Merit Systems Protection Board 

Annual Report 

FY 2003 

August 2004

FOREWORD 

In accordance with section 1206 of Title 5 United States Code, the Merit Systems 

Protection Board provides this annual report on the significant actions of the Board. 

This report includes a discussion of the most significant Board and court decisions 

issued during the fiscal year, FY 2003 case processing statistics, a summary of the 

Board’s merit systems studies activities, and a summary of financial results. 

Additional information including performance results and financial audit information 

is included in our Performance and Accountability Report (PAR) for FY 2003. 

The significant actions taken by the Board during FY 2003 were taken under then 

Chairman Susanne T. Marshall. In December of 2003, Neil A.G. McPhie was 

designated by the President as Vice Chairman, thus Acting Chairman of the Merit 

Systems Protection Board. This Annual Report has been prepared under the 

leadership of Acting Chairman McPhie. 

TABLE Of CONTENTS 

Fiscal Year 2003 in Review

Increased Flexibility in Human Capital Management and the Board's Role in 

Protecting the Merit System

Board and Senior Staff Changes

Adjudication of Cases

Merit Systems Studies

Legislation

Significant Actions of the Office of Personnel Management

Board Members

Board Organization
Significant Board Decisions Issued in Fiscal Year 2003 With Related Opinions Issued 

by the United States Court of Appeals for the Federal Circuit

FY 2003 Case Processing Statistics

Summary of the Merit Systems Studies Function for FY 2003

Significant Actions of the Office of Personnel Management

Fiscal Year 2003 Financial Summary

For Additional Information

Merit Systems Protection Board

FY 2003 Annual Report 

Fiscal Year 2003 in Review

Increased Flexibility in Human Capital Management and the Board's Role in 

Protecting the Merit System

In the past year, the most significant trend affecting the civil service was the 

accelerated movement away from traditional civil service processes toward more 

flexibility in human capital management. Since the mid-1990s, several Cabinet 

departments or agencies within them have developed alternative human capital 

management systems which included significant statutory exemptions from 

traditional civil service laws and regulations. This trend toward flexibility increased 

markedly with the enactment of statutory authorities for the Department of 

Homeland Security (DHS) and the Department of Defense (DoD) to establish 

alternative personnel systems. When the DHS and DoD systems are fully 

implemented, almost 1 million Federal employees -- well over half of the Federal 

workforce -- will be managed under alternative systems which may differ 

significantly from the traditional civil service system. 

Most of the agency-specific human capital management flexibilities enacted in 

earlier years have concentrated on exemptions from laws, regulations and rules 

governing hiring, classification, and pay. With the exception of the Federal Aviation 

Administration (FAA), employees in agencies that obtained personnel flexibilities 

did not lose their right to appeal major adverse personnel actions to the Merit 

Systems Protection Board (herein after referred to as MSPB or the Board). Even in 

the FAA, the MSPB appeal rights were restored by Congress just four years later. 

Under the legislation authorizing DHS and DoD to establish alternative personnel 

systems, however, each is free to establish an internal appeals process. The 

statutory authority for DHS does not require any participation by MSPB in the 

appeals process, while the DoD authority mandates only a limited appellate review 

role for the Board. 

While both DHS and DoD are expected to use their statutory authorities to establish 

unique rules for processing appeals of adverse actions, it is not certain that either 

will establish an internal appeals process. The laws authorizing their alternative 

personnel systems leave sufficient flexibility for the departments to remain with 
MSPB and to have the appeals filed by their employees adjudicated under a unique 

set of rules developed by each department. 

Where the Board’s other statutory mission—merit systems studies—is concerned, it 

appears that there will be an even greater need for studies of the operation of 

these new personnel systems to ensure that they are operating in accordance with 

merit system principles and free of prohibited personnel practices. The DHS and 

DoD personnel authorities, like the personnel flexibilities granted to other agencies 

in recent years, provide that the Title 5 provisions governing merit system 

principles and prohibited personnel practices may not be waived, modified, or 

otherwise affected. Therefore, as agency-specific merit systems spread in the 

Federal Government, the extent to which those systems adhere to merit principles 

and deter prohibited personnel practices will become an important standard by 

which the operation of those systems can be measured. 

Most observers agree that with more than half of the employees in the Executive 

Branch working under merit systems with significant exemptions from Title 5, other 

agencies will soon seek, and perhaps obtain, the same kinds of personnel 

flexibilities that DoD, DHS, and others have already gained. The challenge for the 

Board is to preserve its role as chief protector of Federal merit systems in the 21 st 

century civil service that is being developed. The Board will maintain that role, of 

course, only to the extent that Congress provides for it in legislation granting Title 

5 exemptions to agencies or to the extent that those agencies elect to remain in 

the MSPB appeals system. 

Board and Senior Staff Changes

Susanne T. Marshall was Chairman of the Merit Systems Protection Board during FY 

2003, having been appointed to that position by President Bush on August 6, 2002. 

She had served as Acting Chairman of the Board since February 7, 2002, when 

President Bush designated her Vice Chairman. (Under the Board’s governing 

statute, the Vice Chairman serves as Acting Chairman when the position of 

Chairman is vacant.) Member Beth S. Slavet retired from the Board on March 1, 

2003. (Although Ms. Slavet's term expired on March 1, 2002, she stayed on under 

the provision of the Board's governing statute that allows a member to serve for up 

to one year beyond the expiration date of her term or until a successor is 

confirmed, whichever occurs first.) From March 1, 2003 until April 23, 2003, 

Chairman Marshall was the only member of the Board. During this time, because 

there was no quorum -- consisting of at least two out of three members -- no Board 

decisions could be issued. However, regional decisions by administrative judges 

continued to be issued during this time. On April 23, 2003, Neil A.G. McPhie was 

appointed by President Bush to serve as a member of the Board. Chairman Marshall 

and Member McPhie served together during the remainder of FY 2003. 

Relatively early in FY 2003, Chairman Marshall appointed two employees with years 

of Board adjudicatory and legal experience as the General Council and as the 

Director of the Office of Appeals Counsel. In addition, the Director of the Office of 

Finance and Management retired in FY 2003. At the end of FY 2003, that office was 

being managed by an Acting Director. 

Adjudication of Cases
During FY 2003, the Board continued to address the full range of both substantive 

and procedural issues that arise in the matters over which it has jurisdiction. The 

Board issued significant decisions involving constructive removal of an 

administrative law judge, the Whistleblower Protection Act of 1989 and the 

Veterans Employment Opportunities Act of 1998. The Board also issued decisions 

that applied a flexible concept of constitutional due process, discussed when 

attorney fees should be awarded, sustained an agency action taken under 

performance standards developed for a demonstration project, clarified the 

circumstances under which an agency demotes an employee by reduction in force, 

reversed a prior holding that the Office of Personnel Management is bound by the 

terms of a settlement agreement to which it was not a party, and explained when a 

survivor annuity can be paid to a full-time student who does not attend classes in a 

school building. The section of this report titled "Significant Judicial and Board 

Decisions Issued in FY 2003" provides a discussion of the most significant Board 

and court decisions issued during the fiscal year. 

The Mediation Appeals Project (MAP) continued in FY 2003. Under this program, the 

parties to an appeal filed with an MSPB regional or field office are offered the 

opportunity to submit their dispute to a trained mediator. If the dispute cannot be 

resolved through that mediation, the appeal is returned to the regular adjudication 

process. The MAP is a supplement to, not a replacement for, the Board's existing 

settlement program. The first year results of the MAP were evaluated and a formal 

pilot program was initiated. Late in the fiscal year, the responsibility for continuing 

implementation of the MAP was transferred from headquarters to the Regional 

Directors of the Atlanta and Central Regional Offices. 

Considerable progress was made during FY 2003 on streamlining the Board's 

procedures, and on implementing the Board's new electronic case management 

system. In addition, implementing an electronic appeals process – e-Appeal – and 

the revised regulations authorizing electronic filing constituted Board compliance by 

the statutory deadline of October 23, 2003. 

Merit Systems Studies

During FY 2003, the Board issued three reports of merit systems studies conducted 

by the Office of Policy and Evaluation. These reports were based on new studies 

and covered Federal vacancy announcements, the use of structured selection 

interviews, and results of the Merit Principles Survey 2000. The Board continued to 

look at the significant actions of the Office of Personnel Management as required by 

statute. The Board also issued three editions of the OPE newsletter during FY 2003. 

Newsletter topics included discussions of merit systems values, advocacy of specific 

human capital management reform efforts, practical advice for human resources 

specialists, specific analyses of ongoing studies and informational articles on 

contemporary merit system topics. The section of this report titled "Summary of 

Merit Systems Studies Function" provides additional information including a review 

of study findings and recommendations. 

The OPE staff continued to serve as a valuable resource for the Board in meeting 

internal agency needs by performing the initial assessment of the Mediation 

Appeals Program (MAP). Upon retirement of the Director of Finance and 

Management, OPE took on the responsibility for the human resources functions of 

the Board. In addition, OPE began working on the Board's Government 
Performance and Results Act requirements with full responsibility for those 

requirements set to occur in FY 2004. 

Legislation

The two most significant legislative enactments for the Board that occurred during 

fiscal year 2003 (reauthorization of the Board and passage of the Homeland 

Security Act of 2002) were included in the Board’s annual report for fiscal year 

2002. The Board’s reauthorization was enacted as Public Law No. 107-304 on 

November 27, 2002. It was included in a bill that authorizes certain employees to 

make catch-up contributions to the Thrift Savings Plan. The new Department of 

Homeland Security (DHS) was created by the Homeland Security Act that was 

enacted as Public Law No. 107-296 on November 25, 2002. Because of the 

significant impact the Homeland Security Act may have on the Board’s adjudicatory 

function, we are providing an update on developments resulting from this statute 

since its passage. 

The Homeland Security Act authorized the Secretary of DHS and the Director of the 

Office of Personnel Management to issue regulations establishing a separate human 

resources management system. This includes the authority to establish a separate 

employee appeals system. The Act requires the Secretary of Homeland Security 

and the OPM Director to consult with the Board prior to issuing regulations to 

ensure that the appeals systems affords due process protections to DHS 

employees. 

The Board established a working group comprised of several managers and senior 

attorneys to fulfill this statutory responsibility. The working group worked with 

officials and other representatives from DHS and OPM for over a year. The 

proposed regulations were published in Volume 69, No. 34 of the Federal Register 

on February 20, 2004, and may be found in 5 C.F.R. Part 9701. The employee 

appeals system established pursuant to these regulations retains MSPB appeal 

rights for DHS employees at the regional and petition for review levels for most 

adverse employment actions. Some of the significant changes reflected in the new 

system include: 1) shorter deadlines for filing appeals and issuing decisions; 2) a 

lower standard of proof that the Department must meet in cases of alleged 

employee misconduct from “preponderance of the evidence” to “substantial 

evidence”; 3) elimination of the Board’s authority to mitigate penalties; 4) 

authorization of the Secretary to designate certain conduct as “mandatory removal 

offenses”; and 5) establishment of an internal appeals process for mandatory 

removal offenses. 

The deadline for comments on the proposed regulations was March 22, 2004. The 

Department expects to issue final regulations by the fall of this year. 

Significant Actions of the Office of Personnel Management

As required by statute, MSPB reports on the significant actions of the Office of 

Personnel Management. In this report, we report on and analyze the significance of 

actions with the greatest long-term implications for the Federal civil service: its 

lead role in designing the new personnel systems for the Department of Homeland 

Security and the Department of Defense; its broader focus on agency human 

capital management; its leadership in electronic government initiatives, including 
Recruitment One-Stop and the Enterprise Human Resources Integration initiative; 

its oversight actions to assure agency compliance with law and regulations; its role 

in increasing the scope of Governmentwide efforts to identify and develop 

candidates for leadership positions in the Federal service; and its support for 

development of pay-for-performance remuneration systems. 

Board Members

Chairman 

SUSANNE T. MARSHALL was appointed by President Bush 

on August 6, 2002, to serve as Chairman of the Merit 

Systems Protection Board. She had served as Acting 

Chairman of the Board since February 7, 2002, when 

President Bush designated her Vice Chairman. (Under the 

Board’s governing statute, the Vice Chairman serves as 

Acting Chairman when the position of Chairman is vacant.) 

She has been a member of the Board since November 17, 

1997, following her nomination by President Clinton and 

confirmation by the Senate. From December 1985 until her 

appointment to the Board, she served on the Republican 

staff of the Committee on Governmental Affairs of the United

States Senate as both Professional Staff and Deputy Staff 

Director. While on the committee staff, she was responsible 

for a variety of legislative issues under the committee’s 

jurisdiction, including Federal workforce policies, civil service

matters, and postal issues. From 1983 to 1985, she was 

Republican Staff Assistant to the House Government 

Operations Committee. She was Legislative Assistant to a 

Member from Georgia from 1981 to 1982. Ms. Marshall 

attended the University of Maryland branch campus in 

Munich, Germany, and the American University. 

Member 
NEIL A.G. McPHIE was appointed by President Bush to 

serve as a member of the Merit Systems Protection Board on 

April 23, 2003. Prior to joining the Board, he was Senior 

Assistant Attorney General in the Office of the Attorney 

General of Virginia. Among other responsibilities, he 

defended employment discrimination claims brought under 

Federal law and wrongful discharge claims brought under 

state law. Previously, he was Executive Director of the 

Virginia Department of Employment Dispute Resolution 

(EDR). In that position, he directed implementation of EDR’s 

statewide grievance, mediation, training and consultation 

programs. He was an Assistant Attorney General in the 

Office of the Attorney General of Virginia from 1982 to 1988. 

From 1976 until he joined the Attorney General’s Office, he 

was a Trial and Appellate Attorney in the Office of the 

General Counsel at the U.S. Equal Employment Opportunity 

Commission. He received his J.D. degree from Georgetown 

University Law Center in 1976. He received a B.A. in 

Economics from Howard University in 1973, graduating 

magna cum laude. He is a member of Phi Beta Kappa. He is 

admitted to the bars of the District of Columbia, Virginia, 

New York and Iowa, the United States Supreme Court, the 

United States District Court for the District of Columbia, 

several of the United States circuit courts of appeals, and 

district courts in Virginia. 

 

 

 

 

 

 

 

 

 

 
The third position on the Board was vacant throughout FY 2003. 

The bipartisan Board consists of a Chairman, a Vice Chairman, and a Member, with 

no more than two of its three members from the same political party. Board 

members are appointed by the President, confirmed by the Senate, and serve 

overlapping, non-renewable 7-year terms. 

Board Organization

The BoardMembers adjudicate the cases brought to the Board. The Chairman, by 

statute, is the chief executive and administrative officer of the Board. Office heads 

report to the Chairman through the Chief of Staff. 

The Office of Regional Operations (ORO) oversees the ten MSPB regional and 

field offices, which receive and process appeals and related cases. Administrative 

judges in the regional and field offices are responsible for adjudicating assigned 

cases and for issuing fair and well-reasoned initial decisions. 

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 

administrative law judges, MSPB employee appeals, and other cases assigned by 

the Board. (The functions of this office are currently performed by administrative 

law judges at the National Labor Relations Board under an interagency agreement.) 

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

proposed decisions for the Board in cases where a party petitions for review of a 

judge’s initial decision and in most other cases decided by the Board. The office 

conducts the Board’s petition for review settlement program, prepares proposed 

decisions on interlocutory appeals of rulings made by judges, makes 

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

research and policy memoranda to the Board on legal issues. 

The Office of the Clerk of the Board (OCB) receives and processes cases filed at 

Board headquarters, rules on certain procedural matters, and issues the Board’s 

decisions and orders. The office serves as the Board’s public information center, 

coordinates media relations, produces public information publications, operates the 

Board’s Library and on-line information services, and administers the Freedom of 

Information Act and Privacy Act programs. The office also certifies official records to 

the courts and Federal administrative agencies, and manages the Board’s records 

and directives systems, legal research programs, and the Government in the 

Sunshine Act program. 

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

provides advice to the Board and MSPB offices on matters of law arising in day-today operations. The office represents the Board in litigation, prepares proposed 

decisions for the Board on assigned cases, and coordinates the Board’s legislative 

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

conducts the Board’s ethics program, and plans and directs audits and 

investigations. 
The Office of Policy and Evaluation (OPE) carries out the Board’s statutory 

responsibility to conduct special studies of the civil service and other merit 

systems. Reports of these studies are directed to the President and the Congress 

and are distributed to a national audience. The office responds to requests from 

Federal agencies for information, advice, and assistance on issues that have been 

the subject of Board studies. The office also provides oversight of the agency’s 

human resources management function and administers the cross-servicing 

agreement with the U.S. Department of Agriculture’s APHIS Business Services for 

human resources management services. 

The Office of Equal Employment Opportunity (EEO) plans, implements, and 

evaluates the Board’s equal employment opportunity programs. It processes 

complaints of alleged discrimination and furnishes advice and assistance on 

affirmative action initiatives to the Board’s managers and supervisors. 

The Office of Financial and Administrative Management (FAM) administers 

the budget, procurement, property management, physical security, and general 

services functions of the Board. It develops and coordinates internal management 

programs and projects, including review of internal controls agencywide. It also 

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

Agriculture’s National Finance Center for payroll services and the Department of the 

Treasury’s Bureau of the Public Debt for accounting services. 

The Office of Information Resources Management (IRM) develops, 

implements, and maintains the Board’s automated information systems to help the 

Board manage its caseload efficiently and carry out its administrative and research 

responsibilities. 
Human Resources Management services are provided by USDA's APHIS Business 

Services.

Payroll services are provided by USDA's National Finance Center.

Accounting services are provided by the Bureau of the Public Debt. 

Significant Board Decisions Issued in Fiscal Year 2003 With Related 

Opinions Issued by the United States Court of Appeals for the Federal 

Circuit

In FY 2003, the Merit Systems Protection Board issued several significant decisions. 

Some of these decisions are particularly noteworthy because they changed or 

clarified existing case law. In its decisions, the Board attempted to follow the plain 

language of the applicable statutes, as well as the legislative intent. It also tried to 

take a common sense, practical approach to deciding the issues presented to it. 

This summary begins with a case in which the Board reexamined long-standing 

precedent on what constitutes a constructive removal of an administrative law 

judge. The summary then discusses cases interpreting the Whistleblower Protection 

Act of 1989 and the Veterans Employment Opportunities Act of 1998. The summary 

concludes with a discussion of Board decisions that applied a flexible concept of 

constitutional due process, discussed when attorney fees should be awarded, 
sustained an agency action taken under performance standards developed for a 

demonstration project, clarified the circumstances under which an agency demotes 

an employee by reduction in force, reversed a prior holding that the Office of 

Personnel Management is bound by the terms of a settlement agreement to which 

it was not a party, and explained when a survivor annuity can be paid to a full-time 

student who does not attend classes in a school building. 

In its 1985 decision in In re Doyle, 29 M.S.P.R. 170 (1985), the Board created a 

theory that an administrative law judge (ALJ) could be “constructively” removed 

even though he still held the position of ALJ. The Doyle theory held that even 

though an ALJ still occupied an ALJ position, he could be “constructively” removed if 

the agency interfered with his qualified judicial independence. The Board 

reexamined that theory in Tunik v. Social Security Administration, 93 M.S.P.R. 482 

(July 27, 2003). 

In Tunik, the Board started with the plain meaning of the term “removal” in 

5 U.S.C. § 7521, which governs the procedures that an agency must follow before 

removing an ALJ. The Board applied the relevant rules of statutory construction and 

harmonized the term “removal” in section 7521 with the way that the term 

“removal” has been interpreted in 5 U.S.C. § 7512, which applies to employees 

other than ALJs. In so doing, the Board concluded that it does not have jurisdiction 

over a removal or “constructive” removal of an ALJ unless the ALJ has been 

separated or involuntarily reassigned from the position of ALJ. The Board thus 

overruled Doyle. 

In FY 2003, the Board issued four opinions of particular interest regarding the 

Whistleblower Protection Act (WPA). The Board in White v. Department of the Air 

Force, 95 M.S.P.R. 1 (2003), looked at the plain meaning of the statute to 

determine the legal standard for ascertaining whether an appellant had a 

reasonable belief that he made a protected disclosure. The Board found that the 

statute does not include a requirement that an appellant provide “irrefragable 

proof” to rebut a presumption that agency officials perform their duties correctly, 

fairly, in good faith, and in accordance with law and regulations. Thus, the Board 

found that any statement to the contrary in the opinion issued by the United States 

Court of Appeals for the Federal Circuit in Lachance v. White, 174 F.3d 1378 (Fed. 

Cir. 1999), was dictum. 

The Board went on in White to state that the test for determining reasonable belief 

is an objective one. The test is whether a disinterested observer with knowledge of 

the essential facts known to and readily ascertainable by the appellant could 

reasonably have concluded that the agency’s actions constituted gross 

mismanagement. Applying this test, the Board found that Mr. White did not prove 

that he had a reasonable belief that agency officials grossly mismanaged a quality 

education program. 

In Greenspan v. Department of Veterans Affairs, 94 M.S.P.R. 247 (Sept. 15, 2003), 

the Board further clarified its decision in Rusin v. Department of the Treasury, 92 

M.S.P.R. 298 (2002). It did so by stating that an appellant establishes the Board’s 

jurisdiction over his individual right of action (IRA) appeal if he shows that he 

exhausted his Special Counsel remedy and, irrespective of how many protected 

disclosures and personnel actions are alleged, he makes a nonfrivolous allegation 
that he made at least one protected disclosure which was a contributing factor in at 

least one personnel action. 

The Board in Berkowitz v. Department of the Treasury, 94 M.S.P.R. 658 (2003), 

reversed the administrative judge’s finding of lack of jurisdiction over the IRA 

appeal. The Board found that the appellant made a non-frivolous allegation that he 

had a reasonable belief of a violation of law when he reported that the agency was 

improperly spending appropriated funds and misleading Congress. 

The Board in Czarkowski v. Department of the Navy, 93 M.S.P.R. 514 (July 7, 

2003), agreed with the administrative judge that the appellant was exempt from 

coverage under the WPA. This was so because the evidence showed that the 

organizational unit in which she worked had been determined by the President, or 

his designee, to have as its principal function “the conduct of foreign intelligence or 

counterintelligence activities.” Since the statute at 5 U.S.C. § 2302(a)(2)(C)(ii) 

excludes employees who work in such units from coverage under the WPA, the 

Board lacked jurisdiction over the appellant’s IRA appeal. In response to a concern 

that the Board’s decision would “damage national security” by silencing 

whistleblowers, the Board noted the clear language of the statute and the fact that 

Congress has provided whistleblower protection to employees not covered by the 

WPA by enacting laws such as the 1998 Intelligence Community Protection Act. 

In FY 2003, the Board issued a trio of significant cases involving the Veterans 

Employment Opportunities Act (VEOA). The Board in Abrahamsen v. Department of 

Veterans Affairs, 94 M.S.P.R. 377 (Sept. 23, 2003), clarified the jurisdictional test 

for VEOA cases. There, the Board said that it has jurisdiction over a VEOA appeal if 

the appellant (1) shows that he exhausted his remedy with the Department of 

Labor, and (2) makes nonfrivolous allegations that (i) he is a preference eligible 

within the meaning of the VEOA statute, (ii) the action(s) at issue took place on or 

after the October 30, 1998, enactment date of VEOA, and (iii) the agency violated 

his rights under a specific statute or regulation relating to veterans’ preference. 

The two other VEOA cases—Waddell v. U.S. Postal Service, 94 M.S.P.R. 411 (Sept. 

24, 2003), and Williams v. Department of the Navy, 94 M.S.P.R. 400 (Sept. 24, 

2003)—involved issues of timeliness. The Board in Waddell found that no statute or 

regulation gives it the authority to review a decision by the Department of Labor 

(DOL) to waive the untimeliness of a VEOA complaint filed with the Secretary of 

Labor. Thus, if the DOL waives the untimeliness of a VEOA complaint and issues a 

decision on the merits, the appellant has exhausted his DOL remedy for purposes 

of establishing the Board’s jurisdiction over his VEOA appeal. 

The Board in Williams was faced with the question of whether the statute bars the 

Board’s consideration of any VEOA appeal which is filed more than 15 days after 

the appellant receives notice from DOL that his DOL complaint could not be 

resolved. The VEOA statute at 5 U.S.C. § 3330a(d)(1) provides that “in no event” 

may a Board appeal be filed more than 15 days after the date on which the 

complainant receives written notice from DOL that it was unable to resolve his 

complaint. The Board held that the language in the statute is plain and allows for 

no circumstances under which a Board appeal can be filed later than the 15th day 

after the appellant receives the DOL notice. 
The Board had an opportunity to discuss the concept of “due process” in Rawls v. 

U.S. Postal Service, 94 M.S.P.R. 614 (2003). There, the Board stated that due 

process is a flexible concept that depends on the nature of the case and the 

procedural protections required by the specific situation. In Rawls, although the 

agency did not issue a notice proposing to suspend the appellant before suspending 

him for his arrest on a charge of first-degree murder, it did afford him a postsuspension opportunity to grieve the suspension immediately. The agency also did 

not issue a notice proposing to remove the appellant for being convicted of a crime. 

Again, however, the agency offered the appellant a chance to file a grievance 

before the proposed removal was effected. The Board found that the appellant was 

given an opportunity to tell his side of the story, by filing a grievance, before the 

effective date of the removal, as well as a right, which he exercised, to file a Board 

appeal after the removal action was taken. Under those circumstances, the Board 

found that the agency did not deny the appellant minimum due process. 

Entitlement to attorney fees was the issue in Arnold v. Department of the Air Force, 

94 M.S.P.R. 17 (Aug. 6, 2003). The Equal Employment Opportunity Commission 

(EEOC) found that the appellant was a “prevailing party” for purposes of an award 

of attorney fees and sent the case back to the Board. The Board found that, at least 

in this case, it had to concur in EEOC’s decision that, under discrimination law, the 

appellant was a “prevailing party.” That did not end the inquiry, however. The 

Board still had to determine whether, under civil service law at 5 U.S.C. 

§ 7701(g)(2), the appellant was entitled to fees. That statute gives the Board the 

same discretion as Federal district courts to decide whether an award of fees is 

reasonable under the circumstances. The circumstances in Arnold showed that the 

discrimination issue was conclusively decided before the appellant filed his Board 

appeal, and that the appellant received no more relief from the Board than he had 

received from his employing agency prior to filing a Board appeal. Given these 

facts, the Board held that the appellant was not entitled to attorney fees incurred in 

proceedings before the Board. 

The appeal in Guillebeau v. Department of the Navy, 93 M.S.P.R. 379 (Mar. 28, 

2003), involved performance standards created in an OPM-approved personnel 

demonstration project. The Board reversed the administrative judge’s finding that 

the agency failed to prove that the appellant did not meet those performance 

standards. The Board noted that in establishing the demonstration project, OPM 

allowed the agency to waive the requirement that it establish critical elements to 

measure an employee’s performance. Rather, the appellant’s performance was 

measured by “requirements and expectations” that apply to “organizational goals, 

strategies and values.” The Board found that the agency proved that the appellant 

simply failed to complete her work assignments during the time that she was given 

to show acceptable performance. Thus, the appellant was properly removed. 

On a somewhat related topic, the United States Court of Appeals for the Federal 

Circuit agreed with the Board in Scarnati v. Department of Veterans Affairs, 344 

F.3d 1246 (Fed. Cir. Sept. 25, 2003), that the Department of Veterans Affairs has 

discretionary authority to appoint health care personnel under 38 U.S.C. § 7401(1) 

without regard to civil service requirements. 

The appellants in the consolidated appeals in Burger v. U.S. Postal Service, 93 

M.S.P.R. 582 (July 30, 2003) (Burger II), claimed that the Postal Service demoted 

them by reduction in force ( RIF). The Board clarified its earlier decision in Burger 
v. U.S. Postal Service, 88 M.S.P.R. 579 (2001) (Burger I). It did so by relying on 

the Federal Circuit’s decision in Harants v. U.S. Postal Service, 130 F.3d 1466 (Fed. 

Cir. 1997). The Board found that the court in Harants held that, to show a RIF 

demotion, an appellant must establish the following: (1) He bid to and accepted a 

lower-grade position after the agency actually informed him that his original 

position had in fact been abolished, and (2) his bid to and acceptance of the lowergrade position occurred after the agency expressly notified him that he would not 

be assigned to a position at the same grade as his former position. Finding that 

none of the appellants made the required showing, the Board dismissed all of their 

appeals for lack of jurisdiction. 

Two months after the Board issued its opinion in Burger II, the Federal Circuit 

decided Marcino v. U.S. Postal Service, 344 F.3d 1199 (Fed. Cir. Sept. 22, 2003). 

The administrative judge in Marcino found that the appellant’s acceptance of a level 

5 position was voluntary because the appellant was never separated from his 

level 6 position, and he was not told that there was no possibility of reassignment 

to a new position at grade level 6. Chairman Marshall agreed with the 

administrative judge in the split-vote order in Marcino v. U.S. Postal Service, 

93 M.S.P.R. 237 (Jan. 23, 2003). The court also agreed with the administrative 

judge, stating, as the Board had done in Burger II, that the Board does not have 

jurisdiction over an alleged RIF demotion unless the agency informed the employee 

that his position had been abolished and that he would not be reassigned to a 

position at the same grade level. 

The Board decided two retirement appeals of particular note in FY 2003—Parker 

and Seth-Morris. The case of Parker v. Office of Personnel Management, 93 

M.S.P.R. 529 (July 11, 2003), was before the Board on a request from the Office of 

Personnel Management that the Board reconsider its earlier decision to award the 

appellant an annuity. On reconsideration, the Board found that the appellant was 

not entitled to an annuity because OPM was not required to credit him with service 

time which his employing agency attempted to give him under a settlement 

agreement. In so finding, the Board overruled Jordan v. Office of Personnel 

Management, 77 M.S.P.R. 610 (1998), in which it had found that OPM is 

conclusively bound by the terms of a settlement agreement to which OPM was not 

a party. Rather, the Board held that OPM, as the administrator of the Retirement 

Fund, has the authority, subject to Board review, to refuse to give effect to a 

personnel action taken as a result of a settlement agreement when OPM decides 

that the action is an artifice designed to evade the statutory requirements for 

entitlement to an annuity, which was the situation in this appeal. 

In Seth-Morris v. Office of Personnel Management, 94 M.S.P.R. 166 (Sept. 9, 

2003), the Board disagreed with OPM that the term “in residence in a high school” 

in 5 U.S.C. § 8341 means that a full-time student has to attend classes in a high 

school building to be entitled to survivor benefits. The student in Seth-Morris was 

enrolled full time in a fully accredited “alternative high school program” run by the 

county school system, had to pick up his assignments once a week and meet 

regularly with his teachers, but was allowed to complete his class work and 

assignments at home. The evidence showed that the student finished a regular high 

school course of study in the normal four years and graduated with the rest of his 

class. The Board found that, under these facts, Congress intended that the student 

receive full-time student survivor benefits even though he did not attend class in a 
school building. It therefore reversed OPM’s decision to deny the appellant’s 

application for a full time student survivor annuity for her son. 

FY 2003 Case Processing Statistics

SUMMARY OF CASES DECIDED BY MSPB IN FY 2003

Cases Decided in MSPB Regional/Field Offices (RO)/FOs): 

Appeals 1 6,601

Addendum Cases 2 514

Stay Requests 3 

 

112

TOTAL Cases Decided in RO/FOs 

 

7,227 

Cases Decided by Administrative Law Judges (ALJs) – 

Original Jurisdiction Only 4 

15 

Cases Decided by the Board: 

Appellate Jurisdiction: 

Petitions for Review (PFRs) – Appeals 973

Petitions for Review (PFRs) – Addendum Cases 117

Reviews of Stay Request Rulings 0

Requests for Stay of Board Order 5

Reopenings 5 9

Court Remands 13

Compliance Referrals 28

EEOC Non-concurrence Cases 3

Arbitration Cases 4

Subtotal – Appellate Jurisdiction 1,152

Original Jurisdiction 6 

 

22

TOTAL Cases Decided by the Board 7 1,174 

TOTAL Cases Decided (Board, ALJs, RO/FOs) 8,416 

FOOTNOTES TO TABLE 

Includes 48 appeals decided at headquarters by Office of Regional Operations 

(ORO). 

• Includes 14 addendum cases decided at headquarters—10 by ORO and 4 by 

ALJs. Case type breakdown: 127 requests for attorney fee awards, 5 

requests for compensatory damages (discrimination cases only), 280 
petitions for enforcement, 83 Board remand cases, and 19 court remand 

cases. 

• Includes 70 stay requests in whistleblower cases and 42 in non-whistleblower 

cases. 

• Initial Decisions issued by ALJ. Case type breakdown: 2 OSC disciplinary 

actions (non-Hatch Act), 1 Hatch Act case, and 3 actions against ALJs; 4 

requests for attorney fee awards and 2 petitions for enforcement in OSC 

disciplinary actions (non-Hatch Act); 1 petition for enforcement and 1 Board 

remand in actions against ALJs; 1 informal hearing in a proposed SES 

removal. (In SES removal cases, a report is issued but there is no decision 

by an ALJ or the Board.) 

• Includes 3 cases reopened by the Board on its own motion and 6 cases 

where OPM requested reconsideration. 

• Final Board decisions. Case type breakdown: 2 OSC stay requests, 1 Hatch 

Act case, 1 PFR in a Hatch Act case, 8 PFRs in actions against ALJs, 1 PFR on 

a request for an attorney fee award in an action against an ALJ, and 9 

requests for regulation review. 

• In addition to the 1,174 cases closed by the Board with a decision or order, 

there were 3 interlocutory appeals decided by the Board in FY 2003. 

Interlocutory appeals typically raise difficult issues or issues not previously 

addressed by the Board. 

REGIONAL CASE PROCESSING – FY 2003 

 

DISPOSITION OF APPEALS DECIDED IN FY 2003 BY TYPE OF CASE

Type of 

Case

Decided Dismissed Not Dismissed Settled Adjudicated

Adverse 

Action by

 Agency

3136 1416 45% 1720 55% 1160 67% 560 33%

Termination 

of

 

Probationers

423 372 88% 51 12% 41 80% 10 20%

Reduction in 

Force

280 181 65% 99 35% 34 34% 65 66%

Performance 126 38 30% 88 70% 65 74% 23 26%

Acceptable 

Level of

 

Competence 

(WIGI)

29 11 38% 18 62% 14 78% 4 22%

Suitability 156 40 26% 116 74% 82 71% 34 29%

CSRS 

Retirement: 

Legal

586 255 44% 331 56% 14 4% 317 96%

CSRS 

Retirement:

127 58 46% 69 54% 5 7% 64 93%
 Disability

CSRS 

Retirement:

 

Overpayment

155 61 39% 94 61% 49 52% 45 48%

FERS 

Retirement

536 184 34% 352 66% 144 41% 208 59%

FERCCA 95 55 58% 40 42% 2 5% 38 95%

Individual 

Right of

 Action

287 191 67% 96 33% 50 52% 46 48%

Other 665 588 88% 77 12% 41 53% 36 47%

Total 6601 3450 52% 3151 48% 1701 54% 1450 46%

Dismissed and Not Dismissed columns are percentages of Decided column.

Settled and Adjudicated columns are percentages of Not Dismissed column.

TYPES OF APPEALS DECIDED IN FY 2003

Total Number of Appeals: 6,601 (Percentages do not total 100 because of rounding) 

 

DISPOSITION OF APPEALS IN FY 2003 THAT WERE NOT DISMISSED
Total Number of Appeals that were Not Dismissed: 3,151 

 

DISPOSITION OF APPEALS ADJUDICATED ON THE MERITS (i.e., Not Dismissed or Settled) IN FY 2003

Based on 1,450 appeals adjudicated on the merits 

 

 

 
APPEALS DECIDED IN FY 2003 BY AGENCY

Decided Dismissed1

Not

Dismissed1 Settled2 Adjudicated2

US Postal 

Service

1447 862 59.6% 585 40.4% 396 67.7% 189 32.3%

Office, 

Personnel 

Mgmt*

1414 542 38.3% 872 61.7% 230 26.4% 642 73.6%

Veterans 

Affairs 

534 300 56.2% 234 43.8% 179 76.5% 55 23.5%

Army 419 234 55.8% 185 44.2% 112 60.5% 73 39.5%

Navy 389 212 54.5% 177 45.5% 104 58.8% 73 41.2%

Justice 380 211 55.5% 169 44.5% 110 65.1% 59 34.9%

Defense 306 171 55.9% 135 44.1% 67 49.6% 68 50.4%

Treasury 303 167 55.1% 136 44.9% 89 65.4% 47 34.6%

Air Force 242 122 50.4% 120 49.6% 70 58.3% 50 41.7%

Agriculture 215 112 52.1% 103 47.9% 69 67.0% 34 33.0%

Interior 191 83 43.5% 108 56.5% 67 62.0% 41 38.0%

Transportation 146 98 67.1% 48 32.9% 19 39.6% 29 60.4%

Homeland 

Security

122 81 66.4% 41 33.6% 33 80.5% 8 19.5%

Health & 

Human Serv

73 33 45.2% 40 54.8% 31 77.5% 9 22.5%

Social 

Security Adm

69 35 50.7% 34 49.3% 26 76.5% 8 23.5%

Labor 45 26 57.8% 19 42.2% 13 68.4% 6 31.6%

General 

Service Adm

38 26 68.4% 12 31.6% 8 66.7% 4 33.3%

Commerce 35 22 62.9% 13 37.1% 10 76.9% 3 23.1%

Energy 34 15 44.1% 19 55.9% 16 84.2% 3 15.8%

Housing & 

Urban Dev

28 16 57.1% 12 42.9% 6 50.0% 6 50.0%

Smithsonian 

Inst

17 3 17.6% 14 82.4% 12 85.7% 2 14.3%

EPA 15 9 60.0% 6 40.0% 2 33.3% 4 66.7%

FDIC 15 5 33.3% 10 66.7% 0 .0% 10 100.0%

NASA 12 7 58.3% 5 41.7% 2 40.0% 3 60.0%

EEOC 11 7 63.6% 4 36.4% 3 75.0% 1 25.0%

State 9 4 44.4% 5 55.6% 2 40.0% 3 60.0%

Adm Office of 

US Courts

7 5 71.4% 2 28.6% 0 .0% 2 100.0%

NARA 7 2 28.6% 5 71.4% 4 80.0% 1 20.0%

SBA 7 2 28.6% 5 71.4% 4 80.0% 1 20.0%

Education 6 0 .0% 6 100.0% 3 50.0% 3 50.0%

Corp for 

National & 

Community 

Service

5 3 60.0% 2 40.0% 1 50.0% 1 50.0%

GPO 5 2 40.0% 3 60.0% 2 66.7% 1 33.3%

Securities & 

Exchange 

Com

5 3 60.0% 2 40.0% 2 100.0% 0 .0%
TVA

54 80.0%1 20.0%0 .0%1 100.0%

Other44 100.0%0 .0%0 .0%0 .0%

Armed Forces 

Retirement 

Home 

33 100.0%0 .0%0 .0%0 .0%

Broadcasting 

Board of 

Governors

32 66.7%1 33.3%1 100.0%0 .0%

FEMA30 .0%3 100.0%1 33.3%2 66.7%

Nuclear 

Regulatory 

Com

31 33.3%2 66.7%2 100.0%0 .0%

Boundary & 

Water Com: 

US/MEX

21 50.0%1 50.0%0 .0%1 100.0%

CIA22 100.0%0 .0%0 .0%0 .0%

Court Serv & 

Offend Super 

Agency for DC

20 .0%2 100.0%1 50.0%1 50.0%

National 

Credit Union 

Adm 

20 .0%2 100.0%0 .0%2 100.0%

NLRB20 .0%2 100.0%0 .0%2 100.0%

Peace Corps21 50.0%1 50.0%0 .0%1 100.0%

Architect of 

the Capitol

11 100.0%0 .0%0 .0%0 .0%

Bd for 

International 

Broadcasting

10 .0%1 100.0%1 100.0%0 .0%

Export/Import 

Bank of US

10 .0%1 100.0%0 .0%1 100.0%

Farm Credit 

Adm

11 100.0%0 .0%0 .0%0 .0%

Fed Housing 

Finance Bd

10 .0%1 100.0%1 100.0%0 .0%

Fed Trade 

Comm

11 100.0%0 .0%0 .0%0 .0%

Gov of the 

District of 

Columbia

11 100.0%0 .0%0 .0%0 .0%

Library of 

Congress

11 100.0%0 .0%0 .0%0 .0%

National 

Science 

Foundation

11 100.0%0 .0%0 .0%0 .0%

National 

Transportation 

Safety Bd

11 100.0%0 .0%0 .0%0 .0%

National 

Foundation for 

Arts & 

Humanities

10 .0%1 100.0%1 100.0%0 .0%

Office of 11 100.0%0 .0%0 .0%0 .0%
Administration

Office of 

Special 

Counsel

1 0 .0% 1 100.0% 1 100.0% 0 .0%

Panama Canal 

Comm

1 1 100.0% 0 .0% 0 .0% 0 .0%

Presidio Trust 1 1 100.0% 0 .0% 0 .0% 0 .0%

US 

International 

Development 

Agency

1 1 100.0% 0 .0% 0 .0% 0 .0%

US 

International 

Trade Comm

1 1 100.0% 0 .0% 0 .0% 0 .0%

TOTAL 6601 3450 52.3% 3151 47.7% 1701 54.0% 1450 46.0%

* 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. 

1

 Percentages in columns "Dismissed" and "Not Dismissed" are of "Decided."

2

 Percentages in columns "Settled" and "Adjudicated" are of "Not Dismissed."

 

APPEALS ADJUDICATED* IN FY 2003 BY AGENCY

Adjudicated Affirmed Reversed

Mitigated

Modified Other

US Postal 

Service

189 154 81.5% 23 12.2% 12 6.3% 0 .0%

Office, 

Personnel 

Mgmt

642 474 73.8% 140 21.8% 3 .5% 25 3.9%

Veterans 

Affairs 

55 43 78.2% 9 16.4% 3 5.5% 0 .0%

Army 73 61 83.6% 9 12.3% 3 4.1% 0 .0%

Navy 73 66 90.4% 6 8.2% 1 1.4% 0 .0%

Justice 59 47 79.7% 7 11.9% 3 5.1% 2 3.4%

Defense 68 60 88.2% 5 7.4% 2 2.9% 1 1.5%

Treasury 47 41 87.2% 2 4.3% 4 8.5% 0 .0%

Air Force 50 45 90.0% 2 4.0% 3 6.0% 0 .0%

Agriculture 34 26 76.5% 7 20.6% 1 2.9% 0 .0%

Interior 41 35 85.4% 3 7.3% 3 7.3% 0 .0%

Transportation 29 28 96.6% 1 3.4% 0 .0% 0 .0%

Homeland 

Security

8 3 37.5% 1 12.5% 1 12.5% 3 37.5%

Health & 

Human Serv

9 7 77.8% 0 .0% 2 22.2% 0 .0%

Social 

Security Adm

8 7 87.5% 0 .0% 0 .0% 1 12.5%
Labor 6 4 66.7% 2 33.3% 0 .0% 0 .0%

General 

Service Adm

4 4 100.0% 0 .0% 0 .0% 0 .0%

Commerce 3 3 100.0% 0 .0% 0 .0% 0 .0%

Energy 3 3 100.0% 0 .0% 0 .0% 0 .0%

Housing & 

Urban Dev

6 5 83.3% 1 16.7% 0 .0% 0 .0%

Smithsonian 

Inst

2 2 100.0% 0 .0% 0 .0% 0 .0%

EPA 4 4 100.0% 0 .0% 0 .0% 0 .0%

FDIC 10 10 100.0% 0 .0% 0 .0% 0 .0%

NASA 3 3 100.0% 0 .0% 0 .0% 0 .0%

EEOC 1 1 100.0% 0 .0% 0 .0% 0 .0%

State 3 3 100.0% 0 .0% 0 .0% 0 .0%

Adm Office of 

US Courts

2 2 100.0% 0 .0% 0 .0% 0 .0%

NARA 1 1 100.0% 0 .0% 0 .0% 0 .0%

SBA 1 0 .0% 0 .0% 1 100.0% 0 .0%

Education 3 3 100.0% 0 .0% 0 .0% 0 .0%

Corp for 

National & 

Community 

Service

1 1 100.0% 0 .0% 0 .0% 0 .0%

GPO 1 1 100.0% 0 .0% 0 .0% 0 .0%

TVA 1 1 100.0% 0 .0% 0 .0% 0 .0%

FEMA 2 2 100.0% 0 .0% 0 .0% 0 .0%

Boundary & 

Water Com: 

US/MEX

1 1 100.0% 0 .0% 0 .0% 0 .0%

Court Serv & 

Offend Super 

Agency For 

DC

1 1 100.0% 0 .0% 0 .0% 0 .0%

National 

Credit Union 

Adm

2 2 100.0% 0 .0% 0 .0% 0 .0%

NLRB 2 2 100.0% 0 .0% 0 .0% 0 .0%

Peace Corps 1 1 100.0% 0 .0% 0 .0% 0 .0%

Export - 

Import Bank 

of US

 1 1 100.0% 0 .0% 0 .0% 0 .0%

TOTAL 1450 1158 79.9% 218 15.0% 42 2.9% 32 2.2%

Percentages may not total 100 because of rounding.

* ADJUDICATED means adjudicated on the merits, i.e., not dismissed or settled.

 

HEADQUARTERS CASE PROCESSING – FY 2003 
DISPOSITION OF PETITIONS FOR REVIEW OF INITIAL DECISIONS ON 

APPEALS

DECIDED IN FY 2003 BY TYPE OF CASE

Type of 

Case

Decided Dismissed Settled Denied

Denied

Reopened Granted

Adverse 

Action by

 Agency

469 18 3.8% 13 2.8% 380 81.0% 10 2.1% 48 10.2%

Termination 

of

 

Probationers

39 2 5.1% 0 .0% 37 94.9% 0 .0% 0 .0%

Reduction in 

Force

38 3 7.9% 0 .0% 26 68.4% 1 2.6% 8 21.0%

Performance 19 0 .0% 1 5.3% 17 89.5% 0 .0 1 5.3%

Acceptable 

Level of

 

Competence 

(WIGI)

4 0 .0% 0 .0% 3 75.0% 1 25.0% 0 .0%

Suitability 17 1 5.9% 1 5.9 10 58.8% 2 11.8% 3 17.6%

CSRS 

Retirement:

 Legal

86 5 5.8% 1 1.2% 60 69.8% 3 3.5% 17 19.8%

CSRS 

Retirement:

 Disability

32 1 3.1% 0 .0% 28 87.5% 0 .0% 3 9.4%

CSRS 

Retirement:

 

Overpayment

20 2 10.0% 1 5.0% 12 60.0% 0 .0% 5 25.0%

FERS 

Retirement

58 6 10.3% 1 1.7% 43 74.1% 4 6.9% 4 6.9%

FERCCA 2 0 .0% 0 .0% 2 100.0% 0 .0% 0 .0%

Individual 

Right of

 Action

80 6 7.5% 2 2.5% 55 68.8% 8 10.0% 9 11.2%

Other 109 8 7.3% 1 .9% 81 74.3% 6 5.5% 13 11.9%

Total 973 52 5.3% 21 2.2% 754 77.5% 35 3.6% 111 11.4%

DISPOSITION OF PETITIONS FOR REVIEW OF INITIAL DECISIONS ON APPEALS DECIDED IN

FY 2003
Total Number of Petitions for Review: 973

 

DISPOSITION OF PETITIONS FOR REVIEW OF INITIAL DECISIONS ON APPEALS GRANTED 

IN 

FY 2003

Based on 111 Petitions for Review Granted

 

 
DISPOSITION OF PETITIONS FOR REVIEW OF INITIAL DECISIONS ON APPEALS DENIED 

BUT REOPENED IN FY 2003

Based on 35 Petitions for Review Denied But Reopened

 

PETITIONS FOR REVIEW DECIDED IN FY 2003 BY AGENCY

Decided Dismissed Settled Denied

Denied 

Reopened Granted

US Postal 

Service

211 14 6.6% 1 .5% 161 76.3% 8 3.8% 27 12.8%

Office, 

Personnel 

Mgmt*

192 14 7.3% 2 1.0% 144 75.0% 4 2.1% 28 14.6%

Veterans 

Affairs

82 3 3.7% 3 3.7% 60 73.2% 7 8.5% 9 11.0%

Army 70 6 8.6% 1 1.4% 54 77.1% 2 2.9% 7 10.0%

Navy 61 1 1.6% 0 .0% 55 90.2% 2 3.3% 3 4.9%

Defense 54 2 3.7% 2 3.7% 44 81.5% 0 .0% 6 11.1%

Justice 51 5 9.8% 2 3.9% 35 68.6% 5 9.8% 4 7.8%

Treasury 49 3 6.1% 1 2.0% 38 77.6% 2 4.1% 5 10.2%

Air Force 30 0 .0% 1 3.3% 26 86.7% 0 .0% 3 10.0%

Transportation 27 1 3.7% 2 7.4% 21 77.8% 1 3.7% 2 7.4%

Interior 24 0 .0% 2 8.3% 19 79.2% 0 .0% 3 12.5%

Health & 

Human Serv

17 0 .0% 1 5.9% 10 58.8% 0 .0% 6 35.3%

Agriculture 15 1 6.7% 0 .0% 11 73.3% 1 6.7% 2 13.3%

Social 14 0 .0% 1 7.1% 12 85.7% 0 .0% 1 7.1%
Security Adm

Commerce 11 0 .0% 0 .0% 10 90.9% 0 .0% 1 9.1%

General 

Service Adm

11 0 .0% 1 9.1% 9 81.8% 0 .0% 1 9.1%

Housing & 

Urban Dev

7 0 .0% 0 .0% 6 85.7% 0 .0% 1 14.3%

Labor 7 0 .0% 0 .0% 7 100.0% 0 .0% 0 .0%

NASA 5 0 .0% 0 .0% 4 80.0% 1 20.0% 0 .0%

Boundary & 

Water Comm: 

US/MEX

3 0 .0% 0 .0% 3 100.0% 0 .0% 0 .0%

Energy 3 0 .0% 0 .0% 3 100.0% 0 .0% 0 .0%

SBA 3 0 .0% 0 .0% 2 66.7% 1 33.3% 0 .0%

TVA 3 0 .0% 0 .0% 2 66.7% 0 .0% 1 33.3%

Corp for 

National & 

Community 

Serv

2 0 .0% 0 .0% 2 100.0% 0 .0% 0 .0%

EPA 2 0 .0% 1 50.0% 1 50.0% 0 .0% 0 .0%

EEOC 2 0 .0% 0 .0% 2 100.0% 0 .0% 0 .0%

GPO 2 1 50.0% 0 .0% 1 50.0% 0 .0% 0 .0%

Architect of 

the Capitol

1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

CIA 1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

Court Serv 

& Offend 

Super 

Agency for 

DC

1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

Education 1 1 100.0% 0 .0% 0 .0% 0 .0% 0 .0%

FCC 1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

FDIC 1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

Federal 

Housing 

Finance Bd

1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

Federal 

Mediation & 

Conciliation 

Serv

1 0 .0% 0 .0% 0 .0% 1 100.0% 0 .0%

Government 

of DC

1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

National 

Credit 

Union Adm

1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

NLRB 1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

Nuclear 

Regulatory 

Com

1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

Peace Corps 1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%

Railroad 

Retirement 

Bd

1 0 .0% 0 .0% 0 .0% 0 .0% 1 100.0%

Smithsonian 1 0 .0% 0 .0% 1 100.0% 0 .0% 0 .0%
Inst

TOTAL 973 52 5.3% 21 2.2% 754 77.5% 35 3.6% 111 11.4%

Percentages may not total 100 because of rounding.

* 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.

Summary of the Merit Systems Studies Function for FY 2003

Help Wanted: A Review of Federal Vacancy Announcements

Federal agencies posted over 150,000 vacancy announcements in 

FY 2001, more than half of which were open to external applicants. 

Because many of the jobs were open to external applicants who are 

unfamiliar with the Government’s hiring system, it is particularly 

important that vacancy announcements be an effective hiring tool. 

This report was based on a review of a random sample of 10,000 

vacancy announcements posted on USAJOBS in FY 2001 and an 

assessment of a random sample of 100 vacancy announcements 

posted on March 6 and 7, 2002. 

The MSPB review of the quality of vacancy announcements, 

unfortunately, shows that they are generally not good recruiting 

tools. They read poorly, are unattractive and describe the jobs in a 

bureaucratic way, making it difficult to determine what the person 

would be doing in the job. Minimum qualifications are not specific, 

leaving applicants to wonder what exactly is required to qualify. 

Many vacancy announcements used language that is sometimes 

negative and threatening, or that can insult many applicants or deter 

them from applying. The MSPB review also showed that agencies 

often impose burdensome requirements on applicants and that their 

instructions on how to apply are frequently vague. 

The most significant of the study’s findings is that many of the 

problems identified are actually symptoms of other, more 

complicated problems faced by the Government’s staffing system. 

The poor quality of vacancy announcements suggests that agencies 

lack a comprehensive recruiting and assessment strategy to ensure 

that they make good selections. The lack of such a strategy is 

compounded by agency human resources professionals’ lack of 

expertise, especially in recruiting. The report offers 

recommendations that would help resolve these problems. 
The Federal Selection Interview: Unrealized Potential

Structured interviews are twice as effective as unstructured 

interviews in predicting on-the-job performance. In a structured 

interview, all questions are related to the job to be filled, and the 

same questions are asked of each candidate for the job. Selecting 

the wrong person for a Federal job can cost many thousands of 

dollars, estimated at up to three times the employee’s annual salary. 

According to an MSPB survey, 95 percent of Federal supervisors say 

they rely on interviews to a “great” or “moderate” extent when 

making a selection. 

Because selection interviews are widely used and influential, it is 

important that they be used effectively. The report recommended 

that agencies use structured interviews to assess candidates for 

Federal jobs. Agencies should decide in advance what purpose an 

interview is to serve and then design and conduct the interview 

accordingly. The report also recommended that agencies invest the 

resources needed to add structure to their selection interviews and 

that they evaluate their interview practices for effectiveness and 

possible improvement. 

The Federal Workforce for the 21st Century: Results of the 

Merit Principles Survey 2000

This report summarized the views of Federal employees before 

9/11 and noted that delayed retirements, an improving economy, and 

increases in job opportunities may exacerbate skill gaps already 

evident as a result of the downsizing in the 1990s. While employees 

still believe they and their work units are highly productive, overall 

job satisfaction appears to be slipping and frustrations are evident in 

many of their survey responses. For example, respondents planning 

to retire in the coming year said that excessive job stress was the 

most important work-related factor in their decision to retire. 

In other areas, employees expressed concerns about some aspects of their 

supervision and reported experiencing negative personnel management practices. 

Analyses show that views of satisfied employees differ markedly in a variety of 

ways from those of dissatisfied employees and that perceptions of discrimination 

vary notably by race and national origin. 

The report made a number of recommendations for agencies to 

address the issues uncovered. Agencies should ensure that 

managers closely monitor and address any skill imbalances in their 

strategic plans, that supervisors have both the ability and the desire 
to manage effectively and fairly, and that their organizations foster a 

culture where poor performance is dealt with and where employees 

can work freely and without fear of reprisal for exercising their appeal 

rights or reporting waste, fraud or abuse. 

Issues of Merit Newsletter

Through the quarterly newsletter Issues of Merit, the MSPB 

publicizes findings from current studies on a wide range of human 

capital issues. In FY 2003, newsletter topics included: 

· Commentary on issues of broad applicability, such as 

understanding the merit principles as the Government’s core 

values, the need to take organizational culture seriously, and 

reflection on the Civil Service Reform Act’s 25th anniversary; 

· Advocacy on specific reform efforts, such as support for 

Recruitment One-Stop, changing the appeal process to fix the 

problem of poor performers, and the arrival of category rating; 

· Practical advice for human resources specialists and managers, 

such as how to fire poor performers, how to use competencies 

competently, how to include multiple hurdles to make better 

selection decisions, and how to write better vacancy 

announcements; 

· Analysis of MSPB and other research, such as knowing more 

about the Contracting Officers Representatives (CORs) who 

provide day-to-day oversight of Government contracts, as well as 

understanding human resources reforms in the states and what it 

means for the Federal Government; and 

· Informational articles to help readers understand critical topics, 

such as MSPB appeals, pay flexibilities available under Title 5, and 

what pay banding looks like in the Federal Government. 
Significant Actions of the Office of Personnel Management

As required by statute, MSPB reports on the significant actions of the 

Office of Personnel Management (OPM). The Board has met this 

reporting requirement in previous years through the evaluation, 

assessment and publication of merit systems studies through our 

Office of Policy and Evaluation (OPE). For this report, we reviewed 

and analyzed the significance of current actions with the greatest 

long-term implications for the Federal civil service. 

Leadership in the design of the alternative personnel systems 

for the Department of Homeland Security and the Department 

of Defense

OPM is working with DHS and DOD as authorized by statute to design 

their new civilian personnel systems to be established under 

regulations issued jointly by the Secretaries of Homeland Security 

and Defense and the Director of OPM. OPM also published, in draft, 

guiding principles for civil service transformation that foresee 

significant changes, including greater agency flexibility. Those 

principles include preservation of the merit system principles. 

Significance: OPM recognizes and anticipates that alternative 

agency-specific systems may be created within or outside Title 5, and 

is laying the groundwork for this possibility. 

Broader focus on agency human capital management

As the lead agency for the human capital component of the 

President’s Management Agenda, OPM worked with agencies on the 

development of human capital plans and established “standards for 

success” for agency human capital management. 

Significance: This is a significant change in OPM’s oversight of 

agency human resource management. This oversight approach is 

broader and more continuous than past approaches. 

Leadership in electronic Government initiatives

OPM led several electronic government (“e-Gov”) initiatives. One 

such initiative is Recruitment One-Stop (ROS), a policy and 

technology platform for advertising Federal job vacancies and 

matching job seekers to job opportunities. Under this initiative, OPM 

plans to establish standards for the format of vacancy 
announcements, a basic employment application, and applicant 

feedback. OPM also led the Enterprise Human Resources Integration 

(EHRI) e-Government initiative, completing the EHRI design and 

issuing a prototype demonstrating some the of the system's 

functions. 

Significance: ROS, in conjunction with agency-level improvements, 

could lead to material improvement in the application process and the 

treatment of job applicants. EHRI is a long-term initiative; full 

functionality is not yet available. However, EHRI should greatly 

increase the availability and quality of information about the Federal 

workforce and how it is managed. 

Oversight actions to assure agency compliance with law and 

regulations

OPM actions to assure agency compliance with law and regulation 

included: 

· Audit of 96 agency delegated examining units (agency 

organizations that OPM has authorized to examine and refer 

applicants for jobs in the competitive service); 

· An audit of selected issues at the Department of Homeland 

Security, Transportation Security Administration; and 

· Working with agencies to establish accountability systems 

(internal mechanisms to ensure proper use of human resource 

management authorities). 

OPM reports that delegated authorities are generally used properly, 

that agencies take corrective action when required, and 14 of the 

largest Federal agencies now have accountability systems. 

Significance: OPM is responsible for ensuring that agencies comply 

with civil service law and regulation and that agencies properly 

exercise OPM-delegated authorities. OPM is encouraging agencies to 

take greater responsibility for self-monitoring, while retaining the 

capacity to review agency decisions and direct corrective action when 

necessary. 

Role in increasing the scope of Governmentwide efforts to 

identify and develop candidates for leadership positions in the 

Federal Government
OPM has established the Senior Executive Service Federal Candidate 

Development Program, a program designed to create a 

Governmentwide pool of candidates for SES positions. OPM has also 

made significant changes to the former Presidential Management 

Intern (PMI) program. The program has been expanded to include a 

Senior Fellows program that provides high-level opportunities, and 

has been renamed the Presidential Management Fellows Program. 

Significance: These actions greatly increase the scope of 

Governmentwide efforts to identify and develop candidates for 

leadership positions in the Federal government. Until now, there was 

no Governmentwide effort to develop candidates for the Senior 

Executive service or to place qualified individuals in positions at the 

levels immediately below the Senior Executive Service. 

Support for development of pay-for-performance 

remuneration systems

OPM has advocated reforming Federal employee pay to make pay 

less dependent on position and tenure and more reflective of 

individual performance. OPM has developed and supported 

Administration proposals that would allow agencies to give 

performance-based pay increases to members of the Senior 

Executive Service and employees paid under the General Schedule. 

Significance: These reforms could substantially increase agency 

discretion in managing employee salaries and rewarding high 

performance. Fair, credible performance management systems will 

be critical to the success of these reforms. 

 
Fiscal Year 2003 Financial Summary 

(dollars in thousands)

Financial Sources 

Appropriations $31,819

Civil Service Retirement and Disability Trust Fund 2,609

Total Revenue $34,428

 

Obligations Incurred

Personnel Compensation $21,120

Personnel Benefits 4,296

Travel of Persons 551

Transportation of Things 88

Rental Payments 3,047

Communications, Utilities, and Miscellaneous 355

Printing and Reproduction 101

Other Services 3,802

Supplies and Materials 372

Equipment 544

Total Obligations Incurred $34,276

 

Obligated Balance $152

 

For Additional Information

The MSPB website contains information about the Board and its functions, where to 

file an appeal, and how the Board’s adjudicatory process works. 

At the website, you can get Board regulations, appeal and PFR forms, important 

telephone and FAX numbers, and e-mail addresses for the headquarters, regional, 

and field offices. 

Complete decisions from July 1, 1994, and significant precedential decisions issued 

from 1979 to 1994 are available for downloading. The website also provides weekly 

Case Summaries—an easy way to keep up with changes in Board case law. 

From the website, you can download recent Board reports and special studies on 

civil service issues. 

You can also subscribe to one of two list servers (listservs) on the website—one to 

receive Board decisions as they are posted, and the other to receive notification 

when a merit systems studies report is issued. 
The Board’s website is http://www.mspb.gov

The Board’s toll-free telephone number is 1-800-209-8960.