reform, such as the types of positions filled in a given period.
49 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

another element of hiring reform, has some potential to improve hiring outcomes 

through better identification of hiring criteria, more effective interviewing, and better 

selection decisions. However, material improvement will require more than 

incremental change to existing hiring processes. One example of such innovation is 

the ASSESS platform, which OPM developed and piloted in 2011.

In April 2011, OPM began a pilot test of ASSESS, an integrated, technology-based 

approach for assessing applicants for entry-level positions in selected commonlyfilled occupations such as accountant.18 Notable features of ASSESS include:

 Unproctored online assessments, which can be completed at a time and 

location convenient to the applicant;

 Adaptive assessments, in which the items presented depend on the 

applicant’s responses to prior items, and the assessment ends once a good 

measurement of the applicant’s ability has been obtained. Compared to 

traditional assessments, high-quality adaptive assessments can be less 

burdensome for applicants and more valid (i.e., be more accurate and 

reliable);

 An emphasis on proficiency. ASSESS directly evaluates basic competencies 

(such as writing and mathematical reasoning) rather than relying on 

descriptions of training or experience as indirect indicators of ability; and

 Portability. An applicant who completes the ASSESS battery for a given 

position can use the results to apply for other positions that use the same 

assessments.

In August 2011, OPM announced the establishment of shared registers for entrylevel budget analyst and information technology specialist positions in selected 

locations. The positions covered were chosen based on a previous experiment with 

shared registers and feedback from the Chief Human Capital Officers Council. The 

shared registers appear to use assessments similar or identical to those used in 

ASSESS. Use of the shared registers is voluntary, but an agency that requests a referral 

from a shared register is not to conduct a concurrent competitive examination under 

delegated authority.19

Significance

As of November 2011, the status and results of the ASSESS pilot had not been 

publicized. Thus, key outcomes such as the demographic characteristics of the 

applicants, referrals, and selectees; management perceptions of candidate quality; 

performance of hires; and agency and applicant acceptance remain unknown. 

Nevertheless, OPM’s leadership in this area is welcome. Indeed, ASSESS implements 

a recommendation that MSPB has made repeatedly in recent years: that OPM 

sponsor the development of assessment tools that are more valid (i.e., better able to 

predict job performance) and cost-effective than those that Federal agencies typically 

 

18 This summary is based on a March 2011 OPM briefing on ASSESS to MSPB staff and an OPM-issued fact 

sheet made available to media in April 2011.

19 U.S. Office of Personnel Management, “OPM Registers: Agency Guidance.” 
50 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

use.

20 The ASSESS pilot also incorporates other research-based recommendations that 

MSPB has made, including the use of competency-based assessments21 and the 

judicious use of nontraditional assessments such as job simulations.22

ASSESS could be among the most substantive and far-reaching of OPM’s hiring 

reform initiatives, because it has the potential to:

 Streamline hiring for covered positions, for both applicants and agencies, to a 

much greater extent than can be achieved through incremental changes such 

as replacing KSA narratives with occupational questionnaires;

 Make hiring more fair and merit-based, by improving the quality of applicant 

assessment and the resulting selections; 

 Increase the use of competitive examining. In recent years, Federal agencies 

have increasingly turned to alternatives to competitive examination, such as 

the now-defunct Outstanding Scholar Program and the Federal Career Intern 

Program,23 to fill entry-level positions in professional and administrative 

occupations. Even when such alternatives are properly authorized, their use 

can become problematic when they supplant rather than supplement 

competitive examining;24 and

 Reduce or eliminate the need for exceptions to competitive examining, such 

as the proposed Recent Graduates Program,25 that are grounded in concerns 

about the conduct of competitive examining, rather than the concept of 

competitive examining.

As discussed above, ASSESS offers great potential to improve the Federal hiring 

process and its outcomes. However, there are several potential barriers to the longterm adoption and success of ASSESS, which include: 

 Acceptance by Federal agencies. The standardized, centralized nature of 

ASSESS—which is integral to both its validity and its potential efficiencies for 

applicants and agencies—may be unattractive to Federal agencies and Federal

managers who are accustomed to the direct control over assessment criteria 

and assessment methods afforded them under decentralized delegated 

examining. We note that OPM has declared its intent to partner with Federal

agencies during and after the pilot, and that the pilot agencies include some 

 

20 U.S. Merit Systems Protection Board, Attracting the Next Generation: A Look at Federal Entry-Level New Hires, 

Washington, DC, January 2008, pp. 55-57.

21 U.S. Merit Systems Protection Board, Reforming Federal Hiring: Beyond Faster and Cheaper, Washington, DC, July 

2006, pp. 17-18 and 50-51.

22 OPM’s fact sheet on the ASSESS pilot indicates that the job simulations will take the form of on-the-job 

scenarios that are presented to the applicant, who then selects a response or course of action.

23 U.S. Merit Systems Protection Board, Attracting the Next Generation: A Look at Federal Entry-Level New Hires, 

Washington, DC, January 2008, pp. 10-15.

24 Id. at p. 53 and U.S. Merit Systems Protection Board, Federal Appointment Authorities: Cutting Through the 

Confusion, Washington, DC, June 2008, pp. 11 and 32.

25 See Excepted Service, Career and Career-Conditional Employment; and Pathways Programs, Action: 

Proposed rule with request for comments, 76 FR 47495-47514, August 5, 2011. We make no judgment here on 

whether the proposed Recent Graduates Program is a “necessary [exception]...from the competitive service” 

under 5 U.S.C. § 3302.
51 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

of the largest Federal agencies, including DoD, the Department of Veterans 

Affairs, and the Department of Agriculture. OPM’s collaborative approach 

bodes well for future acceptance and adoption of ASSESS.

 Use by Federal agencies. Centralized lists26 of applicants, such as those 

created under ASSESS and the shared registers initiative, can quickly become 

“stale” if few selections are made. That can lead to a cycle in which the 

quality and quantity of applicants declines because high-quality applicants 

accept other offers or choose not to apply, seeing few prospects for 

interviews or job offers, and managers refuse to use, or even request,

referrals from the centralized list because they believe the referrals will be 

unpromising.

27

Proposal to Establish the Pathways Program

In August 2011, as directed by the President,28 OPM issued proposed regulations to 

establish the Pathways Programs, a set of excepted service appointing authorities 

geared to students or recent graduates of formal educational programs.29 Specifically, 

the proposed regulations would create Schedule D of the excepted service, 

comprising “positions...for which the competitive service requirements make 

impracticable the adequate recruitment of sufficient numbers of students attending 

qualifying educational institutions or individuals who have recently completed 

qualifying educational programs.” Schedule D would initially consist of three 

appointing authorities, collectively referred to as the Pathways Programs:

 An Internship Program. This program would replace the current Student 

Temporary Employment Program (STEP) and the Student Career 

Experience Program (SCEP), programs designed to allow agencies to provide 

current students with relevant work experience and, in the case of SCEP, a 

noncompetitive means of entry into the competitive civil service;

 A Recent Graduates Program. This program would cover individuals who have 

recently completed a qualifying educational program (typically, but not 

exclusively, a four-year degree) and serve as the successor to the Federal 

Career Intern Program; and 

 A Presidential Management Fellows Program. This program essentially continues 

the existing Presidential Management Fellows (PMF) Program, a centralized, 

OPM-administered program targeted to graduate students.

These authorities would enable agencies to make time-limited excepted 

appointments of eligible individuals, with the potential for noncompetitive 

conversion to the competitive service. Our discussion below focuses on the 

establishment of Schedule D and the Recent Graduates Program.

 

26 These lists are often referred to as inventories or registers.

27 This risk is minimal under a one-time case examination, in which an agency establishes a list of applicants to 

immediately fill specific vacancies.

28 President Barack Obama, Executive Order 13562, “Recruiting and Hiring Students and Recent Graduates,” 

December 27, 2010.

29 Excepted Service, Career and Career-Conditional Employment; and Pathways Programs, Action: Proposed 

rule with request for comments, 76 FR 47495-47514, August 5, 2011.
52 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Significance

The proposal to create Schedule D formally acknowledges a long-standing interest of 

Federal agencies and Federal managers: hiring high-quality college graduates into 

professional and administrative occupations. To accommodate that interest, 

Schedule D interprets the authority granted to the President under 5 U.S.C. § 3302 to 

provide for “necessary exceptions of positions from the competitive service” quite 

broadly. In particular, Schedule D—its reference to “positions” notwithstanding—

would be distinct from the other schedules of the excepted service in its focus on 

persons. As noted above, Schedule D would except positions from the competitive 

service for the express purpose of appointing a particular type of individual: a 

student or recent graduate.30

Exceptions from competitive examining that are grounded in characteristics of the 

individuals appointed, rather than the characteristics of the job being filled, are not 

unprecedented.31 However, the question of whether 5 U.S.C. § 3302 authorizes 

exceptions to competitive examination that are person-based, rather than positionbased, has been raised but not resolved.

The Recent Graduates Program is OPM’s effort to simplify the recruitment and 

appointment of recent graduates in a manner consistent with Title 5, United States 

Code. In recent years, much of this recruitment had been accomplished through the 

Federal Career Intern Program (FCIP), which was discontinued following an MSPB 

decision which found that FCIP was not an authorized appointing authority.32

Although the Recent Graduates Program differs in many important ways from FCIP, 

there are also substantial similarities. Below, we briefly summarize issues associated 

with the FCIP and how the proposed regulations address them.

 Proper authorization. Statute provides that Federal officials may fill vacancies 

through any authorized means.33 The Pathways Programs would be 

established under 5 U.S.C. § 3302, which permits only “necessary exceptions 

of positions from the competitive service.” In 2010, MSPB held that the 

FCIP, as implemented, did not meet that standard.34 The proposed 

regulations describe the steps that OPM took to evaluate the hiring of 

students and recent graduates, culminating in a conclusion that barriers exist 

to such hiring that are best addressed though exceptions to competitive 

examining. 

 Fair and open competition. The FCIP did not require any particular method 

of complying with the merit system principle of fair and open competition, 

such as the public notice (a posting on USAJOBS) required for competitive 

 

30 Id. 

31 One example is the Schedule A authority at 5 CFR § 213.3102(u), which permits noncompetitive 

appointment of individuals with certain disabilities.

32 See Dean v. Office of Personnel Management, 115 M.S.P.R. 157 (2010).

33 One of the management rights enumerated at 5 U.S.C. § 7106(C) is to “make selections for appointments 

from—(i) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source.”

34 See Dean v. Office of Personnel Management, 115 M.S.P.R. 157 (2010).
53 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

examinations. In the proposed regulations, OPM has established 

transparency as a core value of the Pathways Program and indicated that it 

plans to require that agencies formally advertise opportunities under the 

Recent Graduates Program. Clearly, OPM’s intent is to assure that any 

interested member of the public can learn of such opportunities. 

 Use of competitive examining. One concern associated with FCIP was that it 

in some instances had effectively replaced competitive examining as a means 

of external hiring. The proposed regulations clearly state that the Pathways 

Programs are to be a supplemental, rather than primary, means of filling 

positions. To that end, OPM has declared its intent to monitor agency use of 

the Pathways authorities and retained authority to limit use if necessary. 

 Compliance with veterans’ rights. Veterans of the U.S. military may have 

specific rights when agencies fill positions, including the right to compete for 

a Federal job and adherence to veterans’ preference provisions.35 Veterans’ 

preference will apply when making appointments under the Recent 

Graduates Program (as it did under FCIP). 

We note that the Pathways Programs are proposed. OPM has announced its plan to 

issue final regulations in 2012, and the final regulations could differ considerably 

from the proposed regulations. MSPB plans to closely follow the evolution and 

implementation of these programs.

Update to USAJOBS. OPM announced USAJOBS 3.0, a major update to the Federal

Government’s main employment portal. Planned enhancements included improved search 

functions, integration of appointment eligibility data into the applicant profile,36 and the 

ability for agencies to search applicant profiles and resumes.

Significance

USAJOBS is used by Federal agencies to announce job opportunities and by job applicants 

to search and apply for Federal jobs, and is integral to merit-based hiring throughout the 

Federal Government. For example, in support of the first merit system principle, which 

requires “fair and open competition which assures that all receive equal opportunity,”37

OPM requires that Federal agencies announce examinations for competitive service 

positions on USAJOBS.38 USAJOBS is also a critical component of the Administration’s 

 

35 See OPM’s VetGuide for an overview of veterans’ preference in appointments and the right to compete under 

the Veterans Employment Opportunities Act. We note that these provisions do not apply to all appointments 

and placements. For example, veterans’ preference does not apply to appointments in the Senior Executive 

Service. The “right to compete” under VEOA (5 U.S.C. §3304(f)) does not apply to excepted service positions, 

or to competitive positions where an agency elects not to accept applications from individuals outside its own 

workforce under merit promotion procedures.

36 Action: 60-Day Notice and request for comments, 76 F.R. 36581, June 22, 2011. This notice indicates 

OPM’s intent to “Add basic eligibility questions to the applicant profile...that will allow applicants to selfidentify (subject to subsequent verification by the appointing agency) as eligible for certain special hiring 

authorities.”

37 5 U.S.C. § 2301(b)(1).

38 5 C.F.R. § 330.103-106, issued on November 3, 2010 at 75 FR 67589.
54 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

hiring reform initiative,39 providing the platform for elements of that initiative such as 

acceptance of resumes and applicant notification at specified stages of the hiring process. 

Thus, a user-friendly, functional USAJOBS will be an essential component of merit-based 

hiring for the foreseeable future. 

Nevertheless, policymakers and stakeholders should be realistic about the ability of 

USAJOBS or other technology tools to make Federal hiring more applicant-friendly, open, 

fair, timely, or transparent. Many of the challenges that Federal agencies and applicants face, 

including the variety and complexity of the legal authorities that can be used to hire a Federal

employee, are not rooted in technology.

USAJOBS 3.0 was launched in October 2011, after the end of fiscal year 2011. As of 

December 2011, it appears that OPM has addressed the problems that arose following the 

launch and achieved acceptable system functionality. MSPB will monitor the progress of 

USAJOBS 3.0 and if warranted, discuss continued progress in the 2012 Annual Report.

Applicant Qualification Requirements. This section includes review of qualification 

regulations, and competency-based qualification standards.

Proposed Regulations on Qualification Requirements

OPM issued proposed regulations to revise its regulations governing qualification 

requirements for appointment to competitive service positions.40 Major provisions of 

the proposed regulations include:

 Requiring agencies that conduct delegated examining to establish a procedure 

for applicants to appeal the agency’s qualification determination; and

 Discontinuing printed publication of the Operating Manual: Qualification 

Standards for General Schedule (or Equivalent) Positions41 in favor of online 

publication on OPM’s website.

Significance

Qualification standards outline minimum requirements for education, experience, 

and proficiency that an individual must meet to be placed in a position. Thus, their 

format and content directly affect Federal job application processes (because an 

applicant is usually required to demonstrate that they meet qualification 

requirements), the fairness and openness of Federal job competitions, and the quality 

of individuals referred for and appointed to Federal positions.

The requirement for an agency-level appeal process is a logical extension of agency 

accountability for hiring processes and outcomes under delegated authority. We note 

that agency willingness to staff and administer such a function is unknown, and that 

 

39 President Barack Obama, “Memorandum for the Heads of Executive Departments and Agencies, Subject: 

Improving the Federal Recruitment and Hiring Process,” May 11, 2010.

40 Action: Proposed rule, 76 F.R. 38326—38328, June 30, 2011.

41 Id. This is OPM’s proposed title for the manual, to replace the current title of Operating Manual: Qualification 

Standards for General Schedule Positions.
55 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

unsuccessful applicants may have concerns about the objectivity and independence 

of an agency-administered appeal process.

The transition from a printed handbook to an online handbook will have the benefit 

of disseminating OPM guidance widely, quickly, and economically. However, it 

remains essential that OPM publish, maintain, and archive guidelines such as the 

Operating Manual: Qualification Standards for General Schedule (or Equivalent) Positions in a 

manner consistent with their importance and application. As noted, the Operating 

Manual is not merely advice to Federal agencies; agency compliance is mandatory for 

covered positions and personnel actions;

42 and agency interpretation and application 

of those guidelines may be subject to appeal, OPM oversight, and third-party 

review.43 Therefore, we encourage OPM to (1) provide comprehensive content 

through the planned web page (to include previous versions of the Operating Manual 

and the periods for which those versions were effective) and (2) make the Operating 

Manual available in formats amenable to use in administrative or judicial proceedings.

Issuance of Competency-Based Qualification Standards

OPM issued draft qualification standards for four occupations in the accounting and 

budget occupational group. The draft standards, which were developed in 

cooperation with the Chief Human Capital Officers Council, describe required 

general competencies (attributes such as reading comprehension, interpersonal skills 

and the level of proficiency required at successive General Schedule grade level).

Significance

Competency-based qualification standards shift applicant assessment toward 

measurement of proficiency from measurement of attributes such as education and 

experience. Although measurement of proficiency can be technically challenging, 

MSPB believes that competency-based standards and assessments can be, when 

properly implemented, fairer to applicants and more valid than traditional training 

and experience-based standards and assessments. Accordingly, MSPB has 

recommended that OPM develop and issue competency-based qualification 

standards,44 and OPM continues to do so.

Summary of Recruitment, Assessment, and Hiring Reform Policy Actions: The 

Limits of Administrative Action. We conclude our discussion of OPM actions related to 

Federal hiring reform with observations on the limits of administrative action and the need 

for broader reform. Very simply, even well-intentioned efforts cannot do much to make 

 

42 For example, the proposed regulation would establish a provision at 5 CFR § 338.301(b) to reinforce Federal 

agency responsibility to “ensure that applicants meet all applicable eligibility and qualification requirements for 

consideration and appointment to a competitive service position.”

43 See, for example, Kirkendall v. Department of the Army, 573 F.3d 1318 (Fed. Cir. 2009), in which the court 

reviewed and overturned an agency’s determination that an applicant lacked the requisite specialized experience 

to qualify for a position with the agency.

44 U.S. Merit Systems Protection Board, Making the Right Connections: Targeting the Best Competencies for Training, 

Washington, DC, February 2011, pp. 47-48 and U.S. Merit Systems Protection Board, Identifying Talent Through 

Technology: Automated Hiring Systems in Federal Agencies, Washington, DC, August 2004, pp. 79-80.
56 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

competitive service hiring simpler and more transparent in the absence of fundamental—

that is, statutory—reforms. Clearly, continued efforts to update and maintain USAJOBS and 

other components of the Federal Government’s hiring infrastructure are important. For 

example, the enhancement to USAJOBS that integrates eligibility data into the applicant 

profile may be particularly helpful to applicants who can be appointed under special hiring 

authorities45 such as the Veterans Employment Opportunities Act (VEOA)46 and to agencies 

that seek to make greater use of such authorities to speed hiring and support various public 

policy goals related to Federal employment. However, such integration simply acknowledges 

and accommodates the complexity of hiring employees under the existing system. It does 

not, and cannot, simplify the laws and regulations that govern Federal hiring. Nor can it 

assure that open, competitive examinations play a central role in the recruitment and hiring 

of new Federal employees.

Similarly, requirements to simplify the initial application process and reduce time to hire 

have not made the processes or decisions underlying Federal hiring less demanding. For 

example, the requirement for fair and open competition remains. In practice, that means that 

a Federal agency may be obliged to consider many more applicants for a single vacancy than 

a private sector employer might consider necessary or sensible. We make this observation 

not to fault the requirement for fair and open competition—a merit system principle and a 

fundamental value of Federal service—but to note that full adherence to merit system 

principles is not free. Also, because Federal agencies typically can choose among a variety of 

appointing authorities when filling a competitive service positions, action to fill a single 

vacancy may involve several parallel hiring processes, rather than a single process. Moreover, 

those processes often have differing rules for eligibility, consideration, and selection. Thus, 

complexity and administrative burden, for both applicants and agencies, are not solely the 

products of ill-conceived or poorly administered hiring processes. To a considerable extent, 

they are an unavoidable consequence of agency efforts to “fill a vacancy in the competitive 

service by any method authorized” within the system as it currently exists. That is why 

MSPB has called for collaborative development of a Governmentwide framework for 

Federal hiring reform, grounded in the merit system principles, and a consolidation of 

appointing authorities.47

Performance and Recognition Policy Actions

SES Performance Appraisal Systems. Since 2004, OPM has overseen the certification of 

SES performance appraisal systems.48 Agencies must obtain certification—demonstrate to 

the satisfaction of OPM and OMB that their SES appraisal system makes “meaningful 

 

45 The enhancement would enable applicants to indicate their eligibility for these authorities and would enable 

agencies to search for applicants with such eligibility. USAJOBS also permits applicants to store and submit 

documentation of eligibility.

46 VEOA is only one of the many hiring authorities established by statute or regulation. See U.S. Merit Systems 

Protection Board, Federal Appointment Authorities: Cutting Through the Confusion, for a description of the provisions 

of some of the more commonly-used alternatives to competitive examination. We note that one of the 

authorities discussed in this report, the FCIP, has been discontinued.

47 U.S. Merit Systems Protection Board, Reforming Federal Hiring: Beyond Faster and Cheaper, Washington, DC, July 

2006, pp. 50-51.

48 5 C.F.R. Part 534, Subpart D. In addition to OPM approval, certification requires concurrence OMB.
57 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

distinctions based on relative performance”—to increase SES salaries above level III of the 

Executive Schedule.49 Regulation outlines nine certification requirements, which include:

 Accountability for performance management of subordinates;

 Alignment of SES performance plans with organizational goals;

 An emphasis on measurable results when evaluating SES performance and assigning 

performance ratings;

 Conduct, communication, and integration (into SES appraisals and awards) of 

assessments of organizational performance; and 

 Differentiation in the structure of the appraisal system and in the ratings assigned.50

As of April 2011, 46 SES systems had a current certification,51 including every major 

department and agency.52 OPM also announced that a workgroup chartered by the 

President’s Management Council (PMC) had recommended the standardization of SES 

performance management systems across the Federal Government, and that the PMC would 

sponsor the design of such a system.

Significance

Although SES certification is not new, it remains important as a mechanism for initiating 

and sustaining effective performance management at the highest levels of the career Federal

service. Certification is also important because it can set the stage for improvements in 

performance management and recognition throughout the organization. A credible, valid, 

and rigorous appraisal system for senior agency leaders is valuable preparation—and perhaps 

even a precondition—for improving performance appraisal at lower levels of the 

organization and for extending pay for performance systems to first-level supervisors and 

front-line employees.

The increase in the number of certified systems suggests that Federal agencies have made 

substantial progress in improving SES performance appraisal practices and outcomes. 

Nevertheless, more than half the certified systems have received only provisional 

certification, suggesting that progress remains incomplete. Data also indicate that much 

remains to be done. For example, meaningful differentiation in ratings is still more common 

in theory than in practice. Federal agencies have indeed moved toward appraisal systems that 

have two or more levels associated with acceptable or better performance.53 However, full 

use of those levels in the manner intended remains elusive. For example, at the end of fiscal 

 

49 Id. With certification, the maximum rate of basic pay (i.e., annual salary exclusive of awards) for a member of 

the SES is level II of the Executive Schedule ($179,700 for 2011) instead of level III of the Executive Schedule 

($165,300).

50 5 C.F.R. § 430.404.

51 These include provisional (one-year) and full (two-year) certifications. Provisional certification indicates that 

an agency has designed, but not yet fully implemented, an appraisal system that meets the certification criteria. 

Certification requirements and processes are described at 5 CFR § 430, Subpart D.

52 OPM reported a total of 84 certified systems at this date, including systems covering senior level employees 

and Offices of Inspector General, which are distinct from departmental SES systems. 

53 Based on analysis of data from OPM’s Central Personnel Data File, 88 percent of employees in the career 

SES were rated under such appraisal systems at the end of fiscal year 2010, compared to 74 percent at the end 

of fiscal year 2004.
58 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

year 2010, approximately half of senior executives under five-level systems were rated at the 

highest level (level 5), while fewer than ten percent were rated at the middle level (level 3), 

which is intended to denote “fully successful” performance.54

The Performance Appraisal Assessment Tool (PAAT). In 2010, OPM established 

“expect the best” as one of its four broad strategic goals—ensuring that Federal employees 

are fully accountable, fairly appraised, and have the tools, systems, and resources to perform 

at the highest levels to achieve superior results. This goal builds on the “results oriented 

performance culture system” that has been an element of OPM’s Human Capital 

Assessment and Accountability Framework (HCAAF) since its inception. One aspect of this 

goal is helping agencies develop and implement sound performance appraisal systems. Since 

2006, OPM has used its Performance Appraisal Assessment Tool (PAAT) to evaluate 

Federal agencies’ non-SES performance appraisal systems. The PAAT:

 Evaluates systems on 10 characteristics of effective appraisal systems, such as 

alignment of performance plans with organizational goals; a focus on results (not 

only behaviors); credible measures; distinctions in levels of performance (the 

presence and use of multiple rating levels, beyond satisfactory and unsatisfactory); 

and consequences (basing personnel decisions on appraisals);

 Provides agencies with feedback to assist them in improving the appraisal system, in 

support of fostering a results-oriented performance culture; and

 Establishes a cycle for monitoring and continuous improvement of appraisal 

systems.

Progress is evident, if slower than hoped. In Fiscal Year 2010, OPM reported that 28 percent 

of employees in CHCO agencies were covered by systems that earned a PAAT score of 80 

or higher (out of 100 points), just short of its goal of 30 percent—but well above the 4 

percent reported in Fiscal Year 2007.55

Significance

OPM recognizes the need to improve employee performance evaluation, which is critical for 

reasons beyond job performance that include:

 Employee engagement—a heightened connection between employees and their work 

or organization. MSPB research has found a clear relationship between levels of 

employee engagement and organizational outcomes in Federal agencies, and 

indicates that one driver of employee engagement is the opportunity to perform well 

at work.56 Good performance management practices such as providing clear 

direction, appropriate resources and autonomy, and constructive feedback are 

necessary to that opportunity;57

 

54 Source: Central Personnel Data File, September 2010. Data for career senior executives under appraisal 

systems with three levels of acceptable or better performance who had a current rating of record.

55 U.S. Office of Personnel Management, Fiscal Year 2010 Annual Performance Report, pp. 30-31.

56 U.S. Merit Systems Protection Board, The Power of Federal Employee Engagement, Washington, DC, 

September 2008, pp. 2-3 and 7-10.

57 U.S. Merit Systems Protection Board, Managing for Engagement: Communication, Connection, and Courage, 

Washington, DC, July 2009, pp. 21-29.
59 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

 Ensuring proper and efficient use of salary and award monies. The third merit 

principle states that “recognition should be provided for excellence in performance” 

and the sixth merit principle states that “employees should be retained on the basis 

of the adequacy of their performance.” Those principles require a means of 

identifying excellent and poor performance that can withstand public and, 

potentially, judicial scrutiny; and

 Establishing a basis for retention, pay, and recognition that is credible to employees, 

citizens, and institutional stakeholders. Equitable treatment of employees, in pay and 

other personnel matters, is required by the merit system principles and critical to 

morale and productivity. However, determining pay solely on the basis of job duties, 

time in the position, or other mechanical criteria will not suffice; consideration must 

also be given to individual and organizational performance.

As reported by OPM, many employees still work under performance evaluation systems that 

fall well short of ideal. However, stakeholders should recognize that effective performance 

management is difficult, in both the private and public sectors, and that lasting improvement 

will not be achieved quickly or easily. OPM’s continued attention to this issue, and its efforts 

to collaborate with agencies and employee representatives,58 reflects an appropriately longterm approach to this issue.

Guidance on Awards Expenditures. In June 2011, OPM and OMB issued joint guidance 

that establishes budgetary limits on awards for fiscal years 2011 and 2012.59 The guidance 

restricts aggregate expenditures at the agency level to five percent of aggregate salaries for 

employees in senior-level pay systems (including the Senior Executive Service) and one 

percent of aggregate salaries for all other employees.60 Within those limits, agencies remain 

free to determine the number and amount of awards granted; the guidance does not 

establish limits on individual awards beyond those that already exist in statute or regulation.61

Significance

The guidance reflects present fiscal conditions, and continuing concerns about agency use of 

awards and the integrity of the performance appraisal systems that often serve as a basis for 

 

58 For example, the Federal Council on Labor-Management Relations, which is co-chaired by OPM, established 

a workgroup that has made recommendations on improving employee performance management.

59 John Berry, Director, U.S. Office of Personnel Management and Jeffrey Zients, Deputy Director for 

Management & Chief Performance Officer, U.S. Office of Management & Budget, “Memorandum for Heads 

of Executive Departments and Agencies, Subject: Guidance on Awards for Fiscal Years 2011 and 2012,” CPM 

2011-10, June 10, 2011.

60 OPM previously informed agencies to anticipate a reduction in Presidential Rank Awards (PRAs) for 

members of the Senior Executive Service. See John Berry, Director, U.S. Office of Personnel Management, 

“Memorandum for Heads of Executive Departments and Independent Agencies, Inspectors General and 

Council of the Inspectors General on Integrity and Efficiency, Subject: Fiscal Year 2011 Presidential Rank 

Awards Program,” April 26, 2011. Although the reduction affects relatively few employees, because of the 

limited size of the SES and statutory restrictions on the number of PRAs, we also note that pay for 

performance—to include PRAs—is an integral feature of the SES.

61 Id. The guidance informs agencies that they are to honor collective bargaining obligations and instructs 

agencies to provide for “equitable distribution between managers/supervisors and non-supervisory 

employees.”
60 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

determining award recipients and amounts. Accordingly, the guidance calls on agencies to 

“adopt more rigorous employee performance management processes that incorporate 

consistent supervisor communication and feedback, establish accountability at all levels, and 

provide transparent and credible appraisal systems.”

MSPB shares OPM’s and OMB’s concerns about the fairness, rigor, and credibility of 

employee appraisal processes and outcomes, and has long recommended that Federal

agencies act to improve both their performance evaluation systems62 and the selection, 

development, and accountability of the supervisors and managers who are responsible for 

using those systems.63 MSPB also recognizes the need for judicious use of reward and 

recognition authorities, consistent with the merit system principles that call for efficient and 

effective use of the Federal workforce and high standards of concern for the public interest. 

However, the merit principles also state that “appropriate incentives and recognition should 

be provided for excellence in performance.”64 In this regard, the guidance illustrates 

challenges to recognizing excellence and promoting a performance-based culture in the 

Federal Government, especially in times of fiscal austerity. For example, even highperforming organizations with sound performance appraisal systems will have a reduced 

ability to reward the individuals who contributed to that performance. We also note that the 

award limitations provide little incentive for agencies to improve their performance 

management processes or strengthen accountability.

Other Policy Initiatives

Compliance With Civil Service Law and Regulation. OPM has the responsibility and 

authority to oversee Federal agency compliance with civil service law and regulation and to 

evaluate agency management of human capital.65 Much of that oversight is accomplished 

through agency self-evaluation using the HCAAF, a set of OPM-established standards and 

systems.66 In August 2011, OPM issued proposed regulations to modify the HCAAF.67

The modifications would retain the five systems of the current HCAAF,68 while giving 

agencies greater flexibility in implementing the framework. For example, much of the 

 

62 U.S. Merit Systems Protection Board, Managing for Engagement: Communication, Connection, and Courage, 

Washington, DC, July 2009, pp. 66-75.

63 U.S. Merit Systems Protection Board, Call to Action: Improving First-Level Supervision of Federal Employees, 

Washington, DC, May 2010, pp. i-vi and U.S. Merit Systems Protection Board, Designing an Effective Pay for 

Performance Compensation System, Washington, DC, January 2006, p. 38.

64 5 U.S.C. § 2301(b)(3).

65 See 5 C.F.R. Part 5 (the civil service rules outlining OPM’s regulatory and enforcement authority) and 5 

C.F.R. Part 250 (rules outlining agency human capital authorities and responsibilities, and OPM’s role in 

relation to those responsibilities).

66 Application of the HCAAF culminates in a Human Capital Management Report (HCMR) to be submitted to 

OPM. OPM’s Merit Systems Accountability and Compliance (MSAC) organization reviews those reports and 

monitors agency compliance with HCAAF requirements. MSAC staff may support agency self-evaluations or, 

when necessary, conduct independent audits and evaluations.

67 U.S. Office of Personnel Management, “Personnel Management in Agencies, Action: Proposed rule,” 

76 FR 47516, August 5, 2011.

68 The five systems are strategic alignment, leadership and knowledge management, results-oriented 

performance culture, talent management, and accountability. The HCAAF is an appendix to 5 CFR § 250.
61 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

detailed information in the current HCAAF would be treated as guidance and the proposed 

regulations would also eliminate the requirement that agencies maintain a human capital plan 

(although requirements commonly met through a human capital plan, such as alignment and 

talent management, would remain in effect). The regulations would also differentiate 

between CHCO agencies and non-CHCO agencies, in recognition of the legal and practical 

distinctions, such the availability of staff and resources, between the two types of agencies.

69

Significance

Especially in a decentralized environment, OPM oversight of agency human resource 

management is important to assure compliance with specific laws and regulations as well as 

broader merit system principles. That oversight continues to evolve. The proposed changes 

are based on OPM’s experience with the HCAAF, including agency feedback, and an 

attempt to strike a balance between flexibility and structure. OPM notes, rightly, the need to 

allow agencies to “focus their human capital activities on those initiatives that offer the most 

organizational benefits.” Yet we note that the merit system principles and laws and 

regulations that govern the civil service also impose requirements that Federal agencies and 

Federal managers may view as irrelevant to, or inconsistent with, their immediate interests. 

For that reason, OPM standards and monitoring remain essential. MSPB will continue to 

track OPM policy in this area, and has identified OPM oversight as a topic of future research 

in its recently-published MSPB research agenda.

70

Telework as Part of Federal Government Dismissal and Closure Procedures. In 

December 2010, OPM issued guidance that formally incorporates telework into dismissal 

and closure procedures for the Federal Government in the Washington, D.C. area.71 The 

guidance adds the option of unscheduled telework to existing provisions such as 

unscheduled leave and delayed arrival. A March 2011 update to that guidance emphasizes 

that unscheduled telework can be used flexibly when circumstances warrant.72

Although the policy focuses on discretionary ad hoc telework, OPM’s policy also 

contemplates mandatory telework: “Further, under OPM’s new policy for unscheduled 

telework, agencies...should consider modifying or renegotiating current telework policies to 

require any employee with a telework agreement to work on a day when the Government 

declares emergency dismissal and closure procedures irrespective of whether that employee 

was previously scheduled to telework.”73

 

69 OPM uses these terms to distinguish agencies that are required by the Chief Human Capital Officers Act to 

have a Chief Human Capital Officer (CHCO) from agencies that are not.

70 U.S. Merit Systems Protection Board, 2011-2013 Research Agenda, Washington, DC, March 2011, p. 20.

71 John Berry, Director, U.S. Office of Personnel Management, Memorandum for Heads of Executive 

Departments and Agencies, “Subject: Washington, DC, Area Dismissal and Closure Procedures,” December 

15, 2010.

72 John Berry, Director, U.S. Office of Personnel Management, Memorandum for Heads of Executive 

Departments and Agencies, “Subject: Update to Washington, DC, Area Dismissal and Closure Procedures,” 

March 3, 2011.

73 U.S. Office of Personnel Management, “Washington, DC, Area Dismissal and Closure Procedures,” p. 4, 

accessed November 2011.
62 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Significance

OPM’s actions reflect the increasing feasibility, acceptance, and prevalence of telework. The 

guidance encouraging telework during inclement weather and other disruptive events should 

enhance Federal agencies’ ability to serve the public interest, by providing a way to sustain 

organizational operations and individual productivity when conditions are not conducive to 

routine commuting or on-site work. The guidance also marks a continuing shift in the 

perception and use of telework, from a practice that benefits primarily employees or the 

community (e.g., by reducing traffic congestion and energy use) to a practice that is 

necessary for maintaining the continuity and efficiency of Federal Government operations.

Training Evaluation. In January 2011, OPM issued a Training Evaluation Field Guide (Field 

Guide) to assist Federal agencies in evaluating training programs and activities.74 Noteworthy 

features of the Field Guide include:

 Collaborative development. The Field Guide was developed with input from an 

interagency working group and highlights best practices from 15 Federal agencies; 

and

 Flexibility in measurement. For example, the Field Guide recognizes that it is not 

always feasible or practical to evaluate costs and benefits in terms of dollars, and 

allows agencies to define the objectives of training in terms of expectations and 

measure “return on expectation” instead of “return on investment.”75

Significance

The Field Guide could help agencies justify necessary investments in employee training and 

development and make the best possible use of training resources that are likely to become 

increasingly scarce in coming years. MSPB has encouraged agencies to evaluate training 

effectiveness, beyond superficial measures such as attendee satisfaction with training content 

and delivery, and recommended that OPM provide tools to assist agencies in such 

evaluation.76

OPM and MSPB have recognized that training evaluation methods that are unduly complex 

or costly are unlikely to be adopted, particularly when staff and budgets are limited.77 OPM’s 

collaboration with Federal agencies and the Field Guide’s emphasis on best practices should 

increase the likelihood that agencies will adopt appropriate and effective training evaluation 

methods.

Development of HR University. In collaboration with the Chief Human Capital Officers 

(CHCO) Council, OPM has developed HR University (HRU), a centralized online training 

 

74 U.S Office of Personnel Management, Training Evaluation Field Guide..

75 The Field Guide’s approach is adapted from a widely-used model of training evaluation. See J.D. Kirkpatrick 

and W.K. Kirkpatrick, Training on Trial, AMACOM, New York, NY, 2010.

76 U.S. Merit Systems Protection Board, Making the Right Connections: Targeting the Best Competencies for Training, 

Washington, DC, February 2011, p. 48 and U.S. Merit Systems Protection Board, Leadership for Change: Human 

Resource Development in the Federal Government, Washington, DC, July 1995, pp. 36-38 and 46.

77 U.S. Merit Systems Protection Board, Leadership for Change: Human Resource Development in the Federal 

Government, Washington, DC, July 1995, pp. 20-22.
63 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

resource center for the Federal human resources community.78 The stated objectives of 

HRU include:

 Increasing the competence of the Federal HR workforce;

 Serving as a repository of training courses and other developmental resources;

 Establishing a set of core competencies for Federal HR professionals, covering roles 

ranging from technical specialist to strategic partner and leader; and

 Reducing the costs of HR training through Governmentwide resource sharing. 

The first phase of HRU was rolled out in February 2011 and provides:

 An online course catalog that includes selected HR-related courses offered by OPM, 

other Federal agencies, and vendors;

 Direct access to the online courses, some available at no cost; 

 Descriptions of HR career paths to guide training and career development; and 

 Guidance on how to develop the competencies expected of an HR professional.

To professionalize the Federal HR occupation, a future phase of HRU will include a 

certification program that links core competencies to the HR course curriculum.

Significance

A high-performing Federal HR workforce is essential for Federal agencies to manage their 

workforces in a fair, effective, and legally compliant manner. However, demands on the 

Federal HR workforce have increased while HR staff and resources have remained

unchanged or declined.79 Moreover, there is continuing concern about the ability of Federal

HR professionals to fulfill their roles,80 as reflected in the CHCO Council’s strategic goal of 

“support[ing] and sponsor[ing] continued development and implementation of 

Government-wide HR tools to improve the selection, assessment, and development of the 

Federal HR profession.”81

Although the utilization and effects of HRU—in particular, improvements in the knowledge 

and competence of Federal HR employees—remain unknown, HRU has great potential to 

support that improvement in a cost-effective manner. Features such as centralized 

development of courses and online delivery of courses could yield substantial economies of 

scale and reductions in cost of attendance. Such efficiencies are particularly important given 

the fiscal constraints that Federal agencies are facing.

 

78

 This description is based on information from the HRU website, www.hru.gov.

79

 U.S. Merit Systems Protection Board, The U.S. Office of Personnel Management in Retrospect: Achievements and 

Challenges After Two Decades, Washington, DC, December 2001, pp. 7-8 and U.S. Merit Systems Protection 

Board, Reforming Federal Hiring: Beyond Faster and Cheaper, Washington, DC, September 2006, pp. 42-43.

80 See, for example, U.S. Merit Systems Protection Board, Federal Personnel Offices: Time for Change?, Washington, 

DC, July 1993, pp. 28-33 for a discussion of issues related to the skills of Federal HR employees. See also 

Stephen Losey, “HR Overhaul at USDA nets big benefits,” Federal Times, May 13, 2011, accessed via 

www.federaltimes.com, which describes a restructuring of that department’s HR function in response to 

problems with HR service and staff capability.

81 “CHCO Council Strategic Goals for 2010,” accessed at www.chcoc.gov/stratgoals.aspx in November 2011.
64 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Affirmative Employment Initiatives

OPM actions in support of public policies and Administration initiatives related to 

affirmative employment and fair treatment include:

 Issuance of model strategies for recruiting and hiring people with disabilities;

82

creation of a requirement for agencies to develop a plan for increasing the 

employment of people with disabilities;83 and establishment of a resume bank84 of 

individuals with disabilities who are eligible for noncompetitive appointment;85

 Launching the Hispanic Council on Federal Employment.

86 The Council is to advise 

the Director of OPM on matters related to the recruitment, hiring, retention and 

advancement of Hispanics in the Federal workplace;

 Continued efforts to increase the Federal employment of veterans;87

 Publication of guidance on the employment of transgender persons;

88 and

 Establishment of an Office of Diversity and Inclusion.

Significance

These actions respond to continuing concerns in Federal employment: the proportion of 

Federal employees with disabilities has declined in recent years; employment of Hispanics in 

the Federal workforce continues to lag that in the civilian labor force; the transition from 

military to civilian employment, which includes successfully navigating the application and 

interview process, can be challenging for veterans despite their service and skills;89 and 

 

82 John Berry, Director, U.S. Office of Personnel Management, “Memorandum for Heads of Executive 

Departments and Agencies, Subject: Model Strategies for Recruitment and Hiring of People with Disabilities 

as Required under Executive Order 13548,” November 8, 2010. 

83 Id.

84 See Christine M. Griffin, Deputy Director, U.S. Office of Personnel Management, “Memorandum for Chief 

Human Capital Officers, Subject: Database of Candidates with Disabilities,” March 25, 2011.

85 5 C.F.R. § 213.3102(u) authorizes agencies to appoint, without competition, job-ready individuals who have 

certain disabilities.

86 U.S. Office of Personnel Management, “Hispanic Council on Federal Employment, Action: Establishment 

of advisory committee,” 76 F.R. 4742-01, January 26, 2011.

87 These efforts include supporting the interagency Veterans Employment Council, which announced the May 

2011 launch of a military-to-Federal occupation translator, and a commitment to develop a veterans resume 

bank with a target date of September 2011 (as of November 2011, from OPM’s online strategic plan).

88 John Berry, Director, U.S. Office of Personnel Management, “Memorandum for Heads of Executive 

Departments and Agencies, Subject: Guidance Regarding the Employment of Transgender Individuals in the 

Federal Workplace,” May 27, 2011. The guidance is also available online. 

89 See, for example, Kaitlin Madden, “Getting hired after the military,” cnn.com, November 21, 2011. We note 

that OPM recognized this challenge, as evidenced by the goals and tasks described in the portion of its online 

strategic plan related to veterans employment . We further note that OPM-published reports on veterans’

employment suggest that actions to promote the employment of veterans have been successful and that 

Federal agencies recognize—perhaps to a much greater extent than most non-Federal employers—the value of 

military skills and experience.
65 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

agencies have sought OPM guidance on matters related to the employment of transgender 

persons.90

Delivery of Benefits and Services

Conducting Background Investigations. OPM reported that it met its targets for the 

timeliness and quality of background investigations. For FY 2010, OPM completed over 2 

million investigations91 and reported that its inventory of pending cases was at its lowest 

level92 since February 2005.93

Significance

Thorough, high-quality investigations are essential to ensure that individuals who hold 

positions of heightened sensitivity are qualified to do so.

94 Timeliness is also important, both 

to minimize the time that critical positions go unfilled and to minimize the loss of applicants 

who cannot or will not endure unnecessarily prolonged preemployment checks. OPM’s 

reported results indicate that it has done well to manage this function.

Adjudicating Retirement Benefits. For Fiscal Year 2010, OPM reported a substantial 

increase in both retirement claims processing time and in the number of pending claims.95

OPM noted some short-term contributors to these results, but has also acknowledged that 

the deterioration in timeliness also reflects longer-term factors, including workforce trends 

(such as an aging Federal workforce and an increase in early retirements as agencies 

restructure), staff losses, an increase in retirements under the Federal Employees Retirement 

Systems (FERS), and failure of a modernization initiative to deliver anticipated efficiencies.96

Significance

Retirement benefits are not a merit system issue in a strict sense. However, the delivery of 

retirement benefits does have implications for the efficient and effective management of the 

 

90 Id. We note that the need for guidance and education is reinforced by Schroer v. Billington, 577 F. Supp. 2d 293 

(D.D.C. 2008), in which a legislative branch agency was found to have committed sex discrimination in 

withdrawing an offer of employment to a transgender person.

91 Investigations may be performed by OPM staff or by contractors working under OPM standards.

92 U.S. Office of Personnel Management, Fiscal Year 2010 Annual Performance Report, pp. 25-26.

93 OPM reported progress in reducing the backlog transferred from the Department of Defense shortly after 

receipt, as noted in MSPB’s 2006 Annual Report. At that time, however, the Government Accountability 

Office had expressed concerns about the accuracy and completeness of investigations (U.S. Government 

Accountability Office, DOD Personnel Clearances: Additional OMB Actions are Needed to Improve the Security Clearance 

Process, GAO-06-1070, September 2006). The OPM Director subsequently asked that members of Congress 

request an update to that report, believing that those concerns had been adequately addressed (U.S. Office of 

Personnel Management, “OPM Requests New GAO Report on Background Investigations,” news release 

dated September 17, 2007).

94 Here, we use the term “sensitivity” broadly, to encompass responsibility for matters such as national security, 

public health and safety, and private or confidential information.

95 U.S. Office of Personnel Management, Fiscal Year 2010 Annual Performance Report, pp. 37-39.

96 Id. and testimony of John Berry, Director, U.S. Office of Personnel Management, to the U.S. House of 

Representatives, Subcommittee on Federal Workforce, U.S. Postal Service and Labor Policy, “Back to the 

Basics: Is OPM Meeting its Mission?,” November 15, 2011.
66 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Federal workforce.97 OPM’s ability to deliver timely, accurate retirement benefits directly 

affects former Federal employees and their families, and indirectly affects public trust in 

government, agencies’ ability to recruit employees and restructure their workforces, and the 

credibility and effectiveness of OPM leadership in other areas.

For these reasons, the deterioration in timeliness and the increasing inventory of pending 

claims are of great concern. Furthermore, some pressures on the retirement function—such 

as an aging workforce, agency restructuring, and the increasing prevalence of retirements 

under FERS—are almost certain to intensify. In 2010, OPM established the strategy of 

“develop[ing] a 21st century customer focused retirement processing system.”98 Execution of 

this strategy depends directly on OPM’s ability to develop and manage complex information 

technology systems,99 and the history of OPM’s previous initiative to modernize retirement 

processing shows that the challenges are formidable.100

 

97 5 U.S.C. §2301(b)(5) states that “The Federal work force should be used efficiently and effectively.”

98 U.S. Office of Personnel Management, A New Day for Federal Service: Strategic Plan 2010-2015, p. 17.

99 U.S. Government Accountability Office, “OPM Retirement Modernization: Longstanding Information 

Technology Management Weaknesses Need to Be Addressed,” GAO-12-226T, November 15, 2011, pp. 5-10.

100 See testimony of Patrick E. McFarland, Inspector General, U.S. Office of Personnel Management, to the 

U.S. House of Representatives, Subcommittee on Federal Workforce, U.S. Postal Service and Labor Policy, 

“Back to the Basics: Is OPM Meeting its Mission?,” November 15, 2011.
67 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

Financial Summary

Fiscal Year 2011 Financial Summary

(dollars in thousands)

Financial Sources

Appropriations $ 40,258

Civil Service Retirement and Disability Trust Fund 2,579

Reimbursements 20

FY 10 Carryover Funds 573

Total Financial Sources $ 43,430

Obligations Incurred

Personnel Compensation $ 24,454

Personnel Benefits 6,435

Benefits for former Personnel 3

Travel of Things 49

Travel of Persons 305

Rental Payments 3,300

Communications, Utilities, and Miscellaneous 698

Printing and Reproduction 93

Other Services 2,942

Supplies and Materials 157

Equipment 1,144

Leasehold Improvements 6

Adjustments of PY funds 52

FY 10 Carryover Obligations 388

Reimbursable Obligations 2,588

Total Obligations Incurred $ 42,614
68 Merit Systems Protection Board Annual Report for FY 2011 April 30, 2012

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