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ii Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

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iii Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Foreword

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

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

2021.

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

DeeAnn Batten, Ph.D.

Performance Improvement Officer (PIO)

Office of Policy and Evaluation

U.S. Merit Systems Protection Board 

1615 M Street, NW

Washington, DC 20419

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

Toll Free: 1-800-209-8960

Fax: 202-653-7130

Information about MSPB’s FY 2021 program performance results (as required under the 

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

the Annual Performance Report and Annual Performance Plan (APR-APP) for FY 2021-2023. 

Financial accountability and audit information is included in MSPB’s Annual Financial Report for 

FY 2021. MSPB’s ARs and GPRAMA documents are posted on the Plans, Budget and Performance

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

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

studies listservs, or follow us on Twitter @USMSPB.
iv Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Table of Contents

 Page

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

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

MSPB’s Mission and Vision...........................................................................................................................................1

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

Board Quorum and Status of Board Member Nominations ...................................................................................2

MSPB Offices and Their Functions.............................................................................................................................2

MSPB Organizational Chart ..........................................................................................................................................4

Fiscal Year 2021 in Review ............................................................................................ 5

Adjudication......................................................................................................................................................................5

Merit Systems Studies......................................................................................................................................................5

The Significant Actions of the Office of Personnel Management..........................................................................5

Outreach, Merit Systems Education, and References to MSPB’s Work................................................................5

International Activities....................................................................................................................................................6

Legislative and Congressional Relations Activity .......................................................................................................6

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

Case Processing Statistics for FY 2021.......................................................................... 9

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

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

Significant Court Opinions Issued in FY 2021.............................................................18

Significant Opinions Issued by the U.S. Court of Appeals for the Federal Circuit ...........................................18

Significant Opinions Issued by Other Circuit Courts .............................................................................................23

Summary of Merit Systems Studies Activity in FY 2021 ............................................. 24

Publications Issued ........................................................................................................................................................24

Merit Principles Survey and Other Surveys Administered .....................................................................................25

Outreach and References to Merit Systems Studies................................................................................................25

Significant Actions of the U.S. Office of Personnel Management.............................. 26

OPM Leadership and Context.....................................................................................................................................26

New Significant Actions...............................................................................................................................................29

MSPB Financial Summary .......................................................................................... 34

List of Abbreviations and Acronyms ........................................................................... 35
1 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

U.S. MERIT SYSTEMS PROTECTION BOARD

FISCAL YEAR 20201 ANNUAL REPORT

INTRODUCTION

This MSPB Annual Report for FY 2021 includes adjudication case processing statistics for the 

regional and field offices, summaries of court opinions relevant to MSPB’s work, summaries of 

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

Personnel Management (OPM).

1 The report also contains summaries of MSPB’s financial status, 

outreach and education activities, legislative and congressional relations activities, and international 

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

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

FY 2021-2023. Headquarters (HQ) case processing statistics and summaries of significant MSPB 

Board decisions are not provided in this report because the lack of quorum prevented issuance of

decisions at HQ. 

About MSPB

MSPB was created by the Civil Service Reform Act (CSRA) to carry on the adjudication functions of 

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

agencies. The CSRA authorized MSPB to develop its adjudicatory processes and procedures, issue 

subpoenas, call witnesses to testify at hearings, and enforce compliance with final MSPB decisions.

MSPB also was granted broad authority to conduct independent, objective studies of the Federal merit 

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

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

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

systems as the merit system principles (MSPs), and proscribed, as contrary to MSPs, specific actions 

and practices as the prohibited personnel practices (PPPs).

3

Since the enactment of the CSRA, 

Congress has given MSPB jurisdiction to hear cases and complaints filed under a variety of other 

laws.4 More information about MSPB’s jurisdiction can be found in the agency’s Strategic Plan located 

at www.mspb.gov. 

MSPB’s Mission and Vision

Mission 

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

free of prohibited personnel practices.

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

(which is prohibited under 5 U.S.C. § 1204(h)).

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

regulations if such regulations, or the implementation of such regulations, would require an employee to commit a prohibited 

personnel practice. Pursuant to 5 U.S.C. § 1206, MSPB also is responsible for annually reviewing and reporting on OPM’s 

significant actions.

3 Title 5 U.S.C. § 2301 and § 2302, respectively.

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

Veterans Employment Opportunities Act of 1998 (VEOA), 5 U.S.C. § 3309 et seq.; the Whistleblower Protection Act of 1989 (WPA), 

Pub L. 101-12, 103 Stat. 16; the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. 112-199; and other laws listed 

in this and previous ARs.
2 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Vision

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

providing excellent service to the American people.

Board Members

The bipartisan Board consists of the Chair, Vice Chair, and Board Member, with no more than two 

of its three members from the same political party. Board members are appointed by the President, 

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

Board Quorum and Status of Board Member Nominations

President Trump’s nominations of Dennis D. Kirk as Board Chairman and B. Chad Bungard and 

Julia A. Clark as Board Members expired at the end of the 116th Congress. At the beginning of the 

117th Congress, President Trump nominated Mr. Kirk as a Board Member, but his nomination was 

withdrawn by President Biden on February 4, 2021. On June 24, 2021, President Biden nominated 

Cathy Ann Harris to be a member and Chair of the MSPB and Raymond A. Limon to be a member 

of the MSPB with the designation of Vice Chair. On September 13, 2021, President Biden 

nominated Tristan Leavitt as the third Board member. On September 22, 2021 the Senate 

Committee on Homeland Security and Governmental Affairs held a nomination hearing for the 

three nominees. On October 6, 2021, the nominees were reported favorably out of committee and 

the nominations were placed on the Senate calendar. On January 3, 2022, the Senate returned Ms. 

Harris’s nomination to the President; she was renominated on January 4, 2022, and again reported 

favorably out of committee on February 2, 2022. We hope the remaining necessary actions will be 

taken to ensure the Board’s quorum is restored early in calendar year 2022.

MSPB Offices and Their Functions

MSPB is headquartered in Washington, D.C. and has six regional offices (ROs) and two field offices 

(FOs) located throughout the United States. For FY 2021, the agency was authorized to employ 235 

full-time equivalents to conduct and support its statutory duties. 

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

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

(EEO) reports directly to the Chair; otherwise, the directors of the offices described below report to 

the Chair through the Executive Director.

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

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

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

assigned by MSPB. In FY 2021, the functions of this office were performed under interagency 

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

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

Board to consider for cases in which a party files a petition for review (PFR) of an initial decision 

issued by an administrative judge (AJ) and in most other cases to be decided by the Board. The 

office prepares proposed decisions on interlocutory appeals of AJs’ rulings, makes recommendations 

on reopening cases on the Board’s own motion, and provides research, policy memoranda, and 

advice on legal issues to the Board.
3 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

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

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

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

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

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

systems, website content, and the Government in the Sunshine Act program.

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

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

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

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

The Office of Financial and Administrative Management administers the budget, accounting, 

travel, time and attendance, human resources (HR), procurement, property management, physical 

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

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

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

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

for HR services.

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

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

MSPB in litigation; coordinates the review of OPM rules and regulations; prepares proposed 

decisions for the Board to enforce a final MSPB decision or order in response to requests to review 

OPM regulations and for other assigned cases; conducts the agency’s PFR settlement program; and 

coordinates the agency’s legislative policy and congressional relations functions. The office also 

drafts regulations, administers MSPB’s ethics program, performs the inspector general (IG) function, 

and plans and directs audits and investigations. 

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

MSPB’s information technology (IT) systems and enterprise applications, and manages MSPB’s 

cybersecurity program. These services help MSPB manage its caseload efficiently and carry out its 

administrative and research responsibilities.

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

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

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

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

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

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

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

required by GPRAMA.

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

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

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

well-reasoned, and timely initial decisions.
4 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

MSPB Organizational Chart

CHAIR MEMBER

General 

Counsel

Equal 

Employment 

Opportunity

Clerk of the 

Board

Administrative 

Law Judge

Regional 

Operations Appeals Counsel Policy and 

Evaluation

Regional Offices

Atlanta, Chicago, 

Dallas,

Philadelphia,

Oakland, and

Washington, DC

Field Offices

Denver and 

New York

VICE CHAIR

Financial and 

Administrative 

Management

Information 

Resources 

Management

Executive 

Director

U.S. Merit Systems Protection Board

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

Accounting services are provided by the Department of the Treasury’s BFS. In FY 2021, ALJ functions were performed under 

interagency agreements by ALJs employed by the FTC and the U.S. Coast Guard. 
5 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

FISCAL YEAR 2021IN REVIEW

Adjudication

MSPB has lacked a quorum of Board members since January 2017, thus preventing MSPB from 

issuing final decisions in PFRs and other cases at HQ, including decisions in enforcement cases and 

in cases requesting review of OPM regulations. Therefore, this AR does not contain summaries of 

significant decisions issued by the Board, or case processing statistics for PFRs issued by HQ. Of 

note, as of the end of FY 2021, MSPB had 3,465 cases pending at HQ. 

In FY 2021, MSPB processed 4,867 cases in the ROs/FOs, including addendum cases and stay 

requests. ALJs issued 12 decisions. Statistical information on MSPB’s case processing activity for the 

RO/FOs is provided in the section on Case Processing Statistics for FY 2021. In accordance with 

the WPEA, information about FY 2021 whistleblower cases will be available in MSPB’s APR-APP

for FY 2021-2023, which will be posted on MSPB’s website at www.mspb.gov. 

As a service to its stakeholders, MSPB also provides summaries of significant opinions relevant to 

the Board’s work that were issued in FY 2021 by the U.S. Court of Appeals for the Federal Circuit 

(CAFC or Federal Circuit) and other Federal courts. Those summaries are provided in the section

on Significant Court Opinions Issued in FY 2021. The opinions cover topics such as probationary 

periods, removals, Senior Executive Service (SES) rights, whistleblowing, and USERRA.

Merit Systems Studies

In FY 2021, due to the lack of quorum, MSPB did not publish any research reports of merit systems 

studies. MSPB’s studies program released three editions of its Issues of Merit (IoM) newsletter. It also 

released five research briefs on topics ranging from direct hire authority, acceptable level of 

competence, agency leader responsibilities related to PPPs, confidence in ability to perform, and job 

fit. In addition, MSPB successfully administered the 2021 Merit Principles Survey (MPS) to more 

agencies than it did for the 2016 MPS and with a shorter time to prepare and launch the survey after 

final approval of survey content. Summaries of publications, surveys, and other studies-related 

activities are contained in the Summary of Merit Systems Studies Activity section of this report.

The Significant Actions of the Office of Personnel Management

In accordance with statute, MSPB’s annual report must contain a review of OPM’s significant 

actions and an assessment of the degree to which the actions support merit and prevent PPPs. The 

FY 2021 review includes OPM’s significant actions related to previous executive orders (EOs), the 

2021 presidential transition, and streamlining Federal hiring. In addition, this section discusses 

context issues including OPM leadership, the National Academy of Public Administration’s 

(NAPA’s) mandated report on OPM and OPM’s response to that report, and the COVID-19 

pandemic. The lack of quorum limits the scope of MSPB’s review of OPM’s significant actions. 

More information about MSPB’s review of significant OPM actions is included in that section of 

this report.

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

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

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

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

better understanding and operation of the Federal merit system disciplinary and appeals process by 
6 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

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

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

provide value to the taxpayer. 

In FY 2021, MSPB staff conducted 138 outreach events with a variety of customers and 

stakeholders. Most were virtual events due to the pandemic. MSPB staff presented at several 

nationwide conferences, such as the Federal Dispute Resolution conference, the Federal Circuit Bar 

Association, and the Chicago-Kent College of Law’s annual Federal Sector Labor Relations and 

Labor Law Program. Notably, MSPB was invited to confer with Office of Management and Budget 

(OMB) officials about hiring assessments using subject matter experts and structured interviews. 

MSPB’s work and other activities were cited over 520 times in 92 different print and online sources. 

Several significant citations of studies work are included in the Merit Systems Studies section of this 

report, and additional information about MSPB’s outreach and education activities and references to 

its work can be found in MSPB’s APR-APP for FY 2021-2023. 

International Activities 

During FY 2021, MSPB’s General Counsel/Acting Chief Executive and Administrative Officer, 

Acting Executive Director, Acting OPE Director, and Acting ORO Director met virtually with the 

Merit Protection Commissioner of Australia, the Commission’s Executive Director, and other 

Commission staff members. The discussion included information about the two systems and the 

roles of the Commission and MSPB. Most of the discussion involved protecting merit and 

adjudication of employee appeals with interest expressed by the representatives from Australia in 

MSPB’s studies program, a function that the Commission does not have. 

Legislative and Congressional Relations Activity 

During FY 2021, MSPB staff monitored and analyzed legislative activity relevant to MSPB’s 

jurisdiction and adjudication of appeals. Brief descriptions of relevant bills are provided below. 

As in past years, the annual National Defense Authorization Act (NDAA), the annual “must pass” 

Department of Defense (DOD) policy bill, has been the primary vehicle for new laws affecting civilian 

employee policy and often also impacting MSPB. The NDAA for FY 20215 has continued that trend 

with the following two provisions. § 1137 amended the Notification and Federal Employee 

Antidiscrimination and Retaliation Act of 2002 Amendments by requiring Federal agencies to track 

discrimination complaints from start to finish and allowing the Equal Employment Opportunity 

Commission (EEOC) to refer to the Office of Special Counsel (OSC) discrimination cases in which an 

agency failed to take appropriate action. Sections 1131 to 1138 enacted the Elijah E. Cummings 

Federal Employee Antidiscrimination Act of 2020, which substantially upgraded the incentive process 

in whistleblower cases and allows—and in certain cases requires—legal representation for 

whistleblowers. Of note, the NDAA for FY 20226 has two provisions with potential bearing on 

MSPB operations. Section 1108 would repeal the two-year probationary period for DOD employees, 

as defined in 10 U.S.C. Section 1599e, leaving most probationary periods for DOD employees at one 

year. Section 1109 would increase the diversity and inclusion reporting for members of the armed 

services and civilian employees at DOD. 

5 Pub. L. 116-283, enacted January 1, 2021. Available at https://www.congress.gov/116/bills/hr6395/BILLS-116hr6395enr.pdf. 

6 Pub. L. 117-81, enacted December 27, 2021. Available at https://www.congress.gov/bill/117th-congress/senate-bill/1605/text. 
7 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Several pieces of legislation were pending at the end of FY 2021 which would affect MSPB if 

enacted into law. 

Merit Systems Protection Board Empowerment Act of 2021 (H.R. 1224).

7 This bill would 

reauthorize MSPB for five years, require Federal agencies to cooperate with and provide information 

to MSPB in support of Federal employee surveys for MSPB studies, and require whistleblower 

training for MSPB employees who hear whistleblower cases. H.R. 1224 was favorably reported out 

of the House Oversight and Reform Committee on June 29, 2021.

Merit Systems Protection Board Authorization Act of 2021 (H.R. 1922).8 This bill would 

reauthorize MSPB for five years; require that MSPB charge a filing fee for claims and appeals; allow 

for summary judgment decisions in MSPB cases; limit mitigation in certain cases; change the 

evidentiary burden to sustain an agency decision to being supported by substantial evidence; limit 

appeals on furloughs; provide for reappointment of Board members; and clarify the authority of 

MSPB to hear and decide cases under the Veterans Affairs Accountability and Whistleblower 

Protection Act of 2017. H.R. 1922 is pending before the House Oversight and Reform and the 

House Veterans’ Affairs Committees.

Whistleblower Protection Improvement Act of 2021 (H.R. 2988).9 This bill would require that 

an agency IG issue a determination of whether to investigate a finding by OSC of retaliation 

against a whistleblower; provide for a right for whistleblowers to contact Congress; prohibit the 

disclosure of a whistleblower’s identity; provide IG whistleblowers an alternative reporting option 

in certain cases; prohibit retaliatory referrals to IGs; allow for prevailing parties to receive attorney 

fees; and extend whistleblower protections to the Public Health Service, National Oceanic and 

Atmospheric Administration and noncareer appointees to the SES. It would also require 

prevailing Federal employees before MSPB be made whole, i.e., restore or conduct all training, 

seniority, and promotions as if nothing had happened; classify as appealable adverse actions that 

are subject to certain procedural requirements personnel actions involving furloughs of more than 

14 days but less than 30 days and furloughs of 13 days or less that are not due to funding lapses; 

and codify protections for disclosures of censorship related to research, analysis, and technical 

information. H.R. 2988 was favorably reported out of the House Oversight and Reform 

Committee on June 29, 2021.

Preventing a Patronage System Act of 2021 (H.R. 302).10 This bill would prohibit competitive 

service positions from being classified as excepted service positions, unless such positions are placed 

in Schedules A through E. It would also prohibit transfer of excepted service positions into 

positions other than Schedules A though E. H.R. 302 was favorably reported out of the House 

Oversight and Reform Committee on May 25, 2021.

Pregnant Workers Fairness Act (H.R. 1065).11 This bill would expand protections for pregnant 

persons by treating pregnancy, childbirth, and related medical conditions as disabilities for the 

purpose of determining reasonable accommodations. H.R. 1065 passed the House of 

Representatives on June 14, 2021.

7 https://www.congress.gov/117/bills/hr1224/BILLS-117hr1224ih.pdf.

8 https://www.congress.gov/117/bills/hr1922/BILLS-117hr1922ih.pdf.

9 https://www.congress.gov/117/bills/hr2988/BILLS-117hr2988ih.pdf.

10 https://www.congress.gov/117/bills/hr302/BILLS-117hr302ih.pdf.

11 https://www.congress.gov/117/bills/hr1065/BILLS-117hr1065rfs.pdf.
8 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Other Congressional Activity. MSPB staff conducted fifteen (15) briefings for congressional staff 

during FY 2021. In addition to the annual budget briefings for staff of the House and Senate 

Appropriations Committees, MSPB briefed staff from the House Committee on Oversight and 

Reform and the Senate Homeland Security and Government Affairs Committee. Briefing topics 

included the Hatch Act, the nomination process for Board nominees, the impact of a continued lack 

of quorum, and the potential effect on MSPB of the Supreme Court’s ruling in Lucia v. Securities and 

Exchanges Commission and related cases.

Internal Management Challenges and External Factors

There are a number of internal management challenges currently facing MSPB. The most 

significant internal issue affecting MSPB is the lack of quorum of Board members (also considered 

an external factor beyond MSPB’s control). Other significant internal challenges that could affect 

MSPB’s ability to carry out its mission include other HC issues and IT stability, cybersecurity, and 

modernization. The COVID-19 pandemic is an external factor that presents internal challenges for 

MSPB. Other than the lack of quorum and the pandemic, significant external trends or issues 

affecting MSPB’s ability to carry out its mission include changes in law, jurisdiction and appeals 

processes, Government reform, budget challenges, and workforce reshaping. More detailed 

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

APR-APP for FY 2021-2023.
9 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

CASE PROCESSING STATISTICS FOR FY 2021

Summary of Cases Decided by MSPB

Since January 8, 2017, MSPB has not had a quorum, which is required to issue decisions on PFRs 

and other cases at HQ. Therefore, there are no FY 2021 case processing statistics for HQ.

Table 1: FY 2021 Summary of Cases Decided by MSPB

Cases Decided in MSPB Regional and Field Offices

 Appeals 4,649

 Addendum Cases1 197

 Stay Requests2 21

TOTAL Cases Decided in RO/FOs 4,867

Cases Decided by Administrative Law Judges (ALJs) - Original 

Jurisdiction3 12

Cases Decided by the Board4

 Appellate Jurisdiction:

 Petitions for Review (PFRs) - Appeals 0

 Petitions for Review (PFRs) - Addendum Cases 0

 Reviews of Stay Request Rulings 0

 Requests for Stay of Board Order 0

 Reopenings 0

 Court Remands 0

 Compliance Referrals 0

 EEOC Non-concurrence Cases 0

 Arbitration Cases 0

 Subtotal - Appellate Jurisdiction 0

 Original Jurisdiction5 0

 Interlocutory Appeals 0

 TOTAL Cases Decided by the Board 0

 TOTAL Decisions (Board, ALJs, RO/FOs) 4,879

1 Includes 58 requests for attorney fees, 106 compliance cases, 18 court remand cases, 1 Board remand case, 10 requests 

for compensatory damages, and 4 requests for consequential damages.

2 Includes 19 stay requests in whistleblower cases and 2 in non-whistleblower cases.

3 Initial Decisions by ALJs include: 3 Disciplinary Action - Hatch Act cases, 3 Actions Against SES cases, and 6 Actions 

Against ALJs.

4 MSPB closed 17 PFR cases by order of the Clerk of the Board under its 2018 policy on withdrawing PFRs.

5 Final Board Decisions.
10 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Cases Processed in the Regional and Field Offices

Table 2: Disposition of Appeals Decided in the Regional and 

Field Offices by Type of Case

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

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

Adverse Action by Agency 1,881 1,023 54.39 858 45.61 436 50.82 422 49.18

Termination of Probationers 486 471 96.91 15 3.09 14 93.33 1 6.67

Reduction in Force 9 4 44.44 5 55.56 3 60.00 2 40.00

Performance 173 87 50.29 86 49.71 49 56.98 37 43.02

Acceptable Level of 

Competence (ALOC)3

29 21 72.41 8 27.59 6 75.00 2 25.00

Suitability 75 34 45.33 41 54.67 29 70.73 12 29.27

CSRS4 Retirement: Legal 112 69 61.61 43 38.39 0 0.00 43 100.00

CSRS Retirement: Disability 6 4 66.67 2 33.33 0 0.00 2 100.00

CSRS Retirement: 

Overpayment 54 30 55.56 24 44.44 14 58.33 10 41.67

FERS4 Retirement: Legal 189 140 74.07 49 25.93 1 2.04 48 97.96

FERS Retirement: Disability 417 301 72.18 116 27.82 1 0.86 115 99.14

FERS Retirement: 

Overpayment 218 123 56.42 95 43.58 61 64.21 34 35.79

FERCCA4 9 8 88.89 1 11.11 0 0.00 1 100.00

Individual Right of Action 453 303 66.89 150 33.11 74 49.33 76 50.67

USERRA 76 40 52.63 36 47.37 19 52.78 17 47.22

VEOA 55 32 58.18 23 41.82 4 17.39 19 82.61

Other5 407 392 96.31 15 3.69 13 86.67 2 13.33

Total 4,649 3,082 66.29 1,567 33.71 724 46.20 843 53.80

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

2 Percent Settled and Adjudicated are of the number Not Dismissed.

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

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

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

4 Civil Service Retirement System (CSRS); Federal Employees Retirement System (FERS); and Federal Erroneous Retirement 

Coverage Corrections Act (FERCCA).

5 “Other” appeals include Restoration to Duty, Miscellaneous, Reemployment Priority, Employment Practices, and others.
11 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

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

Total Number of Appeals: 4,649

Note: Some percentages display as “0” due to rounding; percentages are rounded to add to 100%.

Adverse Action by 

Agency (1881)

40%

Termination of 

Probationers (486)

10%

Reduction in Force (9)

0%

Performance (173)

4%

Acceptable Level of 

Competence (ALOC) 

(29)

1%

Suitability (75)

2%

CSRS 

Retirement:Legal (112)

2%

CSRS Retirement: 

Disability (6)

0%

CSRS Retirement: 

Overpayment (54)

1%

FERS Retirement: 

Legal (189)

4%

FERS Retirement: 

Disablity (417)

9%

FERS Retirement: 

Overpayment (218)

5%

FERCCA (9)

0%

Individual Right of 

Action (453)

10%

Other (407)

9%

USERRA (76)

2%

VEOA (55)

1%
12 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Figure 2: Dispositions of Initial Appeals Not Dismissed 

by Regional and Field Offices

Total Number of Appeals that Were Not Dismissed: 1,567

Percentages are rounded to add to 100%.

Figure 3: Dispositions of Initial Appeals Not Dismissed or Settled 

by Regional and Field Offices

Based on 843 Appeals Adjudicated on the Merits

Percentages are rounded to add to 100%.

Appeal Settled 

(724) 46%

Action or Decision 

Upheld or Left 

Undisturbed (671)

43%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (139) 9%

Mitigated (18) 1% Other (15) 1%

Action or Decision 

Upheld or Left 

Undisturbed (671)

80%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (139) 16%

Mitigated (18) 2% Other (15) 2%
13 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Table 3: Disposition of Appeals by Agency

(in descending order by number of decided appeals)

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

Agency # # % # % # % # % 

Office of Personnel 

Management3

1,045 682 65.3 363 34.7 103 28.4 260 71.6

Department of Veterans Affairs 679 443 65.2 236 34.8 120 50.8 116 49.2

Department of the Army 403 262 65.0 141 35.0 81 57.4 60 42.6

United States Postal Service 396 267 67.4 129 32.6 90 69.8 39 30.2

Department of the Navy 329 219 66.6 110 33.4 46 41.8 64 58.2

Department of Homeland 

Security 259 144 55.6 115 44.4 56 48.7 59 51.3

Department of Defense 200 136 68.0 64 32.0 33 51.6 31 48.4

Department of the Air Force 190 124 65.3 66 34.7 29 43.9 37 56.1

Department of Justice 166 121 72.9 45 27.1 20 44.4 25 55.6

Department of Health and 

Human Services 165 156 94.5 9 5.5 5 55.6 4 44.4

Department of Agriculture 141 89 63.1 52 36.9 27 51.9 25 48.1

Department of the Treasury 132 96 72.7 36 27.3 20 55.6 16 44.4

Social Security Administration 91 67 73.6 24 26.4 8 33.3 16 66.7

Department of the Interior 90 59 65.6 31 34.4 15 48.4 16 51.6

Department of Commerce 89 60 67.4 29 32.6 12 41.4 17 58.6

Department of Transportation 48 23 47.9 25 52.1 8 32.0 17 68.0

Department of Labor 27 14 51.9 13 48.1 6 46.2 7 53.8

Department of Housing and 

Urban Development 21 14 66.7 7 33.3 3 42.9 4 57.1

Department of Energy 17 6 35.3 11 64.7 7 63.6 4 36.4

Equal Employment Opportunity 

Commission 17 16 94.1 1 5.9 0 0.0 1 100.0

Department of State 12 4 33.3 8 66.7 5 62.5 3 37.5

General Services Administration 11 3 27.3 8 72.7 5 62.5 3 37.5

Environmental Protection 

Agency 10 7 70.0 3 30.0 3 100.0 0 0.0

Small Business Administration 10 8 80.0 2 20.0 0 0.0 2 100.0

Federal Deposit Insurance 

Corporation 9 4 44.4 5 55.6 2 40.0 3 60.0

Department of Education 8 6 75.0 2 25.0 0 0.0 2 100.0
14 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Table 3: Disposition of Appeals by Agency (cont.)

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

Agency # # % # % # % # %

Government Publishing 

Office 7 5 71.4 2 28.6 0 0.0 2 100.0

Smithsonian Institution 7 4 57.1 3 42.9 2 66.7 1 33.3

Agency for International 

Development 6 4 66.7 2 33.3 2 100.0 0 0.0

Broadcasting Board of 

Governors 6 3 50.0 3 50.0 3 100.0 0 0.0

National Aeronautics and 

Space Administration 6 2 33.3 4 66.7 1 25.0 3 75.0

Court Services and Offender 

Supervision Agency for DC 5 4 80.0 1 20.0 1 100.0 0 0.0

Nuclear Regulatory 

Commission 4 2 50.0 2 50.0 0 0.0 2 100.0

U.S. Agency for Global Media 4 2 50.0 2 50.0 1 50.0 1 50.0

Armed Forces Retirement 

Home 3 0 0.0 3 100.0 3 100.0 0 0.0

Federal Retirement Thrift 

Investment Board 3 3 100.0 0 0.0 0 0.0 0 0.0

National Archives and 

Records Administration 3 2 66.7 1 33.3 0 0.0 1 100.0

Office of Special Counsel 3 2 66.7 1 33.3 1 100.0 0 0.0

Architectural and 

Transportation Barriers 

Compliance Board

2 1 50.0 1 50.0 1 100.0 0 0.0

Corporation for National and 

Community Service 2 1 50.0 1 50.0 1 100.0 0 0.0

Executive Office of the 

President, Office of 

Administration

2 2 100.0 0 0.0 0 0.0 0 0.0

Federal Mediation and 

Conciliation Service 2 1 50.0 1 50.0 1 100.0 0 0.0

National Credit Union 

Administration 2 1 50.0 1 50.0 0 0.0 1 100.0

Selective Service System 2 2 100.0 0 0.0 0 0.0 0 0.0

Tennessee Valley Authority 2 1 50.0 1 50.0 0 0.0 1 100.0

Committee for Purchase from 

People Who Are Blind or 

Severely Disabled

1 1 100.0 0 0.0 0 0.0 0 0.0

Consumer Product Safety 

Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

Denali Commission 1 0 0.0 1 100.0 1 100.0 0 0.0
15 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Table 3: Disposition of Appeals by Agency (cont.)

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

Agency # # % # % # % # %

Development Finance 

Corporation 1 0 0.0 1 100.0 1 100.0 0 0.0

Federal Communications 

Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

Federal Housing Finance 

Agency 1 1 100.0 0 0.0 0 0.0 0 0.0

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

Federal Trade Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

Millennium Challenge 

Corporation 1 1 100.0 0 0.0 0 0.0 0 0.0

National Labor Relations Board 1 1 100.0 0 0.0 0 0.0 0 0.0

Other 1 1 100.0 0 0.0 0 0.0 0 0.0

Peace Corps 1 1 100.0 0 0.0 0 0.0 0 0.0

Securities and Exchange 

Commission 1 0 0.0 1 100.0 1 100.0 0 0.0

Total 4,649 3,082 66.3 1,567 33.7 724 46.2 843 53.8

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

2 Percent Settled and Adjudicated are of the number Not Dismissed.

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

the CSRS and the FERS retirement systems.
16 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

by Agency

Adjudicated1 Affirmed Reversed Mitigated

Modified Other

Agency # # % # % # % # %

Office of Personnel 

Management2

260 193 74.2 54 20.8 1 0.4 12 4.6

Department of Veterans Affairs 116 94 81.0 19 16.4 0 0.0 3 2.6

Department of the Navy 64 54 84.4 9 14.1 1 1.6 0 0.0

Department of the Army 60 48 80.0 8 13.3 4 6.7 0 0.0

Department of Homeland 

Security 59 51 86.4 7 11.9 1 1.7 0 0.0

United States Postal Service 39 30 76.9 7 17.9 2 5.1 0 0.0

Department of the Air Force 37 29 78.4 6 16.2 2 5.4 0 0.0

Department of Defense 31 25 80.6 4 12.9 2 6.5 0 0.0

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

Department of Justice 25 19 76.0 4 16.0 2 8.0 0 0.0

Department of Commerce 17 15 88.2 2 11.8 0 0.0 0 0.0

Department of Transportation 17 17 100.0 0 0.0 0 0.0 0 0.0

Department of the Interior 16 11 68.8 5 31.3 0 0.0 0 0.0

Department of the Treasury 16 13 81.3 2 12.5 1 6.3 0 0.0

Social Security Administration 16 14 87.5 2 12.5 0 0.0 0 0.0

Department of Labor 7 7 100.0 0 0.0 0 0.0 0 0.0

Department of Energy 4 4 100.0 0 0.0 0 0.0 0 0.0

Department of Health and 

Human Services 4 4 100.0 0 0.0 0 0.0 0 0.0

Department of Housing and 

Urban Development 4 4 100.0 0 0.0 0 0.0 0 0.0

Department of State 3 3 100.0 0 0.0 0 0.0 0 0.0

Federal Deposit Insurance 

Corporation 3 2 66.7 1 33.3 0 0.0 0 0.0

General Services Administration 3 3 100.0 0 0.0 0 0.0 0 0.0

National Aeronautics and Space 

Administration 3 2 66.7 0 0.0 1 33.3 0 0.0

Department of Education 2 1 50.0 1 50.0 0 0.0 0 0.0
17 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

by Agency (cont.)

Adjudicated1 Affirmed Reversed Mitigated 

Modified Other

Agency # # % # % # % # %

Government Publishing Office 2 1 50.0 1 50.0 0 0.0 0 0.0

Nuclear Regulatory Commission 2 0 0.0 2 100.0 0 0.0 0 0.0

Small Business Administration 2 2 100.0 0 0.0 0 0.0 0 0.0

Equal Employment Opportunity 

Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

National Archives and Records 

Administration 1 0 0.0 1 100.0 0 0.0 0 0.0

National Credit Union 

Administration 1 1 100.0 0 0.0 0 0.0 0 0.0

Smithsonian Institution 1 1 100.0 0 0.0 0 0.0 0 0.0

Tennessee Valley Authority 1 0 0.0 0 0.0 1 100.0 0 0.0

U.S. Agency for Global Media 1 1 100.0 0 0.0 0 0.0 0 0.0

Total 843 671 79.6 139 16.5 18 2.1 15 1.8

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 

CSRS and the FERS retirement systems. 

Note, percentages may not total 100 because of rounding. 
18 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

SIGNIFICANT COURT OPINIONS ISSUED IN FY 2021

As stated earlier, due to the lack of quorum, the Board did not issue any decisions in FY 2021. As a 

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

the CAFC and other Federal appellate courts in appeals of MSPB cases. There were no decision issues

by the Supreme Court in FY 2021 in cases that could affect MSPB case law.

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

Probationary Period/Demotion During Supervisory Probation Period

Mouton-Miller v. MSPB, 985 F.2d 864, errata (Fed. Cir. 2021): The court held that 5 U.S.C. § 3321 

applies only to employment in the competitive service. It found that the statute provides that a 

probationary supervisory employee whose performance is found wanting may be returned to the 

employee’s previous, lower-graded, nonsupervisory position without any appeal right. The 

petitioner, who was demoted by the Department of Homeland Security under this provision, alleged 

the statute did not apply to her because her immediately prior excepted service supervisory 

probation should have been tacked onto her competitive service supervisory probation, with the 

result that she had completed probation and should have an appeal right. The court rejected her 

argument because the statute’s wording and implementing regulations make clear that excepted 

service supervisory probation cannot be counted toward completion of a competitive service 

supervisory probation period. 

Removal/Chapter 43

Santos v. National Aeronautics and Space Administration, 990 F.3d 1355 (Fed. Cir. 2021): The petitioner 

appealed his performance-based removal to MSPB, arguing that it was retaliatory, discriminatory, 

and violated USERRA. An AJ sustained the removal and found that the petitioner did not establish 

any of his affirmative defenses. In a matter of first impression, the court held that the plain language 

of 5 U.S.C. § 4302(c)(6), which provides that an agency may reassign, reduce in grade, or remove 

employees who “continue to have unacceptable performance” during the performance improvement 

period (PIP), requires that an agency justify its decision to place an employee on the PIP in the first 

place if the PIP leads to a performance-based removal. Thus, in an appeal of a performance-based 

removal following a PIP, the agency must prove by substantial evidence that the employee’s 

unacceptable performance “continued,” i.e., that it was unacceptable before the PIP and remained 

so during the PIP. As the AJ did not consider the petitioner’s allegation that he never should have 

been placed on a PIP, the court found that she abused her discretion. The court therefore vacated 

and remanded this issue, directing the AJ on remand to determine whether the agency established 

that the petitioner performed unacceptably prior to being placed on the PIP. The court also vacated 

and remanded the AJ’s findings regarding USERRA because the propriety of the agency’s decision 

to place the petitioner on a PIP in the first place is related to one of the Sheehan factors (the validity 

of the agency’s proffered reason for its action) that MSPB must consider in assessing whether a 

discriminatory motivation may be reasonably inferred in a USERRA appeal. The court directed the 

AJ on remand to apply the Sheehan factors and to conduct additional fact finding concerning the 

petitioner’s pre-PIP performance and his supervisor’s motivations for initiating the PIP. 
19 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Removal/Chapter 75

Holmes v. United States Postal Service, 987 F.3d 1042 (Fed. Cir. 2021): The petitioner was removed from 

his position as a City Carrier pursuant to charges of “Unacceptable conduct/purchase and/or 

possession of an Illegal Drug While on the Clock and in Uniform.” The agency discovered the 

petitioner’s misconduct via video surveillance and removed seven other employees for the same 

misconduct. When confronted with the charges, the petitioner invoked his Fifth Amendment right 

to remain silent and declined to answer any questions concerning the surveillance videos. After 

receiving his proposed removal, the petitioner declared his desire to apologize to management for 

making a “little mistake,” but did not provide further details regarding his actions. After his removal, 

the petitioner chose to file an appeal with MSPB, whereas five of the other seven removed 

individuals instead sought review of their removals through arbitration. At MSPB, the AJ affirmed 

the agency’s removal based on the agency’s evidence and witness testimony. When making his 

decision, the AJ weighed the factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280 

(1981), and determined that multiple Douglas factors supported the penalty of removal. The 

petitioner appealed MSPB’s decision to the CAFC and the court affirmed. The petitioner first 

argued that the agency did not have sufficient evidence to prove its charges, stating that the agency 

failed to introduce the evidence necessary to prove similar charges in a criminal context. The court

rejected this theory, holding that the agency only needed to prove its charges by a preponderance of 

the evidence, instead of by the higher beyond a reasonable doubt standard necessary for criminal 

charges. The petitioner also argued that the penalty of removal was too high based on the charges,

because the five individuals who chose to go to arbitration had their removals mitigated to 

suspensions, and the sixth Douglas factor required the agency to treat all employees consistently in 

penalty determination. The court also denied this argument, finding that MSPB was not required to 

follow the decision of the arbitrator, and that a different outcome resulting in adjudication by a 

separate tribunal did not warrant reversal. The court further noted that the evidence before MSPB 

was not actually identical to the evidence before the arbitrators, because the individuals who chose 

arbitration admitted to their charges whereas the petitioner refused to do so, and this refusal 

constituted a failure to take responsibility for his actions. 

Vestal v. Department of the Treasury, 1 F.4th 1049 (Fed. Cir. 2021): The petitioner was an Internal 

Revenue Agent with the Internal Revenue Service facing a suspension. To prepare her defense 

against the suspension, the petitioner sent an unredacted taxpayer record containing confidential 

taxpayer information to her attorney, who was not authorized to receive such information. The 

petitioner allegedly believed that the attorney-client privilege protected the disclosure from being 

unauthorized. The agency removed the petitioner for unlawfully disclosing taxpayer information to 

an unauthorized person, and she appealed the removal to MSPB. The AJ sustained the agency’s 

chosen penalty of removal based upon the Douglas factors, including the harmful impact of 

unauthorized disclosures of taxpayer information on taxpayer confidence, the petitioner’s training 

that taxpayer information was to be held “sacrosanct,” the intentionality of the unauthorized 

disclosure, and the petitioner’s prior suspension. On appeal to the court, the petitioner argued that 

the penalty of removal was too severe because the unauthorized disclosure was not “willful,” as the 

petitioner had acted under a mistaken belief that the disclosure would not be considered 

unauthorized. The court held that the petitioner’s “removal was properly predicated on her intention 

to disclose the information to her attorney and did not depend on whether she knew that the 

disclosure was wrong,” consistent with the agency’s penalty guidelines, which permit removal for an 

intentional unauthorized disclosure and do not require a showing of willfulness. The court further 

found no error in the AJ’s factual findings or the weight the AJ gave the individual factors. 

Accordingly, the court affirmed the petitioner’s removal. 
20 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Removal/38 U.S.C. § 714

Harrington v. Department of Veterans Affairs (VA), 981 F.3d 1356 (Fed. Cir. 2020): The court held the 

petitioner’s removal by the VA pursuant to its authority under 38 U.S.C. § 714 must be vacated in 

light of the court’s decision in Sayers v. VA, 954 F.3d 1370 (Fed. Cir. 2020). In Sayers, the court held 

that: (1) the proper interpretation of § 714 requires MSPB to review the entire decision below, 

including the reasonableness of the penalty, and (2) § 714 does not apply retroactively to conduct 

occurring before its enactment. Consistent with Sayers, the court held that the § 714 action brought 

against the petitioner was improper because the only remaining charges against him depend on 

conduct predating the enactment of § 714. The court vacated the petitioner’s removal and remanded 

to MSPB with instructions to remand the case to the VA. 

Brenner v. VA, 990 F.3d 1313 (Fed. Cir. 2021): The VA removed the appellant from his attorney 

position, pursuant to 38 U.S.C. § 714, based on failure to meet performance standards. An AJ 

upheld the removal, and in doing so held that MSPB is prohibited by § 714 from reviewing the 

reasonableness of the penalty. The court reversed the AJ’s finding that MSPB is unable to review the 

reasonableness of the penalty, citing Sayers (Fed. Cir. 2020). The court held, quoting Sayers, that 

under § 714, the AJ and MSPB must “review for substantial evidence the entirety of the VA’s 

removal decision—including the penalty—rather than merely confirming that the record contains 

substantial evidence that the alleged conduct leading to the adverse action actually occurred.” The 

court held that, if MSPB concludes that the VA’s removal decision is unsupported by substantial 

evidence, MSPB should remand to the VA for further proceedings. The court also distinguished its 

holding in Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558 (Fed. Cir. 1985), which interpreted 

language in Chapter 43 similar to that in § 714. The court noted that “the reasoning undergirding 

Lisiecki arises from the specific circumstances of [C]hapter 43 adverse actions,” which have both 

“a narrow focus” and other procedural protections “not applicable to § 714.” Finally, the court held 

that MSPB erred in applying § 714 retroactively to conduct that had occurred prior to its 

effective date. 

Connor v. VA, 8 F.4th 1319 (Fed. Cir. 2021): The appellant was removed from the VA under 38 

U.S.C. § 714, based on 27 specifications of misconduct. The AJ sustained only one, but held it was 

the most serious, and credited the testimony of the VA that this specification alone would have 

merited removal. The AJ accordingly sustained the removal. The VA argued before the court that 

the AJ erred in considering the Douglas factors because § 714’s prohibition on mitigating the penalty 

eliminated the need to apply the factors. The court disagreed, holding that the Douglas factors are 

pertinent to review of the penalty, not just mitigation of the penalty. The court expressly held, as a 

continuation of its holdings in Sayers and Brenner, that the VA and MSPB must apply the Douglas

factors in § 714 cases when selecting and reviewing the penalty. The court went on to affirm MSPB’s 

determinations regarding the specification it sustained. 

Rodriguez v. VA, 8 F. 4th 1290 (Fed. Cir. 2021): The appellant was removed from his position with 

the VA pursuant to 38 U.S.C. § 714, based on disruptive behavior toward a patient, conduct 

unbecoming a Federal supervisor, and lack of candor. The AJ sustained the removal and found that, 

under § 714, MSPB could not mitigate the penalty imposed by the VA. The court reversed the AJ’s 

finding that “substantial evidence” was the appropriate standard of review to apply in determining 

whether an employee has engaged in misconduct that justifies discipline under § 714. Distinguishing 

between “standard of review” and “burden of proof,” the court held that the appropriate burden of 

proof for the VA’s actions taken pursuant to § 714 is the preponderance of the evidence. The court 

also rejected the conclusion that § 714’s prohibition on mitigating penalties deprives MSPB of any 

power to review penalties imposed under that section, finding instead that MSPB retains both the 
21 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

authority to review penalties for substantial evidence and the power to strike down the imposition of 

a penalty that is arbitrary, capricious, an abuse of discretion, or not in accordance with law. 

Accordingly, MSPB must also ensure that the VA considered the relevant factors under Douglas in 

imposing its penalty. Because the AJ did not make such a determination, the court reversed the AJ’s 

decision on that issue. The court rejected the appellant’s constitutional challenges to his removal, 

including that he was denied due process by the VA’s internal procedures; that the “substantial 

evidence” standard of review violates the Appointments Clause because MSPB lacks the ability to 

review the penalty; and that MSPB’s AJs have not been properly appointed for purposes of the 

Appointments Clause. With regard to the last issue, the court found the record insufficient to 

address whether the AJs had been properly appointed under the Appointments Clause. Finally, the 

court rejected the appellant’s claim that AJs exercise unconstitutional authority because of the 

absence of a Board quorum, finding that the delay in adjudication caused by the current absence of a 

Board quorum does not render the statutory adjudicative scheme constitutionally suspect. 

Removal/NIH Policy

Braun v. Department of Health & Human Services, 983 F.3d 1295 (Fed. Cir. 2020): The petitioner, who 

was a tenured research doctor at the National Institutes of Health (NIH), was removed “for cause” 

(negligence in the performance of duties) pursuant to § L(1) of the NIH Policy on Performance 

Management, Disciplinary Actions and Administrative Removals for Title 42 Employees (NIH 

Policy) after an audit found that he routinely failed to keep records on the human subjects in his 

research studies. The petitioner appealed his removal to MSPB, arguing that his poor performance 

did not constitute “cause” under § L(1) of the NIH Policy as a matter of law and that his removal 

should have been conducted pursuant to § H(1) of the NIH Policy, which provides that “[t]enured 

scientists must undergo the de-tenuring process before a performance-based action may be taken 

against them.” The AJ sustained the NIH’s charge of negligence in the performance of duties, found 

the petitioner had received prior notice of the charge against him, concluded the petitioner’s 

misconduct came within § L(1) regarding “for cause” removals, and upheld the removal. On appeal, 

the court affirmed the AJ’s decision and held that “[s]ection L(1)’s provision allowing removal ‘for 

cause’ . . . neither requires de-tenuring nor excludes all job-performance-based removals,” both 

because § L(1) defines “cause” in relevant part as “scientific misconduct” and because the NIH 

Policy “echoes” the statutory scheme for removals set forth in Chapters 43 and 75, which both 

permit performance-based removals. The court further held that the notice of proposed removal 

had been adequate to notify the petitioner of the charged misconduct, that the NIH had not 

committed any harmful procedural error regarding his removal, and that the petitioner had forfeited 

his argument that the NIH had engaged in disparate treatment by removing him for serious and 

continuing protocol violations. 

Senior Executive Service Rights

Esparraguera v. Department of the Army, 981 F.3d 1328 (Fed. Cir. 2020): The court held that MSPB 

cannot review the performance-based removal of a SES employee in an informal hearing under 

5 U.S.C. § 3592. Instead, under § 3592 MSPB acts as a “ministerial record-developing adjunct” to 

the employing agency, enabling the SES employee to enter her arguments and evidence into the 

record for the employing agency’s ultimate consideration. Given that MSPB does not have 

jurisdiction to review the removal itself, the court held that there is no “final order or decision” of 

MSPB that provides the court with jurisdiction under 5 U.S.C. § 7703. The court therefore dismissed 

for lack of jurisdiction. The court’s holding is consistent with MSPB’s regulation at 5 C.F.R. 

§ 1201.145, which states “There is no right under 5 U.S.C. § 7703 to appeal the agency’s action or 
22 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

any action by the judge or the Board in cases arising under § 1201.143(a) of this part.” Because the 

court lacked jurisdiction, it did not consider the petitioner’s due process arguments.

USERRA/Differential Pay Under 5 U.S.C. § 5538(a)

Adams v. Department of Homeland Security, 3 F.4th 1375 (Fed. Cir. 2021): The petitioner, who was 

employed as an HR specialist with U.S. Customs and Border Patrol (CBP), was also a member of the 

Arizona Air National Guard. From April to September 2018, the petitioner served three periods of 

military service with the National Guard, consisting of an annual training session and two military 

personnel appropriation tours. The petitioner requested differential pay from CBP for each of the 

three service periods and was denied because the agency determined that the petitioner’s service did 

not qualify for differential pay under 5 U.S.C. § 5538(a), which requires that the employee serve 

“pursuant to a call to active duty that meets the statutory definition of [‘]contingency operation.[’]” 

The petitioner appealed to MSPB, alleging that the denial of differential pay violated USERRA. The 

AJ concluded that the denial did not violate USERRA because the petitioner had not provided 

evidence that his military service was a motivating factor in the denial. The court held that the AJ 

erred because under the case law, a claimant who is seeking benefits that are only available to 

military members is not required to show that the claimant’s military service was a substantial 

motivating factor for the challenged action under USERRA; rather, the claimant need only show 

that he or she was denied a benefit of employment. However, the court affirmed the AJ’s conclusion 

that the CBP had not violated USERRA because none of the petitioner’s periods of service 

constituted “active duty” service or “contingency operations” as defined by statute. 

USERRA/Nonselection

Beck v. Department of the Navy, 997 F.3d 1171 (Fed. Cir. 2021): The court held that the totality of the 

record showed that the Navy’s preselection determination was not supported by substantial evidence 

and that, under USERRA, preselection can only buttress an agency’s personnel decision to hire a less 

qualified individual when the preselection is not tainted with discriminatory intent, as it was here. 

The court held that MSPB erred in upholding the petitioner’s non-selection regardless of his 

superior prior military record as contrary to 38 U.S.C. § 4311, and it affirmed in part and reversed in 

part MSPB’s decision denying the petitioner’s request for corrective action.

Whistleblowing/Jurisdiction

Hessami v. Department of VA, 979 F.3d 1362 (Fed. Cir. 2020): The court clarified that a summary 

judgment standard does not apply to MSPB’s determination of its jurisdiction under the 

Whistleblower Protection Act (WPA). The court held that MSPB instead must apply a nonfrivolous 

allegation standard analogous to the well-pleaded complaint rule. The court stated that when 

evaluating MSPB’s jurisdiction over a whistleblower appeal, the question of whether the appellant 

has nonfrivolously alleged protected disclosures must be determined based on whether the employee 

alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face. MSPB 

may not deny jurisdiction by crediting the agency’s interpretation of the evidence as to whether the 

alleged disclosures fell within the protected categories or whether the disclosures were a contributing 

factor to an adverse personnel action. Applying these principles, the court determined that the 

petitioner made nonfrivolous allegations that she had made protected disclosures of gross 

mismanagement, a gross waste of funds, and a substantial and specific danger to public health. The 

court vacated MSPB’s decision and remanded for further proceedings.
23 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Significant Opinions Issued by Other Circuit Courts 

Fuerst v. Secretary of the Air Force, 978 F.3d 269 (6th Cir. 2020): In an initial decision the AJ denied the 

petitioner’s petition for enforcement of a prior Board order. The petitioner appealed the compliance 

decision to Federal district court, which dismissed her appeal for lack of jurisdiction. The Sixth 

Circuit affirmed the district court’s decision. The court explained that only mixed cases—i.e., appeals 

involving an adverse agency action directly appealable to MSPB and a claim that the adverse action 

was based on discrimination prohibited by a Federal statute—may be appealed to Federal district 

courts and that enforcement actions do not constitute such an appealable action. Thus, the court 

concluded that enforcement actions cannot be mixed cases and that the petitioner must seek judicial 

review of MSPB’s compliance decision in the CAFC pursuant to 5 U.S.C. § 7702(b)(1)(A). 

Marcato v. United States Agency for International Development, 11 F.4th 781 (D.C. Cir. 2021): The 

petitioner was removed from her position as a management analyst within the agency’s Office of 

IG based on multiple charges of misconduct related to an ongoing investigation by the agency into 

her former employer, along with violations of the agency’s communications protocol. The 

petitioner appealed that removal to MSPB, alleging that her removal was reprisal for her having 

made protected whistleblower disclosures. The AJ affirmed the removal, finding that the petitioner 

committed the charged offenses and that her removal promoted the effective functioning of the 

agency. Addressing her whistleblower reprisal charge, the AJ held that the petitioner’s disclosures 

may have been a contributing factor in the agency’s decision to remove the petitioner, but the 

agency proved by clear and convincing evidence that it still would have removed the petitioner in 

the absence of the protected disclosures. The petitioner appealed that decision to the D.C. Circuit, 

and the court affirmed MSPB’s decision. The court first held that it had jurisdiction to hear the 

petitioner’s appeal, because 5 U.S.C. § 7703(b)(1)(B) granted the court jurisdiction to hear the 

disposition of whistleblower retaliation claims raised as affirmative defenses under the CSRA. The 

court then affirmed the AJ’s determination that the agency proved by clear and convincing 

evidence that it would have removed the petitioner even in the absence of any protected 

disclosures. In its decision, the court considered the three factors enumerated in Carr v. Social 

Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), and found the AJ’s decision was 

supported by substantial evidence. 

Decisions by the Supreme Court That Could Affect MSPB Case Law

None.
24 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

SUMMARY OF MERIT SYSTEMS STUDIES ACTIVITY IN FY 2021

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

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

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

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

American taxpayers in terms of decreased Governmentwide costs and increased confidence that the 

Government is doing its job and appropriately managing the workforce.

Publications Issued

MSPB did not issue any formal reports to the President and Congress in FY 2021 under 

5 U.S.C. § 1204(a)(3) because of the continued lack of quorum. However, MSPB published three 

editions of its IoM newsletter, which included articles on various topics such as pay equity, 

recruitment and hiring, telework, online training, disability retirement, performance management, 

and supportive work environments. MSPB published five research briefs in FY 2021, which are 

summarized below.

• Confidence in Ability to Perform Successfully (September 2021) examines Federal employees’ 

confidence in ability to perform successfully (CAPS), an MPS-derived measure that gauges 

the degree to which employees believe their actions determine their success on the job. 

Governmentwide survey results show a relationship between CAPS and how employees 

think about career paths, work tasks, task outcomes, work-related competencies, and 

engagement. The brief also presents implications of CAPS for managing work and employee 

counseling and development.

• Agency Leader Responsibilities Related to Prohibited Personnel Practices (May 2021) discusses selected 

responsibilities assigned to the heads of Federal agencies by civil service law, to promote the 

prevention of PPPs, the protection of whistleblowers, and accountability for proper exercise 

of personal authority. The brief places these responsibilities in the context of the broader 

goal of a merit-based civil service and outlines the extent to which they can—and in some 

cases cannot—be delegated.

• Determining an Acceptable Level of Competence for Step Increases (April 2021) reviews data and 

practices related to the within-grade increase (WGI), a periodic fixed pay increase that is 

granted provided that the employee performs at “an acceptable level of competence.”

This research brief explores factors that are important to the WGI process, the role of the 

WGI in addressing under-performance, and some lessons learned for agencies to consider.

• Direct-Hire Authority Under 5 U.S.C. § 3304: Usage and Outcomes (February 2021) explores the 

overall usage of direct hire authorities and then looks more closely at the authority that is 

covered under 5 U.S.C. § 3304(a)(3) and is approved and overseen by OPM. Specifically, the 

brief examines what the § 3304 authority is, the extent to which it is used, the outcomes 

achieved, and the reported advantages and disadvantages of its use. The brief also notes that 

Federal agencies desire greater flexibility in selecting among applicants under this authority 

than OPM believes appropriate or permissible under the statute.

• The Importance of Job Fit for Federal Agencies and Employees (October 2020) draws on professional 

literature and selected items from the 2016 MPS to describe three distinct ways employees

may fit with their jobs including: how their knowledge, skills, and abilities may match those 

required by the job; how their daily material and psychological needs may be fulfilled by the 
25 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

job; or how the job may align with their core beliefs about who they are or who they want to 

be. The research brief also discusses how job fit relates to workplace outcomes such as job 

satisfaction, employee engagement, performance appraisal ratings, and an employee’s intent 

to leave, and outlines actions in areas such as job design, hiring, training and development, 

and performance management that might help Federal managers and employees improve 

job fit. 

In addition, OPE has maintained two documents in a state of readiness for review and approval by 

an incoming Board. Those documents are a report on a 2016-2017 study of sexual harassment in 

Federal workplaces and a new research agenda for merit system studies.

Merit Principles Survey and Other Surveys Administered

The Qualtrics survey application (or platform) was successfully used to conduct the 2021 MPS,

which went to more agencies than in 2010 and 2016, and with a shorter time to prepare and launch 

the survey after final approval of survey content than in 2016. Information and data from the 2021 

MPS are available at www.mspb.gov/foia/SurveyData.htm, and data from the 2021 MPS will 

support at least three research projects. 

MSPB also administered two surveys to external stakeholders to gather input on strategic planning

and seven internal surveys, including the annual all-employee internal survey, a survey to gather 

strategic planning information from MSPB employees, and a pandemic reentry pulse survey. The 

platform was also used as a secure method to collect attestation of employee COVID-19 vaccination 

status. Several external adjudication customer service surveys have been transferred to the new 

survey application so this platform will host all major MSPB surveys in the future.

Outreach and References to Merit Systems Studies 

During FY 2021, MSPB studies staff conducted seven outreach events with Federal agencies, media, 

and an international organization about studies research briefs and the merit systems in general. 

MSPB was also invited twice to confer with OMB officials about hiring assessments using subject 

matter experts and structured interviews

In FY 2021, MSPB’s research and publications were cited in diverse outlets such as national and 

specialty newspapers, online newsletters, radio, and publications from good government groups.

Notable examples include citations to MSPB’s studies in OPM’s final regulations on Probation, 

Performance-Based Reduction in Grade, and Removal Actions; testimony by Anne Joseph 

O’Connell to the House Subcommittee on Government Operations; the NAPA report on its review 

of OPM; Government Accountability Office reports on sexual harassment, employee engagement, 

and gender pay differences; and a letter from the House Committee on Oversight and Reform to 

President Biden calling for nominations of MSPB Board members. 
26 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

SIGNIFICANT ACTIONS OF THE U.S. OFFICE OF PERSONNEL MANAGEMENT

As required by statute,12 MSPB reviews and reports on the significant actions of OPM, including an 

analysis of whether those actions are in accord with MSPs and free from PPPs.13 OPM’s actions may 

broadly affect the Federal workforce, multiple Federal agencies, and applicants for Federal jobs. 

Each of OPM’s actions listed below has the potential to impact the effectiveness and efficiency of 

the Federal workforce (MSP 5) or fair and equitable treatment in a variety of contexts (MSP 2). 

Depending on the nature of a particular OPM action, it has the potential to affect or involve other 

specific MSPs. Additional MSPs that may be affected by a particular OPM action are noted in the 

discussion of each action. In addition to tracking OPM’s actions in FY 2021, MSPB requested and 

received input from OPM on the status of selected significant actions.14 

OPM Leadership and Context

Confirmation of a New OPM Director

Kiran Ahuja was confirmed by the U.S. Senate as OPM Director on June 22, 2021. In the six 

years prior to Director Ahuja’s confirmation, OPM was led by seven different individuals: four in 

an acting capacity15 and three who were nominated by the President and confirmed by the 

Senate.16 Stable leadership is critical for OPM to identify priorities, develop policy proposals, and 

undertake new initiatives. Such leadership is also essential to define and justify core civil service 

values and policies, articulate the need for changes in Federal HR policies or workforce 

management priorities, and shepherd those changes or priorities through the legislative, 

regulatory, and implementation processes. 

Issuance of Congressionally Mandated Study of OPM

In FY 2018, President Trump proposed restructuring OPM by moving its policy functions to the 

Executive Office of the President and transferring its operational activities to other agencies, 

primarily the General Services Administration (GSA). The FY 2020 NDAA (Pub. L. 116-92, 

December 20, 2019) prohibited any restructuring until after NAPA conducted an independent study 

of OPM. The Act tasked NAPA with assessing OPM’s statutory and non-statutory functions, 

identifying associated challenges, and recommending actions to address those challenges. 

NAPA issued its report of that study in March 2021. The report identified several cross-cutting 

challenges that affect OPM’s ability to effectively lead Federal HC management, which included 

the following:

• Myriad authorities governing Federal HC;

• Lack of sustained leadership and focus, as evidenced by recurrent turnover of OPM 

directors and deputy directors;

• Limited use of data and data analytics to inform policy;

12 5 U.S.C. § 1206.

13 5 U.S.C. § 2301(b) and 5 U.S.C. § 2302(b), respectively.

14 This analysis is not a comprehensive digest of OPM activities, as OPM has many programs and responsibilities that do not directly 

affect MSPs and PPPs. Also, this summary does not discuss in detail every OPM significant action that was underway or completed in 

FY 2021. Instead, it should be read in conjunction with previous MSPB reports of OPM’s significant actions.

15 Beth Cobert, Kathleen McGettigan, Margaret Weichert, and Michael Rigas.

16 Katherine Archuleta, Dr. Jeff T.H. Pon, and Dale Cabaniss.
27 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

• Outdated IT that has resulted in enterprise and operational risks; and 

• Fiscal and staffing constraints that have impaired staff capacity and technological capability.

NAPA also expressed concern about the increasingly directive role of OMB in HC management, 

believing that it created confusion over which agency leads HC policy and seemed contrary to the 

intent of the CSRA. NAPA concluded that the problems identified by the Administration’s 

restructuring proposal would not be resolved by transferring OPM functions to OMB and GSA.

MSPB has previously highlighted many of these issues, and the NAPA report cited several OPE 

publications that have addressed (1) OPM as an institution, (2) OPM’s fee-for-service model, and (3) 

the Government’s HR workforce.

OPM as an institution. The NAPA report referenced MSPB retrospective studies on OPM from 1989

and 2001 as well as MSPB Annual Reports from 2016-2019 to help detail:

• The tensions inherent in OPM’s dual responsibilities to advocate for and execute 

Administration priorities and goals and ensure protection of MSPs;

• OPM’s funding and staffing challenges, from the 1980 change in Administration shortly 

following implementation of the CSRA to the recent (2015-2020) decline in funding and 

staffing of OPM’s core missions of developing HC policy and overseeing agency compliance 

with civil service law and MSPs;

• A reactive approach to policy development, rather than the proactive approach envisioned 

by the CSRA, reflected in OPM often issuing regulations and policy guidance in response to 

laws or EOs rather than pursuing a legislative or regulatory agenda based on an independent 

assessment of Federal workforce needs and relevant HR research and practices;

• The conflict of interest that may arise when OPM offers both fee-based services to help 

Federal agencies implement OPM-developed policies and guidance, and oversees agency 

compliance with law and OPM policy; and

• The dilution of the role that the CSRA established for OPM as the HR management advisor 

to the President.

OPM’s fee-for-service model. NAPA referred to an MSPB brief and newsletter article17 to highlight the idea 

that services and assistance related to OPM’s core mission should be provided to agencies without 

charge rather than on a fee-for-service basis. For example, all agency HR staff involved in delegated 

examining activities are required to be certified by OPM. OPM charges for a training program to 

prepare staff for the certification test, and HR staff in some agencies are reportedly not taking the 

training because of lack of funds. NAPA also noted MSPB’s recommendation that OPM provide nocost or low-cost support to enhance agencies’ ability to assess applicants on the basis of ability or 

potential, recommending that OPM work with Congress and agencies to further explore opportunities 

to increase no-cost assistance and services to strengthen Federal HC management capabilities. 

The HR workforce. NAPA cited a recent MSPB research brief18 to emphasize the following points:

• The complexity of HR laws and regulations has inhibited transformation of Federal HR 

offices and staff;

17 MSPB, Building on OPM’s Hiring Improvement Memo (2019) and IoM, “OPM’s Revitalized Delegated Examining Certification 

Program” (2020).

18 MSPB, The State of the Federal HR Workforce: Changes and Challenges (2020).
28 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

• Federal HR staff skill levels vary across Federal Government and systematic training to 

develop these skills is lacking; and

• There is no comprehensive view of the capacity of the Federal HR workforce.

NAPA also highlighted the IT management challenges OPM faces, ranging from the 2015 breach of 

Federal employee data to the continuing problems updating its internal and Governmentwide 

systems. The centrality of IT to OPM’s success was noted in MSPB’s Annual Report for FY 2011:

[OPM’s information technology systems] operate on a massive scale and often contain 

sensitive information, making it critical that they be well-designed and properly 

administered. Also, given continuing advances in information technology and the 

anticipated expansion of OPM’s responsibilities, OPM’s reliance on such systems is 

certain to increase. Consequently, OPM’s ability to manage IT projects and systems is 

critical to its success. It is unlikely the framers of the Civil Service Reform Act viewed 

technology management as a core or critical function of OPM, but it has clearly 

become one. Stakeholders should recognize the importance of information 

technology—and the ability to manage that technology—when allocating functions 

and resources to OPM. 

NAPA Recommendations 

The NAPA report offered many recommendations regarding OPM and its future to achieve the 

following objectives:

• Reaffirm and broaden OPM’s role as an independent entity and leader for Federal civilian 

HC management;

• Refocus OPM to make it a state-of-the-art organization that can elevate and support HC 

across the Federal enterprise;

• Reorient OPM’s policy development approach toward a proactive, systematic model that 

streamlines the Federal HC management system;

• Improve OPM’s oversight programs, shifting from a compliance-oriented approach to a 

strategic, risk-based framework;

• Promote OPM’s role in strategic HC management by assisting agencies in implementing 

Federal HC laws, regulations, and policy guidance and improving Federal HC staff training;

• Enable and realize the untapped potential of Federal HC data and data analytics to support 

better workforce management;

• Transform OPM’s HC technology platforms and enhance the experience of OPM’s 

customers and employees; and

• Enable more strategic and sustainable funding to support OPM’s mission performance.

OPM’s Response

In its response to the NAPA study, OPM accepted the spirit and much of the substance of NAPA’s 

analysis. OPM noted that the NAPA study identified a clear need for OPM as the “independent, 

enterprise-wide human capital agency and steward of the merit system principles.” The study also 

broadly affirmed the importance of a strong, independent, and forward-leaning OPM to meet the 

modern HC management needs of the Federal Government. OPM firmly agreed with this role for 

the agency and views the general direction and tenor of the NAPA study recommendations as a 

valuable guide in that direction. 
29 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

OPM accepted or conditionally accepted nearly all of NAPA’s specific recommendations19 and its 

response included: (1) a detailed description of OPM’s strategies to implement the 

recommendations, where appropriate, via the draft objectives and strategies incorporated into 

OPM’s FY 2022-2026 Strategic Plan; and (2) a high-level estimate of the resources required for 

full implementation.

Activities Related to the COVID-19 Pandemic 

For a second year, along with other Federal agencies, OPM worked to continue its missions and 

functions while impacted by the pandemic. As the Federal Government’s central HR agency, OPM 

is uniquely able to help Federal agencies gauge and address the effects of COVID-19 on Federal 

employees and workplaces. In that capacity, OPM—

• Issued dismissal and closure procedures applicable during maximum telework;

20

• Extended the use of the excepted service Schedule A hiring authority to appoint staff needed 

in response to the pandemic;

21 and

• Established a new category of emergency paid leave for some Federal employees based on 

certain COVID-19-related qualifying circumstances.22

OPM also issued guidance on post-reentry personnel policies and work environment,23 recognizing 

that the pandemic may have permanently changed employee expectations and employer policies and 

that practices adopted for short-term reasons might have long-term value. Accordingly, OPM has 

encouraged agencies to consider a post-pandemic “future of work” that is markedly different from 

the pre-pandemic past.

It remains to be seen how forcefully OPM will press agencies to change workplaces and work 

arrangements, or how aggressively OPM itself will identify or pursue changes to civil service policies 

that may be needed to afford agencies and employees greater flexibility in when, where, and how 

work is done. For instance, a fundamental assumption underlying most Federal Government pay 

systems with a locality pay component is that an employee’s worksite is fixed. Also, many provisions 

related to work time and premium pay were expressly designed to limit an agency’s ability to freely 

direct or allow an employee to work “anytime, anywhere.”

New Significant Actions

Activities Related to Previous Executive Orders

On October 21, 2020, President Trump signed EO 13957, “Creating Schedule F in the Excepted 

Service.”

24 Pursuant to 5 U.S.C. § 3302, the EO excepted from competitive hiring and adverse action 

procedures jobs with a confidential, policy-determining, policy-making, or policy-advocating 

19 In most instances, a conditional acceptance was driven by statutory, resource, or implementation factors.

20 OPM Memorandum for Heads of Executive Departments and Agencies, Washington, DC, Area Dismissal and Closure Procedures 

during COVID-19 “Maximum Telework,” February 10, 2021.

21 OPM Memorandum for Heads of Executive Departments and Agencies, Washington DC, Extension of the Coronavirus Schedule 

A Hiring Authority, March 29, 2021.

22 OPM Memorandum for Heads of Executive Departments and Agencies, Washington DC, COVID-19 Emergency Paid Leave, 

April 29, 2021.

23 OPM Memorandum for Chief Human Capital Officers, Additional Guidance on Post-Reentry Personnel Policies and Work 

Environment, July 23, 2021.

24 EO 13957 of October 21, 2020, Creating Schedule F in the Excepted Service, 85 Fed. Reg. 67,631 (October 26, 2020).
30 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

character. The EO also required that each executive agency complete within 90 days a preliminary 

review of which positions should be moved from the competitive service to Schedule F of the 

excepted service, with a complete review within 210 days and an annual review thereafter. OPM 

issued guidance to assist agency heads in completing their preliminary review within the 90-day 

deadline.25 However, EO 13957 was not fully implemented before being revoked by EO 14003, 

which President Biden signed January 22, 2021. Consistent with EO 14003, OPM rescinded its 

previous guidance regarding Schedule F in March 2021.26

In its information request to OPM for this review, MSPB asked about past OPM actions related to 

EO 13957 and views on any future actions that might be needed. OPM described playing a 

supporting role, such as developing and distributing a spreadsheet for agencies to use when 

conducting a preliminary review of positions for placement under Schedule F and a template for 

requesting approval for placing positions into Schedule F. On future actions, OPM responded that 

“since [S]chedule F was promulgated and then revoked through presidential rulemaking, without any 

regulatory action by OPM, OPM has rescinded all related guidance, and no employees were ever 

moved to Schedule F, OPM has determined that no further action is necessary to implement the 

rescission of EO 13957.” 

Significance

Schedule F utilized criteria (“confidential, policy-determining, policy-making, or policy-advocating”) 

codified in statute by the CSRA,27 which slightly expanded upon the language of the executive order 

establishing Schedule C of the excepted service.28 In theory these had long been understood as 

hallmarks of the excepted service.29 Yet a Governmentwide Executive Branch assessment of which 

particular positions met this criteria had not occurred since approximately 1956, when the Civil 

Service Commission completed a three-year review to determine which particular positions should 

be categorized under the newly-created Schedule C.30 Since that time both the number and 

responsibilities of Federal civil service employees have expanded dramatically. Accordingly, the 

recategorization into Schedule F of large numbers of positions “not normally subject to change as a 

result of a Presidential transition,” with the accompanying changes in competitive hiring and adverse 

action procedures, would in practice have constituted the most significant change to the Federal 

merit systems in decades. 

Although Schedule F was abolished before its implementation in practice, it seems likely that debate 

over the purpose, role, and composition of the career civil service will continue. Indeed, it is clear

25 OPM Memorandum for Heads of Executive Departments and Agencies [sic] CHCOs and HR Directors, Instructions on 

Implementing Schedule F, October 23, 2020.

26 OPM Memorandum for Heads of Executive Departments and Agencies, Guidance for Implementation of Executive Order 14003 

– Protecting the Federal Workforce, March 5, 2021.

27 5 U.S.C. § 2302(a)(2)(B)(i) and § 7511(b)(2).

28 EO 10440 of March 31, 1953, Amendment of Civil Service Rule VI, 18 Fed. Reg. 1,823 (April 2, 1953).

29 Following its reclassification review under Schedule C, the Civil Service Commission noted: “From the very beginning of the civil 

service system in 1883, it has been recognized that certain types of positions should not be a part of the civil service merit system. 

These include: Policy-making positions [and] [p]ositions which involve a close personal and confidential relationship between the 

occupant and the head of the agency or one of his policy-making officials.” United States Civil Service Commission, 73d Annual 

Report: Fiscal Year Ended June 30, 1956, 25. For example, Rule XIX of the first Civil Service Rules, promulgated by President

Chester Arthur on May 7, 1883, excepted from examination “[t]he confidential clerk or secretary of any head of a department or 

office.” Excepted positions were subsequently organized into Schedule A or Schedule B of the excepted service by EO 209 (March 

20, 1903) and EO 1180 (March 23, 1910), respectively.

30 For a general overview of the subsequent history, see OPM Special Study, Excepted Service Hiring Authorities: Their Use and 

Effectiveness in the Executive Branch, July 2018, 1-3.
31 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

that some policymakers and legislators have sharply divergent views of how the civil service should 

be staffed and managed. Whatever direction future policymaking and legislating takes, OPM should 

take an active role in shaping the conversation. As outlined in previous discussions of OPM’s 

significant actions, the CSRA was intended to establish OPM as the Federal Government’s central 

agency for HR management. 

Presidential Transition

OPM addressed several presidential transition-related matters during FY 2021 through measures 

that include the following:

• Issuance of a 2020 Presidential Transition Guide to inform Federal agency officials with 

transition responsibilities of the rules and policies that govern (1) the departure and 

appointment of political appointees and (2) the treatment of career Federal employees 

(especially members of the SES) during a transition period.31

• A moratorium on SES qualifications review board (QRB) cases following the actual or 

announced departure of the head of an agency.32

• Authorities to make temporary appointments to certain Schedule C and SES positions to 

support Administration and agency transition.33

• Guidance on pay and benefits for noncareer appointees who resign on Inauguration Day 

(reminding agencies of existing policies regarding pay, work scheduling, leave, and benefits 

under Title 5 of the U.S. Code).34

• A reminder of the special provisions that must be followed when an agency appoints any 

current or former political appointee to a permanent civil service position or makes a timelimited appointment that allows for noncompetitive conversion to a permanent appointment.35

Significance

As OPM noted in the transmittal for its Transition Guide, the core values and principles of meritbased civil service remain in force during periods of presidential transition. Citizens depend on 

Federal employees to continue the work of the Federal Government without interruption, and it is 

vital that transitions be transparent. One MSP that is particularly relevant during a presidential 

transition is MSP 8, which requires officials to protect employees against arbitrary action, personal 

favoritism, or coercion for partisan political purposes.36

The actions described above support the MSPs and the broader purposes of ensuring that the work 

of the Federal Government continues without interruption and that the transition-related personnel 

actions are appropriately transparent, compliant, and merit-based. OPM has historically taken these 

31 OPM Memorandum for Heads of Departments and Agencies, 2020 Presidential Transition Guide, December 21, 2020.

32 OPM Memorandum for Agency Heads and Human Capital Officers, Governmentwide Moratorium on SES Qualifications Review 

Board (QRB) Cases – Presidential Election Year 2020, January 8, 2021.

33 OPM Memorandum for Heads of Departments and Agencies, Temporary Transition Schedule C Authority and Temporary 

Transition SES Appointment Authorities, January 12, 2021. Also see, OPM Memorandum for Heads of Departments and Agencies, 

Amendment to Temporary Transition SES Appointment Authorities, March 8, 2021.

34 OPM Memorandum for Human Resources Directors, Pay and Benefits for Noncareer Appointees Who Resign on Inauguration 

Day, January 17, 2021.

35 OPM Memorandum for Chief Human Capital Officers, Political Appointees and Career Civil Service Positions, February 22, 2021.

36 5 U.S.C. § 2301 (b)(8).
32 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

actions shortly after a presidential election, 

and this pattern was followed promptly, 

with one exception discussed below.

During the previous two presidential 

transitions where a new President was 

elected, OPM placed a moratorium on 

QRB cases in December.37 (The text box 

provides an overview of the purpose and 

function of QRBs.) After the 2020 

presidential election, OPM did not place a 

moratorium on QRB cases until 

January 8, 2021.38 It is unclear whether any 

agencies appointed career SES during this 

additional period, which could impact the 

ability of incoming agency heads in the 

new Administration to make their own 

decisions concerning hiring and 

executive resources.

Streamlining Federal Hiring

OPM’s hiring-related actions during FY 2021 included issuing new regulations that authorize 

agencies to select and reinstate certain former Federal employees without competition to fill 

vacancies at any grade level, without regard to the grade of any previous position held.39 Prior to this 

new regulation, an agency could noncompetitively reinstate an individual only to a position at a 

grade level that was no higher than the grade level of the individual’s previous position in the 

competitive service. 

OPM stated that this change removes barriers to reinstating Federal employees who have already 

competed for a Federal position, and that facilitating the return of individuals who have gained 

valuable skills and experience outside the Federal Government advances the civil service’s goal of an 

effective and efficient Government.

Significance

There are several MSPs and PPPs relevant to hiring. For example, MSP 1 requires that recruitment 

be from qualified individuals to achieve a workforce representative of society, and MSP 2 notes that 

applicants should receive fair and equitable treatment. PPP 1 prohibits discrimination for or against 

any applicant for employment; PPP 4 prohibits influencing a person to withdraw from competition 

to improve another person’s prospects; and PPP 6 prohibits granting a person any unauthorized 

preference or advantage in an employment competition.

37 After the 2016 presidential election, the moratorium was effective on December 7, 2016 (see OPM Memorandum for Agency 

Heads and Chief Human Capital Officers, Governmentwide Moratorium on SES Qualifications Review Board (QRB) Cases, 

November 18, 2016.). After the 2008 presidential election, the moratorium was effective on December 19, 2008 (see OPM 

Memorandum for Chief Human Capital Officers, Moratorium on Senior Executive Service (SES) Qualifications Review Board (QRB) 

Cases, December 19, 2008).

38 OPM Memorandum for Agency Heads and Chief Human Capital Officers, Governmentwide Moratorium on Senior Executive 

Service (SES) Qualifications Review Board (QRB) Cases—Presidential Election Year 2020, January 8, 2021.

39 Promotion and Internal Placement (Final rule), 86 Fed. Reg. 30,375 (June 8, 2021).

The Role of QRBs in SES Selection

Civil service law and regulation require that a candidate 

must have their executive qualifications certified by a QRB 

before appointment to the career SES.*

QRB review is intended to provide an independent and 

objective assessment of candidates’ qualifications and 

ensure that the hiring process is merit based and results in 

the selection of executives with the qualifications 

“responsive to the needs, policies, and goals of the Nation 

and otherwise is of the highest quality,” as required by 

5 U.S.C. § 3131.

QRBs are composed of volunteer member of the SES 

across the Federal Government. To promote efficiency and 

consistency, OPM establishes a roster of trained QRB 

members who serve on a quarterly basis on three-member 

QRB panels.

* 5 U.S.C. § 3393(c) and 5 CFR § 317.502.
33 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

Although the regulation exempts certain placements from requirements for formal competition, it 

seems unlikely that it will significantly reduce adherence to MSPs or increase the risk of PPPs. 

Reinstatements account for only a small portion of new hires (between 3 and 4 percent in recent 

years), and agencies must still meet several requirements related to open competition and meritbased selection.40 Additionally, OPM plans to assess agency use of this new flexibility after it has 

been in operation for one year, either through its ongoing work or a focused evaluation. 

Nevertheless, continued incremental changes to competitive hiring policies are likely to make the

system more complex for hiring managers and HR specialists.41

40 Ibid. Requirements to place an individual noncompetitively include (1) public notice of the vacancy; (2) consideration of certain

other categories of external applicants; and (3) a formal conclusion that the individual is the candidate with the highest relative level of 

knowledge, skills, and experience.

41 See MSPB, The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs (January 2015) and Reforming Federal Hiring—

Beyond Faster and Cheaper (January 2006).
34 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

MSPB FINANCIAL SUMMARY

Fiscal Year 2021 Financial Summary

as of September 30, 2021

(dollars in thousands)

Financial Sources

FY 2021 Appropriation

 $ 44,490

Civil Service Retirement and Disability Trust Fund 2,345

Total Financial Sources $ 46,835

Obligations Charged to FY 2021

Personnel Compensation $ 25,223

Personnel Benefits 8,531

Travel of Things 51

Travel of Persons 3

Rents, Communications and Utilities 2,188

Printing and Reproduction 20

Other Services 4,207

Supplies and Materials 135

Equipment 587

Reimbursable Obligations 76

Total Obligations Incurred $ 41,021
35 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

LIST OF ABBREVIATIONS AND ACRONYMS

AJ Administrative judge

ALJ Administrative law judge

ALOC Acceptable level of competence

APA Administrative Procedure Act

APHIS USDA’s Animal and Plant Health Inspection Service

APR-APP MSPB’s Annual Performance Report and Annual Performance Plan

AR Annual Report

BFS Treasury’s Bureau of the Fiscal Service

CAFC U.S. Court of Appeals for the Federal Circuit

CAPS Confidence in ability to perform successfully

CBP U.S. Customs and Border Patrol

COVID-19 Novel coronavirus 

CSRA Civil Service Reform Act of 1978

CSRS Civil Service Retirement System

DOD Department of Defense

EEO Equal employment opportunity

EEOC Equal Employment Opportunity Commission

EO Executive Order

FERS Federal Employees Retirement System

FERCCA Federal Erroneous Retirement Coverage Corrections Act

FOs Field offices

FTC Federal Trade Commission

FY Fiscal year

GPRAMA Government Performance and Results Act Modernization Act of 2010

GSA U.S. General Services Administration

HC Human capital

HQ Headquarters

HR Human resources

H.R. House of Representatives (usually followed by a bill number)

IG Inspector General

IoM Issues of Merit

IRA Individual right of action

IT Information technology

MPS Merit Principles Survey

MSPs Merit system principles

MSPB Merit Systems Protection Board

NAPA National Academy of Public Administration

NDAA National Defense Authorization Act

NIH National Institutes of Health

NFC USDA’s National Finance Center

OMB Office of Management and Budget

OPE MSPB’s Office of Policy and Evaluation

OPM Office of Personnel Management

ORO MSPB’s Office of Regional Operations

OSC Office of Special Counsel

PFR Petition for Review

PIO Performance Improvement Officer
36 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

PIP Performance Improvement Plan

PPPs Prohibited personnel practices

ROs Regional offices

SES Senior Executive Service

U.S.C. United States Code

USDA Department of Agriculture

USERRA Uniformed Services Employment and Reemployment Rights Act of 1994

VA Department of Veterans Affairs

VEOA Veterans Employment Opportunities Act of 1998

WGI Within-grade increase

WPA Whistleblower Protection Act of 1989

WPEA Whistleblower Protection Enhancement Act of 2012
37 Merit Systems Protection Board Annual Report for FY 2021 February 18, 2022

U.S. Merit Systems Protection Board

1615 M Street, NW

Washington, DC 20419

www.mspb.gov - @USMSPB on Twitter