U.S. Merit Systems 

Protection Board

Annual Report

for Fiscal Year 1996 

Submitted to the President and the

Congress of the United States
U.S. MERIT SYSTEMS PROTECTION BOARD 

Washington, DC 20419 

The President 

The President of the Senate 

The Speaker of the House of Representatives 

Sirs: 

In accordance with 5 U.S.C. § 1206, we are pleased to submit the Eighteenth Annual Report of the U.S. 

Merit Systems Protection Board. The report reviews the significant activities of the Board during fiscal year 1996, 

including the Federal employee appeals and other cases decided by the Board. 

The Board and its regional and field offices closed 10,300 cases during fiscal year 1996. The Board's 

administrative judges decided 8,925 appeals, stay requests, and addendum cases. This is the second-highest number 

of cases closed by the regional and field offices in the I 0-year period, 1987-1996. The FY 1995 peak year included 

the influx of cases arising from the U.S. Postal Service restructuring. The 3-member Board decided 1,329 cases 

under its appellate jurisdiction during fiscal year 1996, principally petitions for review (PFRS) of administrative 

judges' initial decisions. The Board also completed action on 46 cases arising under its original jurisdiction, 

principally proposed furloughs of administrative law judges because of expected lapses in appropriations and stay 

requests filed by the Special Counsel on behalf of whistleblowers. 

The average time to process cases in the regional and field offices was 94 days. The average processing 

time at Board headquarters for PFRs of initial decisions by administrative judges was 121 days. This means that, on 

average, an appeal to the Board was processed through both levels of Board review in just over seven months. This 

speedy processing is important because approximately 90 percent of the cases that come to the Board are appeals of 

agency personnel actions. Early resolution of these disputes benefits all parties, as well as the taxpayers who fund 

Government activities. 

One important measure of the Board's performance of its statutory mission is the extent to which its 

decisions are upheld by its principal reviewing court, the U.S. Court of Appeals for the Federal Circuit. Of the 789 

final Board decisions reviewed by the court in fiscal year 1996, 97 percent were unchanged by the court's decisions. 

The Board also has a statutory responsibility to conduct studies of the merit systems and to review the 

significant actions of the Office of Personnel Management (OPM). In fiscal year 1996, the Board issued three 

reports--an update of its earlier studies of sexual harassment, an examination of the effect of the "rule of three" in 

Federal hiring, and a study of employment of minorities in the Federal Government. 

Respectfully submitted, 

Ben L. Erdreich 

Chairman 

Beth S. Slavet Antonio C. Amador 

 Vice Chairman Member 
U.S. Merit Systems Protection Board

TABLE OF CONTENTS

 PAGE

BOARD MISSION AND JURISDICTION .................................. 6 

BOARD MEMBERS..................................................................... 8 

 BOARD ORGANIZATION .......................................................... 10 

REGIONAL AND FIELD OFFICE JURISDICTIONS ................ 12 

FISCAL YEAR 1996 CASE PROCESSING - 

 STATISTICAL HIGHLIGHTS ..................................................... 13 

 ADJUDICATION.......................................................................... 24 

 LITIGATION................................................................................. 30 

 STUDIES....................................................................................... 33 

 ADMINISTRATION..................................................................... 38 

FOR ADDITIONAL INFORMATION......................................... 42 

CUSTOMER SERVICE STANDARDS ....................................... 43 

Annual Report for Fiscal Year 1996 5 
U.S. Merit Systems Protection Board

BOARD MISSION AND 

JURISDICTION 

MISSION

The U.S. Merit Systems Protection Board 

(MSPB) was established by the Civil Service 

Reform Act of 1978 (CSRA), Public Law 95-

454, as a successor agency to the Civil Service 

Commission. It is an independent, quasijudicial 

agency in the Executive Branch that serves as 

the guardian of Federal merit systems. 

The Board's mission is to ensure that Federal 

employees are protected against abuses by 

agency management, that Executive Branch 

agencies make employment decisions in 

accordance with the merit system principles, and 

that Federal merit systems are kept free of 

prohibited personnel practices. The Board 

accomplishes its mission by: 

• Hearing and deciding employee appeals 

from agency personnel actions (appellate 

jurisdiction); 

• Hearing and deciding cases brought by the 

Special Counsel involving alleged abuses 

of the merit systems, and other cases arising 

under the Board's original jurisdiction; 

• Conducting studies of the civil service and 

other merit systems in the Executive 

Branch to determine whether they are free 

of prohibited personnel practices; and 

• Providing oversight of the significant 

actions and regulations of the Office of 

Personnel Management (OPM) to 

determine whether they are in accord with 

the merit system principles and free of 

prohibited personnel practices. 

JURISDICTION

Appellate Jurisdiction 

The agency actions that Federal employees 

may appeal to the Board include: adverse actions 

(removals, suspensions of more than 14 days, 

reductions in grade or pay, and furloughs of 30 

days or less), performance-based removals or 

reductions in grade, denials of withingrade 

increases, certain reduction-in-force (RIF) 

actions, denials of restoration to duty or 

reemployment rights, and removals from the 

Senior Executive Service (SES) for failure to be 

recertified. Determinations by OPM in 

employment suitability and retirement matters 

are also appealable to the Board. 

When an issue of prohibited discrimination is 

raised in connection with an appealable action, 

the Board has jurisdiction over both the 

appealable action and the discrimination issue. 

Such appeals are termed "mixed cases." In these 

cases, an appellant may ask the Equal 

Employment Opportunity Commission (EEOC) 

to review the final decision of the Board. If the 

EEOC disagrees with the Board's decision on 

the discrimination issue, the case is returned to 

the Board. The Board may concur with EEOC, 

affirm its previous decision, or affirm its 

previous decision with modifications. If the 

Board does not concur in the EEOC decision, 

the case is referred to the Special Panel for a 

final decision. (The Special Panel is composed 

of a Chairman appointed by the President, one 

member of the Board, and one EEOC 

commissioner.) 

Under the Whistleblower Protection Act of 

1989 (WPA), personnel actions that are not 

normally appealable to the Board may result in 

the right to a Board appeal under certain 

circumstances. Included are appointments, 

promotions, details, transfers, reassignments, 

and decisions concerning pay, benefits, awards, 

education, or training. Such an action may be 

6 Annual Report for Fiscal Year
U.S. Merit Systems Protection Board

appealed to the Board only if the appellant 

alleges that the action was taken because of 

whistleblowing, and if the appellant first filed a 

complaint with the Special Counsel and the 

Special Counsel did not seek corrective action 

from the Board. 

For the Board to have jurisdiction over 

an appeal, it must possess jurisdiction over both 

the action and the individual filing the appeal. 

The employees and others (e.g., applicants for 

employment, annuitants in retirement cases) 

who may appeal specific actions vary in 

accordance with the law and regulations 

governing the specific action. For some actions, 

classes of employees, such as political 

appointees, and employees of specific agencies 

are excluded. 

With respect to adverse actions, which 

account for almost half of all appeals to the 

Board, the following categories of employees 

have appeal rights: (1) employees in the 

competitive service and excepted service 

employees with veterans preference (called 

"preference eligibles") who have completed their 

probationary period; (2) non-preference eligible 

employees in the excepted service (excluding 

those in the Postal Service and certain other 

agencies) who have completed two years current 

continuous service in an Executive agency; and 

(3) non-preference eligible supervisors and 

managers in the Postal Service. 

Original Jurisdiction

Cases that arise under the Board's original 

jurisdiction include: 

• Corrective and disciplinary actions brought 

by the Special Counsel against agencies or 

Federal employees who are alleged to have 

committed prohibited personnel practices, 

or to have violated certain civil service 

laws, rules or regulations; 

• Requests for stays of personnel actions 

alleged by the Special Counsel to result 

from prohibited personnel practices; 

• Disciplinary actions brought by the Special 

Counsel alleging violation of the Hatch 

Act; 

• Certain proposed actions brought by 

agencies against administrative law judges; 

• Requests for review of regulations issued 

by the Office of Personnel Management, or 

of implementation of OPM regulations by 

an agency; and 

• Informal hearings in cases involving 

proposed performance-based removals from 

the Senior Executive Service. 

Judicial Review

With two exceptions, judicial review of 

final Board decisions in both appellate and 

original jurisdiction cases lies in the U.S. Court 

of Appeals for the Federal Circuit. Board 

decisions in "mixed cases" may be appealed to 

the appropriate U.S. district court. (A Special 

Panel decision also may be appealed to the 

appropriate U.S. district court.) If review of all 

issues except the discrimination issue is 

requested, however, a "mixed case" appellant 

may elect review by the Federal Circuit. In 

Hatch Act cases involving state or local 

Government employees, judicial review lies first 

in the U.S. district courts and then in the 

regional courts of appeals. 

The Director of OPM may petition tile 

Board for reconsideration of a final decision. 

The Director also may seek judicial review in 

the Federal Circuit of Board decisions that have 

a substantial impact on a civil service law, rule, 

regulation, or policy. 

Annual Report for Fiscal Year 1996 7
U.S. Merit Systems Protection Board

BOARD MEMBERS 

The bipartisan Board consists of a Chairman, 

a Vice Chairman and a Member, with no more 

than two of its three members from the same 

political party. Board members are appointed by 

the President, confirmed by the Senate, and 

serve overlapping, non-renewable 7-year terms. 

Chairman 

BEN L. ERDREICH became Board Chairman 

on July 2, 1993, following his nomination by 

President Clinton and confirmation by the 

Senate. His term appointment expires March 1, 

2000. Previously, he served for 10 years in the 

U.S. Congress as the representative of the 6th 

District of Alabama. He was a member of the 

Committee on Banking, Finance and Urban 

Affairs and chaired its Subcommittee on Policy 

Research and Insurance. Mr. Erdreich was a 

Member of the Jefferson County (Alabama) 

Commission from 1974 to 1982. Prior to that, 

he was a partner in the firm of Cooper, Mitch & 

Crawford, Attorneys, in Birmingham, Alabama. 

He served in the Alabama House of 

Representatives from 1970 to 1974. He is a 

graduate of Yale University and received his 

J.D. degree from the University of Alabama 

School of Law. He is admitted to the Alabama 

and District of Columbia bars and is a member 

of the Federal Circuit, District of Columbia, 

Alabama, and Birmingham bar associations. 

8 Annual Report for Fiscal Year 1996
U.S. Merit Systems Protection Board

Vice Chairman Member

 BETH S. 

SLAVET took the oath of ANTONIO C. AMADOR became Vice 

office as Vice Chairman and member of the Chairman of the Board on November 1, 

U.S. Merit Systems Protection Board on 1990, following his nomination by PresiAugust 15, 1995, following her nomination dent Bush and confirmation by the Senate. 

by President Clinton and confirmation by Currently, he serves as Member of the 

the Senate. Her term appointment expires Board. His term appointment expires 

March 1, 2002. Ms. Slavet served as Labor March 1, 1997. At the time of his appointCounsel to the Committee on Labor and ment to the Board, Mr. Amador was Deputy 

Human Resources of the U.S. Senate from Director, Program Review Branch, EmployMarch 1993 until January 1995. Previ ment Development Department of the State 

ously, she was Legislative Counsel and of California. Previously, he served as 

Staff Director for U.S. Representative Director of the California Youth Authority, 

Chester Atkins (D-MA). From 1984 to as Chairman of the Youthful Offender 

1992, Ms. Slavet was an attorney in private Parole Board in California, and as a police 

practice in Washington, DC, representing officer in the Los Angeles Police Departpublic and private sector unions and em- ment. He received his law degree from the 

ployees. Prior to that, she served as the McGeorge School of Law, University of the 

staff attorney to the American Federation of Pacific. 

Government Employees Local 1812 in 

Washington, DC. She is a graduate of 

Brandeis University and received her J.D. 

degree from the Washington University 

School of Law. She is admitted to the 

District of Columbia Bar. 

Annual Report for Fiscal Year 1996 9 
U.S. Merit Systems Protection Board

BOARD ORGANIZATION

The Chairman, Vice Chairman, and 

Member adjudicate the cases brought to the 

Board. Each has his/her individual office. 

The Chairman, by statute, is the chief 

executive and administrative officer of the 

Board. Office heads report to the Chairman 

through the Chief of Staff. 

The Office of Regional Operations manages 

the appellate and administrative functions of the 

MSPB regional offices. The five regional 

offices (including five field offices) receive and 

process the initial appeals filed with the Board. 

Administrative judges in the regional and field 

offices have the primary function of adjudicating 

appeals and issuing fair, timely, and wellreasoned decisions. 

The Office of Appeals Counsel prepares 

proposed decisions that recommend appropriate 

action in petition for review cases and all other 

cases decided by the 3-member Board, with the 

exception of requests for review of OPM 

regulations. The office conducts legal research 

and submits proposed opinions to the Board for 

final adjudication. It also conducts the Board's 

petition for review settlement program, 

processes interlocutory appeals of rulings made 

by administrative judges, makes 

recommendations on reopening appeals on the 

Board's own motion, and provides research and 

policy memoranda to the Board on legal issues. 

The Office of the Administrative Law Judge 

adjudicates Hatch Act cases, corrective and 

disciplinary action complaints brought by the 

Special Counsel, proposed agency actions 

against administrative law judges, and other 

cases assigned by the Board. 

The Office of the Clerk of the Board receives 

and processes cases filed with the Board, rules 

on certain procedural matters, and 

issues the Board's Opinions and Orders. The 

office serves as the Board's public information 

center, including providing information on the 

status of cases, distributing copies of Board 

decisions and publications, and operating the 

Board's Library and on-line information 

services. The office answers requests under the 

Freedom of Information and Privacy Acts at the 

Board's headquarters and responds to all other 

information requests except those for which the 

Office of the General Counsel or the Office of 

Policy and Evaluation is responsible (see 

below). The office also certifies official records 

to the courts and Federal administrative 

agencies, manages the Board's records and 

directives system, and manages the Government 

in the Sunshine Act program. 

The Office of the General Counsel, as legal 

counsel to the Board, provides advice to the 

Board and its organizational components on 

matters of law arising in day-to-day operations. 

It represents the Board in litigation and prepares 

proposed decisions for the Board on requests to 

review OPM regulations. The office coordinates 

the Board's legislative policy, congressional 

relations, and public affairs functions; responds 

to requests for non-case related information 

from the White House, Congress, and the media; 

and produces the agency's annual report to the 

President and the Congress, the annual report on 

cases decided, and public information 

publications. The office also conducts the 

Board's ethics program and plans and directs 

audits and investigations. 

The Office of Policy and Evaluation carries 

out the Board's statutory responsibility to 

conduct special studies of the civil service and 

other merit systems, including annual oversight 

reviews of the Office of Personnel Management. 

Reports of these studies are directed to the 

President and the Congress and are distributed to 

a national audience. The office disseminates 

information about the Board's studies through 

outreach appearances, articles, and electronic 

media. The office also responds to requests 

from Federal agencies for 

10 Annual Report for Fiscal Year 1996
U.S. Merit Systems Protection Board

information, advice, and assistance on issues functions of the Board. It also develops 

that have been the subject of Board studies. and coordinates internal management 

programs and projects, including review of 

 The Office of Equal Employment Oppor- internal controls agencywide. 

tunity plans, implements, and evaluates the 

Board's equal employment opportunity (EEO) The Human Resources Management

programs. It processes complaints of alleged Division develops policies and manages 

discrimination and furnishes advice and assis- the Board's human resources programs and 

tance on affirmative action initiatives to the assists managers, employees, and appliBoard's managers and supervisors. cants for employment. It administers 

staffing, classification, employee relations, 

 The following three administrative divi- performance management, payroll, personsions operate under the supervision of the nel security, and training and development 

Chief of Staff: functions. 

 The Financial and Administrative Man- The Information Resources Manageagement Division administers the budget ment Division develops, implements, and 

accounting, procurement, property manage- maintains the Board's automated informament, physical security, and general services tion systems in order to help the Board 

 manage its caseload efficiently and carry 

 out its administrative and research 

responsibilities. 

ORGANIZATION CHART

Annual Report for Fiscal Year 1996 11 
U.S. Merit Systems Protection Board

REGIONAL AND FIELD OFFICE

JURISDICTIONS

Atlanta Regional Office 

Alabama, Florida, Georgia, Mississippi, South Carolina, and Tennessee 

Central Regional Office 

Illinois; Indiana; Iowa; Kansas City, Kansas; 

Kentucky; Michigan; Minnesota; Missouri; Ohio; and Wisconsin 

 Dallas Field Office

 Arkansas, Louisiana, Oklahoma, and Texas 

Northeastern Regional Office

Delaware; Maryland (except the counties of Montgomery and Prince 

George's); New Jersey (except the counties of Bergen, Essex, Hudson 

, and Union); Pennsylvania; and West Virginia 

 Boston Field Office

 Connecticut, Maine, Massachusetts, New Hampshire, 

 Rhode Island, and Vermont 

New York Field Office 

New Jersey (counties of Bergen, Essex, Hudson, and 

Union); New York; Puerto Rico; and Virgin Islands 

Washington Regional Office

Washington, DC; Maryland (counties of Montgomery and Prince George's); North 

Carolina; Virginia; and all overseas areas not otherwise covered 

Western Regional Office

California and Nevada 

Denver Field Office

Arizona, Colorado, Kansas (except Kansas City), 

 Montana, Nebraska, New Mexico, North 

 Dakota, South Dakota, Utah, and Wyoming 

Seattle Field Office

Alaska, Hawaii, Idaho, Oregon, Washington, and 

Pacific overseas areas 

12 Annual Report for Fiscal Year 1996
U.S. Merit Systems Protection Board

FISCAL YEAR 1996, CASE PROCESSING - 

STATISTICAL HIGHLIGHTS

CASES DECIDED BY MSPB IN FY 1996 

Regional/Field Office Decisions:

 Initial Appeals....................................................................... 7,971 

 Addendum Cases1 .................................................................... 814 

 Stay Requests2 .......................................................................................................140 

TOTAL REGIONAL/FIELD OFFICES......................................... 8,925

Board Decisions:

 Appellate Jurisdiction: 

 PFRs - Initial Appeals........................................................... 1,087 

 PFRs - Addendum Cases1 ........................................................ 111 

 Reviews of Stay Request Rulings................................................ 1 

 Requests for Stay of Board Order................................................ 2 

 Reopenings3..................................................................................................................7 

 Court Remands .......................................................................... 13 

 Compliance Referrals............................................................... 103 

 EEOC Non-concurrence Cases.................................................... 1 

 Arbitration Cases ......................................................................... 4 

 Subtotal .............................................................................................. 1,329 

Original Jurisdiction Cases ..................................................................... 46 

TOTAL BOARD.............................................................................. 1,375

TOTAL BOARD + RO/FOs.......................................................... 10,300

1

 Includes requests for attorney fees, requests for compensatory damages (discrimination cases only), 

petitions for enforcement, Board remand cases, and court remand cases. 

2 Includes 110 stay requests in whistleblower cases and 30 in non-whistleblower cases. (Stay requests 

are authorized in whistleblower cases only. Appellants, however, sometimes file stay requests in 

cases in which no whistleblower issues are involved.) 

3 Includes 6 cases reopened by the Board on its own motion and I case where OPM requested 

reconsideration. 

Annual Report for Fiscal Year 1996 13 
U.S. Merit Systems Protection Board

KINDS OF APPELLATE 

JURISDICTION CASES

The kinds of appellate jurisdiction cases in 

which the Board's administrative judges issue 

initial decisions or orders are: 

• Appeal (or Initial Appeal) - A request by an 

appellant that the Board review an agency 

action. 

• Stay Request - A request that the Board 

order a stay of an agency action (authorized 

only where the appellant alleges that the 

action was or is to be taken because of 

whistleblowing). 

• Motion for Attorney Fees - A request by an 

appellant who prevails in an appeal that the 

Board order the agency to pay the 

appellant's attorney fees. 

• Request for Compensatory Damages - A 

request by an appellant who prevails in a 

mixed case appeal on the basis of 

discrimination for payment of 

compensatory damages under the Civil 

Rights Act of 1991. 

• Request for Consequential Damages - A 

request by an appellant who prevails in a 

whistleblower appeal for payment of 

consequential damages, as authorized by 5 

U.S.C. § 1221. 

• Petition for Enforcement - A request by a 

party to an appeal that the Board enforce its 

final decision. 

• Remand - A case returned to an 

administrative judge by the Board or court, 

after an initial decision has been issued, for 

additional processing and issuance of a new 

initial decision. 

Attorney fee cases, petitions for enforcement, 

requests for damages, and remands, as a group, 

are termed "addendum cases" by the Board. 

Approximately 20 percent of initial appeals 

decided result in the filing of a petition for 

review at Board headquarters. Initial decisions 

in addendum cases and orders issued on stay 

requests are also subject to review by the Board. 

In addition, the Board has authority to review an 

arbitrator's award when the subject of the 

grievance is an action appealable to the Board 

and the grievant raises a discrimination issue in 

connection with the action. The kinds of 

appellate jurisdiction cases in which the Board 

issues final decisions or orders are: 

• Petition for Review - A request by a party 

that the Board review an initial decision of 

an administrative judge. A petition for 

review may be filed with respect to an 

initial decision on an appeal or in an 

addendum case. 

• Request to Review Stay Ruling - A request 

by a party that the Board review an 

administrative judge's order ruling on a stay 

request. 

• Petition to Review Arbitrator's Award - A 

request that the Board review an arbitrator's 

award where the employee has grieved an 

action appealable to the Board and the 

employee raises an issue of prohibited 

discrimination. 

• Reopening on the Board's Own Motion - A 

case that the Board reopens on its own 

motion, to reconsider either an initial 

decision of an administrative judge or a 

final Board decision. 

14 Annual Report for Fiscal Year 1996 
U.S. Merit Systems Protection Board

• OPM Request for Reconsideration - A 

request by the Director of OPM that the 

Board reconsider a final decision. 

• Court Remand - A case returned to the 

Board by a court, after an appellant or the 

Director of OPM has sought judicial 

review of a final Board decision, for 

issuance of a new decision. Also, a case 

returned by a court where the Board has 

requested remand. 

• EEOC Non-concurrence - A mixed case 

returned to the Board by the EEOC, after 

an appellant has sought EEOC review of a 

Board decision, in which the EEOC does 

not concur with the Board decision on the 

discrimination issue. 

• Compliance Referral - A case referred to 

the Board by an administrative judge for 

enforcement of a final Board decision, 

upon the administrative judge's finding 

that a party is not in compliance. 

• Request for Stay of Board Order - A 

request by a party that a final order of the 

Board be stayed pending judicial review or 

a request for reconsideration by the 

Director of OPM. 

Annual Report for Fiscal Year 1996 15 
U.S. Merit Systems Protection Board

APPELLATE CASE PROCESSING

IN FISCAL YEAR 1996 

Regional and Field Offices 

• Case Receipts - The regional and field 

offices received 8,876 new cases (initial 

appeals, addendum cases, and stay requests) 

in FY 1996. At the end of the fiscal year, 

there were 2,286 cases pending in the 

regional and field offices. 

• Cases Decided - The administrative judges 

decided 8,925 cases in FY 1996-the secondhighest number in a 10-year period. The 

decisions included 7,971 on initial appeals 

and 814 in addendum cases. There were 

140 orders ruling on stay requests--110 in 

whistleblower cases and 30 in nonwhistleblower cases. 

REGIONAL DECISIONS, FY 1987 - 1996

• Disposition - Of the 7,971 initial appeals 

decided, 4,166 (52 percent) were 

dismissed. Of the dismissals, 71 percent 

were for lack of jurisdiction, agency 

cancellation of the action, or appellant 

withdrawal of the appeal; 7 percent were 

dismissed as untimely; and 22 percent 

were dismissed without prejudice to later 

refiling. The accompanying charts show 

the outcomes of appeals that were not 

dismissed and the disposition of appeals 

adjudicated on the merits. 

16 Annual Report for Fiscal Year 1996
U.S. Merit Systems Protection Board

OUTCOMES OF FY 1996 APPEALS NOT DISMISSED 

Based on 3,805 initial appeals not dismissed. 

DISPOSITION OF INITIAL APPEALS ADJUDICATED 

ON THE MERITS IN FY 1996

Based on 1,829 adjudicated initial appeals. 

Annual Report for Fiscal Year 1996 17 
U.S. Merit Systems Protection Board

• Settlement Rate - Of the 3,805 appeals that 

were not dismissed, 1,976 were settled, for 

an overall settlement rate of 52 percent. 

The settlement rate for adverse action cases 

was 65 percent; for performance cases, 76 

percent; and for denials of within-grade 

increases, 67 percent. 

• Relief for Appellants - Considering the 

number of appeals settled (1,976) and those 

in 

which the agency action was reversed or 

mitigated (411), appellants received relief 

in 63 percent of the appeals that were not 

dismissed. 

• Processing Time - The average processing 

time for initial appeals and addendum cases 

was 94 days. Of the initial appeals decided, 

87 percent were decided within 120 days. 

REGIONS - TIMELINESS OF PROCESSING, FY 1992 -1996 

Average Processing Time for Cases Decided during the Fiscal Year 

Initial Appeals and Addendum Cases Only

Types of Actions Appealed - Of the initial 

appeals decided, 50 percent were appeals of 

agency adverse actions, 17 percent were RIF 

appeals, and 2 percent were appeals of performance-based actions. Retirement cases 

(both CSRS and FERS) accounted for 16 

percent of total appeals decided, and the 

remainder involved other types of agency 

actions. 

18 Annual Report for Fiscal Year 1996 
U.S. Merit Systems Protection Board

TYPES OF INITIAL APPEALS DECIDED IN FY 1996

Total Number of Initial Appeals: 7,971 

• Whistleblower Appeals - There were 617 

whistleblower appeals and stay requests 

decided. Of this number, 187 were 

individual right of action (IRA) appeals in 

which the appellant was required to exhaust 

the procedures of the Office of Special 

Counsel, 320 were direct appeals to the 

Board that included an allegation of reprisal 

for whistleblowing, and 110 were requests 

to stay an action allegedly based on 

whistleblowing. 

• Relief for Appellants in Whistleblower 

Appeals - Of the 507 whistleblower appeals 

decided (187 IRA appeals and 320 appeals 

of 

 otherwise appealable actions), 319 (63 

percent) were dismissed. In the other 188 

whistleblower appeals, appellants received 

relief-through settlement, reversal, or 

mitigation-in 126 (67 percent). 

• Mixed Cases - Allegations of 

discrimination were raised in 2,065 of the 

initial appeals decided; however, in 1,615 

of those appeals, the discrimination issue 

was not decided because the case was 

dismissed (1,000) or settled (573) or the 

allegation was withdrawn (42). The 

remaining 450 mixed case appeals resulted 

in a finding of no discrimination in 434 (96 

percent) and a finding of discrimination in 

16 (4 percent). 

Annual Report for Fiscal Year 1996 19 
U.S. Merit Systems Protection Board

Board Headquarters

• Case Receipts - At headquarters, the Board 

received 1,664 new petitions for review and 

other appellate jurisdiction cases in FY 

1996. At the end of the fiscal year, there 

were 857 appellate jurisdiction cases 

pending. 

• Cases Decided - The 3-member Board 

decided 1,329 appellate jurisdiction cases in 

FY 1996. Of these, 1,087 were petitions 

for review of initial decisions on appeals, 

111 were petitions for review of initial 

decisions in addendum cases, and 131 were 

other appellate jurisdiction cases. 

• Disposition - Of the 1,087 petitions for 

review of initial decisions on appeals, 4 

percent were dismissed, 3 percent were 

settled, and 77 percent were denied for 

failure to meet the criteria for review. Of 

the remaining 16 percent of petitions for 

review, the Board granted 9 percent and 

denied but simultaneously reopened 7 

percent. 

• Outcome of PFRs Reviewed - Of the 

decisions in the 181 PFRs that were 

granted or denied but simultaneously 

reopened, 23 percent affirmed the initial 

decision, 10 percent reversed it, 49 percent 

remanded the case to the administrative 

judge, and 2 percent mitigated the agency 

action. In the remaining 15 percent, the 

initial decision was vacated or the case was 

forwarded to a regional/field office for 

processing. 

• Processing Time - The average processing 

time for all petitions for review (on both 

initial appeals and addendum cases) was 

121 days-the second-lowest time in a 5-

year period. On average, an appeal to the 

Board was processed through both levels 

of Board review in just over seven months. 

The Board processed 66 percent of the 

PFRs on initial appeals in 110 days or less, 

averaging 76 days. 

Additional fiscal year 1996 case processing statistics, including a 

breakdown of appeals by agency, are contained in the Board 

publication, Cases Decided by the U.S. Merit Systems Protection 

Board, FY 1996.

HEADQUARTERS- TIMELINESS OF PROCESSING, FY 1992 - 1996 

Average Processing Time for Cases Decided during the Fiscal Year

PFR's and Addendum Cases Only

20 Annual Report for Fiscal Year 1996 
U.S. Merit Systems Protection Board

CASE TRENDS

The wave of cases arising from the U.S. 

Postal Service restructuring peaked in FY 1995, 

and case processing numbers for FY 1996 

represent a return to more normal levels. 

The total number of decisions issued by the 

Board and its administrative judges in FY 1996 

(10,300) is in line with the average number of 

decisions issued annually during the fiscal years 

1992 through 1994. 

MSPB DECISIONS, FY 1987 - 1996

FY87 FY88 FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY96 

Regional/Field Offices 7410 7124 7846 7847 8388 8371 7811 8552 10888 8925 

HQ Appellate Jurisdiction 1733 1484 1510 1582 1891 1894 1576 2031 2226 1329 

HQ Original Jurisdiction 20 13 21 43 51 16 37 75 49 46 

Total Decisions 9163 8621 9377 9472 10330 10281 9424 10658 13163 10300 

NOTES: (1) Regional/Field Office decisions are on Initial appeals, addendum cases, and stay requests 

(2) HQ appellate jurisdiction decisions are on petitions for review, reopenings, court remands, and other types of appellate jurisdiction cases 

(3) HQ original jurisdiction decisions are on Special Counsel cases and other types of original jurisdiction cases 

Annual Report for Fiscal Year 1996 21 
U.S. Merit Systems Protection Board

When the Postal Service restructuring cases are excluded, 

the total number of decisions issued by the 3-member Bo

and the administrative judges was virtually the same in FY

1996 as in FY 1995. In the regional and field offices, the

number of decisions issued in FY 1996-excluding Postal 

Service restructuring cases-actually increased by more th

six percent over the average for the three preceding fiscal

years. 

ard 

an 

The settlement rate for appeals in the regional and field 

offices dropped a few points in FY 1995 because of the 

large number of Postal Service restructuring appeals, which 

generally did not settle. In FY 1996, the settlement rate 

returned to the level that had been maintained for several 

years prior to FY 1995-about half of all appeals that were 

not dismissed. 

During the time the Postal Service restructuring cases 

were moving through the regional and field offices, the 

average time for those offices to process cases increased 

from 79 days to 96 days. In FY 1996, the average 

processing time improved to 94 days, well within the 

Board's processing standard of 120 days. With the averag

processing time for petitions for review at the Board leve

121 days in FY 1996, a case that goes through both levels

of review is now completed, on average, in about seven 

months. 

e 

l 

At headquarters, the petition for review settlement 

program achieved a 21 percent rate of success in appeals 

where settlement was attempted-up from 17 percent during 

the last quarter of FY 1995. The Board considers this a 

satisfactory success rate, considering that settlement had 

already been attempted at the regional or field office level 

and an administrative judge had issued a decision favoring 

one party or the other in nearly all of the cases. Reduced 

agency budgets, downsizing, and restructuring continued to 

impede settlement efforts generally, but the settlement 

process 

REGIONAL DECISIONS - EXCLUDING USPS RESTRUCTURING, FY 

1993 - 1996

22 Annual Report for Fiscal Year 1996 
U.S. Merit Systems Protection Board

itself, whether resulting in settlement or not, cause the Board has no control over the number 

furthered the interests of alternative dispute of cases it receives, it continues to focus on 

resolution and customer service. Agency improvements in the adjudicatory process to 

representatives, appellants' representatives, enable it to continue to process cases efficiently 

and pro se appellants continued to express in spite of reduced human and financial retheir satisfaction with the settlement process as sources (see discussion under "Streamlining" in 

a vehicle to promote better understanding of the "Administration" section of this report). 

the adjudicatory process in general and the law as 

applied to their cases in particular. 

Looking to the future, the Board expects 

that its caseload will at least continue at its 

current level-and may well increase-as 

agencies continue with aggressive downsizing 

in response to reduced appropriations. BeAnnual Report for Fiscal Year 1996 23 
U.S. Merit Systems Protection Board

ADJUDICATION

APPELLATE JURISDICTION 

CASES

First Decisions under FMLA and 

USERRA

In Ramey v. US. Postal Service, 70 M.S.P.R. 

463 (1996), the Board issued its first decision 

involving the Family and Medical Leave Act of 

1993 (FMLA). In this decision, the Board set 

out the requirements of the FMLA as they apply 

to absence-related charges that form the basis for 

an adverse action, 

The Board also issued its first decision 

interpreting provisions of the Uniformed 

Services Employment and Reemployment 

Rights Act of 1994 (USERRA), Petersen v. 

Department of the Interior, 71 M.S.P.R. 227 

(1996). The decision was issued on an 

interlocutory appeal certified to the Board by the 

administrative judge. The Board addressed 

several issues concerning its jurisdiction over 

cases brought under USERRA. Among other 

things, it ruled that even where the appellant is 

represented by the Special Counsel, and despite 

the resulting similarities to its original 

jurisdiction cases, it would process USERRA 

appeals under its appellate jurisdiction 

procedures. In addition, it addressed the 

timeliness of appeals and the applicable burdens 

of proof under the new law. 

ADA - Firm Choice

The Board issued its first decision discussing 

the Americans with Disabilities Act's 

amendment to the Rehabilitation Act regarding 

"firm choice," Kimble v. Department of the 

Navy, 70 M.S.P.R. 617 (1996). Following the 

lead Equal Employment Opportunity 

Commission decision on the subject, Johnson v. 

Babbitt, the Board ruled that, as a result of the 

ADA amendment, an agency is no longer 

required to provide a "firm choice" before it 

imposes discipline on an alcoholic employee. 

Postal Service Restructuring

In FY 1996, the Board continued to address 

issues arising from the Postal Service's 1992 - 

1993 nationwide restructuring. In prior years, 

the Board had ruled that demotions effected in

the restructuring constituted reductions in force 

with respect to preference-eligible employees. In 

Sink v. U.S. Postal Service, 65 M.S.P.R. 628 

(1994), and Unhoch v. US. Postal Service, 66 

M.S.P.R. 651 (1995), the Board also ruled on 

what the Postal Service must do to comply with 

the Board's reversal of its actions. As a result, 

the Postal Service effected a reduction-in-force 

action in July 1995 to comply with the Board's 

orders. 

Issues arising from both the original 

restructuring and the 1995 compliance RIF 

occupied the Board during FY 1996. In 

Augustus v. U.S. Postal Service, 69 M.S.P.R. 29 

(1995), an appellant, who was given RIF notice 

in accordance with Sink, alleged that the 

agency's subsequent compliance RIF was not in 

accordance with RIF regulations. He sought 

Board review through a petition for enforcement 

of the Board's order reversing the agency's 

action in the original restructuring. The Board 

held that the issues raised in the appellant's 

petition would properly be considered in an 

appeal of the compliance RIF, not a petition for 

enforcement. The Board's decision in Sink 

regarding an appellant's entitlement to RIF 

procedures only required the agency to give RIF 

notice or return the appellant to the status quo 

ante, and here the agency decided to issue a RIF 

notice. The agency having effected the 

compliance RIF in July 1995, the Board held 

that any issue arising out of that action would 

properly be raised in a separate appeal, not in a 

petition for enforcement. 

In Kelly v. U.S. Postal Service, 68 M.S.P.R. 

565 (1995), and Beams v. U.S. Postal Service, 

69 M.S.P.R. 71 (1995), the Board recognized 

that confusion may have existed regarding what 

was appropriately brought before the Board in a 

compliance case or an appeal arising from the 

24 Annual Report for Fiscal Year 1996 
U.S. Merit Systems Protection Board

reversal of the demotion action itself, and what 

had to be encompassed in a new appeal of the 

July 1995 compliance RIF. To avoid the 

possibility that such confusion may have 

deprived appellants of the right to be heard, the 

Board modified its decision in Sink v. U.S. 

Postal Service, 68 M.S.P.R. 497 (1995), to 

afford the appellants an additional 30 days in 

which to file a petition for appeal of the July 

1995 compliance RIF. 

In Cooke v. U.S. Postal Service, 69 M.S.P.R. 

259 (1996), the Board ruled that an appellant 

who had been removed for his failure to report 

to duty in the job to which he had been assigned 

in the restructuring was not entitled to the 

compliance actions applicable to current Postal 

Service employees. In Walker v. U.S. Postal 

Service, 69 M.S.P.R. 634 (1996), the Board held 

that an appeal of a 1993 demotion was mooted 

by the agency's 1995 retroactive reduction-inforce offer. In Crandall v. U.S. Postal Service, 

MSPB Docket No. SF-0351-94-0019-X-1, 69 

M.S.P.R. 192 (Table), the Board ruled that 

where an appellant voluntarily retired before 

July 1995 the appeal of the compliance RIF was 

moot. In Perisho v. U.S. Postal Service, 69 

M.S.P.R. 55 (1995), the Board found mootness 

as to the appeal of the 1993 restructuring where 

an appellant rejected an offer during the 

compliance RIF that would have returned him to 

his pre- 1993 grade level. 

Whistleblower Protection Act

The Board continued its development of the 

law under the Whistleblower Protection Act 

(WPA). In two cases, the Board addressed the 

jurisdictional requirement that an appellant who 

seeks the protection of the Act must have had a 

reasonable belief in the correctness of his 

disclosure. Where an appellant knew that his 

"disclosure" was false when he made it, he was 

not protected. Scott v. Department of Justice 

and Office of Personnel Management, 69 

M.S.P.R. 211 (1995). In Bump v. Department of 

the Interior, 69 M.S.P.R. 354 (1996), the Board 

held that although an appellant's motive in 

making a disclosure is not relevant to 

this issue, this appellant could not have had a 

reasonable belief in the correctness of his 

disclosure because he knew that his supervisor 

had abandoned the matter by the time that the 

appellant complained about it. 

In two other cases addressing a jurisdictional 

prerequisite under the WPA--exhaustion of 

remedy before the Office of Special Counsel--

the Board held that by showing that the Special 

Counsel conducted an investigation of the 

appellant's charge, the appellant proved that he 

informed the Board of the precise basis for his 

charge and characterized it before the two 

agencies in the same manner. Casciotta v. 

Department of the Navy, 69 M.S.P.R. 589 

(1996), and Lloyd v. Environmental Protection 

Agency, 71 M.S.P.R. 671 (1996). 

The Board issued significant decisions on the 

merits of whistleblower appeals, further defining 

the burdens of proof under the WPA. In Powers 

v. Department of the Navy, 69 M.S.P.R. 150 

(1995), the Board held that any weight an 

agency gives to an appellant's disclosure, alone 

or in combination with other factors, can satisfy 

the appellant's burden of proving that his 

disclosure was a contributing factor in the 

personnel action taken against him. In Scott, 

supra, the Board ruled that an appellant cannot 

meet this burden where he knew when he made 

the disclosures that they were false. In Geyer v. 

Department of Justice, MSPB Docket No. BN1221-92-0310-B- I (1996), the Board set forth 

the test it will apply to determine whether an 

agency has met its burden of showing by clear 

and convincing evidence that it would have 

taken the same personnel action even in the 

absence of an appellant's protected disclosures. 

In Scott, the Board ruled that in an adverse 

action appeal the charges are not to be 

readjudicated under the clear and convincing 

evidence standard to determine whether the 

agency met its burden. 

The Board set out the test for proving the 

existence of a "personnel action" where an 

individual right of action (IRA) appeal is based 

on a claim of entitlement to promotion through 

Annual Report for Fiscal Year 1996 25 
U.S. Merit Systems Protection Board

the reclassification of the appellant's position. 

Briley v. National Archives and Records 

Administration, 71 M.S.P.R. 211 (1996). It held 

that a collective bargaining agreement that sets 

forth an alternative avenue of review does not 

relieve an appellant from seeking review by the 

Special Counsel before bringing an IRA appeal 

to the Board. Id. It found that where an 

arbitration decision is before the Board in an IRA 

appeal, its merits findings will not be given 

collateral estoppel effect, although they will be 

considered in deciding whether the agency met 

its burden. Geyer, supra

Interim Relief

The Board issued a number of decisions during 

the fiscal year that clarify the applicability of 

interim relief where an appellant prevails in the 

initial decision on an appeal. In Evono v. 

Department of Justice, 69 M.S.P.R. 541 (1996), 

the Board ruled that where the appellant is 

receiving benefits from the Office of Workers' 

Compensation Programs for an employmentrelated illness or injury, it is not proper to order 

interim relief. In Ellshoff v. Department of the 

Interior, 69 M.S.P.R. 585 (1996), the Board held 

that the rule that interim relief is not properly 

awarded where the appellant currently receives 

other Government benefits does not apply where 

his alternative source of income is private 

employment. In Burke v. Smithsonian 

Institution, 69 M.S.P.R. 407 (1996), the Board 

ruled that an "undue disruption" determination 

need not take any particular form and that the 

agency's failure to inform the appellant that it 

made such a determination is harmless error. 

Retirement

The Board addressed two significant 

retirement-related matters. In DoPadre v. Office 

of Personnel Management, 69 M.S.P.R. 346 

(1996), the Board declared an OPM regulation 

invalid where it purported to remove Board 

jurisdiction as to OPM's application of court 

ordered survivor annuities. In a series of cases, 

the Board re-examined the circumstances in 

which OPM should allow an appellant to make a 

post-retirement election to include credit for his 

post-1956 military service in his retirement 

annuity. Mopps v. OPM, 69 M.S.P.R. 314 

(1996), Cox v. OPM, 69 M.S.P.R. 320 (1996), 

Nunez v. OPM, 69 M.S.P.R. 326 (1996), and 

Jacob v. OPM, 69 M.S.P.R. 340 (1996). 

Arbitration Cases

The Board addressed jurisdictional Issues in

two cases concerning the arbitration process. In 

Hill v. Department of the Army, 70 M.S.P.R. 196 

(1996), the Board set forth the circumstances 

under which it may assert Jurisdiction over a 

matter normally reserved to the grievance process 

where the union local that would have 

represented the appellant is defunct. In Tetrault 

v. U.S. Postal Service, 71 M.S.P.R. 376 (1996), 

the Board set out the circumstances under which 

an appellant will not be bound by a union's 

settlement of an appeal she would otherwise have 

been able to bring to the Board. 

 Adverse Actions

In two cases involving alleged constructive 

removals due to intolerable conditions, the Board 

further refined the tests it will apply to claimed 

constructive removals based on discrimination 

resulting from the creation of a hostile working 

environment. In Markon v. Department of State, 

71 M.S.P.R. 574 (1996), the Board declined to 

find Title VII standards dispositive of such 

claims, stating that claims of discrimination and 

reprisal could only be considered, along with the 

remaining evidence of record, under the coercion 

test. If the claims meet that test, they could then 

constitute affirmative defenses. In Bates v. 

Department Of Justice, 70 M.S.P.R. 659 (1996), 

the Board considered the case under the Title VII 

standards for a hostile working environment 

sexual harassment claim. It found, however, that 

the appellant did not meet the Title VII standards. 

Nevertheless, based on those claims and the other 

evidence, it found that she did show that her 

working conditions had been made so intolerable 

that she was forced to resign. On a 

26 Annual Report for Fiscal Year 1996 
U.S. Merit Systems Protection Board

related matter, the Board ruled that an appel- parties for the purpose of dispute resolulant proves that his acceptance of a lower tion. The Board, on the other hand, is an 

graded job was coerced where he accepted the independent administrative agency of the 

position only because the agency refused to United States, established by Congress for 

grant him the reasonable accommodation for the purpose of adjudicating appeals of 

his disability to which he was entitled. Federal employees and guarding Federal 

O'Connell v. U.S. Postal Service, 69 M.S.P.R. merit systems. 

438 (1996). 

 Changing its rule that the Director of 

In Barry v. Treasury, 71 M.S.P.R. 283 OPM could not request reconsideration of 

(I 996), the Board ruled that in drug-related an appeal under 5 U.S.C. § 7703 where 

cases, a claim of stress per se is not a factor OPM was an original party to the appeal, 

for consideration in mitigation or otherwise, the Board held that such a request is a 

absent an explanation of its relationship to the jurisdictional prerequisite to the Director's 

misconduct. With respect to mitigation, in right to seek Federal Circuit review of the 

Franklin v. Department of Justice, 71 Board's ruling, and thus would be considM.S.P.R. 583 (1996), the Board ruled that ered by the Board. Jackson v. Office of

even though a matter raised by the appellant Personnel Management, 71 M.S.P.R 405 

may not be relevant to a decision on the merits (1996). 

of the charges against him, it may nonetheless 

be a factor for consideration in mitigation of 

the penalty. 

Board Procedures

 Addressing its own procedures, the Board 

definitively ruled that an appellant has a 

fundamental right to an in-person hearing if 

there is a genuine dispute as to any material 

fact, although a remand will be required only if 

 the error in holding a hearing by telephone had 

a potentially prejudicial effect. Evono v. 

Department of Justice, 69 M.S.P.R. 541 

(1996). 

 The Board also ruled that it would be 

unfair to apply collateral estoppel where an 

appellant previously litigated in another forum 

matters at issue in an adverse action appeal, 

where his incentive to litigate had been less 

than it is before the Board. In that case, 

Wildberger v. Small Business Administration, 

69 M.S.P.R. 667 (1996), the Board held that 

one of the main reasons application of collateral 

estoppel was inappropriate was the nature of the 

forums at issue. The forum that previously 

adjudicated the matter, an internal union 

tribunal, was not established by opposing 

Annual Report for Fiscal Year 1996 27 
U.S. Merit Systems Protection Board

ORIGINAL JURISDICTION CASES

As shown in the accompanying table, 19 of the 

46 Board decisions in original jurisdiction cases 

during FY 1996 were on proposed actions 

against administrative law judges. Eighteen of 

the 19 were issued on complaints filed by 

agencies late in FY 1995 and early in FY 1996, 

proposing to furlough their administrative law 

judges-along with other employees-because of 

uncertainties over funding for the new fiscal 

year. Unlike other Federal employees, 

administrative law judges are entitled under 5 

U.S.C. § 7521 to a hearing and decision by the 

Board before their agencies may subject them to 

certain personnel actions, including a furlough 

of 30 days or less. The Board must authorize a 

proposed action under section 7521, upon a 

showing of good cause, before an agency can 

effect it. 

As Congress acted to provide agencies with 

short-term and then permanent funding for FY 

1996, all of these complaints were dismissed as 

moot or withdrawn by the agencies. Early in the 

fiscal year, in Department of Agriculture v. 

Palmer, 68 M.S.P.R. 586 (1995), the Board 

dismissed as moot the agency complaints 

seeking to furlough administrative law judges 

for not more than 30 days beginning on October 

1, 1995, because the President signed a 

continuing resolution on September 30, 1995, 

averting a lapse in appropriations. The Board 

rejected the argument that the cases were not 

moot because the funding gap scenario was 

capable of repetition and could lead to furlough 

actions that would evade Board review. The 

Board stated that it was confident that if a lapse 

in appropriations necessitating the furlough of 

administrative law judges occurred, it would not 

evade Board review. The Board also noted that 

it is prohibited by statute from issuing advisory 

opinions. 

Of the other decisions in original jurisdiction 

cases, 12 were on Special Counsel requests for 

stays and related matters, primarily requests for 

extension of stays granted by the Board. Nine 

requests for review of OPM regulations were 

decided, all of which were dismissed for lack of 

jurisdiction or denied. 

ACCESS TO MSPB 

ADJUDICATORY PROCEDURES 

AND DECISIONS

The Board's procedures for both appellate and 

original jurisdiction cases are set forth in the 

Code of Federal Regulations at 5 CFR Parts 

1201, 1 203, and 1209. Additional information 

on the Board's procedures is available in its 

publications, An Introduction to the MSPB, 

Questions & Answers About Appeals, and 

Questions & Answers About Whistleblower 

Appeals.

Final Board decisions are published by 

commercial publishers, including West 

Publishing Company. All citations to Board 

decisions in this report are to West's United 

States Merit Systems Protection Board Reporter.

Final Board decisions, weekly summaries of 

significant decisions, the Board's information 

publications, and the MSPB Appeal Form are 

available on the Board's Web site at 

www.access.gpo.gov/mspb and in the MSPB 

Library of the Government Printing Office's 

Federal Bulletin Board. The bulletin board can 

be accessed by computer modem at 202-512-

1387. Assistance is available from GPO by 

calling 202-512-1530. Certain significant Board 

decisions are also available on the OPM 

Mainstreet BBS, 202-606-4800. 

28 Annual Report for Fiscal Year 1996 

U.S. Merit Systems Protection Board
ORIGINAL JURISDICTION CASES DECIDED BY MSPB IN FY 1996

 CASE TYPE.............................NUMBER DECIDED DISPOSITION

OSC Corrective Actions.......... ............................... 0

OSC Disciplinary Actions -

 Non-Hatch Act............. ............................... 2 1 - 90-day suspension 

 ...................................... ............................... ...... 1 - Settled 

OSC Disciplinary Actions -

 Hatch Act:

 Federal/DC.................... ............................... 4.... 1 - Dismissed w/o prejudice 

 ...................................... ............................... ...... 2 - Remanded to ALJ 

 ...................................... ............................... ...... 1 - Denied request for 

 ...................................... ............................... ...... reopening 

 State/Local ................................. ............................... 0 

OSC Stay Requests:

 Initial Requests .......................... ............................... 3.... Granted 

 Requests for Extension of Stay.. ............................... 8.... Granted 

 Agency Motion for 

 Termination of Stay ................... ............................... 1.... Denied 

Actions Against ALJs .............. ............................... 19.. 18 - Dismissed 

 ...................................... ............................... ...... 1 - Settled 

Requests for Regulation Review ............................. 9.... 3 - Dismissed Jurisdiction) 

 ...................................... ............................... ...... 6 - Denied 

SES Performance-based Removals

 (Hearing only - No Board decision)........................... 0 

TOTAL ..................................... ............................... 46

Annual Report for Fiscal Year 1996 29 
U.S. Merit Systems Protection Board

LITIGATION 

JUDICIAL REVIEW

The Board defends its final decisions involving 

issues of its jurisdiction and procedure before the 

U.S. Court of Appeals for the Federal Circuit, its 

primary reviewing court. During FY 1996, the 

Board litigated 98 cases before the Federal 

Circuit. In addition to these new cases, the Board 

also litigated 115 cases arising from the U.S. 

Postal Service restructuring that were filed earlier 

(see discussion below). 

During the fiscal year, the court issued 789 

decisions on review of final Board decisions both 

initial decisions issued by administrative judges 

that became final when no petition for review 

was filed and final decisions of the 3-member 

board. Of this number, 97 percent left the final 

Board decision unchanged (case dismissed or 

Board decision affirmed). The court affirmed the 

final Board decision in 96 percent of the cases it 

adjudicated on the merits. 

The Board defends appeals of decisions in cases 

brought by the Special Counsel and decided by 

the Board under its original jurisdiction authority. 

All of these cases are appealed to the Federal 

Circuit, except Hatch Act cases involving 

employees of state and local governments, which 

are heard by Federal district courts. Original 

jurisdiction cases typically involve complex 

issues such as the extent of the Special Counsel’s 

jurisdiction and novel issues involving prohibited 

personnel practices and Hatch Act violations. 

The Board also litigates appeals of decisions in 

which the Director of OPM petitions for review 

in the Federal Circuit because he has determined, 

in his discretion, that the Board's determination is 

erroneous and will have a substantial impact on a 

civil service law, rule, regulation, or policy 

directive. Other litigation includes subpoena 

enforcement cases brought by the Board and 

discrimination cases where the Board is named as 

a defendant. These cases are filed in the various 

Federal district courts. 

JUDICIAL REVIEW* OF MSPB DECISIONS, FY 1992 - 1996 

PERCENT OF MSPB DECISIONS UNCHANGED

Federal Circuit Decisions

* The MSPB's final decisions--either initial decisions of an administrative judge that have become final or the Board's final decisions--

 may appealed to the U.S. Court of Appeals for the Federal Circuit. 

** Dismissed or Affirmed 

30 Annual Report for Fiscal Year 1996 

U.S. Merit Systems Protection Board

POSTAL SERVICE 

RESTRUCTURING CASES

Following the Federal Circuit's decision in two 

lead cases involving the Postal Service 

restructuring, Krizman v. Merit Systems 

Protection Board, 77 F.3d 434 (Fed. Cir. 1996), 

and Mueller v. Merit Systems Protection Board, 

76 F.3d 1198 (Fed. Cir. 1996), the Board filed 

115 motions for summary affirmance. Of those 

115 motions, the court either granted the Board's 

motion or affirmed the Board's decision in 104 

cases. Two cases were remanded for further 

consideration, two were dismissed, and seven 

were pending at the end of the fiscal year. 

In both Krizman and Mueller, preference 

eligible Postal Service employees claimed that 

their retirements during the early-out incentive 

program preceding the restructuring were 

involuntary because the agency did not inform 

them that the restructuring would be a reduction 

in force. The appellants filed their appeals 

following the Board's determination that 

preference-eligible Postal Service employees 

who were demoted during the restructuring were 

subjected to a RIF. That determination was 

made some ten months after most of the 

appellants retired. The Board dismissed the 

appeals as untimely, finding that the appellants 

were not entitled to notice of RIF appeal rights 

because the agency took no RIF action--

separation, demotion, or reassignment requiring 

displacement--against them. The court agreed. 

OPM PETITIONS FOR REVIEW

Three OPM petitions for review decided by the 

Federal Circuit during FY 1996 are significant. 

In King v. Erickson, 89 F.3d 1575 (Fed. Cir. 

1996), the court affirmed a number of the 

Board's decisions holding that an agency may 

not charge an employee with both misconduct 

and making false statements regarding the 

alleged misconduct. The court held that, 

consistent with its decision in Grubka v. 

Department of the Treasury, 858 F.2d 1570, 

1575 (Fed. Cir. 1988), an agency may not 

charge an employee with falsification or a 

similar charge on the basis of the employee's 

denial of another charge or the underlying facts 

relating to that other charge. The court held that 

due process requires that an employee be 

allowed to deny both a charge and the 

underlying facts without being subject to a 

falsification charge. The court noted, however, 

that employees do not otherwise have a right to 

lie or make false factual statements to an agency, 

and such false statements made during agency 

investigations and relating to alleged misconduct 

may properly be subject to falsification or 

similar charges. Likewise, denials of charges 

and related facts may not be considered in 

determining a penalty. 

In King v. Briggs and Merit Systems 

Protection Board, 83 F.3d 1384 (Fed. Cir. 

1996), OPM argued that the Board is not 

permitted to summarily deny an OPM request 

for reconsideration without specifically 

addressing the arguments raised in the petition in 

a published opinion. The court held that it lacks 

authority to require the Board to issue a 

published decision even if public policy would 

favor such a practice. Further, the court agreed 

with the Board that while the agency was 

permitted to appoint, classify, and give pay rates 

outside of the provisions of Title 5, it was not 

authorized to remove Ms. Briggs without the 

procedural protections provided in Chapter 75 of 

Title 5. The court reasoned that Congress chose 

which aspects of Title 5 it wished to exclude 

from the position, and provisions not 

specifically excluded remain applicable. 

In King v. Alston, 75 F.3d 657 (Fed. Cir. 

1996), the court agreed that employees have a 

right to notice and an opportunity to respond to 

the reasons their access to classified information 

is denied before the agency suspends them under 

5 U.S.C.§ 7513. The court further found that 

Annual Report for Fiscal Year 1996 31 
U.S. Merit Systems Protection Board

when an agency suspends an employee under 5 

U.S.C. § 7513 based on its suspension of the 

employee's security clearance, the proposal 

notice must provide enough detail to allow the 

employee to make an informed response. 

Moreover, the court found that the Supreme 

Court's decision in Department of the Navy v. 

Egan, 484 U.S. 518 (1988), does not foreclose 

Board review of the procedures used by the 

agency in placing an employee on enforced 

leave. Merely providing the employee with 

information that his access to classified 

information is being suspended, without more, 

does not provide the employee with sufficient 

information to make an informed reply to the 

agency before being placed on enforced leave. 

MONITORED LITIGATION

During fiscal year 1996, the Board monitored 

739 cases in the Federal Circuit involving 

appeals of decisions issued by the Board under 

its appellate jurisdiction. Although the 

Department of Justice defends the employing 

agency against whom the appeal is filed, the 

Board monitors this litigation closely. Board 

activities in connection with monitored 

litigation include evaluating the case to 

determine if Board intervention is appropriate, 

responding to inquiries, assisting in drafting 

briefs, and analyzing the court's decision in 

these cases to determine its applicability and 

impact. 

The U.S. Court of Appeals for the Federal 

Circuit maintains a Web site at www.fedcir.gov, 

which provides quick access to two other Web 

sites that make the court's decisions available. 

32 Annual Report for Fiscal Year 1996 
U.S. Merit Systems Protection Board

STUDIES 

 THE STATUTORY STUDIES 

FUNCTION 

The CSRA assigned the Board, in addition to its 

adjudicatory functions, responsibility for 

reviewing the significant actions of OPM and 

conducting studies of the civil service and other 

merit systems in the Executive Branch. The 

Board is uniquely situated to provide neutral, 

independent reviews and assessments of Federal 

human resources management policies and 

practices on a systemic basis. 

The Board typically solicits specific potential 

study topics from a wide variety of sources in 

developing its studies and OPM oversight agenda. 

The Board's research, usually Governmentwide in 

scope, includes mail and telephone surveys, onsite systems reviews, written interrogatories, 

formal discussions with subject-matter experts, 

computer-based data analysis, and reviews of 

secondary source materials. 

SUMMARIES OF REPORTS 

ISSUED IN FY 1996 

Sexual Harassment in the Federal Workplace: 

Trends, Progress, Continuing Challenges 

(November 1995) - This report presents the results 

of a Governmentwide survey of Federal workers 

who provided data on their experiences with 

sexual harassment and the effects it had on them, 

as well as information on their attitudes and 

beliefs about relationships in the workplace. The 

survey was the centerpiece of a study undertaken 

to update the Board's 1980 and 1987 studies of 

this issue. The report includes a review of 

'judicial developments and the initiatives agencies 

reported they use in combating the problem of 

unwanted sexual attention in their workplaces. 

The following are among the specific findings in 

the report: 

• The reported incidence of unwanted sexual 

attention has increased since the last survey in 

1987. In the latest survey, 44 percent of 

women and 19 percent of men reported they 

had experienced some form of unwanted 

sexual attention during the preceding two 

years-compared to 42 percent and 14 percent 

in the previous survey. 

• Coworkers and other employees, rather than 

supervisors, are the source of most unwanted 

sexual attention. Seventy-nine percent of male 

respondents and 77 percent of female 

respondents reported that unwanted sexual 

attention came from coworkers. 

• Only about 6 percent of respondents reported 

taking formal action, such as filing an EEO 

complaint. The most common response 

reported was to ignore the behavior. 

• Asking or telling the harasser to stop was 

identified by 88 percent of respondents as the 

action they believed would be most effective in 

stopping the harassment. Of the respondents 

who had experienced harassment and who took 

this action, 60 percent said it made things 

better. 

• Comments provided by a number of survey 

respondents suggest a perception among some 

employees that the penalties for sexual 

harassment are Inappropriate or inconsistent. 

Penalties are seen by some as exhibiting a 

double standard, with higher level employees 

being dealt with less harshly than lower level 

workers. 

The Board concludes that while the Federal 

workforce has become more sensitive to the 

problem of sexual harassment, the problem has by 

no means disappeared. The Board recommends 

that managers and supervisors be firm and 

consistent in penalizing proven harassers, and that 

agencies diagnose the nature and extent of the 

problem within their own organizations. Further, 

the Board advises agencies to evaluate the 

effectiveness of their sexual harassment 

Annual Report for Fiscal Year 1996 33 
U.S. Merit Systems Protection Board

training efforts to ensure that the training 

addresses identified problems. Finally, agencies 

should find ways to capitalize on what is already 

known about the most effective actions to 

prevent and eliminate sexual harassment, that is, 

they should encourage assertive actions on the 

part of employees who are targets of unwanted 

sexual attention. 

The Rule of Three in Federal Hiring: Boon or 

Bane? (December 1995) - This report reviews 

significant changes over the last 10 years 

affecting how the Federal Government recruits 

and selects new employees, including the most 

visible change-a major decentralization of 

authority and responsibility from OPM to 

individual Federal departments and agencies. 

While many of the ground rules governing how 

Federal jobs are filled have changed, the "rule of 

three" (requiring managers to select new 

employees from among the top three available 

candidates referred to them, regardless of the 

total number of highly qualified applicants in the 

pool) has been in effect and unchanged for over 

50 years, despite a widespread perception that it 

has an unintended and negative impact on the 

Federal hiring process. 

The report examines how the "rule of three" 

affects the Federal Government's ability to hire 

based on merit. It also looks at how the rule of 

three interacts with the law granting veterans 

preference in hiring. The review studied hiring

under three different procedures: (1) hiring from 

standing inventories of candidates who are 

recruited in anticipation of job vacancies (regis 

ter hiring); (2) recruiting and hiring on a caseby-case basis as vacancies arise (case 

examining); and (3) hiring under a 

demonstration project authorized for parts of the 

U.S. Department of Agriculture (USDA). The 

USDA demonstration project uses case 

examining but places eligible candidates into 

one of two categories instead of assigning each 

candidate a numerical score. Managers may 

select any candidate in the higher category 

without the restrictions imposed by the rule of 

three. The demonstration project also provides 

veterans' preference in a unique manner. 

The Board's review found that a higher 

proportion of veterans were hired under case 

examining or under the USDA demonstration 

project than were hired from standing registers 

of candidates. The review also found that the 

rule of three frequently turns the referral process 

into a lottery. This is because the rule of three 

requires that candidates be listed according to 

their numerical scores, and often a number of 

candidates have identical scores. Such ties are 

resolved by randomly determining the order in 

which candidates with identical scores will be 

referred, rather than basing the decision on a 

job-related factor or on the candidates' interest in 

the specific vacancy under consideration. 

The Board reached two key conclusions: (1) 

the rule of three does not represent the best way 

to foster merit-based hiring; and (2) the 

interaction between the rule of three and 

veterans' preference too often produces results 

that are not in the best interests of managers or 

job candidates, including candidates with 

veterans' preference. The Board recommended 

eliminating the rule of three in favor of a more 

flexible requirement for merit-based hiring that 

would allow a selecting official to select from 

among "an adequate number of well-qualified 

candidates" and authorizing agencies to use a 

category rating system similar to that used in the 

Department of Agriculture demonstration 

project. Subsequently, the Administration 

proposed civil service reform legislation that 

included provisions for alternate ranking and 

selection procedures of the type recommended 

by the Board. Although the proposal was 

introduced in the 104th Congress, it was not 

enacted. 

Fair and Equitable Treatment.- A Progress 

Report on Minority Employment in the Federal 

Government (August 1996) - This report 

examines the extent to which the Federal 

Government is in compliance with the statutory 

merit system principle requiring that employees 

and applicants for employment receive fair and 

equitable treatment without regard to race, color, 

national origin, and other non-merit factors. 

More

34 Annual Report for Fiscal Year 1996 
U.S. Merit Systems Protection Board

specifically, the review sought to determine 

whether minorities and nonminorities have equal 

access to Federal jobs and, once employed, 

whether they are treated equitably. 

Major findings discussed in the report include: 

• Minorities have made substantial progress 

in terms of gaining access to Federal civil 

service jobs and are now well represented 

in most white-collar job categories although 

they are not evenly distributed across the 

white-collar workforce. 

• Even after controlling for differences in

education, experience, and other 

advancement-related factors, minorities 

have lower average grades than white men, 

suggesting that the careers of some 

minorities have been hindered by their race 

or national origin. 

• A comparison of current white-collar 

promotion rates for minorities and whites 

suggests that minorities are not now subject 

to an across-the-board disadvantage (or 

advantage) in the promotion process, 

although some areas of difference remain. 

• Minorities and nonminorities have 

significantly different perceptions about the 

degree to which discrimination may still be 

present in the workplace. For example, 

while 55 percent of African Americans 

surveyed believed that African Americans 

are subject to "flagrant or obviously 

discriminatory practices" in the Federal 

workplace, only 4 percent of white survey 

respondents share this perspective. 

 The report concludes that the Federal 

Government's merit-based employment system has 

reduced incidences of obvious bias in the 

workplace significantly. Notwithstanding this 

success, however, measurable differences that 

remain in the career advancement opportunities 

experienced by minorities and nonminorities 

cannot be fully explained as the effect of merit 

based factors such as differences in experience 

and education. In some measure at least, these 

remaining differences can be attributed to the 

subjective judgments that ultimately come into 

play whenever decisions are made on issues such 

as employee selections, promotions, and 

performance appraisals. 

The report recommends: 

• Agencies should conduct their own 

analyses of differences in promotion rates, 

performance awards, and other aspects of 

the personnel process. 

• Assessments of progress toward ensuring 

equal employment opportunity should 

include gathering and addressing 

employee perceptions. 

• OPM and Federal agencies should 

continue to work toward development of 

better and more "user friendly" tools for 

assessing candidates that allow 

supervisors to rate candidates more 

accurately and objectively on job-related 

characteristics. 

• When choosing from among equally 

qualified candidates for new hires or 

promotions, agencies and selecting 

officials should actively pursue the 

concurrent goals of the statutory merit 

system principles that call for selection 

and advancement based solely on relative 

ability, knowledge, and skills, combined 

with efforts to achieve a "work force from 

all segments of society." 

 Both tile full text and a summary of the report, 

Fair and Equitable Treatment: A Progress Report 

on Minority Employment in the Federal 

Government, are available on the Board's Web 

site at www.access.gpo.gov/mspb. Texts and 

summaries of certain other Board reports are 

available in the MSPB Library of the Federal 

Bulletin Board, which can be accessed via the 

MSPB Web site. 

Annual Report for Fiscal Year 1996 35 
U.S. Merit Systems Protection Board

OTHER FY 1996 ACTIVITIES

Issues of Merit 

In fiscal year 1996, the Board inaugurated a 

new periodic publication titled "Issues of Merit" 

to disseminate findings, analyses, and 

recommendations from its studies quickly and 

widely. The first edition was published in April 

1996 and the second in August 1996. The 

purpose of the publication is to highlight in a 

concise, readable format information and 

analyses of use to Federal officials at various 

levels. Topics covered in the publication to date 

include: 

• A long range perspective on developing and 

maintaining an effective and efficient Federal 

workforce. Even in the midst of the largest 

Federal downsizing effort in recent history, about 

4,000 new full-time Federal workers are hired 

each month to replace critical skills and carry out 

required functions. Maintaining a long range 

perspective makes it clear that agencies must 

continue to attract and select highly qualified 

candidates for Federal employment even while 

they out place other employees. 

• Accountability for effective human resources 

management in the Federal Government in a time 

of diminishing resources and rapid change 

characterized by decentralization and delegation 

of authority. 

• Federal employee views on the health of the merit 

system. 

• Best practices at the state government level (e.g., 

recruitment and selection reforms adopted by the 

State of Wisconsin). 

• Communications with employees who have 

performance or misconduct problems. MSPB 

surveys have documented the fact that there is a 

wide gap between what supervisors think they 

have communicated and what employees say was 

communicated. 

Merit Principles Survey

In FY 1996, the Board conducted another 

Governmentwide "Merit Principles Survey" that 

gathered the views and experiences of a 

representative sample of almost 10,000 Federal 

employees on a broad range of core civil service 

issues. These issues included the effectiveness of 

current approaches to performance management, 

the extent to which prohibited personnel practices 

may be occurring, and the degree to which 

agencies are able to attract and retain highly 

qualified employees. This was the fifth in the 

series of surveys the Board has conducted 

approximately every three years since 1981. A 

full report of the results of this survey is expected 

to be released early in 1997. 

Studies in Progress

Substantial work was completed in FY 1996 on 

the following studies: (1) the higher rate of 

disciplinary actions taken against minority 

employees-especially African-American malescompared to non-minority employees; (2) 

performance-based adverse actions in the Federal 

Government and whether poor performers are 

being dealt with adequately; (3) the continued 

under representation of Hispanics in the Federal 

workforce; (4) the impact of Federal downsizing 

on the quality and readiness of the Federal 

workforce; (5) the impact of initiatives to 

decentralize and delegate personnel management 

authority to Federal managers and supervisors; and 

(6) the ability of the Federal Government to 

attract, select, and retain highly qualified 

employees. 

Reviews of Agency Practices

The Board worked collaboratively with other 

Federal agencies to fulfill its mission in FY 1996, 

while being careful to maintain its objectivity and 

non-partisanship. Agencies frequently request 

information or advice regarding implementation of 

the merit system principles or eradication of 

prohibited personnel practices. For example, on 

behalf of the U.S. 

36 Annual Report for Fiscal Year 1996
U.S. Merit Systems Protection Board

Attorney General and with active support and 

funding from the Department of Justice, the 

Board conducted an in-depth examination of 

the extent to which sexual harassment is a 

problem within the bureaus and divisions of 

the Department and whether departmental 

initiatives were effective. 

Procedural Improvements 

The Board's studies and oversight staff have 

developed new evaluation methodologies and 

techniques that speed data gathering and report 

turnaround time. In FY 1996, the Board 

established two standing panels, one composed 

of approximately 2,300 human resources 

management specialists and the other consisting 

of over 1,800 managers throughout Government, 

who have agreed to respond to a series of short 

surveys on emerging workforce and civil service 

issues in the next few years. This should allow 

the Board to obtain data quickly on specific 

issues to meet particular needs of agencies and 

the Congress. 

Annual Report for Fiscal Year 1996 37 
U.S. Merit Systems Protection Board

ADMINISTRATION 

STREAMLINING 

The Board's Annual Report to the President 

and the Congress for Fiscal Year 1995 

described the initiatives undertaken by the Board 

in response to the second phase of the 

Administration's reinventing Government 

initiative (REGO II). During FY 1996, the 

Board began implementing certain 

recommendations of its REGO II Task Force to 

streamline the Board's operations and enable the 

agency to continue to fulfill its statutory mission 

with reduced financial and human resources. 

Although the Board's staffing level of 266 at the 

end of FY 1996 is well below the FTE figure 

mandated by the Federal Workforce 

Restructuring Act, the Board's appropriations 

will not support that staffing level. The Board's 

staff has already been reduced by 17 percent 

since mid-1993 and further downsizing is 

anticipated over the next few years. 

Early in 1996, the Board made certain 

organizational realignments at headquarters, 

including separating the Office of Regional 

Operations and the Administrative Law Judge 

into two offices. At the same time, the Board 

continued its move towards a four-region 

structure by closing its St. Louis Field Office 

and realigning the remaining regional and field 

offices. As a result, there are now five regionsWestern, Central, Northeastern, Washington 

(DC), and Atlanta. 

Near the end of the fiscal year, the Board 

began to effect certain REGO II changes in the 

adjudicatory responsibilities of headquarters 

legal offices and in adjudicatory procedures. 

The responsibility for preparing Board decisions 

in original jurisdiction cases-with the exception 

of requests to review OPM regulations-and 

OPM petitions for reconsideration was 

transferred from the Office of the General 

Counsel to the Office of Appeals Counsel, thus 

centralizing the preparation of Board decisions 

in virtually all cases filed at Board headquarters in the Office of Appeals Counsel. The 

Office of the General Counsel continues to 

process requests to review OPM regulations and 

retains its non-adjudicatory responsibilities, 

including litigation, legislative coordination, and 

advisory functions. 

To implement other REGO II Task Force 

recommendations, the Board's regulations are to 

be revised to permit the Administrative Law 

Judge to issue initial decisions in the original 

jurisdiction cases he adjudicates (Special 

Counsel corrective and disciplinary actions and 

proposed actions against administrative law 

judges) and to permit administrative judges to 

issue initial decisions on petitions for 

enforcement where they find non-compliance 

with a Board order. In both of these instances, 

the initial decisions issued will be subject to a 

petition for review by the Board and to judicial 

review under existing regulations. At the end of 

the fiscal year, regulations to effect these 

procedural changes were being developed. 

In other functional realignments at 

headquarters, virtually all of the agency's public 

information functions were consolidated in the 

Office of the Clerk of the Board. That office 

now manages the Board's World Wide Web site 

in addition to its other on-line services, and it 

responds to all requests .for information except 

those specifically reserved to the Office of the 

General Counsel and the Office of Policy and 

Evaluation. The Office of the General Counsel 

responds to requests for non-case related 

information from the White House, Congress, 

and the media. The Office of Policy and 

Evaluation responds to requests for information 

regarding the Board's studies. 

The regional and field offices experienced 

normal staff turnover during the fiscal year as 

administrative judges and support staff were lost 

to other agencies or retirement. The Board’s 

policy of replacing vacant judge positions with 

headquarters attorneys and of replacing 

permanent support vacancies with term or 

temporary employees continued a redistribution 

of resources from headquarters to the regional 

38 Annual Report for Fiscal Year 1996 
U.S. Merit Systems Protection Board

"front lines" and maintained high levels of 

productivity in those offices. As another means 

of more efficiently staffing for appeals 

processing, the regional and field offices 

increased their use of paralegals and law clerks to 

assist judges in legal research and drafting of 

legal documents. 

The movement of headquarters attorneys to the 

regional and field offices, of course, has resulted 

in a reduction in the attorney workforce at 

headquarters, particularly in the Office of 

Appeals Counsel. Because of budget constraints, 

few of the attorney vacancies created at 

headquarters have been filled. The Office of 

Appeals Counsel eliminated one attorney groupand its supervisory attorney position-by 

establishing larger groups from the other 

divisions. To expedite case processing, both 

attorneys and supervisors may now send an 

expanded range of cases to the Board without 

further review by one to three additional levels of 

supervisory attorneys. The result is that both 

attorneys and supervisors have gained time to 

concentrate on more significant cases and feel a 

greater authority and responsibility with respect 

to all of their cases. 

TECHNOLOGY AND 

PROCEDURAL IMPROVEMENTS 

To help meet the Board's workload challenges, 

headquarters and the regional and field offices 

are working together to identify and plan for the 

increased application of computer technology. 

The Board worked closely with a consulting team 

from the National Center for State Courts 

(NCSC) and, at the end of the fiscal year, was 

responding to the NCSC recommendations. For 

internal purposes, the Board is reviewing the 

potential to automate the filing of cases with the 

Board as a means to improve communications 

and productivity. The Board also is preparing to 

implement video conferencing between 

headquarters and the regional/field offices, and 

eventually among parties in the appellate process. 

The Board is working with the U.S. Court of 

Appeals for the Federal Circuit in a joint effort to 

develop an electronic case filing system for 

MSPB cases appealed to the court. The current 

system is costly because of the resources required 

to prepare, distribute, and maintain multiple 

paper copies of documents in case files. 

Electronic filing holds the promise of reducing 

costs substantially. The new system is intended 

to be accessible to the Government, represented 

parties, and pro se litigants. 

Installation of the Local Area Network (LAN) 

at headquarters was completed during the fiscal 

year, and extension of LANs to all regional and 

field offices is scheduled for completion in FY 

1997. The LAN enables MSPB staff to share 

information easily and to transfer documents 

from one office to another electronically. It also 

provides wider and less expensive access to 

equipment such as modems, scanners, and color 

printers, and it allows headquarters offices to 

search and easily access Board decisions and 

other legal documents. 

Along with implementation of the LAN, all 

personal computers were upgraded to Pentium 

models. The conversion from the DOS version 

of Microsoft Word to Microsoft Word for 

Windows was completed in headquarters offices 

and will be completed in FY 1997 in the regional 

and field offices. This conversion enables the 

development and sharing of standard text and 

formats placed on the LAN servers and 

streamlines the preparation of case documents. 

Access to the Internet was provided to all Board 

offices, who are using the Internet for research 

and immediate access to documents issued by 

other agencies, educational institutions, and other 

organizations. 

During the fiscal year, the Board implemented a 

toll-free, 24-hour telephone number that allows the 

Board's customers and others to check on the 

status of appeals, request special studies and other 

publications, or receive answers to their questions. 

An electronic version of both the MSPB Appeal 

Form and the DesigAnnual Report for Fiscal Year 1996 39 
U.S. Merit Systems Protection Board

nation of Representative Form were placed on 

the Board's Web site and the electronic bulletin 

board. The MSPB Library on the bulletin 

board was reorganized to enhance user 

friendliness and expanded to include more 

information such as Federal Register notices. 

Electronic distribution of final decisions and 

information on studies continues, and other 

enhancements are planned. 

With the enactment of the Electronic Freedom 

of Information Act Amendments of 1996 (Pub. 

L. 104-231, 110 Stat. 3048), the Board began 

developing revisions to its FOIA and Privacy 

Act regulations to bring them into compliance 

with the new law. Proposed changes address 

the growing reliance of the Board upon 

maintenance of its records in electronic media 

and the legislative requirements that 

information be provided, if possible, in a format 

designated by the requester. Fee schedules for 

duplication of requested materials have been 

adjusted to reflect economic realities and to 

encompass the various formats. A guidebook 

currently is being planned for public 

distribution to explain how to request 

information under the Freedom of Information 

and Privacy Acts from the Board. 

GPRA MEASURES

As required by the Government Performance 

and Results Act (GPRA), the Board has 

developed measures of its performance as 

respects the quantity, quality, and timeliness of 

the work produced and services provided. As 

part of this effort, the Board's case management 

system (CMS) provides a timely record of 

performance in handling its caseload. By 

tracking the number and types of cases received 

and progress in processing those cases, and by 

measuring decisions issued both in terms of 

timeliness and number, the CMS provides an 

excellent means of measuring outputs. With 

respect to measures of outcomes, the Board is 

considering several potential measures such as 

customer surveys, rates of reversal of agency 

actions by the Board's judges, the percentage of 

cases in which the Board is asked to enforce 

compliance, the percentage of cases where 

noncompliance is found, the percentage of 

initial decisions that result in a petition for 

review by the Board, the impact of 

recommendations from MSPB studies that are 

implemented, and/or follow-up actions taken by 

OPM and Federal agencies to implement 

recommendations from MSPB studies. 

40 Annual Report for Fiscal Year 1996
U.S. Merit Systems Protection Board

FINANCIAL STATEMENT

The income and expenses for the Merit Systems Protection Board for fiscal year 1996

(October 1, 1995, through September 30, 1996) are shown below. All figures are in thousands 

of dollars.

INCOME

 Appropriations 24,549 

 (Less rescission) (32) 

Civil Service Retirement & Disability Trust Fund 2,430 

 Other reimbursements 84

 Total income 27,031 

EXPENSES

 Direct obligations: 

 Personnel compensation 

 Full-time permanent 14,417 

Other than full-time permanent 1,103 

Other personnel compensation 211

Subtotal, personnel compensation 15,731 

 Personnel benefits 2,702 

Benefits - former employees 110 

Travel of persons 407 

Transportation of things 78 

Rental payment to GSA 1,963 

Communications, utilities, and miscellaneous charges 431 

Printing and reproduction too 

 Other services 1,601 

Supplies and materials 248 

 Equipment 1,071

Subtotal, direct obligations 24,442 

 Reimbursable obligations 2,514 

 Total obligations 26,956 

BALANCE 75 

Annual Report for Fiscal Year 1996 41 
U.S. Merit Systems Protection Board

FOR ADDITIONAL INFORMATION

MSPB's World Wide Web site provides general information about the Board, 

brief biographies of the Board members, a list of regional and field offices with 

addresses and telephone numbers, a list of reports of merit systems studies, and 

directions for obtaining additional information. The address of the site is 

http://www.access.gpo.gov/mspb.

The MSPB Library on the Federal Bulletin Board can be accessed by computer 

modem at 202-512-1387 seven days a week. User assistance is available from 

GPO from 8 AM to 4 PM Eastern time, Monday through Friday, by calling 202-

512-1530. The Bulletin Board can also be accessed via the Internet-telnet to 

fedbbs.access.gpo.gov or go via the Board's Web site or the Fedworld Web site, 

http://www.fedworld.gov.

The Board's toll-free telephone number is 1-800-209-8960,

Comments or questions regarding MSPB, the bulletin board, or the Web site may 

be sent to the Board's e-mail address, mspb@mspb.gov. 

 

42 Annual Report for Fiscal Year 1996
U.S. Merit Systems Protection Board

CUSTOMER SERVICE STANDARDS 

The Merit Systems Protection Board has two core missions: (1) Adjudication of appeals brought to it 

under the provisions of law and regulation, and (2) Oversight of the Federal merit systems. These two 

missions are authorized in the Civil Service Reform Act of 1978.

We have established these standards to assure our customers that they receive the quality of service to 

which they are entitled and to assure the public as a whole that we are ably promoting and protecting the 

Federal merit systems.

MISSION I - Adjudication of Appeals 

1. We will make our regulations easy to understand and our procedures easy to follow.

2. We will process appeals in a fair, objective manner, according respect and courtesy to all parties. 

3. We will promptly and courteously respond to customer inquiries. 

4. We will facilitate the settlement of appeals. 

5. We will issue readable decisions based on consistent interpretation and application of law and 

regulation. 

6. We will issue decisions in initial appeals within 120 days of receipt and within 110 days on petitions 

for review, except where full and fair adjudication of an appeal requires a longer period. 

7. We will make our decisions readily available to our customers. 

MISSION 11 - Oversight of the Federal Merit Systems and the U.S. Office of Personnel Management 

1. We will conduct research on topics and issues relevant to the effective operation of the Federal merit 

systems and the significant actions of the U.S. Office of Personnel Management; perform sound, 

objective analysis; and where warranted, develop practical recommendations for improvement. 

2. We will issue timely, readable reports on the findings and recommendations of our research and 

make these reports available to all interested individuals and parties. 

3. We will enhance the constructive impact of our studies and reports through outreach efforts. 

We will conduct surveys of our customers from time to time to see how well we are meeting these 

standards. However, if at any time, you have comments or suggestions concerning our services we invite 

you to provide feedback to our Chairman, Mr. Ben Erdreich, through the Clerk of the Board, at 1120 

Vermont Avenue, NW., Washington, DC 20419, telephone(202) 653-7200, FAX number(202)653-7130 

Electronic mail may be sent over the Internet to mspb@mspb.gov. 

Annual Report for Fiscal Year 1996 43 

U.S. GOVERNMENT PRINTING OFFICE: 1997 423-584/40014