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The U.S. Merit Systems Protec

Herbert E. Ellingwo

Ersa H. Posto

Dennis M. Deva

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Contents 

 Introduction  Summary  The Board 

Organization of the Board 

 Organization Chart 

Adjudication of Appeals Major Appeals Decisions Actions Involving the Office of General Counsel  Original Jurisdiction Cases 

Litigation Regulation Review 

Work of Office of Merit Systems Review and Studies  Report on the Significant Actions of the Office  of Personnel Management  MSPB Appeals Study 

Director's Monographs 

Interaction with Other Agencies 

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Introduction

 The Merit Systems Protection Board was created pursuant to Reorganization Plan No. 2 of 1978 and the Civil SAct"). A quasi-judicial agency, the Board is comprised of a bipartisan three-member panel and charged with the duty oFederal merit systems. This mandate is implemented by the Board through the fulfillment of its statutory duties under t

 Adjudicating employee appeals and actions brought by the Special Counsel in a fair and impartial manner;  Conducting special studies of the merit systems to determine whether they are free from prohibited personnel prac Analyzing and reporting on the significant activities at OPM; and  Reviewing the regulations issued by OPM, to determine whether they require the com-mission of prohibited perso

implemented by an agency. 

 Because the Board has broad powers in reviewing the personnel practices of OPM and of the numerous jurisdiction, Congress took extra cautionary measures to assure that the Board would have that degree of indepexercise its authority. These protections include: 

 Guaranteeing the independence of the Board members by providing for non-renewable terms and permitting r

circumstances; 

 Providing the Board with "bypass" authority by permitting it to make simultaneous submissions of budgets and l

and the President, thus eliminating the need for prior approval by the Office of Management and Budget (OMB); 

 Permitting the Board to appoint personnel essentially free of approval by the Executive branch; and  Representing itself in the Federal courts except before the Supreme Court.  In its fourth year of operation, the Board focused largely upon:  Improvement of Board management;  Streamlining both its organization and procedures;  Coping with a 16% budget cut imposed by continuing resolutions in December of 1981;  Obtaining supplemental funding necessary for Board operations, given the enormous increase in workload an

budget; 

 Adjudicating the approximately 11,200 air traffic controller (ATC) appeals filed in the fall of 1981, and,  Adjudicating the 10,618 appeals in all other categories received for adjudication (by far the largest workload ever). 

 As a result of these efforts in 1982, major changes were effected in the organization of the Board as well as in short, the Board streamlined much of the way it performed its work. With improved efficiency and cost controls, the Bothe large numbers of appeals pending in the regions. Over 9,000 decisions were issued, and work on the remaining complete with their issuance by the February 1, 1983 deadline nearly assured. 

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Summary 

The fourth year of operation of the Merit Systems Protection Board was one with enormous management challen

events that happened in the latter part of 1981, 

The controller strike of August, 1981 resulted in 11,225 appeals being filed with the Board's 11 regional offices thoperations in 1982 could overstate the impact that the ATC appeals were to have on the Board: every offic

repercussions. To provide some perspective, in the entire year of 1980, the Board processed 5,544 appeals. In 198Thus, the ATC appeals alone represented 2 year's work when compared to 1980, and one and a half year's when com

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Add to those appeals the 10,618 non-ATC appeals that were received or already on hand in the regions in 1982 and t

should be clear. In 1982 a total of 21,843 cases were in the regions for action, a load more than double that of any preIn December of 1981, the Board’s budget was cut 16% as a result of a continuing resolution, reducing the appropriation by FY’82 to $12.7 million.  As already explained, the impact of the ATC appeals alone would have been enormous, but when coupled wi

Board operations were little short of devastating. 

 Simply stated, much of the Board had to find new ways to conduct its business. New and less costly ways had to more: personnel had to be reallocated, resources shifted, policies revised.  The new Assistant Managing Director for Regional Operations had to devise ways for the regional offices to cop

appeals; 

 In the regional offices themselves, leave was canceled, work was reallocated, methods were changed; The Offistaff and created an ATC case processing center to cope with the enormous paperwork generated by those cases; 

 The Office of the Administrative Law Judges coordinated the national discovery process: who should the controllcould it be done so that each appellant would have the opportunity for input should he/she so desire? The Judges wsubpoenas, ordering the taking of depositions and ordering responses to written interrogatories for all of the regional o The Board itself, while providing the leadership for all of the activity, had to address new areas of civil service law decisions on issues central to the adjudication of the ATC cases;  The Office of General Counsel, while providing expertise to the Board and the regions concerning legal policy is

many Federal circuits as controllers filed a variety of suits against the Board. This fact was reflected in the enormous 87 in 1981 to 183 in 1982. 

 The Office of Legislative Counsel, while trying to focus its efforts on approval of the all-important emergency supBoard thrust into the national spotlight by its role in the ATC events and, in its public information role, had to respoinquiries. The Board found itself in the national spotlight again in July, when it became the first Federal agency forcmajor public information effort.  No Board office escaped the impact: virtually all contributed in very significant ways too numerous to enumerate h As a result, 1982 was a year of management reform for the Board, with many of the changes implemented during Among the innovations implemented or prepared for implementation were: 

 Development of a sound internal auditing program;  Improvement of its automated case tracking system;  Development of an expedited appeals procedure expected to be in use by early 1983; 

 Establishment of fixed, neutral hearing sites;  Elimination of a dual file for appeals and the creation of a single file appeals system;  Transfer of Board payroll and personnel systems to a more efficient and controlled operation at the Department of  Simplified and cost-saving document service procedures;  Conducting a financial audit survey for identification of financial control areas needing improvement. 

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 Elimination of the use of certified mail for transmission of documents and notices related to the processing of appe

 Introduction of new voluntary discovery procedures, and requiring the parties to exchange their filings direc

documents and supervision of the discovery process by Board presiding officials. 

 The sum of these changes was a streamlining of Board operations, with real savings realized not only budgetarilyin dealing with the large workload.  Thus began 1982, the Board’s fourth, and most trying year, with a tripling of its previous workload, and loss of one December 1981 was also very significant to the shaping of the Board itself for 1982. Herbert E. Ellingwood was and one of the Board's early members, Ronald Wertheim, resigned to accept a judgeship. His resignation left the Bonot filled until August with the appointment of Member Dennis M. Devaney. 

Spring was marked by intense negotiations with Congress over approval of a $4 million emergency supplemen

however, was just one small part of a much larger emergency appropriation for several agencies which was caugcontroversial issues involving both Congress and the White House. Subsequent difficulties resulted in two PresidentPresident signed on July 18 was sent to the White House by the Congress. 

By early July, however, the Board had already been forced to furlough its entire staff, placing virtually everyone on 

the July 4 weekend. This condition continued for approximately two weeks until the emergency appropriation was sign

Ironically, during this same period, the Board was forced to defend itself from fired air traffic controllers, who, anxio

the Board, were arguing in Federal court, even while the Board's staff was on furlough for lack of funds, that the constituted irreparable damage and a deprivation of their right to due process. 

The difficult budget situation had other impacts on Board operations as well. In December of 1981, all hearings 

suspended, travel by presiding officials was suspended, and when hearings were resumed in February 1982, theoffices. The travel ban stayed in effect through late July. Additionally, the Board's policy of providing appellants were 

was abandoned. All of these cost saving measures, however, were not sufficient to avert July's furloughs. A stric

through attrition from approximately 340, to just over 300. 

However, by fall a larger staff was focusing its efforts on the efficient processing of the ATC cases, as operations es

crisis. 

So, despite the problems and frustrations, 1982 was a year of real achievement in which the staff, drawn together by 

and by year's end had completed all of the air traffic controller hearings, had issued 3,273 ATC decisions and was prior to the February 1, 1983 deadline set by the Board. A total of 9,039 decisions were issued in 1981 by the Regiona

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The Board 

The three Board members are appointed by the President with the advice and consent of the Se

independence of the Board, the designation of any member as Chairman must be approved by the Senate; term and may not be reappointed; and members may be removed only under the higher than ordinary standuty, or malfeasance in office. 

Herbert E Ellingwood was appointed by President Reagan to be the Board’s second Chairman on Dece

his appointment, Ellingwood was serving as Deputy Counsel to the President. Prior to his White House practice with the firm of Caldwell & Toms in Sacramento, California. 

From 1975 to 1979 Ellingwood was Special Assistant Attorney General for California; Legal Affairs S

from 1969 to 1974; Legislative Representative for the State Bar of California from 1966 to 1969; Legislative Adv

Commit tees of the District Attorneys' and Peace Officers' Associations; and Deputy District Attorney for Alameda 

1966. His military service began in the Army Counter Intelligence Corps in 1953. He completed his, military service in 

Ersa H. Poston was sworn in as Vice-Chair of the Board on January 2, 1979. Poston had been a Commissioner oCommission since 1977 and became a member of the Board pursuant to the provisions of Reorganization Plan No. the successor organization to the Civil Service Commission. 

 Prior to becoming a member of the Civil Service Commission, Poston served as a member of Governor NelsPresident and Member of the New York State, Civil Service Commission. During this time she. was also ChairpeCouncil on Intergovernmental Personnel Policy established under the Intergovernmental Personnel Act. Prior to Director of the New York State Office of Economic Opportunity and Confidential Assistant to Governor Rockefeller.  In addition to serving as the Vice-Chair of the Board, Poston, a former U.S. Delegate, 31st Session of the United Ncurrent U.S. Member of the International Civil Service Commission. She has also been the Vice-Presiding Officer of Observance of International Women's Year and was a Member of the - Panama Canal Zone Company Board of Truste

Dennis M. Devaney was appointed by President Reagan to be Member of the Board on August 20, 1982. 

Devaney was in private law practice in Washington, D.C. 

From 1977 to 1979, Devaney had been Counsel to the Food Marketing Institute and from 1975 to 1977, As

Brewers Association. During 1973 to 1974, Devaney served as Legislative Assistant to the Vice Chairman of the Se

Maryland General Assembly. 

While in college and law school, he held part-- time positions with NASA's Goddard Space Flight Center from 1972 to Congressional Relations, Department of State from 1965 to 1969 Devaney served on active duty in the U.S Navy from 

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U.S. MERIT SYSTEMS PROTECTION BOARD 

Organization of the Board The Board is comprised of a number of operating offices which carry out the duties of the organization. Whiresponsibility for implementing its statutory functions, the Chairman, as Chief Executive Officer, is vested with respons Authority for the day-to-day management of the Board, both in headquarters and its eleven regional offices, is deby the Chairman. 

The Assistant Managing Director for Regional Operations has responsibility for the operation of the regional 

decisions of those offices, and recommending that the Board reopen cases or take other appropriate actions. The 

Management is a newly created position responsible for formulating, planning, and coordinating improvemenadministration and management of the agency. 

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The Office of General Counsel provides legal counsel to the Board and offices of the Board, and represents it in all c

the Supreme Court. It also participates in the review of Office of Personnel Management regulations. 

The Office of Appeals Counsel prepares draft opinions and orders for the Board based upon its analyses of b

decisions rendered in the regions, and the records of cases reopened by the Board on its own motion. 

 The Office of Legislative Counsel has dual responsibility for the agency's Congressional affairs and pub

Congressional affairs role, the Office advises the Board on legislative matters, responds to Congressional inquiries

comments on other legislative matters, and has general responsibility for Congressional relations. In its public infoinformation to the press and public, advises the Board on press matters, prepares for the Board press releases, pam

well as speeches, the internal newsletter News of Merit, and provides audiovisual and graphic arts services. 

 The Office of Administrative Law Judges adjudicates cases under the Hatch Political Activities Act, hears dremovals of administrative law judges and, upon assignment from the Board, conducts hearings in sensitive a

proceedings initiated by the Special Counsel. This office also has jurisdiction over, and issues orders in response discovery filed in the Board's regional off ices. 

 The Office of Merit Systems Review and Studies carries out the Board's reviews of Government-wide personnethey are free from prohibited personnel practices and achieve results consistent with the statutory merit system prinannual oversight reviews of the Office of Personnel Management (OPM) and participates in the review of OPM-issueice's findings are reported to Congress and the President and made available to the public.  The Office of the Secretary performs the Board's ministerial functions which include: ruling on certain procedural case adjudication; issuing Board opinions and orders; making initial determinations on requests submitted under Privacy Acts; and publishing Board decisions and orders. Additionally, the Secretary is responsible for controlauthenticating official records and certifying those records to the courts, Equal Employment Opportunity Commis

keeping minutes of Board meetings; and making information available to the public through a public documents room. 

 The Office of Administration is responsible for coordinating the administrative services for the Board and includes Personnel Management, Budget and Finance, and Administrative Services which handles facilities, transportation, and The Office of Internal Audit and Control was established in 1982 and functions like an inspector general for th

procurement and management practices to ensure their integrity and efficiency. 

The Office of Special Counsel has independent investigatory and prosecutorial authority and is responsible for brBoard. The Special Counsel is required by 5 U.S.C. 1206(m) to submit an annual report to the Congress; therefore, thCounsel activities except as they pertain to Board orders and decisions. 

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Adjudication of appeals is by far the most time consuming activity of the Board and consequently utilizes the greate

1982, because of the large number of ATC cases, the Board's workload was even more concentrated in this area. 

Adjudication of cases generally begins with the filing of an appeal in one of the Board's 11 regional offices. Therefor

of those offices is appropriate. 

Regional Operations 

Even apart from the 1 1,000-plus ATC appeals received in the last quarter of 1981, the Regional Offices received 8

the 7,300 received the previous year. 

Several events affected the operations of the regional offices and their adjudication of appeals effort in 1982. 

announced his first major change in the Board's organizational structure. To better accommodate the demands on main both the organization and its workload, the duties of the Deputy Managing Director were divided and two Assistant Mcreated, one to concentrate upon revising and streamlining Board management, the other, to oversee regional operati

The Assistant Managing Director for Regional Operations was immediately confronted with several challenges. Eve

moratorium on hearings was in effect because of the funding shortages that were to plague the Board for much moratorium in the regions was lifted - in early February, a travel ban on presiding officials remained in effect. This mnot travel to hearing sites convenient to the parties; the parties had to come to the regional offices. Since the parties travel when the distances were long, the travel moratorium resulted in hearing delays for over 500 appellants. 

 But even while these restrictions were in place, the regional offices were moving forward with the local discovery 

ATC cases before them. 

 The fiscal crisis in early July resulted in all Regional employees being furloughed to half time for two weeks, bringing With approval of the emergency supplemental funds on July 18, a major began to build the staffs of the regional of(permanent and temporary) were added to assist in the appeals processing and adjudication, and eight permanent reIn September, a legal training seminar was con ducted for 32 of the new attorneys and paralegals. 

Office of Appeals Counsel 

 Decisions issued in the region do not become final for 35 days. During that time either party,  Office of Personnel Management or Special Counsel, can petition the Board to review the "initial" decision, or the initiative. The petitions for review (PFR's), as they are known, are received by the Secretary of the Board, who afteensure a complete record, forwards the case to the Off ice of Appeals Counsel (OAC), which reviews it, recommenwording for the Board's Consideration. 

The OAC's workload also reflected the higher work levels seen throughout the Board. In 1982, the Office of Appe

covering 1,784 appellants, a 65% increase over the 1,161 completed in 1981. 

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Major Appeals Decisions of the Board 

 The Board has a major responsibility to its public to thoroughly examine issues that come before it in appeals and and its own presiding officials with precedent-setting opinions applying and interpreting the Provisions of the Civil Serv This year, as in previous years, the Board issued a number of decisions addressing and interpreting subjects of 

for future appeals. Among the significant decisions issued by the Board in 1982 were: 

Jones v. Tennessee Valley Authority AT07528010300 (2-19-82). The Regional Office sustained appellant's removal bin a work stoppage in violation of the Agency's General Agreement. The Board found that appellant did not parstoppage and concluded that the appellant reasonably feared injury if he crossed the picket line. The appellant's among the picketers was found to be reasonable and therefore the Board reversed the action .  Burrows et a/ v. Government of the District Of Columbia DC03518010087 (3-4-82). The Board held that it has the 

to successful employees of the D.C. Government under provisions of the Back Pay Act, and that it would do so in ac

USC 7701 (g) that fees be reasonable and in the interest of justice. 

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Webb v. U.S. Postal Service SE07528010037 (3-18-82). The Board held that an adverse action based on charges 

leave would not promote the efficiency of the service and therefore could not be sustained. Ketchem v. Department of Transportation, FAA DA075281F0713 (5-28-82). The Board held that the occurcontrollers(which began on August 3, 1981) was a fact which may be officially noticed under the Board's regulations; ton August 6 and that official notice of it could extend through that date but not beyond it; and that such a strike was unUSC 1918.  Hellman v. Office of Personnel Management AT300A7990002 (5-28-82). The time in grade restrictions applied as found, in this case, not to be appealable employment practices within the purview of 5 CFR 300.104. Rather, as OPM fiscal in nature. Martin et a/ v. Department of Treasury AT075209044 (6-1-82). The Board determined that an indefinite suspencriminal trial or investigation, is a permissible action. The Board required that such an action be imposed only if it hathat it be based on a finding of reasonable cause, which is virtually synonymous the with the probable cause which is nindictment; and that it meet both the tests of promoting the efficiency of the service and constituting a reasonable pena

Pope v. Department of Transportation SE07528210074 (6-10-82). The Board deter mined that a presiding official muin each individual case where an appellant requests transfer of his case from the appropriate regional office. The Bwhich should be included in the presiding official's consideration before making that decision. As to the facts determined that both parties had set forth persuasive reasons for their choices as to hearing site and that it would nodecision to transfer the case.  Simms et a/ v. Government of the District of Columbia DC03518010131 (7-16-82). In this case, issued pursuanDistrict of Columbia rather than under statutory jurisdiction, the Board found that under its new Comprehensive Merunder an obligation to establish a single career service and abolish the previous dual classification system of ex

employees. Thus it held that the agency's action in establishing separate retention registers for employees formerly service was improper, and that the RIF, therefore, had not been conducted pursuant to law. 

Vergagni v. Office of Personnel Management DC831L8010270ADD (7-19-82). The Board found that it is authorize

attorney fees in disability retirement cases, but that it would only be in the interest of justice to do so in cases in wemployee, initiated the application. In such a case, the Board noted that fees would be payable by the initiating agenc

McClaskey v. Energy SE07528110094 (8-16-82). The Board held that while it has authority to judge whether a 

due weight to the agency's primary discretion in exercising the managerial function of maintaining employee discipline that the appellant's offense jeopardized the agency's basic requirement of honesty and therefore removal was reasona

 Paniagua v. Air Force DA03538110015 (9-16-82). Notwithstanding the fact that the appellant was subjected to a days after he enlisted in the Army Reserve, the Board held that the appellant was entitled to restoration rights undappellant entered active duty in response to orders and served no more than four years of active duty. The BoarCongress to ensure that individuals returning to civilian life after military service would be able to resume their previous 

 Curry v. Navy SF0752811627 (9-21-82). The Board held that taking action against an employee to "promote the edismissal for speech as well as for other conduct when the comments made are subversive to order and discipline in t

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 Wright v. USPS DC03538110009 (9-24-82). The Board held that it was contrary to the purpose of 5 USC 81 51 

rehire an employee who had recovered from an on-the-job injury. The agency's refusal was based on previous mishad not been dismissed.  Allen v. Navy PH0752090081 ADD (10-25-82). The Board reaffirmed its authority to order an agency to cancel 

1205(a). It also held that an appellant is not entitled, upon restoration, to shift differential since base pay does not innight shifts. The Board further held that the agency had discretion to restore the appellant to the day rather than the n

 Schapansky v. DOT DA075281F1130 (1 0-28-82). The Board held that evidence of an employee's unauthor

presence among picketers established a "prima facie" indication that the employee participated in a strike. The Board rebut the agency's evidence and concluded that the appellant did participate in a strike. The Board further determined reasonable since participation in a strike against the government constitutes extreme misconduct and hampers the gits mission. 

 Johnson v. DOT DC075281F0998 (11-10-82). Appellant denied his participation in the air traffic controller strike work his scheduled tour of duty out of fear for his life. The Board set forth the proposition that in order to establish a dmust demonstrate that his failure to report for work was the result of a threat of physical danger which a person oexpected to resist. Under this prescribed standard, the Board found that the appellant had not established coercion prima facie showing that he participated in the strike. 

Wallace v. Treasury NY351D8190018ADD (1 1-22-82). The Board affirmed a finding that 18 USC 205 preclude

federally employed attorney representing an appellant before the Board. The Board further determined that costs aran award of costs alone is not authorized by 5 USC 7701(g)(1). 

 Kufel v. U.S. Postal Service CH07528110245. The Board elaborated on its policy requiring that correct charges bbe based on approved leave. Kufel was charged with being absent without leave. The agency's evidence appeared 

meet time and attendance requirements. However, the appellant presented evidence rebutting the specific AWOL csince the agency failed to prove its specific charge, it was precluded from supporting the removal action by other evi

overall attendance record which was not relied on by the agency in proposing the adverse action. 

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Actions Involving the Office of General Counsel 

Original Jurisdiction Cases  In addition to those appellate cases just discussed, there is another significant body of Board orders and opinions: case, in which the Office of General Counsel provided the primary staff work  The majority of cases heard by the Board under its original jurisdiction authority are action brought by the Special 

only a small fraction of the Board adjudications, but they frequently result in important interpretations of the Civil Servic

 Cases filed by Special Counsel this year generally have been of four types: (1) requests for stays of agency person

on prohibited personnel practices; (2) requests for corrective action; (3) requests for disciplinary actions against fede

cases. 

Stay RequestsUnder the provisions of 5 U.S.C. §1208(a), the Special Counsel may request a stay of any personnel action for 15 caledetermines that there are reasonable grounds to believe that the personnel action was taken as a result of a prohibitemember may order such a stay unless he or she determines that, under the facts and circumstances involved, the staaction is taken on the request within three working days after it is filed by the Special Counsel, the stay becomes Under 5 U.S.C. 1208(b), upon further request of the Special Counsel, a Board member may extend the original 15

days. 

 Under 5 U.S.C. 1208(c), the Board may, by majority vote, extend the original 15-day stay for any period o

appropriate. However, this extension may be granted only if a majority of the Board concurs in the determination of than opportunity is provided for comment by the Special Counsel and agency involved. 

 The Board considered requests for stays of personnel actions in the following cases in calendar year 1982: Special Counsel v. National Aeronautics and Space Administration (Sharer), HQ12088110065. The Special Counsel 

removal of an auditor in the Office of the Inspector General, National Aeronautics and Space Administration (NASremoval was to be taken in retaliation for the employee's disclosures of mismanagement and violations of law by NA

(reprisal for "whistleblowing")). The Board granted stays pursuant to 5 U.S.C. λ 208(a) and (b). 

Special Counsel v. Department of Housing and Urban Development (Tuesburg), HQ12088210001. The Special proposed removal of a supervisory construction analyst in the Department of Housing and Urban Development (HUD)be in retaliation for the employee's allegations of mismanagement by officials in HUD's St. Louis area office (5 

..whistleblowing")). The Board granted stays pursuant to 5 U.S.C. 1208(a), (b) and (c). 

Special Counsel v. Department of Housing and Urban Development (Mullin and Orejuela) HQ120888210004. The Spthe geographical reassignment of two employees in the Indianapolis Area Office of HUD. The Special Counsel arguereprisal for disclosures of mismanagement on the part of a Black property manager and in order to give prefere

managers in the Indianapolis area office in violation of 5 U.S.C. 2302(b)(8) (reprisal for 'whistleblowing"), §2302(b)(1

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affecting performance), and 2302(b)(11) (personnel actions violating any law, rule, or regulation implementing or 

principles). The Board granted stays pursuant to 5 U.S.C. 

λ 208(a), (b) and two stays pursuant to 1208(c). 

Special Counsel v. Department of Defense (De Carlo) HQ12088210049. The Special Counsel requested stayreassignment and demotion of an assistant principal in the Department of Defense Dependent Schools. The Special C

retaliation for the employee's exercise of appeal rights in a discrimination complaint in reassignment violation of 5 Board granted stays pursuant to 5 U.S.C. 1208(a), and two stays pursuant to 1208(c). 

Special Counsel v. 'Department of Energy(Savitz), HQ12088210053. A Deputy Assistant Secretary for Conservation, Department of - Energy, who was a career appointee in the Senior Executive Service (SES), was geographically reassigned and was to be re moved for refusing a directed reassignment. The Special Counsel alleged that the was ordered to induce Dr. Savitz's resignation or permit her removal for failure to accept a directed reassignment, thus constituting a constructive discharge in violation of law, rule or regulation that directly concerns the merit system principles in violation of 5 U.S.C. §2302(b)(11). The Board denied the first "a" stay without prejudice. A second "a" stay petition, was granted as was a subsequent stay, pursuant to §1208(b). Special Counsel v. Department of Energy HQ12088210056. The Special Counsel asked for stays of any personnel actions involving career SES employees of the Department of Energy (DOE), alleging that a pattern of prohibited personnel practices involving the performance appraisals of career SES appointees had occurred at DOE in violation of 5 U.S.C. §2303(b)(11). The Board granted an "a" stay and later denied a "b" stay without prejudice since by the Special Counsel had already been secured by Office of Personnel Management actions and thus the stay reque

Requests For Corrective Action

 Under 5 U.S.C. §1206(c)(1)(A), if after investigation the Special Counsel determines that there are reasonable gropersonnel practice has occurred, exists, or is to be taken, which requires corrective action, the Special Counsel ma

such corrective action be taken. If the agency has not taken the recommended corrective action pursuant to reasonable period, the Special Counsel may ask the Board to consider the matter, The Board may then order suappropriate after opportunity for comment by the agency concerned and OPM. The Board took final action in three ca

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Counsel had requested corrective action pursuant to 5 U.S.C. 

λ 206(c)(1)(B). 

 Special Counsel v. Department of State (Rohrmann). The Spereassignment of an employee of the New York Passport Office was disclosures of mismanagement in violation of 5 U.S.C. 

2302(b)(8) ("w

that, although the Special Counsel had shown that the whistleblowing agency's action, the agency had shown that it would have taken the protected conduct because of the employee's insubordination. The Boarfor corrective action. Special Counsel v. Department of Labor (Coffield) HQ12068010001. The employee of the Mine Safety and Health Administration was rem§2302(b)(8),(9),(l0) and (11), but after further investigation recommendThe Board granted the Special Counsel's motion to dismiss the request. Special Counsel v. Small Business Administration H012068110006. Tthe Small Business Administration's implementation of a district directinvoluntary geographic reassignment of SBA district directors in violati(b)(6),(b)(10) and (b)(11). The Board granted the joint motion of the Sdismiss the request for corrective action. 

Disciplinary Action (Non-Hatch Act)Under 5 U.S.C. §1206(g), following an investigation, if the Special Counsel determines that a disciplinary action shoulwho is not a Presidential appointee, a written complaint is prepared, containing that determination along with a stapresented to the Board for action. Any employee against whom such a complaint has been presented is entitled to under 5 U.S.C. §1207, including the right to a hearing on the record. A final order of the Board in such an action magainst the employee including removal, reduction in grade, debarment from Federal employment for a period not to 

reprimand or the assessment of a civil penalty not to exceed $1,000. The Board acted on three consolidated cases in 

Special Counsel v. Owens, Smith and Farrow H0120600033, 120600034, and 120600035. These actions arose from Dennis, an employee of the Navy, from his removal to the Board. The Special Counsel alleged that the performance r

Dennis violated 5 U.S.C. §2302(b)(8),(9) and (11) because the actions were taken in retaliation for his union activities 

safety hazards. 

 The Special Counsel filed complaints pursuant to 5 U.S.C. §1206(g) asking the Board to order disciplinary actiDennis's removal; Owens, who advised Smith on the removal; and Farrow, who issued Dennis's performance rating. 

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The Board dismissed the complaint against Smith on the grounds that it did not have jurisdiction under 5 U.S.C. §1206

left the Federal service before the complaint was filed and served. 

 The complaint against Farrow was dismissed on the 

ground that the 1979 performance rating in question was not a "personnel action" within the meaning of 5 U.S.C. §2302. 

And, finally, the Board found that Owens had not taken, 

recommended, or approved any personnel action with respect to Dennis as a reprisal for activities of Dennis which were protected by 5 U.S.C. 

2302(b)(8), (9) and (11), and 

accordingly concluded that disciplinary action against Owens was not warranted. 

Hatch Act Cases

Under 5 U.S.C. Chapters 15 and 73, the Special Counsel 

is authorized to investigate political activities by certain state and local officers and employees, and political activities of federal employees, and employees of the District of Columbia government. Following such investigations, if the Special Counsel determines there is a basis for doing so, he may file a complaint with the Board to order certain disciplinary actions against the employee. 

In 1982, the Board issued final orders in six cases in which 

the Special Counsel charged federal employees with violations of 5 U.S.C. 

7324 for engaging in prohibited 

political activity. 

One case was dismissed without prejudice on the Special 

Counsel's motion, Special Counsel v. Alfred W. Halx H012060028. Four cases resulted in imposition of suspensions from duty without pay in accordance with 5 U.S

unanimously decided that the violations did not warrant removal. 

Special Counsel v. Sullivan D. Harris HQ12068110060; Special Counsel v. Rogelio Chapa HQ12068210032; SpecHQ120600027; Special Counsel v. Marshel Watson HQ12068110059; and Special Counsel v. Anna Maria Fujimot

Tacker received the minimum statutory penalty of a 30-day suspension; Watson and Chapa received a 45-day susp60-day suspension. 

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In Special Counsel v. Paul J. Comito HQ12068110057, 

the Board ordered the employee removed. The record showed that Comito was repeatedly warned that he risked violation of the Hatch Act by his candidacy in the Democratic primary for the office of Alderman while employed as a firefighter by the Department of the Army at the Rock Island Arsenal, Rock Island, Illinois. When he persisted after being warned, the Arsenal advised the Special Counsel, who, in a letter to Comito, explained the prohibitions of the Hatch Act as they applied to him, advised him that his candidacy was a violation of the Hatch Act, and provided him an opportunity to 

withdraw. In a written response, Comito acknowledged receipt of the letter and stated his determination to remain a candidate. He won the Democratic primary, and then ran in the general election. exercise its mitigation authority and ordered Comito removed. 

Litigation The Office of the General Counsel, by designation from the Chairman, has the authority to appear for the Board and action in which the Board is a party. Accordingly, litigation constitutes an important and increasingly substantial poand includes participation in appeals pending before both the federal circuit and district courts.

Employee AppealsIn 1982, most employee petitions for review of Board decisions were filed in the Court of Claims or a United States coueffective October 1, 1982, the United States Court of Appeals for the Federal Circuit, located in Washington, D.C., becjurisdiction over these appeals. Board action in many of these cases was limited to an advisory role since the employithe sole statutory respondent in most cases, was represented by the United States Attorney or the Department of Justparticipated actively in the defense of selected cases that presented a broad image of issues of first impression under notably: Off-duty misconduct (Stalans v. National Security Agency 678 F.2d 482 (4th Cir. 1982); Cosey v. Department of Navy

USPS, (5th Cir. No. 82-4250); Borsari v. FAA, (2d Cir. No. 82-4140)); The burden of proof in denials of within-grad

Department of Health and Human Services 682 F. 2d 85 (3d Cir. 1982); Stankis v. Environmental Protection Agency 

attorney fees may be awarded in disability retirement cases. (Cases are currently pending on this issue in the First, and Federal Circuits); Certain procedural issues, including the standard of review of petitions for review (Williams v. 

1372); Deal v. Justice (10th Cir. No. 82-1733) and the application of sanctions (Devine v. MSPB and Fuller (D.C. Cir. N

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Air Traffic Controller and Related Cases

 Because of the drastic budget reduction and the six-fold increase in its caseload, the Board was forced to impearly 1982 to conserve its limited resources to enable the agency to continue performing its mission. As a result of thactions were filed in the courts of appeals and district courts seeking to compel the Board to process pending cases MSPB (6th Cir. No. 82-3230); Wheeler, et a/. v. United States, et a/. (W.D. Wash. No. C 82-187); Adams v. Pos

Casella v. MSPB (E.D. Mo. No. 82-91C(3), among others), to eliminate travel restrictions (Sanchez Mariani v. Elli

1383)) and to declare unlawful the Board's emergency regulations providing that it would no longer provide free hea

(D.C. No. 82-0588)). A majority of these cases were resolved successfully, although a limited number were still pendof 1982. 

Miscellaneous CasesOne of the functions of the Board under Chapter 12 of Title 5 is to review laws, rules and regulations promulgated by OEmployees Union appealed a Board determination that a particular regulation was valid to the United States CoColumbia Circuit (NTEU v. OPM the and MSPB (D.C. Cir. No. 82-1206)). At issue in this appeal of first impression c

under its regulation review authority is the jurisdiction of the circuit court to hear the appeal and the standards of rereview the which the court should apply in regulation review proceedings. 

Regulation Review  The Board has the responsibility for reviewing regulations issued by the Office of Personnel Management tha

prohibited personnel practices either on their face or through implementation. Support for this review is also provideReview and Studies. 

 In Senior Executive Service v. Office of Personnel Management HQ12058210021, the Board denied a request fothat the issues raised in the requests could more appropriately come before the Board on the basis of a complete reco The Board granted a request for review in Joseph v. Devine HQ12058110067, and that matter is pending. It q

regulation limiting the scope of grievable actions. 

 In addition, the Board upheld the regulations involved in National Treasury Employees Union v. Office of Personnel M

concerned the scope of the adverse action provisions. That matter is currently on appeal to the Circuit Court for DisSee LITIGATION. 

 In In re Implementation of 5 CFR Part 430 by the Federal Prison System HQl2058110013, the because identica

and more appropriate forum. 

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In In re Invalidation of 5 CFR 752.404(d) (3) HQ12058210005, the petitioner requested that the Board review the lega

regulations. The Board, having in validated this same regulation in Cuellar v. U.S. Postal Service SF075299045, Finally, OPM voluntarily amended the regulation involved in In re Disclosure of Information H012058110010, w

interplay between OPM's code of conduct provisions and the protection afforded to whistleblowers by the Civil Service 

Special Studies. 

26 
 This report has already detailed some of the major challenges faced by the Board during 1982 caused, in large par

budget cut and receipt of the ATC appeals. The Office of Merit Systems Review and Studies (MSRS) was not isolate

along with a change in Board leadership during 1982, the three top managers of MSRS left during the last half of ththe private sector. New management had to be recruited and hired and new priorities set. 

 For all of these reasons, 1982 found MSRS in a state of flux, with fewer resources, fewer staff, and a total turnovdifficulties, late in 1982 the Office was able to begin development of a forward looking research agenda in conjunction which solicited the views and knowledgeable individuals and organizations such as the American Society of Public AManagement Association, National Academy of Public Administration, Common Cause, and the Urban Institute  Incorporated in the Office's agenda development was an expanded approach to the conduct of its studies to sureliance on survey research and to provide developmental opportunities for the professional staff. (The agenda was fi

cover a variety of topics through such methods as on-site reviews, roundtable discussions with selected experts, sinformation drawn from various automated data bases.) 

 Special Studies: Despite the problems confronted by MSRS, the Board was able to send several major reports on the Congress and the President during 1982. These reports were prepared by MSRS under the mandate of 5 U.S.C. These studies are described below. Report on the Significant Actions of the Office of Personnel Management 1981  This report, required by statute, examined programs and policies initiated by OPM to see if they resulted in propreventing prohibited personnel practices. Information gathered for this report was derived from several sources: pnotice published in the Federal Register; extensive OPM briefings and material provided by them; on-site intervi

personnel and senior executives; and writ ten comments from directors of personnel and director of equal employment 

The 1981 report included a discussion of the following topics: 

• OPM's establishment of an ambitious agenda for change both-in OPM as an organization and in the policie

responsible. 

• Problems in recruiting and retaining needed talent particularly in the Senior Executive Service and in some engine

• The implementation of the merit pay system, with attention given to GAO's and OPM's failure to resolve differenc

for the system, 

• A potential long-term pattern of decline in employee morale. • It also reported on SES safeguards following changes in political leadership, and equal opportunity questions 

during 1981. 

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Study on MSPB Appeals Decisions for FY 1981 

 This report provides the Board with a comprehensive statistical update on its appeals processing, the largest of 

contains in-depth information delineating such things as the types and numbers of appeals processed and their outc

numbers of hearings held, agency reversal rates, appellant reversal rates, number of petitions for review, and outcomeMonographs The Office had built a base of objective data about the operations of the merit system through its surveys of key grouquestionnaire surveys of mid-level employees, senior executives and senior personnel officials were designed to indicators regarding the merit system. Because of the amount of information collected, and the diversity of topics, Mmonographs" in 1982 drawing from the results of those surveys. Breaking Trust: Prohibited Personnel Practices in the Federal Service. The first of the series, this Monograph was released in 1982, and examined prohibited personnel practices-which of them occur with what frequency, and how well the mechanisms intended to prevent their occurrences are working. The most frequent prohibited personnel practices were found to be those involving some form of discrimination. The three most frequently cited abuses related to the denial of equal access to the merit system. The report did not indicate abuses were widespread. The report was presented to agency heads, however, so that they could build on the data presented in order to improve the system. The Other Side of the Merit Coin: Removals for Incompetence in the Federal Sector. This monograph reported that Federal employees have a fairly low expectation of removal from their jobs should their performance be inadequate. Employee attitudes varied, however, among the groups surveyed. Senior executives saw themselves as more vulnerable to removal for poor performance. Employee attitudes varied greatly among the agencies. This report suggested that different employee perceptions, by agency, probably reflect differences among the agencies in organizational climate, mission, agency history and the demographics of employment.The Elusive Bottom Line: Productivity in the Federal Workforce. This monograph explores whether the merit principle to use the Federal work force "efficiently and effectively," is being realized. The report cautioned that since the data was drawn, significant changes have occurred in the direction and funding of Federal programs and agencies and that those changes could 

28 
impact on the findings. Federal executives and mid-level managers on a Government-wide basis have a generally 

and that of their work groups. However, approximately 20% of all Federal executives and 24% of all mid-level m

increasing productivity within their groups, with no increase in staff. A slightly greater percentage saw high poteSubstantial differences emerged when responses were examined on an agency-by-agency basis. The study conclud1981, there was room at many agencies for major improvements in several aspects of productivity. 

Some Projected Studies for 1983 Government-wide Study on the Implementation of Reductions-in-Force in 1981. In 1981, 12,594 Federal employees were affected by reductions-in-force (RIF's). This study will focus on: the extent o

RIF process complied with RIF laws and regulations; whether the 1981 RIF process was fair and equitable; the effemorale and productivity; preparations for the 1981 RIF; potential improvements to the RIF process; and alternatives tstudy was gathered chiefly through MSRS developed questionnaires and on-site interviews. MSRS administered twpersonnel officials and the other to a Government-wide sample of Federal employees. Extensive interviews were 

managers, employees, personnel officials, representatives of agency management, employee-oriented groups (inc

(including OPM, EEOC, FLRA) and professional public administration organizations. 

Study of MSPB Appeals Decisions for 1982. As in previous years, the appeals study will analyze the Board's prochart major trends, and may also incorporate recommended improvements suggested by interested readers of the 198Study of OPM's Significant Actions During 1982. This report, issued annually by the Board, will look at how specific OPM policies and programs during the previous ythe merit principles and prohibited personnel practices. The 1982 study will contain a review of merit pay timplementation problems identified in 1981 were eliminated in 1982. The Merit Principles Survey.  This year, MSRS will survey a cross section of the Federal work force on various aspects of the merit principleswork force effectiveness, reprisal for whistleblowing, methods used to deal with employee performance problems and 

base point for the required 1983 report on the significant actions of the Office of Personnel Management and for other 

Interaction with Other Agencies  Under Reorganization Plan No. 1 of 1978, the Equal Employment Opportunity Commission assumed the discrimination cases brought by Federal employees. However, employees who are en-titled to appeal to the B

discrimination on the basis of handicap-ping condition, age, race, sex, religion, color and national origin. In these "mixed cases", there is a further statutory right to petition the EEOC to review the Board's decision. 

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In order to ensure the expeditious and orderly processing of these "mixed cases", the Board and EEOC have mainta

problems arising from their concurrent jurisdiction over discrimination cases. As a result, EEOC and the Board have 

many unexpected procedural and substantive issues relating to their joint jurisdiction. Further, continuous discussubstantive discrimination issues have prevented the issuance of conflicting decisions on the same legal issues. To 

with the Board in only four new system discrimination cases. 

Other interactions with EEOC during the past year included coordination on the "mixed cases" regulations, and the es

timely forwarding of case files to EEOC for review under its statutory authority. 

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