Annual Report for Fiscal Year 2008

| 1

Annual Report

for fiscal year

2008

united states merit systems protection board

march 2009

DENVER FIELD

WESTERN

 OFFICE

REGIONAL OFFICE

DALLAS REGIONAL OFFICE

CENTRAL REGIONAL OFFICE

NORTHEASTERN

REGIONAL OFFICE

NY

FIELD

OFFICE

ATLANTA REGIONAL OFFICE

DC

REGIONAL

OFFICE

HQ
ii | U.S. Merit Systems Protection Board 

I

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

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

actions during fiscal year 2008. This report includes summaries of the most significant Board and court decisions issued during the year, case processing statistics, 

summaries of MSPB’s merit systems studies, summaries of the significant actions of 

the Office of Personnel Management (OPM), and a summary of MSPB’s financial 

results. In addition, where there have been significant activities since the end of the 

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

Additional information about fiscal year 2008 program performance results 

and financial audit information is included in MSPB’s separate Performance 

and Accountability Report (PAR). This Annual Report, the PAR, and other 

information about the MSPB can be found on MSPB’s Web site: www.mspb.gov.

Forward
Annual Report for Fiscal Year 2008 | iii

Table of Contents

Fiscal Year 2008 in Review ..........................................................................................1

Protecting merit: Evolving management policies and practices and changing 

 demographics of the workforce............................................................................1

Adjudication..............................................................................................................4

Merit systems studies.................................................................................................4

Legislative and congressional relations update............................................................4

Significant actions of the Office of Personnel Management .......................................5

Board Members and Board Organization.................................................................7

Board Members.........................................................................................................7

Board offices and structure ........................................................................................9

Organization chart ..................................................................................................10

Significant Board Decisions and Court Opinions Issued in 

Fiscal Year 2008............................................................................................................11

Significant Board Decisions.....................................................................................11

Significant opinions issued by the United States Court of Appeals 

 for the Federal Circuit .......................................................................................15

Fiscal Year 2008 Case Processing Statistics.........................................................19

Summary of Cases Decided by MSPB.....................................................................19

Regional Case Processing.........................................................................................20

Headquarters Case Processing..................................................................................26

Summaries of Merit Systems Studies .....................................................................31

The Power of Federal Employee Engagement...........................................................31

Alternative Discipline: Creative Solutions for Agencies to Effectively Address 

 Employee Misconduct.......................................................................................32

Federal Appointment Authorities: Cutting Through the Confusion.........................32

In Search of Highly Skilled Workers: A Study on the Hiring of Upper Level 

 Employees from Outside the Federal Government.............................................33

The Federal Government: A Model Employer or a Work in Progress?.....................33

Issues of Merit Newsletter .........................................................................................34

Merit Principles Survey 2007...................................................................................34

Career Advancement Survey....................................................................................35
Significant Actions of the Office of Personnel Management .............................37

Policy and Leadership..............................................................................................37

Compliance and Accountability ..............................................................................40

Delivering Products and Services.............................................................................42

Financial Summary ......................................................................................................43
Annual Report for Fiscal Year 2008 | 1

Protecting merit: Evolving management policies and 

practices and changing demographics of the workforce 

The most significant trends or issues affecting the MSPB’s operations include: changes 

and developments in appeal rights and management flexibilities, changing demographics 

of the Federal workforce, the Federal budget, and changes in MSPB Board membership 

and leadership positions. 

Changes and developments in appeal rights and management flexibilities

On July 31, 2008, the MSPB and the Transportation Security Administration announced the 

launch of a new appeals system granting MSPB the authority to adjudicate appeals of alleged 

incidents of whistleblower reprisal filed by Transportation Security Officers (TSOs) and applicants for those positions. This agreement ensures that these appeals are heard by the MSPB 

as a neutral third party. TSOs will be assured that their claims of reprisal due to disclosure of 

serious safety or security concerns, or mismanagement will receive a fair hearing. 

On September 30, 2008, the Consolidated Security, Disaster Assistance and Continuing Appropriations Act, 2009, Public Law 110-329 (2008), was signed into law including a provision 

barring the Department of Homeland Security (DHS) from using any appropriated funds to 

support its new human resources management system. On October 2, 2008, DHS announced 

that it was rescinding the operative date of the new system effective October 1, 2008, and was 

returning all DHS employees covered by the new system to the authorities and provisions 

of Title 5, U.S.C. that applied prior to its implementation. Therefore, the final rule (73 FR 

21019) that the MSPB published on April 18, 2008, revising its regulations for processing 

appeals arising under the DHS human resources management system is not in effect. All 

appeals to the MSPB from DHS employees will be adjudicated under MSPB’s governmentwide regulations. 

Various aspects of the National Security Personnel System (NSPS) continue to be implemented in phases, such as performance-based pay and classification and compensation flexibilities. 

The MSPB has begun receiving appeals involving pay issues from employees covered by NSPS. 

However, as a result of the National Defense Authorization Act (NDAA) 2008, workforce 

shaping, labor management relations, disciplinary actions and employee appeals of adverse 

actions will now be governed by governmentwide rules. Therefore, MSPB will continue to 

process adverse action appeals from Department of Defense (DoD) employees based on 

Fiscal Year 2008 in Review
2 | U.S. Merit Systems Protection Board 

existing laws and precedent. Other appeals by DoD employees (e.g., involving whistleblower 

rights, veterans’ rights and administrative retirement decisions) were not changed under 

NSPS, and will continue to be processed under traditional Title 5 governmentwide rules. 

The number of Federal employees who will be managed under new, non-traditional human 

resources management systems will continue to change. As employees move from traditional 

Title 5 positions to those governed by more flexible provisions and back again, it is possible 

that the MSPB could see an increase in its appeals workload as well as increased complexity 

in the various legal authorities and precedents used to decide these appeals. These changes 

also emphasize the need for MSPB to continue its study of Federal merit systems and human 

capital management practices to ensure the systems are operating in accordance with merit 

system principles and free from prohibited personnel practices. By studying these systems, we 

may also identify ways to improve the effectiveness and efficiency of Government operations. 

These changes and developments in appeal rights and management flexibilities will make 

MSPB’s ability to hire and retain skilled staff all the more critical.

The Americans with Disabilities Act (ADA) Amendments Act of 2008 became effective on 

January 1, 2009. The Act retains the ADA’s basic definition of “disability” as an impairment 

that substantially limits one or more major life activities, a record of such impairment, or 

being regarded as having such an impairment. However, it changes the way these statutory 

terms should be interpreted. While discrimination claims alone are not appealable to the 

MSPB, such claims are frequently raised as affirmative defenses to actions that are appealable (thus known as “mixed” cases). The broader interpretation and expanded rights afforded 

by the ADA Amendments Act will likely make some Board appeals more complex and may 

encourage additional claims.

Changing demographics of the Federal workforce

The proportion of Federal employees who are eligible for retirement continues to increase. 

While current economic conditions may delay the retirements of some of these Federal employees, it is still likely that retirements will increase in the next few years. While voluntary 

decisions to retire are not appealable, the MSPB receives a substantial number of appeals each 

year from persons who claim that they were forced into retiring or who tried to withdraw 

their acceptance of a monetary incentive offered under a Voluntary Separation Incentive 

Program (VSIP). VSIPs are a popular tool when agencies are facing reductions in force. 

Moreover, any person whose rights or interests under the retirement system are affected by 

a final decision of the Office of Personnel Management (OPM) has a right to appeal to the 

Board. As the number of retirements continues to increase, so may these appeals.

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

employees, we are likely to see a decrease in the average age of the workforce. As this occurs, 

we may expect to see an increase in appeals because less experienced employees typically 

experience more appealable actions than do more experienced employees. It is not possible to 

predict exactly how these issues will evolve over time. Therefore it is important for the MSPB 

to continue its efforts to hire and retain skilled adjudicatory, studies, and management support staff. 
Annual Report for Fiscal Year 2008 | 3

During the last several years, the MSPB has experienced an increase in the number of appeals 

involving veterans rights. As troops have been returning from overseas conflicts for several 

years, there may be no additional increase in this workload in the short term. However, if 

greater numbers of troops begin to return there could be a proportionate increase in appeals 

under the Veterans Employment Opportunities Act of 1998 (VEOA) and the Uniformed 

Services Employment and Reemployment Rights Act of 1994 (USERRA).

The Federal Budget

The demands on the Federal budget continue to grow, with significant additional demands 

tied to the Emergency Economic Stabilization Act of 2008, Public Law 110-343 (2008). As 

budget pressure increases, there is greater potential that costs may be cut by reducing the size 

of the Federal workforce, curtailing or freezing hiring, or reducing training. Reducing the 

size of the workforce may lead to increases in the number of employees who are separated 

involuntarily through reductions in force. If historical trends are accurate, this will lead to 

potentially large increases in the number of appeals to the MSPB. Reductions in hiring and 

workforce training may also have long-term impacts on merit principles such as the efficiency 

and effectiveness of the workforce. It is important to understand the strategic long-term 

Federal workforce and merit systems implications of the methods used to control spending. 

In addition, it is unclear how other factors related to changing economic conditions may 

affect the workforce. Employees may behave and perform better in an effort to keep their 

jobs. On the other hand, employees may experience more workplace conflict and other behavioral and performance issues due to the stress caused by economic conditions over which 

they have no control. It is not possible to predict exactly how these issues will unfold over 

time. As noted, given these budgetary pressures, it is essential that the MSPB continue to 

hire and retain highly qualified employees to perform its adjudicatory, merit system studies 

and management support functions.

Changes in MSPB Board membership and leadership positions

As described above, it is essential that the MSPB have the right people with the right skills 

to adjudicate appeals, conduct merit systems studies and support those missions. The MSPB 

also needs quality managers who can lead our programs now and into the future. In fiscal 

year 2008, MSPB appointed a new Clerk of the Board, Director of the Office of Policy and 

Evaluation, and Director of the Washington Regional Office. Plans are also underway to select new Directors for the Offices of Appeals Counsel and Equal Employment Opportunity.

In addition to expert staff and senior managers, the MSPB also needs three confirmed Board 

members who can review and vote on appeals brought to the MSPB. MSPB currently has 

two confirmed Board members. Member Barbara Sapin’s term ended on March 1, 2008. On 

March 1, 2009, Chairman Neil A. G. McPhie’s term of appointment ended. Statutory provisions permit him to serve one additional year (until March 1, 2010) or until a new Chairman 

is confirmed by the Senate within that year. Vice Chairman Mary M. Rose’s term extends 

until March 2011. 
According to statute, the Board consists of three Board Members who review and issue decisions on cases brought before the Board. If the Board has three Members, it takes the agreement of only two Members to issue a precedential decision. If the Board has two Members, 

it can issue precedential decisions only if both Members agree. If they disagree, the initial 

decision becomes the final decision, which is not precedential. If the Board has only one 

Member, it cannot issue any decisions. It is important, therefore, that the Administration 

nominate, and the Senate confirm, at least one new Board Member prior to Chairman 

McPhie’s departure. This will ensure that the Board can continue to issue decisions.

Adjudication 

The MSPB decided appeals and petitions for review (PFRs) in accordance with the laws and 

regulations governing such appeals. The MSPB issued 7,903 decisions in fiscal year 2008. 

The regional, field offices and MSPB headquarters issued timely, high quality initial decisions 

and MSPB headquarters offices issued timely, high quality decisions in response to PFRs. The 

MSPB provided a full menu of successful alternative dispute resolution options to its customers, including settlement efforts in the regional and field offices and headquarters; the Mediation Appeals Program; and the availability of administrative judges (AJs) separately designated 

for settlement of a case. The case processing statistics presented in this report give detailed 

information regarding the type, origin, and disposition of cases processed by the MSPB. 

This report contains brief summaries of the most significant Board decisions published in 

fiscal year 2008, as well as summaries of significant opinions issued by the United States 

Court of Appeals for the Federal Circuit during the fiscal year. Significant Board decisions 

addressed such issues as adverse action appeal rights and charges, arbitration review, alternative personnel systems, attorney fees, Board procedures, discrimination, medical standards, 

retirement, and veterans’ rights. 

Merit systems studies 

The MSPB completed several studies and issued reports on such issues as hiring upper 

level employees from outside the Federal Government, the use of various hiring authorities, 

Federal employee engagement, the use of alternative discipline in Federal agencies, and a 

longitudinal analysis of prior Merit Principles Surveys. The MSPB issued four editions of 

the Issues of Merit newsletter, which included articles such as how best to use accomplishment 

records, selective factors, and realistic job previews during the hiring process; how increased 

employee engagement relates to the retention of retirement-eligible employees; the importance of human capital in the next Presidential Administration; and how Federal agencies 

can improve their hiring practices and processes. In addition, the MSPB completed the administration of two large Governmentwide surveys, the 2007 Merit Principles Survey and 

the Career Advancement Survey.

Legislative and congressional relations update 

The House and Senate bills to reauthorize the Merit Systems Protection Board (H.R. 3551 

and S. 2051, respectively) were not enacted by the adjournment of the 110th Congress. As 

a result, MSPB will resubmit a request for reauthorization now that the 111th Congress has 

convened.

4 | U.S. Merit Systems Protection Board 
Annual Report for Fiscal Year 2008 | 5

The fiscal year 2008 appropriation for the MSPB was enacted on December 26, 2007 as part 

of H.R. 2764, an omnibus appropriations bill. Upon enactment, Public Law No. 110-161 

provided a total funding level of $40,086,000 for MSPB, which included $2,579,000 in 

reimbursements from the Civil Service Retirement and Disability Fund.

The MSPB’s Congressional relations activities during fiscal year 2008 included presenting 

testimony during Congressional hearings and briefings for Congressional committee staff 

and outreach meetings with congressional staff. 

On October 18, 2007, General Counsel Chad Bungard testified at a hearing that was conducted by the Senate Subcommittee on Oversight of Government Management, the Federal 

Workforce, and the District of Columbia on MSPB’s role in adjudicating Hatch Act cases. 

On May 8, 2008, John Crum, Director of the Office of Policy and Evaluation, testified at a 

hearing on diversity in the Federal workforce that was conducted by the House Subcommittee on Federal Workforce, Postal Service and the District of Columbia. On September 11, 

2008, Chairman McPhie testified at a hearing conducted by the House Oversight and Government Reform Subcommittee on the Federal Workforce, Postal Service and the District of 

Columbia on H.R. 4272, a bill that would exempt State and local officers and government 

employees in cities and towns with populations of less than 100,000 people from the Hatch 

Act prohibitions against running for partisan political office. 

During fiscal year 2008, the MSPB staff conducted Congressional committee staff briefings 

on the MSPB’s fiscal year 2009 budget request, the agency’s procedures for adjudicating 

administrative law judge (ALJ) disciplinary cases, recruitment and hiring in the Federal government, diversity in the Federal executive workforce and the MSPB regulations for adjudicating appeals filed by employees of the Department of Homeland Security. Further, as part 

of MSPB’s efforts to increase outreach to members of Congress and to be of further assistance 

to them in their representational and constituent services responsibilities, the Legislative 

Counsel met with congressional staff of representatives and senators who represent districts 

or states where MSPB regional and field offices are located. The Legislative Counsel also met 

with staff to Congressional members of the District of Columbia, Maryland and Virginia 

local delegations.

Significant actions of the Office of Personnel Management

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

the Office of Personnel Management (OPM) to ensure that these actions conform with merit 

principles and do not result in prohibited personnel practices. The MSPB reviewed the significant policy and leadership actions of OPM including efforts to improve the hiring process, 

elimination of time in grade requirements, guidance related to the use of the Outstanding 

Scholar and Bilingual/Bicultural hiring authorities, and the clarification of adverse action 

rules during probationary and trial periods. The MSPB reviewed OPM’s significant compliance and accountability actions including Presidential transition guidance, human capital 

planning and accountability efforts, actions taken to assist agencies with identifying and 

developing effective supervisors, and addressing the reprisal against whistleblowers and 

violations of antidiscrimination laws. The MSPB also reviewed OPM’s significant actions 

related to delivering products and services including reopening the Administrative Law

Judge examination and announcing the Senior Executive Service Federal Candidate 

Development Program. 

Annual Report for Fiscal Year 2008 | 7

Board Members

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, and confirmed by the Senate, and serve overlapping, non-renewable 7-year terms. 

Chairman

NEIL A. G. McPHIE was confirmed as Chairman of the 

U.S. Merit Systems Protection Board on November 21, 

2004. Chairman McPhie had served as Acting Chairman 

since December 10, 2003, when President Bush designated 

him to be Vice Chairman. He was sworn in as a member of 

the Board on April 23, 2003, following his recess appointment by President Bush. Chairman McPhie’s term expired 

on March 1, 2009. Statutory provisions permit him to 

serve one additional year (until March 1, 2010) or until a 

new Chairman is confirmed by the Senate within that year. 

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.

Board Members and Board 

Organization
8 | U.S. Merit Systems Protection Board 

Vice Chairman

MARY M. ROSE was designated by President Bush as 

Vice Chairman of the U.S. Merit Systems Protection Board 

on January 27, 2006. Mrs. Rose was sworn in as a Board 

Member on December 28, 2005, following her confirmation by the Senate on December 17, 2005. Vice Chairman 

Rose’s appointment will expire on March 1, 2011. Prior to 

joining the Board, Mrs. Rose was appointed by the President 

to serve as Vice Chairman of the Federal Salary Council. She 

was Chairman of the Federal Prevailing Rate Advisory Committee where she advised the Director of the U.S. Office of 

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

Rose served as Deputy Associate Director of the Office of Presidential Personnel at the White 

House. She served four years as the Elected Clerk of the Circuit Court, Anne Arundel, Maryland. Mrs. Rose has also served as Assistant Director for Executive Administration, Office of 

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

Undersecretary for Management at the Department of Education. Her private sector experience includes positions as a consultant with an Annapolis law firm and as a Visiting Fellow 

with The Heritage Foundation where she recruited, interviewed, and recommended Presidential appointments to the George W. Bush transition team. Mary M. Rose received an R.N. 

degree from the Bon Secours Hospital School of Nursing, and she completed the Maryland 

Registered Nurse Recertification Program in May 2000. Mrs. Rose is married to Philip D. 

Rose, M.D., and has four children.

Member

BARBARA J. SAPIN was confirmed as a Member of the 

Merit Systems Protection Board on November 21, 2004. 

Ms. Sapin’s term expired on March 1, 2007. She continued to serve as a Board Member until February 29, 2008, 

pursuant to 5 U.S.C. § 1202(c) of MSPB’s enabling statute, 

which permits a member whose term has expired to continue to serve until a successor has been appointed but no 

longer than one year after the term has expired. Previously, 

Ms. Sapin served as Vice Chairman during a recess appointment (January 2001 – December 2001). Ms. Sapin served 

in a number of labor and employment law related positions, 

including General Counsel and Labor Counsel to the American Nurses Association from 1990 until the time of her initial appointment to the Board. In 

addition, Ms. Sapin held several positions at the National Labor Relations Board from 1981 

to 1990, including attorney for the Appellate Court Branch in Washington, D.C., field attorney in the Chicago Regional Office, and Senior Counsel to a Board Member. Prior to 1981, 

Ms. Sapin’s Government service included positions with the Occupational Safety and Health 

Review Commission and the U.S. Environmental Protection Agency. Ms. Sapin received her 

B.A. in Psychology from Boston University and a Juris Doctorate from the Columbus School 

of Law, Catholic University of America. She is admitted to the District of Columbia and 

Maryland Bars.
Annual Report for Fiscal Year 2008 | 9

Board offices and structure

The MSPB is organized according to its statutory missions to adjudicate appeals and conduct 

merit systems studies, and it has offices that support these missions. In addition to its three 

appointed Board members, the MSPB has approximately 236 employees assigned to headquarters and to its eight regional and field offices located throughout the United States. 

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

the chief executive and administrative officer of the MSPB. Office heads report to the Chairman through the Chief of Staff. 

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 

(NLRB) under an interagency agreement.)

The Office of Appeals Counsel (OAC) conducts legal research and proposes decisions for 

the Board in cases where parties petition for review of administrative judges’ initial decisions 

and in most other cases decided by the Board. The office conducted the MSPB’s petition 

for review settlement program (in fiscal year 2009 the Office of the General Counsel will 

conduct this 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 the MSPB 

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

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

public information, operates the MSPB’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 MSPB’s records and directives 

systems, legal research programs, and the Government in the Sunshine Act program.

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

the MSPB’s equal employment opportunity programs. It processes complaints of alleged 

discrimination and furnishes advice and assistance on affirmative employment initiatives to 

MSPB managers and supervisors.

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

accounting, travel, time and attendance, human resources, procurement, property management, physical security and general services functions of the MSPB. It develops and coordinates internal management programs and projects, including review of internal controls 

agency-wide. It also administers the agency’s cross-servicing agreements with the U.S. Department of Agriculture (USDA) National Finance Center for payroll services, the Department of the Treasury Bureau of the Public Debt for accounting services, and USDA’s Animal 

and Plant Health Inspection Service for human resources management services.
10 | U.S. Merit Systems Protection Board 

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

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

represents the MSPB in litigation; prepares proposed decisions for the Board on compliance 

cases, requests to review OPM regulations and other assigned cases; and, coordinates MSPB’s 

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

the MSPB’s ethics program, and plans and directs audits and investigations. The office also 

provides legal research and other administrative assistance to NLRB administrative law judges.

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

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

efficiently and carry out its administrative and research responsibilities.

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

to conduct studies of the civil service and other Federal merit systems. Reports of these studies are directed to the President and Congress and are distributed to a national audience. The 

office provides information and advice to Federal agencies on issues that have been the subject of MSPB studies. The office also conducts special projects for the Board and has responsibility for preparing the MSPB’s plans and reports required by the Government Performance 

and Results Act (GPRA). 

The Office of Regional Operations (ORO) oversees the MSPB’s six regional and two field 

offices, which receive and process appeals and related cases, and manages the MSPB’s mediation 

appeals program (MAP). Administrative judges (AJs) in the regional and field offices are responsible for adjudicating assigned cases and for issuing fair and well-reasoned initial decisions.

Organization chart

Vice Chairman Chairman Member

Equal 

Employment

Chief of 

Staff

Administrative 

Law Judge

Clerk of the 

Board

Appeals 

Counsel

General 

Counsel

Policy and 

Evaluation

Regional 

Operations

Regional 

Offices

Atlanta

Chicago

Dallas

Philadelphia

San Francisco

and

Washington, 

DC

Financial 

Administrative 

Management

Information 

Resources 

Management

Field Offices

Denver and

New York

Human Resources Management services are provided by the Department of Agriculture (USDA) 

Animal and Plant Health Inspection Service (APHIS) Business Services.

Payroll services are provided by USDA National Finance Center.

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

The functions of the Administrative Law Judge are performed by the National Labor Relations Board 

under an interagency agreement 
Annual Report for Fiscal Year 2008 | 11

The MSPB issued a substantial number of noteworthy decisions in fiscal year 2008, several 

of which are summarized below. Also included below are brief summaries of many of the 

significant opinions issued by the United States Court of Appeals for the Federal Circuit as 

a service to our stakeholders. 

Significant Board Decisions 

Adverse Action Appeal Rights

Fitzgerald v. Department of the Air Force, 108 M.S.P.R. 620 (2008): The appellant held an 

excepted-service appointment as a National Guard Technician for nearly a year, and then received a career-conditional appointment in the competitive service without a break in service. 

The agency terminated the latter appointment after 3 months. On appeal, the agency argued 

that the appellant was not an “employee” with the right to challenge an adverse action before 

the Board. The Board disagreed, holding that employment in the excepted service immediately preceding a non-temporary appointment in the competitive service may be used to 

satisfy the “1 year of current continuous service” required under 5 U.S.C. § 7511(a)(1)(A)(ii) 

for appeal rights to attach in the competitive service.

Adverse Action Charges

Ryan v. Department of the Air Force, 107 M.S.P.R. 71 (2007): The appellant was absent for extended periods, during much of which he was on sick or annual leave. The agency removed 

the appellant for “excessive absence.” On appeal, the Board held that in general, an employee 

cannot be disciplined for using leave approved for unscheduled absences. An exception to 

that general rule is when an employee makes excessive use of unscheduled leave without pay, 

but that exception was not satisfied in this case.

Arbitration Review

Fanelli v. Department of Agriculture, 109 M.S.P.R. 115 (2008): The appellant grieved his 

removal under a negotiated grievance procedure. An arbitrator dismissed the grievance as 

untimely filed under the deadline set forth in the parties’ collective bargaining agreement 

(CBA). On review of the arbitration award, the Board clarified earlier precedent and held 

Significant Board Decisions and Court 

Opinions Issued in Fiscal Year 2008
12 | U.S. Merit Systems Protection Board 

that it will set aside an arbitrator’s interpretation of a purely procedural provision of a CBA 

as “failing to draw its essence from the agreement” when the appealing party “establishes that 

the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded 

in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not 

represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of 

the agreement.” Applying these standards, the Board sustained the arbitration award.

Alternative Personnel Systems

Garofalo v. Department of Homeland Security, 108 M.S.P.R. 169 (2008): The appellant, an 

employee of the Transportation Security Administration (TSA), challenged his separation 

in a reduction in force (RIF). The Board ruled that the appellant was entitled to introduce 

evidence concerning the scoring of structured interviews that affected employees’ prospects 

for retention. In so holding, the Board explained that TSA has statutory authority to modify 

the government-wide RIF system applicable to its excepted service employees and that TSA’s 

actions in the structured interview process under these special flexibilities would be reviewed 

for a “clear abuse of discretion.” The Board remanded the case to an administrative judge for 

consideration of additional evidence concerning the structured interview process.

Hart v. Department of Transportation, 109 M.S.P.R. 280 (2008): The appellant, an Air Traffic 

Controller with the Federal Aviation Administration (FAA), sought to appeal his placement 

on enforced leave resulting from the FAA’s determination that he was temporarily medically 

disqualified from performing his regular duties. The Board explained that although Congress, in 2000, restored appeal rights for FAA employees that had been eliminated in 1996, 

the 2000 law did not make the FAA subject to 5 U.S.C. ch. 75. Thus, even though the appellant had the right to appeal his involuntary placement on leave, the FAA was not required 

to follow ch. 75 procedures when it acted but only had to follow its own internal procedures. 

The Board remanded the case to an administrative judge for findings on whether the agency 

followed its own internal procedures.

Attorney Fees

Murphy v. Department of Justice, 107 M.S.P.R. 154 (2007): The appellant, a Reservist, filed an 

appeal under the Uniformed Services Employment and Reemployment Rights Act (USERRA), contending that the agency interfered with his right to use military leave. The agency 

then took certain actions with regard to the appellant’s leave records that it claimed rendered 

the appeal moot. The appellant argued in reply that the appeal was not moot because he 

would be entitled to recover attorney fees should he prevail on the merits. The Board first set 

forth the general rule that an appeal is moot when the appellant has received all of the relief 

that he could have obtained if the appeal were adjudicated on the merits and he prevailed. 

The Board then held that a potential claim for attorney fees does not prevent a USERRA appeal from being rendered moot, as USERRA’s fee-shifting provision could not be considered 

part of a claimant’s relief on the merits.

12 | U.S. Merit Systems Protection Board 
Annual Report for Fiscal Year 2008 

| 13

Mynard v. Office of Personnel Management, 108 M.S.P.R. 58 (2008): In a 2-1 decision, the 

Board found that the “prevailing party” standard announced in Buckhannon Board & Care 

Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), 

does not apply to preclude an award of attorney fees in the compliance phase of a Board appeal 

where the appellant’s compliance efforts do not result in an enforceable order or a Board-approved settlement agreement that materially alters the legal relationship of the parties. 

Board procedures

Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349 (2008): Relying in part on documentary evidence, the administrative judge dismissed this appeal brought under the Veterans 

Employment Opportunities Act (VEOA) for failure to state a claim upon which relief may 

be granted. On review, the Board held that a “failure to state a claim” disposition is appropriate only if, taking the appellant’s allegations as true and not considering any documentary 

evidence, as a matter of law he cannot prevail. The Board further held, however, that a 

VEOA claim may be disposed of without an evidentiary hearing if there is no genuine dispute of material fact. Taking this approach, the Board found in favor of the agency, concluding that under the undisputed facts the agency did not violate any veterans’ preference rules.

Discrimination

Evans v. Department of Homeland Security, 107 M.S.P.R. 484 (2007): The agency removed 

the appellant from his Air Marshal position for failing to disclose on a pre-employment 

questionnaire that he was taking a particular prescription medication. On appeal, the Board 

held in a 2-1 decision that the appellant could not be disciplined for falsifying the questionnaire because it violated the Americans with Disabilities Act’s restrictions on pre-employment 

medical inquiries. Deferring to guidance from the Equal Employment Opportunity Commission, the Board majority further held that whether the appellant was “disabled” within 

the meaning of the Americans with Disabilities Act was immaterial.

Medical Standards

Slater v. Department of Homeland Security, 108 M.S.P.R. 419 (2008): The agency removed the 

appellant based on its determination that he no longer met the medical qualification standards for his Police Officer position. Relying on regulations issued by the Office of Personnel 

Management, the Board held that to justify disqualification based upon a medical condition 

alone, “the agency must show that the condition itself is disqualifying, its recurrence cannot 

be ruled out, and the duties of the position are such that a recurrence would pose a reasonable probability of substantial harm.” The Board overruled earlier case law which suggested 

that an agency had to show a “high probability of hazard” if the employee were allowed to 

remain in his position. The Board found that the agency did not meet its burden under the 

correct test and set aside the appellant’s removal.

Retirement

Fearon v. Office of Personnel Management, 107 M.S.P.R. 122 (2007): The administrative 

judge affirmed the reconsideration decision of the Office of Personnel Management 

(OPM) finding that the appellant was not entitled to waiver of recovery of an overpayment 
14 | U.S. Merit Systems Protection Board 

of disability retirement benefits. The Board reversed the initial decision and remanded for 

further adjudication on the waiver issue, but agreed with the administrative judge that it 

lacked the authority to adjudicate the appellant’s possible entitlement to an adjustment 

of the recovery schedule. Because the appellant was not receiving an annuity from which 

installment payments could be deducted, OPM’s efforts to recover the overpayment by other 

means did not affect her rights or interests under the Civil Service Retirement System and 

were thus outside the scope of the Board’s review.

Flannery v. Department of State, 107 M.S.P.R. 441 (2007): The appellant held a series of 

temporary and intermittent overseas appointments that were not covered by the Federal Employees’ Retirement System (FERS) at the time of employment. The 2003 Foreign Relations 

Authorization Act (FRAA), however, provided that certain individuals who held such appointments could make a deposit to gain FERS service credit. The agency nevertheless denied the 

appellant’s request to make a deposit under this law, on the ground that the appellant had no 

FERS-covered service. The Board disagreed and found that the appellant was entitled to make 

a deposit under the plain terms of the 2003 FRAA. Regulations of the Office of Personnel 

Management suggesting that an individual had to have some FERS-covered service in order to 

make a deposit were not given effect in this case since they are contrary to the law.

Veterans’ Rights

Weed v. Social Security Administration, 107 M.S.P.R. 142 (2007): The Veterans Employment 

Opportunities Act (VEOA) allows for recovery of “liquidated damages” when an agency 

commits a “willful” violation of an individual’s veterans’ preference rights. Construing this 

language for the first time, and in light of Supreme Court decisions interpreting the term 

“willful” in related contexts, the Board held that a violation of veterans’ preference rules will 

be considered “willful” under the VEOA’s damages provision if the responsible officials acted 

with “reckless disregard” for the appellant’s entitlements.

Gingery v. Department of the Treasury, 110 M.S.P.R. 83 (2008): As a prerequisite to filing an 

appeal with the Board under the VEOA, an individual must first file a complaint with the 

Department of Labor (DoL). Interpreting this exhaustion requirement, the Board held that 

DoL’s determination that a complaint has been resolved satisfactorily does not foreclose the 

complainant from bringing a VEOA appeal before the Board.

Leite v. Department of the Army, 109 M.S.P.R. 229 (2008): The appellant filed this appeal 

under the Uniformed Services Employment and Reemployment Rights Act (USERRA), alleging that the agency violated her right to reemployment following military service by placing her in a GS-13 position upon her return. The appellant claimed that although she held 

a GS-13 position when she was called up to active military duty, had she not been absent 

for military duty she would have been promoted to the GS-14 level either competitively or 

by accretion of duties. The Board denied relief. It held, based on the “escalator principle” 

that the Supreme Court enunciated in cases arising under earlier reemployment laws, that a 

retroactive promotion should be granted upon reemployment if it is a “perquisite of seniority” or if it was a “reasonable certainty” that the servicemember would have been promoted if 

not absent. The Board found neither test met here.
Annual Report for Fiscal Year 2008 Annual Report for Fiscal Year 2008 | 15

Significant opinions issued by the United States Court of 

Appeals for the Federal Circuit

Augustine v. Department of Veterans Affairs, 503 F.3d 1362 (Fed. Cir. 2007) 

Under the Veterans Employment Opportunities Act (VEOA), an award of reasonable fees to 

a prevailing party is mandatory, not discretionary.

Lowder v. Department of Homeland Security, 504 F.3d 1378 (Fed. Cir. 2007) 

A federal police officer seeking law enforcement officer (LEO) retirement credit must prove 

that he occupied a position that primarily required the investigation, apprehension, or detention of criminals or suspects, rather than merely the protection of life or property.

Joseph v. Federal Trade Commission, 505 F.3d 1380 (Fed. Cir. 2007)

Under 5 U.S.C. § 3304(f)(1), specified categories of veterans may not be denied the opportunity to compete for vacant positions for which the agency will accept individuals from 

outside its own workforce under merit promotion procedures. However, an agency that 

considers applicants under both competitive examination and merit promotion procedures 

may select a candidate under the merit promotion procedures without granting veterans 

preference. 

Reid v. Merit Systems Protection Board, 508 F.3d 674 (Fed. Cir. 2007) 

A whistleblower’s non-frivolous allegation of a reasonable belief that a violation of law, rule, 

or regulation is imminent is sufficient to confer jurisdiction on the Board under the Whistleblower Protection Act.

Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034 (Fed. Cir. 2007) 

In determining whether an employee is eligible for disability retirement benefits, OPM 

must consider all competent medical evidence, including diagnoses based exclusively on 

an employee’s subjective description of symptoms and other indicia of disability.

Chambers v. Department of the Interior, 515 F.3d 1362 (Fed. Cir. 2008) 

In considering disclosures directed to public safety, the Board must consider whether the 

employee disclosed information she reasonably believed evidenced a substantial and specific 

danger to public safety. Whether a disclosed danger is sufficiently substantial and specific 

depends upon: (1) the likelihood of harm resulting from the danger, (2) when the alleged 

harm may occur, and (3) the nature of the harm—the potential consequences.

Baird v. Department of the Army, 517 F.3d 1345 (Fed. Cir. 2008)

An administrative judge abused his discretion in refusing to compel the discovery of agency 

emails that may have discussed the appropriate penalty for an employee who failed a random 

drug test.
Johnston v. Merit Systems Protection Board, 518 F.3d 905 (Fed. Cir. 2008) 

A whistleblower’s motivation for making disclosures and her credibility are issues related 

to the merits of her claim, not to whether she made non-frivolous allegations sufficient to 

support jurisdiction.

Parrott v. Merit Systems Protection Board, 519 F.3d 1328 (Fed. Cir. 2008) 

Employee’s resignation was not an involuntary product of coercion for purposes of determining Board jurisdiction, where the agency allowed the employee only a short time period 

within which to accept an offer to resign for personal reasons before he would otherwise 

have received a written notice of proposed removal, since the agency was not obliged to offer 

that option and having that additional choice could only have been of benefit to him, even 

though he might have preferred to have that choice remain open for a longer period of time.

Rice v. Merit Systems Protection Board, 522 F.3d 1311 (Fed. Cir. 2008) 

Congress denied appeal rights to all employees of the Department of Defense intelligence 

components except for preference eligibles. 

Perkins v. Office of Special Counsel, 522 F.3d 1373 (Fed. Cir. 2008)

The Federal Circuit does not have jurisdiction over a local police officer’s appeal because he 

does not fall within the definition of “employee,” as set forth at 5 U.S.C. § 2105. That provision refers to persons who are appointed in the federal civil service, who are engaged in the 

performance of a federal function under federal authority, or who are subject to the supervision of a federal officer. 

Springer v. Adkins, 525 F.3d 1363 (Fed. Cir. 2008) 

A federal firefighter who retires on disability under the Federal Employees’ Retirement System (FERS) is entitled to receive an annuity using an enhanced annuity formula where such 

an annuity would be more than the minimum disability annuity, even if he does not satisfy 

the age and years of service requirements of a basic annuity. 

Romero v. Department of Defense, 527 F.3d 1324 (Fed. Cir. 2008) 

Although the Board does not have jurisdiction to address the merits of an agency’s decision to deny or revoke a security clearance, it does have jurisdiction to consider whether the 

agency followed the procedures established by the agency’s own regulations for the revocation 

process. In the event that an agency does not follow its own regulations, 5 U.S.C. § 7701(c)

(2)(A) provides that an adverse action decision may not be sustained by the Board if the 

employee can show “harmful error in the application of the agency’s procedures in arriving 

at such decision.” 

Leighton v. Office of Personnel Management, 529 F.3d 1071 (Fed. Cir. 2008) 

The plain language of 5 U.S.C. § 8452 requires that the reduction of a Federal Employees’ 

Retirement System (FERS) disability annuity be calculated based upon the full amount of 

Social Security Administration (SSA) benefits prior to reductions in those SSA benefits for 

Office of Workers’ Compensation Programs compensation.

16 | U.S. Merit Systems Protection Board 
Annual Report for Fiscal Year 2008 | 17

Lizzio v. Department of the Army, 534 F.3d 1376 (Fed. Cir. 2008) 

An employee charged with breach of a last chance agreement is entitled to notice of what his 

alleged breach was, and the Board may not rely on a ground for breach different from the 

one asserted by the agency in the notice of breach. 

Smith v. United States Postal Service, 540 F.3d 1364 (Fed. Cir. 2008) 

A regular work schedule is a benefit of employment that is compensable under the 

Uniformed Services Employment and Reemployment Rights Act.

Greenstreet v. Social Security Administration, 543 F.3d 705 (Fed. Cir. 2008) 

The length of a suspension ordered by an arbitrator who mitigates a termination to a suspension is 

arbitrary when it is based solely on the suspended employee’s “time served” awaiting decision.

| 19

Fiscal Year 2008 

Case Processing Statistics

Summary of Cases Decided by MSPB

Table 1: Fiscal Year 2008 Summary of Cases Decided by MSPB

1

 Includes 101 requests for attorney fees, 120 Board remand cases, 212 petitions for enforcement, 60 court remand cases, 14 

requests for compensatory damages (discrimination cases only), 5 request for consequential damages, and 2 requests for 

liquidated damages.

2

 Includes 54 stay requests in whistleblower cases and 10 in non-whistleblower cases.

3

 Initial Decision issued by ALJ. Case type breakdown: 6 actions against ALJs, 1 action against SES, and 4 Hatch Act cases.

4

 2 cases were reopened by the MSPB on its own motion and 1 by request of OPM.

5

 Final MSPB decisions. Case type breakdown: 3 requests for regulation review and 1 Hatch Act Case.

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

Appeals 5,917

Addendum Cases1 514

Stay Requests2 64

TOTAL Cases Decided in RO/FOs 6,495

Cases Decided by Administrative Law Judges (ALJs) – Original Jurisdiction3 11

Cases Decided by the Board:

Appellate Jurisdiction:

Petitions for Review (PFRs) – Appeals 1,211

Petitions for Review (PFRs) – Addendum Cases 132

Reviews of Stay Request Rulings 0

Requests for Stay of Board Order 1

Reopenings4 3

Court Remands 6

Compliance Referrals 26

EEOC Non-concurrence Cases 2

Arbitration Cases 11

Subtotal – Appellate Jurisdiction 1,392

Original Jurisdiction5 4

Interlocutory Appeals 1

TOTAL Cases Decided by the Board 1,397

TOTAL Decisions (Board, ALJs, RO/FOs) 7,903

Annual Report for Fiscal Year 2008
20 | U.S. Merit Systems Protection Board 

Regional Case Processing

Table 2: Disposition of Appeals Decided 

in the Regional and Field Offices, by Type of Case

1

 Percent Dismissed and Not Dismissed are of the number Decided. 

2

 Percent Settled and Adjudicated are of the number Not Dismissed.

Decided Dismissed1

# # % #

Not Dismissed1 Settled2 Adjudicated2

Type of Case % # % # %

Adverse Action 

by Agency 2778 1344 48.38 1434 51.62 966 67.36 468 32.64

Termination of 

Probationers 364 336 92.31 28 7.69 28 100.00 0 .00

Reduction in Force 33 17 51.52 16 48.48 5 31.25 11 68.75

Performance 121 35 28.93 86 71.07 48 55.81 38 44.19

Acceptable Level 

of Competence 

(WIGI) 38 26 68.42 12 31.58 9 75.00 3 25.00

Suitability 69 26 37.68 43 62.32 27 62.79 16 37.21

CSRS Retirement: 

Legal 558 196 35.13 362 64.87 9 2.49 353 97.51

CSRS Retirement: 

Disability 58 34 58.62 24 41.38 1 4.17 23 95.83

CSRS Retirement: 

Overpayment 96 39 40.63 57 59.38 38 66.67 19 33.33

FERS Retirement 483 247 51.14 236 48.86 72 30.51 164 69.49

FERCCA 24 17 70.83 7 27.17 1 14.29 6 85.71

Individual Right 

of Action 210 155 73.81 55 26.19 31 56.36 24 43.64

Other 1085 814 75.02 271 24.98 182 67.16 89 32.84

Total 5917 3286 55.53 2631 44.47 1417 53.86 1214 46.14
Annual Report for Fiscal Year 2008 | 21

Figure 1: Type of Appeals Decided in the Regional and Field Offices

Figure 2: Dispositions: Appeals Not Dismissed by Regional/Field Office

0 10 20 30 40 50

FERCCA (24)

Reduction in Force (33)

Acceptable Level of Competence (38)

CSRS Retirement: Disability (58)

Suitability (69)

CSRS Retirement: Overpayment (96)

Performance (121)

Individual Right of Action (210)

Terminaton of Probationers (364)

FERS Retirement (483)

CSRS Retirement: Legal (558)

Other Appeals (1085)

Adverse Actions (2,778) 47%

18%

9%

8%

6%

4%

2%

2%

1%

1%

1%

1%

Total Number of Appeals: 5,917

0%

Other (5)

0%

Mitigated (9)

0% Action or Decision Overturned or 

Corrective Action Ordered (316)

12%

Action or Decision Upheld 

or Left Undisturbed (884)

34% Appeal Settled (1417)

54% 

Total Number of Appeals that were Not Dismissed: 2,631
22 | U.S. Merit Systems Protection Board 

Figure 3: Dispositions: Appeals Not Dismissed or Settled by Regional/Field Office

Other (5)

0%

Mitigated (9)

1%

Action or Decision Overturned or 

Corrective Action Ordered (316)

26%

Action or Decision Upheld or 

Left Undisturbed (884)

73%

Based on 1,214 appeals adjudicated on the merits

Decided Dismissed1

# # % #

Not Dismissed1 Settled2 Adjudicated2

% # % # %

Table 3: Disposition of Appeals in the Regional and Field Offices, by Agency

Office of Personnel 

Management3 1246 529 42.5 717 57.5 144 20.1 573 79.9

US Postal Service 1107 733 66.2 374 33.8 247 66.0 127 34.0

Veterans Affairs 657 396 60.3 261 39.7 195 74.7 66 25.3

Army 488 240 49.2 248 50.8 183 73.8 65 26.2

Homeland Security 341 212 62.2 129 37.8 74 57.4 55 42.6

Navy 279 151 54.1 128 45.9 84 65.6 44 34.4

Treasury 262 131 50.0 131 50.0 93 71.0 38 29.0

Defense 216 122 56.5 94 43.5 66 70.2 28 29.8

Air Force 206 104 50.5 102 49.5 59 57.8 43 42.2

Justice 169 110 65.1 59 34.9 38 64.4 21 35.6

Agriculture 168 96 57.1 72 42.9 46 63.9 26 36.1

Interior 142 79 55.6 63 44.4 47 74.6 16 25.4
Annual Report for Fiscal Year 2008 | 23

Table 3: Disposition of Appeals in the Regional and Field Offices, by Agency, (Continued)

Decided Dismissed1

# # % #

Not Dismissed1 Settled2 Adjudicated2

% # % # %

Transportation 131 77 58.8 54 41.2 29 53.7 25 46.3

Health & Human 

Services 87 49 56.3 38 43.7 24 63.2 14 36.8

Social Security 

Administration 67 34 50.7 33 49.3 15 45.5 18 54.5

Labor 57 42 73.7 15 26.3 12 80.0 3 20.0

Commerce 42 32 76.2 10 23.8 6 60.0 4 40.0

Housing & Urban 

Development 37 26 70.3 11 29.7 5 45.5 6 54.5

General Services 

Administration 25 17 68.0 8 32.0 4 50.0 4 50.0

Energy 23 11 47.8 12 52.2 7 58.3 5 41.7

National Aeronautics 

and Space 

Administration 22 13 59.1 9 40.9 4 44.4 5 55.6

State 18 10 55.6 8 44.4 0 .0 8 100.0

Environmental 

Protection Agency 12 5 41.7 7 58.3 5 71.4 2 28.6

Education 11 4 36.4 7 63.6 2 28.6 5 71.4

Smithsonian 

Institution 10 4 40.0 6 60.0 6 100.0 0 .0

Court Services & 

Offender 

Supervision 8 7 87.5 1 12.5 1 100.0 0 .0

Federal Deposit 

Insurance 

Corporation 8 6 75.0 2 25.0 2 100.0 0 .0

Government 

Printing Office 8 2 25.0 6 75.0 4 66.7 2 33.3

Equal Employment 

Opportunity 

Commission 7 5 71.4 2 28.6 2 100.0 0 .0

Small Business 

Administration 7 6 85.7 1 14.3 1 100.0 0 .0

Corporation for 

National & 

Community Service 6 4 66.7 2 33.3 0 .0 2 100.0

Tennessee Valley 

Authority 6 5 83.3 1 16.7 0 .0 1 100.0

National Archives 

and Records 

Administration 5 0 .0 5 100.0 4 80.0 1 20.0

Securities & 

Exchange Commission 5 4 80.0 1 20.0 1 100.0 0 .0

Armed Forces 

Retirement Home 4 1 25.0 3 75.0 2 66.7 1 33.3

Broadcasting 

Board of Governors 3 1 33.3 2 66.7 1 50.0 1 50.0
24 | U.S. Merit Systems Protection Board 

1

 Percentages in Columns Dismissed and Not Dismissed are of Decided.

2

 Percentages in Columns Settled and Adjudicated are of Not Dismissed.

3

 Most appeals in which OPM is the agency are retirement cases involving decision made by OPM as the administrator of the Civil Service Retirement 

System and the Federal Employees Retirement System.

Table 3: Disposition of Appeals in the Regional and Field Offices, by Agency, (Continued)

Decided Dismissed1

# # % #

Not Dismissed1 Settled2 Adjudicated2

% # % # %

Agency for 

International 

Development 2 2 100.0 0 .0 0 .0 0 .0

Commodity Futures 

Trading Commission 2 0 .0 2 100.0 2 100.0 0 .0

Consumer Product 

Safety Commission 2 1 50.0 1 50.0 0 .0 1 100.0

Federal 

Communications 

Commission 2 1 50.0 1 50.0 1 100.0 0 .0

Judicial Branch 2 2 100.0 0 .0 0 .0 0 .0

National Labor 

Relations Board 2 2 100.0 0 .0 0 .0 0 .0

Nuclear Regulatory 

Commission 2 1 50.0 1 50.0 1 100.0 0 .0

Pension Benefit 

Guaranty 

Corporation 2 1 50.0 1 50.0 0 .0 1 100.0

Commission on 

Civil Rights 1 1 100.0 0 .0 0 .0 0 .0

Federal Retirement 

Thrift Investment 

Board 1 1 100.0 0 .0 0 .0 0 .0

Government 

Accountability Office 1 1 100.0 0 .0 0 .0 0 .0

National Council 

on Disability 1 0 .0 1 100.0 0 .0 1 100.0

National Science 

Foundation 1 1 100.0 0 .0 0 .0 0 .0

Office of 

Administration, 

Executive Office of 

the President 1 1 100.0 0 .0 0 .0 0 .0

Panama Canal 

Commission 1 1 100.0 0 .0 0 .0 0 .0

Railroad Retirement 

Board 1 0 .0 1 100.0 0 .0 1 100.0

Selective Service 

System 1 0 .0 1 100.0 0 .0 1 100.0

The White House 1 1 100.0 0 .0 0 .0 0 .0

Valles Caldera Trust 1 1 100.0 0 .0 0 .0 0 .0

TOTAL 5917 3286 55.5 2631 44.5 1417 53.9 1214 46.1
Annual Report for Fiscal Year 2008 | 25

Table 4: Disposition of Appeals Adjudicated on the Merits in the Regional and Field Offices by Agency

Adjudicated1 Affirmed

# # % #

Reversed Mitigated 

Modified Other

% # % # %

Office of Personnel 

Management2 573 320 55.8 248 43.3 1 .2 4 .7

US Postal Service 127 106 83.5 17 13.4 4 3.1 0 .0

Veterans Affairs 66 60 90.9 6 9.1 0 .0 0 .0

Army 65 59 90.8 6 9.2 0 .0 0 .0

Homeland Security 55 52 94.5 3 5.5 0 .0 0 .0

Navy 44 42 95.5 2 4.5 0 .0 0 .0

Treasury 38 35 92.1 2 5.3 1 2.6 0 .0

Defense 28 23 82.1 5 17.9 0 .0 0 .0

Air Force 43 38 88.4 3 7.0 2 4.7 0 .0

Justice 21 19 90.5 1 4.8 0 .0 1 4.8

Agriculture 26 25 96.2 1 3.8 0 .0 0 .0

Interior 16 12 75.0 4 25.0 0 .0 0 .0

Transportation 25 13 52.0 12 48.0 0 .0 0 .0

Health & Human 

Services 14 11 78.6 3 21.4 0 .0 0 .0

Social Security 

Administration 18 18 100.0 0 .0 0 .0 0 .0

Labor 3 3 100.0 0 .0 0 .0 0 .0

Commerce 4 4 100.0 0 .0 0 .0 0 .0

Housing & Urban 

Development 6 6 100.0 0 .0 0 .0 0 .0

General Services 

Administration 4 4 100.0 0 .0 0 .0 0 .0

Energy 5 3 60.0 2 40.0 0 .0 0 .0

National 

Aeronautics and 

Space Administration 5 5 100.0 0 .0 0 .0 0 .0

State 8 8 100.0 0 .0 0 .0 0 .0

Environmental 

Protection Agency 2 2 100.0 0 .0 0 .0 0 .0

Education 5 4 80.0 0 .0 1 20.0 0 .0

Government 

Printing Office 2 2 100.0 0 .0 0 .0 0 .0

Corporation for 

National & 

Community Service 2 2 100.0 0 .0 0 .0 0 .0

Tennessee Valley 

Authority 1 1 100.0 0 .0 0 .0 0 .0

National Archives 

and Records 

Administration 1 1 100.0 0 .0 0 .0 0 .0
26 | U.S. Merit Systems Protection Board 

Table 4: Disposition of Appeals Adjudicated on the Merits in the Regional and Field Offices by Agency, (Continued)

Affirmed

# # % #

Reversed Other

% # % # %

Armed Forces 

Retirement Home 1 1 100.0 0 .0 0 .0 0 .0

Broadcasting Board 

of Governors 1 0 .0 1 100.0 0 .0 0 .0

Consumer Product 

Safety Commission 1 1 100.0 0 .0 0 .0 0 .0

Pension Benefit 

Guaranty Corporation 1 1 100.0 0 .0 0 .0 0 .0

National Council 

on Disability 1 1 100.0 0 .0 0 .0 0 .0

Railroad Retirement 

Board 1 1 100.0 0 .0 0 .0 0 .0

Selective Service 

System 1 1 100.0 0 .0 0 .0 0 .0

TOTAL 1214 884 72.8 316 26.0 9 .7 5 5

Adjudicated1 Mitigated 

Modified

Dismissed

# # % #

Denied Granted

# % % # %

Decided Denied but

Reopened

% #

Settled

Adverse Action by Agency 541 24 4.44 10 1.85 419 77.45 17 3.14 71 13.12

Termination of

Probationers 39 0 .00 0 .00 34 87.18 2 5.13 3 7.69

Reduction in Force 7 0 .00 0 .00 6 85.71 0 .00 1 14.29

Performance 30 2 6.67 1 3.33 26 86.67 0 .00 1 3.33

Acceptable Level of

Competence (WIGI) 4 0 .00 0 .00 4 100.00 0 .00 0 .00

Suitability 14 1 7.14 0 .00 13 92.86 0 .00 0 .00

CSRS Retirement: Legal 231 3 1.30 0 .00 208 90.04 4 1.73 16 6.93

CSRS Retirement:

Disability 14 0 .00 0 .00 9 64.29 1 7.14 4 28.57

CSRS Retirement:

Overpayment 13 0 .00 1 7.69 7 53.85 0 .00 5 38.46

FERS Retirement 80 4 5.00 2 2.50 60 75.00 1 1.25 13 16.25

FERCCA 1 1 100.00 0 .00 0 .00 0 .00 0 .00

Individual Right of Action 78 1 1.28 1 1.28 63 80.77 6 7.69 7 8.97

Other 159 8 5.03 1 .63 121 76.10 14 8.81 15 9.43

Total 1211 44 3.63 16 1.32 970 80.10 45 3.72 136 11.23

Headquarters Case Processing

Table 5: Disposition of Petitions for Review (PFR)

 of initial Decisions by Type of Case

1

 Adjudicated, i.e., not dismissed or settled. 

2

 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the administrator of the Civil Service Retirement 

System and the Federal Employees Retirement System. 

Percentages may not total 100 because of rounding.
Annual Report for Fiscal Year 2008 | 27

Figure 4: Disposition of Petitions for Review of Initial Decisions

Total Number of Petitions for Review: 1,211

Granted (136)

11%

Denied but Reopened (45)

4%

Denied (970)

80%

Settled (16)

1%

Dismissed (44)

4%

Figure 5: Disposition of Petitions for Review Granted

Based on 136 Petitions for Review Granted

Initial Decision Armed (21)

15%

Other (4)

3%

Agency Action Mitigated (1)

1%

Case Remanded (79)

58%

Initial Decision Reversed (31)

23%
28 | U.S. Merit Systems Protection Board 

Based on 45 Petitions for Review Denied but Reopened

Other (10)

22%

Case Remanded (14)

31% Initial Decision Reversed (5)

11%

Inial Decision Armed (16)

36%

Figure 6: Disposition of Petitions for Review Denied 

but Reopened

1

 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the administrator of the Civil Service Retirement 

System and the Federal Employees Retirement System. 

Percentages may not total 100 because of rounding.

Dismissed

# # % #

Denied Granted

# % % # %

Decided

Denied but

Reopened

% #

Settled

Table 6: Disposition of Petitions for Review of Initial Decisions, by Agency

Office of Personnel 

Management1 352 8 2.27 3 0.85 298 84.66 7 1.99 36 10.23

US Postal Service 177 6 3.39 3 1.69 141 79.66 4 2.26 23 12.99

Veterans Affairs 105 2 1.90 1 0.95 92 87.62 5 4.76 5 4.76

Homeland Security 73 4 5.48 2 2.74 54 73.97 1 1.37 12 16.44

Army 65 3 4.62 1 1.54 52 80.00 4 6.15 5 7.69

Navy 57 1 1.75 1 1.75 50 87.72 1 1.75 4 7.02

Transportation 49 1 2.04 1 2.04 21 42.86 5 10.20 21 42.86

Air Force 43 5 11.63 1 2.33 29 67.44 4 9.30 4 9.30

Treasury 43 0 0.00 1 2.33 36 83.72 0 0.00 6 13.95

Defense 40 3 7.50 0 0.00 34 85.00 0 0.00 3 7.50

Justice 31 2 6.45 0 0.00 24 77.42 1 3.23 4 12.90

Agriculture 26 0 0.00 0 0.00 23 88.46 0 0.00 3 11.54

Interior 26 0 0.00 0 0.00 20 76.92 4 15.38 2 7.69

Health & Human Services 22 2 9.09 0 0.00 19 86.36 0 0.00 1 4.55

Social Security 

Administration 18 3 16.67 1 5.56 11 61.11 2 11.11 1 5.56

Commerce 15 1 6.67 0 0.00 14 93.33 0 0.00 0 0.00
Annual Report for Fiscal Year 2008 | 29

Table 6: Disposition of Petitions for Review of 

Initial Decisions, by Agency, (Continued)

Dismissed

# # % #

Denied Granted

# % % # %

Decided Denied but

Reopened

% #

Settled

General Services 

Administration 11 0 0.00 0 0.00 10 90.91 0 0.00 1 9.09

Labor 10 1 10.00 1 10.00 6 60.00 2 20.00 0 0.00

State 7 0 0.00 0 0.00 3 42.86 1 14.29 3 42.86

National Aeronautics &

Space Administration 7 0 0.00 0 0.00 7 100.00 0 0.00 0 0.00

Environmental 

Protection Agency 6 0 0.00 0 0.00 4 66.67 2 33.33 0 0.00

Education 5 1 20.00 0 0.00 4 80.00 0 0.00 0 0.00

Energy 4 0 0.00 0 0.00 4 100.00 0 0.00 0 0.00

Housing & Urban 

Development 4 1 25.00 0 0.00 3 75.00 0 0.00 0 0.00

Corporation for 

National & 

Community Service 2 0 0.00 0 0.00 1 50.00 0 0.00 1 50.00

Equal Employment 

Opportunity 

Commission 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

Pension Benefit 

Guaranty Corporation 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

Consumer Product 

Safety Commission 1 0 0.00 0 0.00 0 0.00 1 100.00 0 0.00

Court Services & 

Offender Supervision 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Government Printing 

Office 1 0 0.00 0 0.00 0 0.00 0 0.00 1 100.00

Judicial Branch 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

National Archives and 

Records Administration 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Nuclear Regulatory 

Commission 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Panama Canal 

Commission 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Small Business 

Administration 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

The World Bank 1 0 0.00 0 0.00 0 0.00 1 100.00 0 0.00

TOTAL 1211 44 3.63 16 1.32 970 80.10 45 3.72 136 11.23

Percentages may not total 100 because of rounding.

Annual Report for Fiscal Year 2008 | 31

The MSPB completed several studies and issued reports to the President and Congress on 

Federal employee engagement, the use of alternative discipline in Federal agencies, the use of 

various hiring authorities, hiring upper level employees from outside the Federal Government, 

and a longitudinal analysis of prior Merit Principles Surveys. The MSPB issued four editions 

of the Issues of Merit newsletter, which included articles such as how best to use accomplishment records, selective factors, and realistic job previews during the hiring process; how 

increased employee engagement relates to the retention of retirement-eligible employees; the 

importance of human capital in the next Presidential Administration; and how Federal agencies can improve their hiring practices and processes.

The Power of Federal Employee Engagement

The MSPB conducted this study to explore the role that employee engagement plays in improving Federal agency outcomes. A focus on strategies to further engage the Federal workforce is critical as agencies attempt to improve their operations within budget constraints, and 

as they face increasing numbers of retirement-eligible employees in a labor market where there 

is intense competition for top talent.

The report examined what engages Federal employees—that is, what contributes to a heightened connection between Federal employees and their work or their organization. The MSPB 

explored the extent that different groups of employees are engaged and, more importantly, we 

discussed how employee engagement relates to improved Federal agency outcomes.

The study noted that there are variations in the engagement level among different groups of 

Federal employees and that first-level supervisors play an important role in engaging employees. We also found differences in the engagement level of employees based on the agency in 

which they work. These differences are important to note due to a significant relationship 

between the level of employee engagement in an agency and various agency outcomes. The 

report recommended that agencies take steps to increase employee engagement in view of the 

relationship between engagement and agency outcomes by ensuring a good person-to-job fit, 

managing performance with the attention it deserves, mentoring employees, and recruiting 

and selecting supervisors based on their supervisory abilities or potential. 

Summaries of Merit Systems Studies 
Alternative Discipline: Creative Solutions for Agencies to 

Effectively Address Employee Misconduct

The merit principles require agencies to be effective and efficient in how they use the Federal 

workforce. This includes the responsibility to address misconduct in a manner that has the 

greatest potential to prevent further harm to the efficiency of the service. Under the correct 

circumstances, alternative discipline may be the most effective method for addressing such 

misconduct. The purpose of this report was to describe the Federal Government’s current use 

of alternative discipline and alternative discipline’s potential to help agencies better manage 

their workforces.

This study found that few agencies take a comprehensive approach to alternative discipline. 

Rather, its application appears in most cases to involve ad hoc usage by individual managers, 

with little or no formal guidance from the agency. However, in some rare situations, agencies 

have set rules that prevent supervisors from being able to make a case-by-case assessment of 

what approach to discipline may have the greatest potential for success. This report recommended that agencies encourage their supervisors to make greater use of alternative discipline 

and that they provide more guidance to supervisors on how they can successfully do so. 

Federal Appointment Authorities: Cutting Through the 

Confusion 

As Federal employees in the “baby boomer” generation retire, there is the expectation that 

there will be a large number of new hires brought into the Federal Government in a wide 

range of occupations and grades. Given this “brain drain,” it is important to assess how well 

the Government is using fair and open practices to recruit a workforce from all segments of 

society in keeping with the merit principles codified at 5 U.S.C. § 2301. 

The purpose of this report was to describe how prevalent exceptions to competitive examining have become and demonstrate the need for supervisors to understand the implications of 

their use of the alternative hiring authorities. 

The research indicated that for white-collar jobs, the use of the competitive examining 

authority that is open to all qualified applicants is generally declining, while the use of 

exceptions to fully open competition is proportionally increasing. In fiscal year 2005, more 

white-collar employees were hired under authorities that permit excluding some qualified applicants than were hired under the traditional competitive examining authority. Our survey 

results also indicated that many supervisors may not be aware of the implications of their use 

of these alternative hiring authorities and the specific training and assessment responsibilities 

that accompany their use.

The MSPB made several recommendations concerning what managers should consider when 

selecting and appointing a new employee. In particular, the report recommended that agencies ensure that for each hiring authority that is considered or used, supervisors are educated 

on the requirements of those authorities, so that they fully understand their responsibili32 | U.S. Merit Systems Protection Board 
Annual Report for Fiscal Year 2008 | 33

ties. In addition, agencies should have well-rounded recruitment strategies to ensure that all 

segments of society are represented. Use of any authority that results in a disproportionate 

workforce should be balanced with other authorities to ensure a pattern does not develop of 

hiring from only select groups.

In Search of Highly Skilled Workers: A Study on the 

Hiring of Upper Level Employees from Outside the Federal 

Government

Each year, the Government hires tens of thousands of new employees. Traditionally, the vast 

majority of these new employees were appointed at grades GS-11 and below. However, the 

number of new hires at grades GS-12 and above has been increasing, especially since fiscal 

year 2000. This trend is likely to continue as more employees retire, many of whom must be 

replaced at the higher grade levels to ensure that the Government has the expertise it needs to 

achieve its missions. 

The MSPB studied the senior or journeyman-level specialists, analysts, supervisors and 

managers, (grades 12-15 in the General Schedule or similar pay plans) to determine whether 

the Government has been successful in hiring the best-qualified applicants for these jobs in 

accordance with the merit system principles. 

The report noted a number of positive conclusions about the Government’s ability to attract 

highly qualified candidates. Among these were the findings that the Federal Government offers what many new hires want in an employer: job security, workplace flexibility, and challenging work. There were areas, however, where the Government can improve. For example, 

most new hires and supervisors believed the hiring process was too long and cumbersome. 

Moreover, one-third of new hires did not apply for another Federal job because they would 

have had to re-write their application essays or revise their existing essays to describe their 

knowledge, skills and abilities for the other job.

In order to hire the best applicants, the MSPB recommended that agencies develop a hiring 

strategy to fill these upper level positions, improve their assessment of job candidates, review 

their application process to eliminate steps that do not add value, and ensure that human 

resources professionals provide meaningful feedback to applicants. 

The Federal Government: A Model Employer or a Work in 

Progress?

In this report, the MSPB examined the Federal Government’s progress toward becoming a 

model employer using data from MSPB’s Merit Principles Survey, a survey of Federal employees that MSPB has conducted periodically since 1983. The report explored patterns and 

trends in Federal employees’ opinions about their jobs, agencies, and working conditions, 

and found many positive developments. For example, Federal employees’ satisfaction with 

their pay has increased significantly. Additionally, the percentage of employees who reported 

experiencing discrimination or retaliation has declined.
However, the report also found areas where improvement is needed. Federal employees 

consistently reported that their supervisors’ technical skills outpaced their managerial skills. 

Similarly, employees expressed little confidence in the ability of Federal supervisors to exercise 

personnel authorities fairly and effectively. Also, although differences in Federal employee 

opinions across lines of ethnicity and race have diminished, minority employees remained 

more likely to report experiencing unfair treatment or discrimination in the workplace.

The survey results also confirmed that agencies can make a difference. Employee opinions 

generally varied more across agencies than across lines of ethnicity and race, gender, and age, 

reinforcing the importance of leadership, organizational culture, and human resources policy 

and practice within Federal agencies.

The report should help Federal agencies build on their strengths and focus attention on areas 

for improvement such as employee utilization, the selection and development of Federal 

supervisors, and performance management. 

Issues of Merit Newsletter

The MSPB’s Issues of Merit newsletter offers insights and analyses on topics related to Federal 

human capital management—particularly findings and recommendations from MSPB’s 

independent research—to help improve the Government’s merit systems. The newsletter’s 

target audience includes Federal policy-makers, managers and executives, human resources 

professionals, social science researchers, and academics.

The MSPB issued four editions of the Issues of Merit newsletter in fiscal year 2008. Each of 

the four issues included findings from the MSPB’s research, articles to help clarify readers’ 

understanding of employment issues, and perspectives from the Director of the Office of 

Policy and Evaluation (OPE) about specific human capital matters. Articles communicating 

research findings addressed topics such as increasing supervisors’ knowledge of appointing 

authorities and the increase in satisfaction with federal employment over the last 25 years. 

Other articles provided insight into issues such as how to use accomplishment records and 

realistic job previews, how engagement can be used to retain retirement eligible employees, 

and how selective factors can be a useful tool in selecting quality employees. The OPE 

Director addressed issues such as how MSPB revamped its hiring process, the importance 

of adhering to the merit principles, human capital’s importance in the next administration, 

and how agencies can improve their hiring practices and processes. 

Merit Principles Survey 2007

The MSPB has conducted the Governmentwide Merit Principles Survey (MPS) every few 

years for the past two decades. Each administration of the MPS tracks the incidence of 

prohibited personnel practices among Federal employees, assesses the degree to which merit 

principles are followed, and gathers other information to support OPE research studies. OPE 

completed the administration of the MPS 2007 during fiscal year 2008. 

34 | U.S. Merit Systems Protection Board 
Annual Report for Fiscal Year 2008 | 35

The MPS asked employees, supervisors, and higher level leaders to share their perceptions of 

the implementation of the merit system in the workplace. The topics addressed included the 

merit system principles, job satisfaction, supervision, performance management, training and 

development, and agency leadership. The MPS was administered to 68,789 employees in 28 

agencies in the fall of 2007. Sixty percent of these employees responded to the survey. Fourteen of the participating agencies used the MPS to conduct their annual employee survey, 

required by the National Defense Authorization Act for Fiscal Year 2004. At the beginning 

of fiscal year 2008 we provided these agencies with reports and raw data files of the annual 

survey questions. 

Career Advancement Survey 

As part of the MSPB’s research initiative to evaluate how fairly Federal employees feel they 

are treated in the work place, we developed the Career Advancement Survey. The survey 

covered a variety of topics, including work satisfaction, career experiences, perceptions of the 

work environment, pay and performance management, and work/life issues. In fiscal year 

2008, the MSPB completed the administration of this survey via the web and paper to a 

stratified random sample of 11,538 full-time permanent employees in over 30 agencies.

Future reports for the President and the Congress will compare the results of the Career Advancement Survey with similar items on earlier surveys to provide a longitudinal perspective 

on attitudes within the Federal Government. Findings will also be examined in the context of 

changes in the composition of the Federal workforce.

Annual Report for Fiscal Year 2008 | 37

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

Personnel Management (OPM). Below, we list and briefly discuss the fiscal year 2008 OPM 

actions of the greatest long-term significance for the Federal civil service. This list is not 

exhaustive.

Policy and Leadership

Personnel Demonstration Projects

OPM issued notices for proposed personnel demonstration projects in the Department 

of Agriculture, Food Safety and Inspection Service (FSIS) and the Department of Veterans 

Affairs (VA). Both demonstration projects include pay for performance features designed 

to give the sponsoring agencies greater ability to link pay to performance. The Department of 

Agriculture demonstration project includes pay banding, a common feature of OPM-approved 

demonstration projects. The VA demonstration project retains General Schedule pay grades, 

but replaces the step system with an open pay range and pay increases linked to level 

of performance.

Significance:

In the absence of Governmentwide reform of the human resources system, OPM continues 

to work within existing laws and flexibilities to give agencies greater ability to reward performance and create a results-oriented organizational culture. However, the approach of incremental, agency-by-agency change has generated concerns about fragmentation and possible 

complications in human resource management in other areas. (Recently-issued OPM 

regulations1

 allow agencies to establish separate competitive areas in a reduction-in-force for 

employees in General Schedule and pay-banded pay systems. This was necessitated by the 

difficulties inherent in running a reduction-in-force for a workforce covered by multiple and 

distinct personnel systems.) Moreover, OPM’s statements concerning the deficiencies of traditional approaches to recruitment, pay, and performance management point to a possible OPM 

Significant Actions of the Office of 

Personnel Management 

1

 See Competitive Area, Final Rule, 56 Fed. Reg. 46530-46532 (August 11, 2008) (to be codified at 5 C.F.R. Part 351).
concern that human capital management—and consequently organizational efficiency and 

effectiveness—may be substantially impaired in those agencies that must continue to operate 

under the existing framework of Title 5, United States Code. 2

Improving the Hiring Process

Recognizing the importance of a rigorous yet timely hiring process to attracting and selecting 

good employees, OPM has undertaken several initiatives aimed at improving how Federal 

agencies recruit and assess potential employees. Those initiatives include:

End-to-End Hiring Roadmap. In partnership with the Chief Human Capital Officers 

Council, OPM issued an “End to End Hiring Roadmap” with the objectives of better integrating various elements of the hiring process and significantly reducing the time between 

application and job offer.

Support of Federal Agency Recruitment. OPM developed template vacancy announcements for selected high-volume occupations to simplify and standardize the job announcement and application process for both agencies and applicants. OPM has also continued to 

encourage agencies to analyze and promote jobs using the OPM-developed “career patterns” 

framework.

Competency-Based Qualification Standards. OPM issued a draft competency-based standard for the information technology specialist occupation and plans to develop competencybased standards for other occupations related to other Governmentwide functions such as 

financial management and grants management. Competency-based standards require applicants to demonstrate defined levels of proficiency in specific job-related skills (competencies), 

instead of a specific length and type of work experience.

Assessment Guides. OPM published a Structured Interview Guide and information on reference checking to assist agencies in conducting effective interviews and reference checks.

Reciprocity in Suitability Determinations and Investigations. OPM issued final regulations to require Federal agencies to recognize suitability investigations and determinations 

and to establish criteria for granting reciprocity. Reciprocity has great potential to eliminate 

duplication of effort and reduce time lost, both before appointment and on the job, while 

waiting for investigations to be completed or suitability determinations to be made.

Significance:

These initiatives reflect a holistic approach to improving Federal hiring and are broadly 

consistent with recommendations from previous MSPB research on Federal hiring. When 

fully implemented, these initiatives should make the Federal hiring process more navigable, 

rigorous, and timely.

38 | U.S. Merit Systems Protection Board 

2

 See Proposed Personnel Demonstration Project; Alternative Personnel Management System for the U.S. Department of Agriculture, Food Safety and Inspection Service, Notice of a proposed demonstration project plan, 73 Fed. Reg. 26436-26451 (May 9, 

2008). The introduction to the plan states that “At best, the personnel system that covers USDA and FSIS employees is based on 

20th century assumptions about the nature of public service. Although the current Federal personnel management system is based 

on important core principles, those principles operate in an inflexible, one-size-fits-all system of defining work, hiring staff, managing 

people, assessing and rewarding performance, and advancing personnel. These inherent weaknesses make support of the FSIS mission complex, costly, and, ultimately, risky from the standpoint of public health.”
Annual Report for Fiscal Year 2008 | 39

Elimination of Time in Grade

OPM issued proposed regulations to eliminate time in grade (TIG), a requirement that 

employees in the competitive service must serve a prescribed length of time (typically one 

year) at a given grade level prior to promotion to a higher grade level.

Significance:

The elimination of TIG is consistent with an emphasis on agency flexibility and performance, 

rather than tenure, as the primary criterion for advancement. Although stakeholders have 

raised concerns about possible abuse, we note that TIG has never applied in the excepted service, and that the immediate effects of the proposed elimination of TIG will likely be limited, 

as employees must still meet qualification requirements (which typically require one year of 

experience at the next lower grade level, or equivalent) to advance.

Report on Agency Use of Hiring Flexibilities

OPM issued a report on Federal agency use of hiring flexibilities. OPM reported an increased use of flexibilities, including category rating (an alternative to the “rule of three”) that 

MSPB has advocated through previous research. Not surprisingly, OPM also found that users preferred the hiring flexibilities to “regular” hiring processes: “Supervisors, managers, and 

human resource practitioners who responded to this survey report [that] use of these hiring 

authorities to fill entry-level positions is more efficient and effective than traditional ranking 

and selection procedures.”3 

Significance:

OPM’s report confirms a continuing increase in agency use of flexibilities within competitive examining as well as broad exceptions to competitive examining, a trend documented 

in recent MSPB research on Federal hiring.4

 Although agencies find the flexibilities useful, 

the scope and extent of their use has raised concerns among Federal employee groups, as 

evidenced by a legal challenge to the Federal Career Intern Program.5

 Increasing reliance on 

exceptions to competitive hiring also raises long-term questions about the role of competitive 

examination in the Federal service, an issue not addressed in OPM’s report.

Hiring authority guidance

In November 2007, OPM issued a memorandum to Chief Human Capital Officers which 

strongly advised Federal agencies against further use of the Outstanding Scholar and Bilingual/Bicultural hiring authorities.

Significance:

In September 2006, the MSPB issued a report titled, Reforming Federal Hiring: Beyond Faster 

and Cheaper, which noted that the Outstanding Scholar and Bilingual/Bicultural hiring 

authorities had caused negative effects and recommended that OPM act to sunset these 

authorities. In October 2006, the Board issued decisions in Dean v. Department of Agriculture, 99 M.S.P.R. 533 (2005), reconsideration denied, 104 M.S.P.R. 1 (2006) and Olson v. 

3

 Office of Personnel Management, Report on Agencies’ Use of Hiring Flexibilities, May 2008, p. 28. 4

 See U.S. Merit Systems Protection Board, Federal Appointing Authorities: Cutting through the Confusion, Washington, 

DC, July 2008.

5 NTEU v. Springer, No 1:07CV00168 (D.D.C., filed January 27, 2007).
Department of Veterans Affairs, 100 M.S.P.R. 322 (2005), reconsideration denied, 104 M.S.P.R. 

1 (2006) in which the Board determined that the Outstanding Scholar authority (and, by 

implication, the Bilingual/Bicultural hiring authority), as it was being used, violated veterans’ 

preference requirements. The November 2007 OPM memorandum counseled agencies to 

discontinue the use of these special hiring authorities.

Clarification of Adverse Action Rules During Probationary and Trial Periods

In February 2008, OPM issued final regulations to address changes in case law that have 

taken place over the past decade, including those raised in MSPB’s 2006 report, Navigating 

the Probationary Period After Van Wersch and McCormick.

6

 OPM’s final regulations clarify the 

adverse action rules already in place as a result of court and Board decisions. 

Significance:

At the end of fiscal year 2006, the MSPB issued a report which noted that in 1999 the U.S. 

Court of Appeals for the Federal Circuit issued a decision that invalidated certain OPM 

regulations related to trial periods (and later probationary periods), yet OPM’s regulations 

remained unchanged, creating potential difficulties for agencies seeking to have their actions 

upheld by the MSPB and its reviewing court. OPM’s new regulations should help reduce 

confusion about agencies’ obligations when taking adverse actions against employees. 

Clarification of Adverse Action Rules Regarding Indefinite Suspension

In September 2008, OPM issued proposed rules to expand the circumstances under which 

an agency may indefinitely suspend an employee.

Significance:

Traditionally, indefinite suspensions were permitted only when an agency: revoked or suspended a security clearance required for continued employment; had reason to believe that 

an employee suffered from a medical condition that put himself or others in the workplace 

at risk or otherwise precluded effective performance; or had probable cause to believe that an 

employee had committed a crime for which a sentence of imprisonment could be imposed. 

In 2007, however, the Board suggested that an agency could indefinitely suspend an employee, pending completion of an internal investigation, because the agency suspected that the 

employee had committed serious misconduct (Lamour v. Department of Justice, 106 M.S.P.R. 

366). OPM’s proposal would codify this rule.

Compliance and Accountability

Presidential Transition Guidance and Review Procedures

Following its standard practice, OPM has taken several actions related to the management 

of political appointees and members of the Senior Executive Service during the Presidential 

election period and the following transition. Those actions included (1) issuing the Presidential Transition Guide to Federal Human Resources Management; and (2) instituting a require40 | U.S. Merit Systems Protection Board 

6 Van Wersch v. Department of Health and Human Services, 197 F.3d 1144 (Fed. Cir. 1999), and McCormick v. Department of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002), reh’g and reh’g en banc denied, 329 F.3d 1354 (2003).
Annual Report for Fiscal Year 2008 | 41

ment for OPM review of actions appointing or converting a Schedule C or noncareer SES 

appointee to a competitive service or career SES position.

Significance:

It is essential to ensure that appointments and other personnel actions to career positions are 

made without regard to political affiliation or other non-merit factors. In November 2008, 

OPM indicated that there had been approximately 20 competitive appointments of previous 

political appointees, and that “OPM has approved the hiring of some political appointees who 

have competitively applied for positions in the Federal workforce because they were the most 

qualified.”7

 We note, however, that the OPM review process does not apply to the excepted 

service, which accounts for an increasing percentage of positions in the Federal civil service.

Human Capital Planning and Accountability

OPM issued regulations delineating OPM and agency responsibilities for human capital 

management, including accountability. Under the regulations, agency responsibilities include (1) establishing a human capital plan; (2) assessing human capital management including compliance with merit system principles and using an OPM-approved accountability 

system; and (3) issuing an annual human capital management report.

Significance:

In the Federal Government’s decentralized system, agency self-assessment and accountability 

are critical to effective management of human capital and adherence to merit system principles. OPM’s regulation clarifies OPM and agency responsibilities and provides a Governmentwide framework for human capital planning and accountability.

Selection and Development of Federal Supervisors and Managers

OPM has taken several actions to help agencies identify and develop effective supervisors. These 

actions include issuance of a revised qualification standard for supervisory positions, publication 

of desired proficiency levels for key leadership competencies, and issuance of proposed regulations 

requiring agencies to provide for the development of their supervisors, managers, and executives, 

including training within the year following initial appointment to a supervisory position.

Significance:

Good supervisory skills are essential to every aspect of human resource management, from 

hiring to performance management, and are particularly important in light of the increased 

authority and discretion afforded to Federal managers under both Title 5 and alternative 

personnel systems. However, MSPB research has consistently found that Federal supervisors’ 

managerial skills lag behind their technical skills. These OPM initiatives can help agencies 

improve the competence of their supervisors.

Addressing Reprisal Against Whistleblowers and Violations of Antidiscrimination Laws

As required by the Notification and Federal Employee Antidiscrimination and Retaliation 

Act of 2002 (No FEAR Act), OPM has conducted a study of agency best practices in taking 

7

 Statement from Kevin Mahoney, Associate Director, Human Capital Leadership and Merit System Accountability, on the 

hiring of political appointees into career positions, dated November 20, 2008. (Available at www.opm.gov/news/index.aspx.)
disciplinary action when an employee engages in conduct inconsistent with whistleblower 

protection and antidiscrimination laws and has issued advisory guidelines that Federal agencies may use when taking such action.

Significance:

Protection of whistleblowers and nondiscrimination are major tenets of the Federal civil service. The OPM guidelines are constructive and reinforce the importance of timely leadership 

action, including holding the responsible individual accountable, when incidents of reprisal 

or prohibited discrimination occur.

Delivering Products and Services

Administrative Law Judge (ALJ) Examination

In 2007, OPM announced a new ALJ examination and accepted applications from all qualified U.S. citizens. In 2008, OPM reopened the ALJ examination to accept new applications 

and updated the ALJ register.

Significance:

As noted in MSPB’s 2007 Annual Report, the ALJ population is highly vulnerable to the anticipated retirement wave, both because of its demographics (over 80% of ALJs were 55 years 

of age or older as of June 2008) and because, until 2007, the ALJ examination had not been 

open to all U.S. citizens for several years. The availability of an updated register is essential to 

the Social Security Administration and other agencies that employ ALJs.

Senior Executive Service (SES) Federal Candidate Development Program

OPM announced and accepted applications for its first Senior Executive Service (SES) Federal 

Candidate Development Program (Fed CDP) since 2005. The Fed CDP is an interagency program that selects high-potential Federal employees through a competitive process and provides 

them with training and developmental assignments to develop the competencies (Executive 

Core Qualifications, or ECQs) required for appointment in the SES. Participants who successfully complete the program are eligible for placement in the SES without further competition.

Significance:

The Federal Government has an aging workforce and must prepare for the retirements of many 

current members of the SES. The Fed CDP could become a valuable component of that preparation. Although agencies can establish their own candidate development programs, this may be 

impractical for agencies that employ few executives or are facing severe resource constraints. The 

Fed CDP enables such agencies to address prospective SES vacancies proactively and to provide 

valuable leadership training and development to high-potential employees at reasonable cost. The 

interagency approach is also consistent with the vision of the SES as a cadre of versatile, mobile 

executives. Although only a few agencies offered opportunities through the initial Fed CDP, the 

program has long-term potential to produce a broader and deeper candidate pool than would be 

produced by individual agency programs.

42 | U.S. Merit Systems Protection Board
| 43

Financial Summary

Annual Report for Fiscal Year 2008 | 43

Fiscal Year 2008 Financial Summary 

(dollars in thousands)

Budget Authority $40,086

Appropriation $37,507

Transfer from the Civil Service Retirement 

and Disability Trust Fund 2,579

Obligations Incurred $39,655

Personnel Compensation $24,888

Personnel Benefits 5,667

Benefits For Former Employees 10

Travel and Transportation of Persons 498

Transportation of Things 59

Rental, Communications and Utilities 4,123

Printing and Reproduction 55

Other Contractual Services 3,079

Supplies and Materials 269

Equipment 955

Land and Structures 51

Note: Totals may not add due to rounding.