U.S. Merit Systems Protection Board

Fiscal Year 2010

Annual Report

January 2011

iii

Foreword

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

Protection Board (MSPB) provides this annual report on its significant actions during fiscal year

(FY) 2010. This report includes summaries of the most significant Board decisions and court 

opinions issued during the year, case processing statistics, summaries of MSPB’s merit systems 

studies, summaries of the significant actions of the Office of Personnel Management (OPM), and a 

summary of MSPB’s financial results. In addition, where there have been significant activities since 

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

Additional information about fiscal year 2010 program performance results and financial audit 

information is included in MSPB’s Performance and Accountability Report (PAR). This Annual 

Report and the PAR as well as other information about MSPB can be found on MSPB’s website: 

www.mspb.gov.

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Table of Contents

 Page

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

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

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

Board offices and their functions................................................................................................................................ 5

Organization chart......................................................................................................................................................... 6

Fiscal Year in Review ................................................................................................................7

Changes in Board membership and senior leadership............................................................................................. 7

Adjudication.................................................................................................................................................................... 7

Merit systems studies..................................................................................................................................................... 8

Review of the significant actions of the Office of Personnel Management......................................................... 8

Review of MSPB international activities.................................................................................................................... 9

Legislative and congressional relations update.......................................................................................................... 9

Internal management programs.................................................................................................................................10

Significant external trends and issues.......................................................................................................................11

Significant Board Decisions and Court Opinions...................................................................15

Significant decisions issued by the Board ................................................................................................................15

Significant opinions issued by the U.S. Court of Appeals for the Federal Circuit............................................22

Significant opinions issued by the U.S. Supreme Court........................................................................................24

Case Processing Statistics .......................................................................................................25

Summary of cases decided by MSPB........................................................................................................................25

Regional case processing.............................................................................................................................................26

Headquarters case processing ....................................................................................................................................32

Summaries of Merit Systems Studies ......................................................................................37

A Call to Action: Improving First-Level Supervision of Federal Employees...................................................37

Prohibited Personnel Practices—A Study Retrospective......................................................................................37

Making the Right Connections: Targeting the Best Competencies for Training .............................................38

Whistleblower Protections for Federal Employees................................................................................................ 38

Issues of Merit Newsletter.............................................................................................................................................38

Significant Actions of the Office of Personnel Management.................................................. 41

Internal structure and management..........................................................................................................................41

Human capital management policy........................................................................................................................... 41

Delivery of benefits and services............................................................................................................................... 50

Financial Summary..................................................................................................................53

U.S. Merit Systems Protection Board

Fiscal Year 2010 Annual Report

Introduction

In accordance with section 1206 of Title 5, United States Code, this annual report provides 

information on MSPB’s significant actions during FY 2010. This report includes summaries 

of the most significant Board decisions and relevant Court opinions issued during the year, 

case processing statistics, summaries of MSPB’s merit systems studies, summaries of the 

significant actions of the Office of Personnel Management (OPM), and a summary of 

MSPB’s financial results. The report also contains a review of the Board’s legislative and 

congressional relations activities, a summary of international activities, a review of internal 

management issues, and a review of external factors that affect our work. When there have 

been significant activities or events since the end of the FY, the report includes updated 

information as a service to our stakeholders. 

About MSPB

The U.S. Merit Systems Protection Board has its origin in the Pendleton Act of 1883 which 

was passed following the assassination of President Garfield in 1881 by a frustrated Federal 

job seeker. The Pendleton Act created the Civil Service Commission (CSC or the 

Commission) and provided the foundation for improvements in Government efficiency and 

effectiveness by helping to ensure that a stable, highly qualified Federal workforce, free from 

partisan political pressure, was available to provide effective service to the American people. 

Over time, it became clear that the CSC could not properly, adequately, and simultaneously 

set managerial policy, protect the merit systems, and adjudicate employee appeals. Concern 

over the inherent conflict of interest in the CSC’s role as both rule-maker and judge was a 

principal motivating factor behind the passage of the Civil Service Reform Act of 1978

(CSRA). The CSRA replaced the Civil Service Commission with three new agencies: MSPB

as the successor to the Commission; the Office of Personnel Management (OPM) to serve

as the President’s agent for Federal workforce management policy and procedure; and the 

Federal Labor Relations Authority to oversee Federal labor-management relations.1

The MSPB inherited the adjudication functions of the Commission by providing due process 

to employees and agencies as an independent, third-party adjudicatory authority for 

employee appeals of adverse actions and retirement decisions. Since the CSRA, Congress has 

given jurisdiction to MSPB to hear cases and complaints filed under a variety of other laws.2

 1 Bogdanow, M., and Lanphear, T., History of the Merit Systems Protection Board, Journal of the Federal 

Circuit Historical Society, Volume 4, 2010.

MPSB was given the authority to develop its adjudicatory processes and procedures, issue 

2 Including the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Veterans 

Employment Opportunity Act (VEOA), and the Whistleblower Protection Act (WPA) Chapter 43 of Title 5 

and all those set out at 5 Code of Federal Regulations, 1201.3.
2

subpoenas, call witnesses, and enforce compliance with final MSPB decisions. MPSB was 

also given broad new authority to conduct independent, objective studies of the Federal 

merit systems and Federal human capital management issues. MSPB was also given the 

authority and responsibility to review and act on the regulations of OPM and review and 

report on the significant actions of OPM.3 

Board Members

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

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

appointed by the President, confirmed by the Senate, and serve overlapping, non-renewable 

7-year terms. The Board Members adjudicate the cases brought to MSPB. The Chairman, by 

statute, is the chief executive and administrative officer of MSPB. 

SUSAN TSUI GRUNDMANN 

Chairman

November 2009 to Present

Susan Tsui Grundmann was nominated by President Barack 

Obama on July 31, 2009 to serve as a Member and 

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

was confirmed by the U.S. Senate on November 5, 2009 and 

sworn in on November 12, 2009. Chairman Grundmann’s 

term expires on March 1, 2016. 

Previously, Ms. Grundmann served as General Counsel to 

the National Federation of Federal Employees (NFFE), 

which represents 100,000 Federal workers nationwide and is 

affiliated with the International Association of Machinist and 

Aerospace Workers. At NFFE, she successfully litigated cases in the U.S. District Court for 

the District of Columbia and the U.S. Court of Appeals for the District of Columbia. In 

2004, Ms. Grundmann represented NFFE and other labor unions in the statutory “meet and 

confer” process with officials from the Department of Homeland Security (DHS) and the 

Office of Personnel Management (OPM), which sought agreement on how to proceed with 

new DHS personnel regulations. She represented NFFE and the United Department of 

Defense Workers Coalition, consisting of 36 labor unions, and has served on the Coalition’s 

litigation team in a coordinated response to proposed personnel changes at the Department 

of Defense (DoD). In addition to DoD employees, Ms. Grundmann represented employees 

in the Forest Service, Department of Agriculture, Passport Services, Veterans 

Administration, General Services Administration, and some 25 additional Federal agencies. 

From 2003 to 2009, she was a regular instructor on Federal sector labor and employment 

law at the William W. Winpisinger Education Center in Placid Harbor, Maryland. Prior to 

 

3 Title 5 U.S.C. § 1204, MSPB may on its own motion, or at the request of other parties, review, and 

potentially overturn OPM regulations if such regulations, or the implementation of such regulations, would 

require an employee to commit a Prohibited Personnel Practice (PPP). 5 U.S.C., § 1206, MSPB is also 

responsible for annually reviewing and reporting on the significant actions of OPM.
3

joining NFFE, Ms. Grundmann served as General Counsel to the National Air Traffic 

Controllers Association. She began her legal career as a law clerk to the judges of the 

Nineteenth Judicial Circuit of Virginia, and later worked in both private practice and at the 

Sheet Metal Workers National Pension Fund. Chairman Grundmann earned her 

undergraduate degree at American University and her law degree at Georgetown University 

Law Center. 

ANNE M. WAGNER

Vice Chairman

November 2009 to Present

Anne M. Wagner was nominated by President Barack 

Obama on July 31, 2009 to serve as a Member of the 

U.S. Merit Systems Protection Board with the 

designation of Vice Chairman. Her nomination was 

confirmed by the U.S. Senate on November 5, 2009 and 

she was sworn in November 12, 2009. Ms. Wagner’s 

term expires on March 1, 2014.

Ms. Wagner comes to the Merit Systems Protection 

Board after serving as General Counsel of the Personnel 

Appeals Board of the U.S. Government Accountability 

Office (GAO). Prior to that, Ms. Wagner was appointed 

by the U.S. Comptroller General to serve a five-year 

statutory term as a Member of the GAO Personnel Appeals Board. Ms. Wagner began her 

career as a staff attorney in the Office of the General Counsel for the General Services 

Administration, where she primarily handled labor and employment issues. From there, she 

went on to become an Assistant General Counsel for the American Federation of 

Government Employees (AFGE), AFL-CIO, the largest Federal sector labor organization 

representing more than 600,000 Federal and District of Columbia government employees. In 

her nearly twenty years with AFGE, she led precedent setting litigation and handled cases 

arising under the full array of laws governing Federal employment. Ms. Wagner graduated 

from the University of Notre Dame and received her J.D. from the George Washington 

University, National Law Center. She is admitted to practice law in the District of Columbia, 

Maryland, and Illinois as well as before various Federal courts, including the U.S. Supreme 

Court. 
4

MARY M. ROSE

Vice Chairman 

January 2006 – November 2009 

Board Member 

November 2009 to Present

Mary M. Rose was sworn in as a Board Member on 

December 28, 2005, following her confirmation by the 

Senate on December 17, 2005. She was designated by 

President Bush as Vice Chairman of the U.S. Merit 

Systems Protection Board on January 27, 2006 and 

served in that role until a new Vice Chairman was sworn 

in November 2009. Mrs. Rose’s appointment as Board 

Member will expire on March 1, 2011. 

Prior to joining the Board, Mrs. Rose was appointed by 

President Bush to serve as Vice Chairman of the Federal 

Salary Council. She was Chairman of the Federal Prevailing Rate Advisory Committee where 

she advised the Director of the U.S. Office of Personnel Management on Federal pay, 

benefits, and other policy issues. Previously, Mrs. Rose served as Deputy Associate Director 

of the Office of Presidential Personnel at the White House. She served four years as the 

Elected Clerk of the Circuit Court, Anne Arundel, Maryland. Mrs. Rose has also served as 

Assistant Director for Executive Administration, Office of Personnel Management; Director 

of Personnel, White House Personnel Office; and Deputy Undersecretary for Management 

at the Department of Education. Her private sector experience includes positions as a 

consultant with an Annapolis law firm and as a Visiting Fellow with The Heritage 

Foundation where she recruited, interviewed, and recommended Presidential appointments 

to the George W. Bush transition team. Mary M. Rose received an R.N. degree from the 

Bon Secours Hospital School of Nursing, and she completed the Maryland Registered Nurse 

Recertification Program in May 2000.

NEIL A. G. McPHIE

Chairman

December 2003 – November 2009

Neil A. G. McPhie served as Chairman of the U.S. Merit 

Systems Protection Board from December 2003 to 

November 2009. He was confirmed as Chairman of the 

Board on November 21, 2004, having served as Acting 

Chairman since December 10, 2003, when President 

Bush designated him to be Vice Chairman. He was 

sworn in as a member of the Board on April 23, 2003, 

following his recess appointment by President Bush. 

Chairman McPhie’s term expired on March 1, 2009, and 

statutory provisions permitted him to serve until the new 

Chairman was sworn in on November 12, 2009. 
5

Board offices and their functions

The agency is divided into seven headquarters offices in Washington, DC, and eight regional 

and field offices located throughout the United States. The agency is currently authorized to 

employ 226 Full-time Equivalents (FTEs) to conduct and support its statutory duties. The 

Office Directors report to the Chairman through the Executive Director.

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

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

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

other cases assigned by MSPB. The functions of this office are currently performed by ALJs 

at the National Labor Relations Board (NLRB), the Federal Communications Commission 

(FCC), and the Environmental Protection Administration (EPA) under reimbursable 

interagency agreements.

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

for the Board in cases where a party Petitions for Review (PFRs) of an Administrative 

Judge’s (AJ) initial decision and in most other cases decided by the Board. The office 

prepares proposed decisions on interlocutory appeals of rulings made by judges, makes 

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

policy memoranda and advice to the Board on legal issues.

The Office of the Clerk of the Board receives and processes cases filed at MSPB 

headquarters, rules on certain procedural matters, and issues MSPB decisions and orders.

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

produces public information publications, operates MSPB’s library and on-line information 

services, and administers the Freedom of Information Act and Privacy Act programs. The 

office also certifies official records to the courts and Federal administrative agencies, and 

manages MSPB’s records systems, legal research systems, and the Government in the 

Sunshine Act program.

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

equal employment opportunity programs. It processes complaints of alleged discrimination 

brought by agency employees and provides advice and assistance on affirmative employment

initiatives to MSPB’s managers and supervisors.

The Office of Financial and Administrative Management administers the budget, 

accounting, travel, time and attendance, human resources, procurement, property 

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

coordinates internal management programs, including review of agency internal controls. It 

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

Agriculture, National Finance Center for payroll services, U.S. Department of the Treasury, 

Bureau of the Public Debt for accounting services, and U.S. Department of Agriculture, 

Animal and Plant Health Inspection Service for human resources management services.

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

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

represents MSPB in litigation; prepares proposed decisions for the Board to enforce a final 
6

MSPB decision or order, in response to requests to review OPM regulations, and for other 

assigned cases; conducts the agency’s petition for review settlement program; and 

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

drafts regulations, conducts MSPB’s ethics program, and plans and directs audits and 

investigations.

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

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

and carry out its administrative and research responsibilities.

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

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

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

The office provides information and advice to Federal agencies on issues that have been the 

subject of MSPB studies. The office also conducts special projects for the agency and has 

responsibility for preparing MSPB’s strategic and performance plans and performance 

reports required by the Government Performance and Results Act.

The Office of Regional Operations oversees the agency’s six regional and two field offices, 

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

Appeals Program (MAP). AJs in the regional and field offices are responsible for 

adjudicating assigned cases and for issuing fair, well-reasoned, and timely initial decisions.

Organization chart

CHAIRMAN MEMBER

General Counsel

Equal 

Employment

Clerk of the 

Board

Administrative 

Law Judge Regional 

Operations

Appeals Counsel Policy and 

Evaluation

Regional Offices 

Atlanta, Chicago,

Dallas,

Philadelphia,

San Francisco and 

Washington, DC 

Field Offices 

Denver and

New York

Financial and 

Administrative 

Management

Information 

Resources 

Management

Executive 

Director

Human Resources Management services are provided by 

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

Payroll services are provided by USDA's 

National Finance Center.

Accounting services are provided by the Department of the Treasury’s 

Bureau of the Public Debt.

VICE CHAIRMAN

U.S. Merit Systems Protection Board
7

Fiscal Year in Review

Changes in Board membership and senior leadership

Chairman Susan Tsui Grundmann and Vice Chairman Anne Wagner were sworn in on 

November 12, 2009, giving MSPB a full contingent of three confirmed Board Members for 

the first time in over a year. In addition, Steve Lenkart was appointed as the Executive 

Director, James Eisenmann was appointed as the General Counsel, and Ernest Cameron was 

selected as the Director of the Office of Financial and Administrative Management. These 

leaders bring a wealth of private sector and Government experience that will help MSPB 

continue its success now and in the next several years. 

Adjudication 

The MSPB decided initial appeals and PFRs in accordance with the laws and regulations 

governing such appeals. MSPB issued 7,863 decisions in FY 2010, slightly fewer than the 

7,998 decisions issued in FY 2009. The regional and field offices continued to issue timely, 

high quality initial decisions. While processing of PFRs slowed somewhat during FY 2010, 

MSPB headquarters offices continued to issue timely, high quality decisions. MSPB provided 

a full menu of successful alternative dispute resolution options to its customers, including 

settlement programs in the regions, field offices, and headquarters, the Mediation Appeals 

Program, and the availability of administrative judges (AJs) separately designated for 

settlement of a case. MSPB also conducted outreach to its adjudication stakeholders 

including agencies, unions, and advocacy groups. 

The agency took significant actions beginning in FY 2010 to improve the transparency of its 

adjudication processes and decisions at headquarters. For the first time in 24 years, the 

Board heard oral arguments in a case with broad impact on the Government and the merit 

systems. In September 2010, the Board heard arguments in Conyers v. Department of Defense

and Northover v. Department of Defense on issues involving the Board’s jurisdiction in reviewing 

adverse action cases involving the agency’s revocation of a tenured employee’s eligibility to 

hold a non-critical sensitive position. In early FY 2011, the Board heard oral arguments in 

Aguzie, et al. v. Office of Personnel Management, a set of cases involving the application of Title 5, 

U.S.C., Chapter 75 to cases in which OPM initiated removal of tenured employees based on 

suitability grounds. The Board expects to continue to hear oral arguments in cases that have 

broad Governmentwide impact on the Federal civil service and the merit systems. In 

addition, the Board began issuing expanded explanations of its rationale in non-published

decisions on PFRs of certain initial decisions. The additional information is intended to 

promote understanding of the Board’s decisions by the parties.4 We expect that in the future 

many non-published decisions will include such expanded explanations. 

This report contains case processing statistics, which include detailed information regarding 

the type, origin, and disposition of cases processed by MSPB. This report also contains brief 

 4 Between June 1, 2010 and September 30, 2010, the Board issued approximately 279 decisions. (Cases that 

were joined or consolidated were only counted once.) Of these, 115 were traditional published opinions and 

orders (O&Os). Of the 164 non-published orders, 120, or 73 percent, included expanded information on the 

rationale of the decision.
8

summaries of the most significant Board decisions issued in FY 2010 which addressed such 

issues as adverse actions, jurisdiction, retirement, discrimination, veterans’ rights, 

whistleblower protection, compliance, and Board procedures. As a service to our 

stakeholders, we also we also include summaries of four Board decisions issued in early FY 

2011.5 In addition, we include summaries of significant opinions issued during FY 2010 by 

the U.S. Court of Appeals for the Federal Circuit and by the U.S. Supreme Court that were 

relevant to our work.

Merit systems studies

The MSPB completed five external reports dealing with a variety of topics, including 

supervisory preparedness, Prohibited Personnel Practices (PPPs), Federal employee

competencies and how to obtain them, whistleblowing protections and the law, as well as the 

FY 2009 MSPB annual report. MSPB completed four editions of the Issues of Merit newsletter 

and began posting revolving content to the studies webpage. MSPB successfully 

administered the 2010 Merit Principles Survey to over 70,000 Federal employees and 

supervisors, with a 60 percent response rate for the online survey. 

MSPB studies continued to be cited by numerous print and online sources, by stakeholder 

groups such as unions and non-profit groups interested in Federal employment issues, and 

in Congressional testimony. Several longstanding MSPB policy recommendations were 

included in the President’s 2010 hiring reform initiative, introduced through the Presidential 

Memorandum—Improving the Federal Recruitment and Hiring Process. These recommendations 

include making the application process less complex; improving communication with 

applicants; improving the quality of job announcements; improving the validity and reliability 

of applicant assessment tools; educating and involving selecting officials more in the 

recruitment and selection process; and replacing the rule of three with category rating. 

Summaries of MSPB study reports and newsletter topics are provided later in this report.

Review of the significant actions of the Office of Personnel Management

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

actions of OPM to ensure that these actions conform with Merit Principles (MPs) and do 

not result in PPPs. MSPB reviewed OPM’s new strategic plan, and reviewed policy initiatives 

including the President’s hiring reform initiative, OPM support for hiring reform, improving 

agency use of recruitment, relocation and retention incentives, and support of agency labormanagement forums. MSPB also reviewed OPM’s actions on hiring students and recent 

graduates, including the Federal Career Intern Program (FCIP). The full review of OPM 

actions on FCIP and hiring students and recent graduates includes previous work of the 

Board and significant actions taken in early FY 2011, namely decisions on FCIP issued by 

 5 The decisions from the Board’s oral arguments in Conyers and Northover were issued in December 2010. The 

decisions in Dean v. Office of Personnel Management and Evans v. Department of Veterans Affairs were released in 

November 2010 and are related to OPM’s significant actions on the Federal Career Intern Program (FCIP) and 

hiring students and recent graduates. More information about the FCIP and hiring of students and recent 

graduates may be found in the review of OPM significant actions. The decisions in Chambers v. Department of 

Interior, Aguzie v. Office of Personnel Management, and Barnes v. Office of Personnel Management were released in January 

2011.
9

the Board, subsequent release of Presidential Executive Order 13562 on hiring students and 

recent graduates, and related OPM guidance on the Executive Order. MSPB also reviewed 

OPM’s significant actions related to the delivery of products and services, including the 

expansion of employee work-life, benefit and support programs, and the proposal for a 

health claims data warehouse. Additional information about OPM’s significant actions is 

included later in this report.

Review of MSPB international activities

In FY 2010, MSPB participated in a number of international activities that were designed to 

inform and educate participants about the U.S. civil service. MSPB hosted a number of 

meetings at MSPB headquarters to educate representatives from foreign governments about 

the role of merit in the civil service and portray the advantages of equitable treatment in 

managing a public workforce. In particular, we met with dignitaries from different provinces 

in China on six occasions and hosted the Minister of Public Administration and the 

accompanying delegation from Kosovo. We also provided assistance to the Japanese 

National Personnel Authority when they requested information on Air Traffic Controller 

selection and training. In addition, the Director of OPE was invited to Taiwan to make a 

presentation on public administration in the 21st century for an international conference 

Taiwan was hosting. The Director also met with the President of the Taiwanese Civil 

Service, and provided a briefing to members of the Taiwanese civil service concerning issues 

involving the management of the U.S. civil service. 

Legislative and congressional relations update 

On July 31, 2009, the President nominated Susan Tsui Grundmann to be a Member and 

Chairman of the Merit Systems Protection Board. He also nominated Anne Marie Wagner to 

be a Member of the Board with the designation of Vice Chairman. On November 5, 2009, 

the Senate voted to confirm the nominations of Ms. Grundmann and Ms. Wagner, and they 

were both sworn in on November 12, 2009. Chairman Grundmann’s term expires on March 

1, 2016, and Vice Chairman Wagner’s term expires on March 1, 2014.

On January 20, 2010, President Obama nominated Dennis Walsh to be Chairman of the 

Special Panel on Appeals. The Senate confirmed his nomination on June 22, 2010, and he 

was sworn in by Chairman Grundmann on July 29, 2010. The Chairman of the Special Panel 

on Appeals is a position established by the Civil Service Reform Act of 1978 to address 

“mixed” cases that involve issues concerning both MPs and anti-discrimination principles as

applied to Federal employees. When such cases occur, the Chairman of the Special Panel 

constitutes a Special Panel, consisting of himself, a Member of MSPB, and a Member of the 

EEOC. Mr. Walsh’s term expires on June 21, 2016.

The Consolidated Appropriations Act of 2010 (Pub. Law 111-117) provided FY 2010 

appropriations for the MSPB in the amount of $40,339,000. The appropriated funds 

included reimbursements from the Civil Service Retirement and Disability Fund not to 

exceed $2,579,000 for administrative expenses incurred in connection with the adjudication 

of retirement appeals. Chairman Grundmann conducted meetings with members of the 

House and Senate to discuss MSPB’s request for reauthorization. No legislative action 

occurred on the authorization request during FY 2010.
10

On December 10, 2010, the Senate passed S. 372, the Whistleblower Protection 

Enhancement Act of 2010. The House suspended further action on H.R. 1507, its version of 

the bill, but sought to take action on the Senate bill. Among other things, the Senate version 

of the bill: (1) authorizes MSPB to assess attorney’s fees and court costs in certain cases; (2) 

requires MSPB to report annually the number and outcome of whistleblower cases filed with 

the agency; (3) permits appellants to seek de novo review in U.S. district court of cases filed 

with MSPB and; (4) removes the exclusive jurisdiction of the Court of Appeals for the 

Federal Circuit and permits any U.S. Federal Circuit Court to hear appeals of MSPB 

decisions in whistleblower cases. According to the analysis of the Senate version of this 

legislation provided to the Congressional Budget Office by MSPB, the bill would likely lead 

to 350 additional cases filed in MSPB’s regional and field offices each year, an additional 225 

hearings per year, and an additional 64 case receipts at MSPB headquarters each year.6

On September 29, 2010, the Senate passed a compromise version of the Telework 

Enhancement Act (H.R. 1722), and the President signed the Act into law on December 9, 

2010. Under the Act, agencies have 180 days to establish a telework policy for eligible 

teleworkers, determine which employees are eligible for telework, and notify employees of 

their eligibility. Agencies must also establish a telework training program for employees and 

managers, include telework in their agency continuity of operations plans (COOP), designate 

a telework manager with direct access to the agency head, and provide yearly progress 

reports to OPM. MSPB, which by statute is required to “conduct special studies relating to 

the civil service, and to other merit systems in the executive branch,” could have a new role 

under this legislation. Section 4(a)(2) of the Act requires the Director of OPM to “review the 

outcomes associated with an increase in telework, including the effects of telework on energy 

consumption, job creation and availability, urban transportation patterns, and the ability to 

anticipate the dispersal of work during periods of emergency.” Section 4(c) provides that: 

“The heads of Federal agencies with relevant jurisdiction over the subject matters in 

subsection (a)(2) shall work cooperatively with the Director of the Office of Personnel 

Management to carry out that subsection, if the Director determines that coordination is 

necessary to fulfill obligations under that subsection.”

Internal management programs

Beginning in November 2009, MSPB conducted several major initial reviews and internal 

assessments (some of which are ongoing). These reviews and assessments included: top-tobottom reviews of our strategic direction, performance planning, and performance 

measurement; historic review of internal resource management and support processes and 

their outcomes; and a general review of how the agency conducts business, makes decisions, 

and ensures accountability. Reviews of the adjudication and studies programs, including their 

legislative mandate and history, current funding, staffing levels, and program outcomes were 

also conducted. Information was gathered from process participants, agency managers and 

employees, and external stakeholder groups in face-to-face meetings, by email and via 

electronic survey. The results of these reviews brought to light internal management 

challenges in mission planning and effectiveness, budgetary planning and resources 

 6 This legislation was not enacted into law in the 111th Congress.
11

management, and management processes that affect our ability to successfully achieve our 

mission in both the short and long term.

In terms of overall mission planning and ensuring optimum effectiveness, results indicated 

there has been little to no review of OPM regulations, which is one of our statutory 

functions7, and a need for better integration between performance goals and the annual 

budget process. Adjudication issues include external concern about MSPB time constraints 

and their impact, more effectively balancing measures of adjudication quality, fairness, and 

timeliness, increasing outreach to improve adjudication effectiveness and efficiency, and 

increasing the emphasis on enforcement of compliance decisions.8 Merit systems studies 

issues include improving the distribution, promotion, and outreach of study results and 

recommendations, and improving our ability to administer surveys. Overall agency 

management issues include justifying budgets to support the full mission thus eliminating the 

routine use of hiring freezes to offset operational requirements, improving workforce 

planning, and establishing an accurate and stable FTE structure.

The MSPB made considerable changes and improvements in these areas in FY 2010. We 

began developing a new outcome oriented strategic plan focused on MSPB’s responsibility 

for protecting merit, promoting MPs, and preventing PPPs, and began planning on how to 

strengthen and integrate oversight of OPM regulations into daily operations. We 

reconstructed the budget process to fully involve managers and addressed previous budget 

inadequacies. We improved the transparency of our adjudication processes and decisions 

including the use of oral arguments and expanding the explanations supporting our nonpublished PFR decisions at headquarters. We solicited considerable stakeholder input to our 

new studies research agenda and held a Sunshine Act meeting on the research agenda in 

December of 2010. In addition, stakeholders can now follow MSPB on Twitter

(@USMSPB). We also created an Executive Committee of all SES, chaired by the Executive 

Director, and created a labor-management council to facilitate open communication with the 

Professional Association. Additional information about our internal challenges is available in 

MSPB’s FY 2010 Performance and Accountability Report.

Significant external trends and issues

The most significant external trends or issues affecting MSPB’s ability to carry out its 

mission to protect the Federal merit systems include changes in law and jurisdiction, changes 

in management and employee flexibilities, veteran’s rights and changing demographics of the 

workforce, and continued pressure on the Federal budget. 

Changes in law and jurisdiction

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

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

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

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

 7 Title 5, U.S.C. § 1204(a)(4)

8 Title 5, U.S.C. § 1204(a)(2)
12

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

such claims are frequently raised as affirmative defenses to actions that are appealable (thus 

known as “mixed” cases). The broader interpretation and expanded rights afforded by the 

ADA Amendments Act will likely make some MSPB appeals more complex and may 

encourage additional claims. 

The MSPB may see an increase in the number of appeals related to implementation of the 

Postal Service’s National Reassessment Project (NRP). While most Postal Service nonpreference eligible employees do not have appeal rights to MSPB for an adverse action, 

appeals from NRP-related actions raise issues concerning the restoration to duty statute and 

regulations, which cover a much broader category of employees. MSPB expects to continue 

to see an increasing number of restoration to duty appeals from Postal Service employees.

Changes in appeal rights and appellate jurisdiction also increase the importance of MSPB’s 

statutory responsibility to promote merit and educate employees, supervisors, managers, and 

leaders on the merit system, MPs, PPPs, and MSPB appellate procedures, processes, and 

case law. Educating and promoting merit and sharing important information about appeals 

procedures will improve workforce management, and reduce the cost of appeals to agencies, 

appellants, and the Government. 

Changes in management and employee flexibilities

Changes in management flexibilities could involve employees in single agencies such as those 

in the Department of Defense (DoD) National Security Personnel System (NSPS). The 

National Defense Authorization Act (NDAA) for FY 2010 (Public Law 111-84) requires 

DoD to transfer all employees and positions from NSPS by January 1, 2012. As 

management flexibilities are used, and as employees move from more flexible systems such 

as NSPS back to the traditional system under Title 5, it is possible that MSPB could see an 

increase in its appeals workload as well as increased complexity in the various legal 

authorities and precedents used to decide these appeals. Management flexibilities may also 

affect several agencies at a time. The American Recovery and Reinvestment Act may result 

in considerable hiring by some Federal agencies. It appears that some of this hiring will be 

under appointing authorities that exclude appeal rights which may generate appeals before

MSPB arguing to the contrary. Of course, any additional hiring that does grant appeal rights 

may generate an increased number of appeals as well.

Management flexibilities may also be directed through administrative action such as the 

Presidential Initiative on Hiring Reform. These flexibilities include the use of category rating, 

eliminating the need for applicants to submit Knowledge, Skills, and Abilities (KSA) 

narratives for each application, the use of multiple hurdles in recruitment and assessment, 

and shortened hiring times. These initiatives have great potential to improve the 

effectiveness and efficiency of Federal hiring. However, how these processes are 

implemented could have either a positive or adverse impact on merit or the perception of 

merit. 

Federal management flexibilities also emphasize the need for MSPB to continue its study of 

Federal merit systems and human capital management practices to ensure the flexibilities are 

implemented and operated in accordance with MPs and are free from PPPs. Flexibilities and 
13

other changes in human resource management policies issued through OPM regulation 

make it imperative that MSPB strengthen and expand its ability to exercise its statutory 

authority to review OPM regulations. Reviewing OPM regulations can save the Government 

millions in direct costs such as those associated with transferring employees in and out of 

more flexible systems that are later terminated, and in indirect costs associated with negative 

employee perceptions of the new system and possible reductions in morale. Finally, changes 

in management flexibilities also increase the importance of MSPB’s role in promoting and 

educating employees and the public about the merit system, MPs, and PPPs. 

Veteran’s rights and changing demographics of the Federal workforce

In FY 2010, MSPB received a combined total of 1,012 cases (slightly fewer than the 1,072 

cases processed in FY 2009) under two related veterans’ rights laws, the Uniformed Services 

Employment and Reemployment Rights Act (USERRA) and the Veterans Employment 

Opportunities Act (VEOA). Veterans who seek employment in the Federal civil service and 

are not hired have the right to seek redress for any alleged violation of their veterans’ 

preference rights before MSPB under the VEOA. VEOA provides a means of redress for 

any violation of an individual’s rights under any statute or regulation relating to veterans’ 

preference. Individuals who left employment in the Federal civil service to serve in the 

military have the right to reemployment in the Federal civil service and to challenge the 

terms (or denial) of reemployment before MSPB under USERRA. MSPB expects to 

continue to receive a large number of cases under these veterans’ rights laws as our nation 

remains engaged in major military conflicts.

The proportion of retirement-eligible Federal employees continues to increase. While current 

economic conditions may delay the retirements of some of these Federal employees, it is still 

likely that retirements will increase in the next few years. As retirements increase, we might 

expect to see an increase in retirement appeals. Changes in Federal retirement such as 

allowing employees in the Federal Employees Retirement System (FERS) to claim service 

credit toward retirement for their sick leave balance, and allowing full-time Federal 

employees to end their careers in a part-time status without adversely affecting the amount 

of their annuity, may either decrease or increase retirement rates, and thus may impact 

retirement appeals. As the government replaces retiring employees with relatively younger, 

less experienced employees, there is likely to be a decrease in the average age of the 

workforce. As this occurs, we may expect to see an increase in appeals because less 

experienced employees typically experience more appealable actions than do more 

experienced employees. 

In addition to changes in workforce demographics, Government work has continued to shift 

from administrative processing, to knowledge-based work. Federal human resources 

management systems, many designed in the 1940s and 1950s, do not have the flexibility 

needed to manage a knowledge-based workforce effectively. Issues, including recruitment 

and hiring, performance management and pay, training and development need to be 

addressed in order to improve and maintain a diverse workforce of highly engaged and 

motivated employees who can perform agency missions and serve the public. At the same 

time, MPs, fair treatment, and freedom from discrimination and from PPPs must be 

ensured. Improvements are also needed in the selection and training of supervisors and 

managers who must use the existing management systems to manage a modern workforce 
14

and achieve results for the public. These changes emphasize the need for a strong merit 

systems studies function and increased focus on promoting and educating employees and the 

public about the merit systems, MPs, and PPPs.

The Federal budget

The recently enacted freeze in Federal pay may increase retirement and is likely to have some 

adverse impact on employee morale and productivity. At the same time, freezing pay may 

also shift employees’ attention to performance appraisal systems and ratings which could in 

turn increase appeals to MSPB. Increasing budget pressures may also result in a greater 

potential for other agencies to cut costs by decreasing the size of their workforce through 

reduction in force (RIFs), reducing or freezing hiring, or reducing training. Reducing the 

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

involuntarily through RIF. Historical trends indicate that increasing RIFs will lead to 

potentially large increases in the number of appeals to MSPB. 

Freezing employee pay and possible reductions in hiring and workforce training may also 

have long-term impacts on MPs such as the efficiency and effectiveness of the workforce. 

Employees may perform better and refrain from misconduct in an effort to keep their jobs. 

On the other hand, employees may experience more workplace conflict and other behavioral 

and performance issues due to the stress caused by economic conditions over which they 

have no control. Emphasis on merit systems studies is important to continue to gather 

longitudinal data on adherence to MPs and avoidance of PPPs as changes occur in the 

workforce. It is also important to promote merit and educate the workforce, especially 

managers and leaders, about how to adhere to MPs and avoid PPPs when making 

management decisions such as those related to reducing the workforce. 
15

Significant Board Decisions and Court Opinions

The MSPB issued a substantial number of noteworthy decisions in FY 2010, several of 

which are summarized below. Brief summaries of a selected significant opinions issued by 

the United States Court of Appeals for the Federal Circuit and the United States Supreme 

Court are also provided as a service to our stakeholders. 

Significant decisions issued by the Board

Jurisdiction 

Abdullah v. Department of the Treasury, 113 M.S.P.R. 99 (2009): This decision addressed 

whether an employee dismissed during his probationary period might be an “employee” with 

adverse action appeal rights. Remand was necessary to determine if the appellant’s 

appointment constituted a reinstatement under Subpart D of Part 315. If so, and if he met 

the criteria of 5 C.F.R. § 315.801(a)(2), he would be an employee with adverse action appeal 

rights under 5 U.S.C. § 7511(a)(1)(A)(i) when the agency terminated his appointment. 

Sandoval v. Department of Agriculture, 115 M.S.P.R. 71 (2010): The issue in Sandoval was 

whether two positions worked consecutively were in the “same line of work” so that the 

appellant’s service in one position could be tacked to his service in the other so that he 

would be an “employee” under 5 U.S.C. § 7511 with adverse action appeal rights, instead of 

the more limited rights afforded probationary employees. In resolving this issue in the 

affirmative, the Board relied on decisions by its reviewing court that warned against a narrow 

interpretation of the relevant statutory provisions and against placing too much emphasis on 

job description dissimilarities, explaining that the focus should be on the skills and 

fundamental character of the positions in question. The Board also noted an MSPB study 

emphasizing that the purpose of probationary periods is to provide the government with an 

opportunity to evaluate an individual’s conduct and performance to determine if an 

appointment to the civil service should be final, and that purpose was satisfied here. 

Scull v. Department of Homeland Security, 113 M.S.P.R. 287 (2010): The termination of an intern 

appointed under the Federal Career Intern Program (FCIP) upon the expiration of his 

internship is generally not an adverse action appealable to the Board. However, an FCIP 

intern who is separated from service upon the expiration of his internship may establish 

Board jurisdiction by establishing the following: (1) Immediately prior to his FCIP 

appointment, he held a career or career-conditional appointment to the same agency; (2) his 

failure to complete the internship successfully was for reasons unrelated to misconduct or 

suitability; and (3) he is an “employee” within the meaning of 5 U.S.C. § 7511. 

Adverse Actions 

Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318 (2010): The mere existence of 

an open investigation into allegations regarding an employee’s off-duty conduct is not 

“cause” for taking an action under subchapter II of chapter 75, where the agency is not 

basing its action upon reasonable cause to believe that the appellant has committed a crime 

for which imprisonment may be imposed. Before the Board can reach the issue of whether 
16

an agency action “promotes the efficiency of the service,” the agency must first establish that 

there is “cause” under § 7513(a). Where the agency’s pending inquiry into allegations against 

the appellant is not actionable “cause,” the agency’s arguments regarding the efficiency of 

the service are immaterial. 

Doe v. Department of Justice, 113 M.S.P.R. 128 (2010): An agency may show a nexus between 

off-duty misconduct and the efficiency of the service by any of three means: (1) a rebuttable 

presumption in certain egregious circumstances; (2) preponderant evidence that the

misconduct adverse affects the appellant’s or co-workers’ job performance or the agency’s 

trust and confidence in the appellant’s job performance; or (3) preponderant evidence that 

the misconduct interfered with or adversely affected the agency’s mission. The agency 

established that the appellant’s unprofessional conduct of videotaping his sexual encounters 

with two FBI employees adversely affected the job performance of those employees, as well 

as the job performance of other employees and the efficiency of the office as a whole. 

Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657 (2010): One of the factors in 

assessing the reasonableness of a penalty is the consistency of the penalty with those 

imposed on other employees for the same or similar offenses. To establish disparate 

penalties, an appellant must show that the charges and circumstances surrounding the 

charged behavior are substantially similar. Under recent precedent, establishing that the 

charges and circumstances surrounding the charged behavior are substantially similar has 

required proof that the proffered comparator was in the same work unit, with the same 

supervisor, and was subjected to the same standards governing discipline. Consistent with 

the rationale of the Board’s reviewing court in Williams v. Social Security Administration, 586 

F.3d 1365 (Fed. Cir. 2009).

Woebcke v. Department of Homeland Security, 114 M.S.P.R. 100 (2010): In affirming the 

mitigation of the removal penalty to a 14-day suspension, the Board found that the 

administrative judge properly analyzed the applicable Douglas factors in determining that the 

removal penalty exceeded the bounds of reasonableness, including the judge’s determination 

that the agency treated the appellant disparately compared to other similarly-situated 

employees. Although the fact that a comparator was supervised by a different individual may 

sometimes justify different penalties, an agency must explain why differing chains of 

command would justify different penalties. 

Restoration to Duty 

Urena v. U.S. Postal Service, 113 M.S.P.R. 6 (2009) and Barachina v. U.S. Postal Service, 113 

M.S.P.R. 12 (2009): In the case of an employee who has partially recovered from a 

compensable injury, an agency must make every effort to restore the individual to a position 

within her medical restrictions and within her local commuting area, and such an employee 

may appeal to the Board for a determination of whether the agency has acted arbitrarily and 

capriciously in denying restoration. Where the agency searches only the particular facility 

where the appellant had been employed for available work, and does not look elsewhere in 

the appellant’s local commuting area, as required by 5 C.F.R. § 353.301(d), the agency’s 

failure to comply with that regulation is sufficient to render nonfrivolous her allegation that 

the agency acted arbitrarily and capriciously in denying her restoration. 
17

Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345 (2010): In an appeal brought by a partially 

recovered employee, the Board found jurisdiction and remanded for further adjudication, 

including a determination of the applicable local commuting area. The local commuting area 

is the geographic area in which an individual lives and can reasonably be expected to travel 

back and forth daily to his usual duty station. The question of what constitutes a local 

commuting area is one of fact, which is ordinarily determined by factors such as common 

practice, the availability and cost of public transportation or the convenience and adequacy

of highways, and the travel time required to go to and from work. Regarding the appellant’s 

claim that the agency failed to accommodate his disability, OPM’s restoration regulation, 

5 C.F.R. § 353.301(d), requires treating employees substantially the same as individuals 

protected under the Rehabilitation Act of 1973. The relevant standards are those applied 

under the Americans with Disabilities Act, set forth at 29 C.F.R. part 1630. In resolving an 

appellant’s claim that the agency failed to accommodate his disability, an administrative judge 

should take into consideration the results of the interactive process required to determine an 

appropriate accommodation, in which both parties have an obligation to assist in the search 

for an appropriate accommodation, and both have an obligation to act in good faith in doing 

so. 

Luna v. U.S. Postal Service, 114 M.S.P.R. 273 (2010): In another appeal brought by a partially 

recovered employee, the Board rejected the agency’s argument that the appellant’s disability

discrimination claim should be held in abeyance because it is covered under a class 

complaint pending before the EEOC. The class complaint is not a mixed case, because 

nothing in the EEOC’s certification of the class complaint discusses denial of restoration or 

any other action that may be otherwise appealable to the Board. The appellant’s alleged 

membership in the class therefore does not divest the Board of jurisdiction over any aspect 

of her Board appeal. 

Chen v. U.S. Postal Service, 114 M.S.P.R. 292 (2010): In an appeal brought by a partially 

recovered employee, the Board found that the agency’s delay between the time the appellant 

was placed off work and when the agency completed its district-wide search for work for the 

appellant did not render its action arbitrary and capricious. Although an agency’s delay may 

constitute a denial of restoration when work is clearly available or when the delay is extreme 

and unexplained, the delay in this case was not lengthy and, during the period at issue, the 

agency was conducting an orderly search for work.

Kinglee v. U.S. Postal Service, 114 M.S.P.R. 473 (2010): In another appeal by a partially 

recovered employee, the Board found that the appellant presented a nonfrivolous allegation 

that the agency’s decision to reduce his limited duty from 8 hours to 90 minutes per day 

constituted a denial of restoration. This is not a case where an appellant is challenging the 

details or circumstances of the restoration, but is instead a situation where the agency is 

rescinding a previously provided restoration. The Board also found that denials of 

restoration for partially recovered employees do not give rise to a constructive suspension 

claim. In these circumstances, the appellant’s rights and remedies regarding the portion of 

his workday for which the agency has not assigned him work are subsumed in the 

restoration appeal process. If the appellant prevails on the merits of his claim, he would be 

entitled to relief that would address the agency’s failure to provide him with the proper 

hours of work each day. If the Board determines on the merits that the agency afforded the 
18

appellant the restoration rights to which he is entitled, it would be illogical to then hold that 

the agency’s proper restoration could constitute an improper constructive suspension. 

Dean v. U.S. Postal Service, 115 M.S.P.R. 56 (2010): An agency’s obligation to make every 

effort to restore a partially recovered individual “in the local commuting area” refers to the 

location of the individual’s former duty station, not the location of the individual’s current 

residence. 

Whistleblower Protections 

Weed v. Social Security Administration, 113 M.S.P.R. 221 (2010): In an individual right of action 

appeal, the appellant need not have been employed by the agency alleged to have taken a 

retaliatory personnel action when he made a protected disclosure. The language of the 

statute does not impose such a limitation which would be contrary to the well-established 

principle that, as a remedial statute, the Whistleblower Protection Act should be construed 

broadly. 

Schnell v. Department of the Army, 114 M.S.P.R. 83 (2010): The Board held that the appellant 

was entitled to corrective action in this individual right of action appeal. An employee’s nonselection for a temporary position and the threatened elimination of the employee’s 

positions are personnel actions under 5 U.S.C. § 2302(a)(2)(A). A Supervisory Quality 

Assurance Specialist established that he made protected disclosures regarding problems 

concerning a $109 million contract, in that he disclosed that the agency blurred lines of 

authority, confused surveillance concepts, employed inexperienced and untrained personnel, 

failed to provide necessary standards, and overpaid for service. At a minimum, these 

disclosures implicated a violation of law, rule, or regulation. In particular, these disclosures 

exposed potential violations of the Federal Acquisition Regulations, 48 C.F.R., part 46, 

relating to quality assurance in government contracting. 

Employment Discrimination 

Bowman v. Department of Agriculture, 113 M.S.P.R. 214 (2010): The appellant’s age 

discrimination claim was controlled by the Supreme Court’s decision in Gross v. FBL 

Financial Services, Inc., 129 S. Ct. 2343 (2009), even though Gross was decided after the hearing 

in this appeal. Under Gross, a plaintiff claiming age discrimination must prove by 

preponderant evidence that age was the “but-for” reason for the challenged adverse action. 

Under applicable Supreme Court precedent, when the Court applies a rule of federal law to 

the parties before it, that rule is the controlling interpretation and must be given full 

retroactive effect in all cases still open on direct review, regardless of whether the events 

predate or postdate the Court’s announcement of the rule.

Davis v. Department of the Interior, 114 M.S.P.R. 527 (2010): An evidentiary hearing need not be 

conducted for a claim of discrimination when there is no genuine dispute of material fact 

regarding discrimination. Nevertheless, an administrative judge must make findings of fact 

and conclusions of law on all material issues of fact and law presented in an appeal, and this 

duty extends to the dismissal of claims of prohibited discrimination. Accordingly, the 

appellant is entitled to a written decision on whether she has raised a genuine dispute of 

material fact regarding her affirmative defenses of race and sex discrimination. 
19

Special Counsel Disciplinary Actions 

Special Counsel v. Lee and Beatrez, 114 M.S.P.R. 57 (2010): The Board held that two Human 

Resource Specialists committed a prohibited personnel practice when they intentionally 

assisted the selecting official in giving an existing employee preferential treatment in filling a 

vacancy for a supervisory position. To establish a violation of 5 U.S.C. § 2302(b)(6), the 

Special Counsel must establish an intentional or purposeful taking of a personnel action in 

such a way as to give a preference to a particular individual for the purpose of improving his 

prospects. Whether a violation occurs turns on the agency officials’ intent, not the nature of 

the action itself. In reversing the administrative law judge’s findings, the Board found that 

the administrative law judge gave a sizable body of particularly telling circumstantial evidence

too little weight in favor of some direct testimony that was inconsistent with that body of 

evidence. As a result, the judge explained away serious contradictions between the testimony 

and the other less favorable evidence in the record, crafting an improbable account of the 

events leading up to the appointment in question. 

Veterans’ Rights 

Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209 (2010): In filling vacancies for 

“hybrid” Medical Records Technician positions under 38 U.S.C. § 7401(3), an agency must 

comply with the veterans’ preference requirements for the competitive service set forth in 

Title 5 of the U.S. Code. A policy of using veterans’ preference as a tie-breaker for equally 

qualified applicants is insufficient to meet these requirements. The agency was required to 

accept the appellant’s application, even though it was submitted after the closing of the 

vacancy announcement, pursuant to 5 U.S.C. § 3305(b), which is a statute relating to 

veterans’ preference, 5 C.F.R. § 332.311(a), OPM’s Delegated Examining Operations 

Handbook, Chapter 4, § A, and OPM’s VetGuide. The agency’s failure to accept the 

appellant’s application constituted a violation of veterans’ preference rights and warranted 

corrective action. 

Retirement 

Muyco v. Office of Personnel Management, 114 M.S.P.R. 694 (2010): Under 5 U.S.C. § 8334(c), an 

individual generally may make a deposit into the CSRS Retirement and Disability Fund if he 

is currently an “employee.” In 5 C.F.R. § 831.112(a)(2), OPM has interpreted § 8334(c) to 

permit an individual who is no longer employed by the federal government to make a 

deposit if he “retains civil service retirement annuity rights based on a separation from a 

position in which retirement deductions were properly withheld . . . in the Civil Service 

Retirement and Disability Fund,” and if his “annuity has not been finally adjudicated.” An 

individual may not make a deposit under § 8334 if he was not separated from a CSRScovered position and a retroactive deposit does not convert a non-covered position to a 

covered position.

Compliance 

Allen v. Department of Veterans Affairs, 112 M.S.P.R. 659 (2009): The general rule is that an 

agency materially breaches a clean record settlement if it discloses information regarding the 

rescinded adverse action to any third party. The presence of other pertinent contract 
20

language can create an exception to the general rule. Here, the agreement expressly provides 

that the agency’s Human Resources Officer “will truthfully respond regarding those matters 

required by law” if contacted for any employment inquiry or reference. This provision may 

reasonably be interpreted as permitting disclosure of removal-related information to a third 

party as required by law. The parties did not intend to preclude disclosure of removal-related 

information to the Office of Workers’ Compensation Programs (OWCP), and the agency 

was required by law to truthfully respond to OWCP’s request for information regarding the 

appellant’s performance and conduct issues. 

Board Procedures 

Bowen v. Department of the Navy, 112 M.S.P.R. 607 (2009): There is no requirement for an 

administrative judge to allow closing arguments or briefs after a hearing. 

Bradshaw v. Department of Veterans Affairs, 113 M.S.P.R. 650 (2010): An appellant’s negligent 

failure to inform his agency of a change of address cannot be the basis for deeming him to 

have constructively received the agency’s decision at an earlier date for purposes of 

determining whether an appeal was timely filed under the Board’s regulations. 

Significant Board decisions released in early FY 2011 

The Board released two important decisions in early FY 2011 that are summarized here 

because they relate to other significant actions in FY 2010 and as a service to our 

stakeholders.

Jurisdiction 

Conyers and Northover v. Department of Defense, 2010 MSPB 247 and 2010 MSPB 248: At issue 

in these interlocutory appeals was whether, in adjudicating an adverse action based on the 

denial or revocation of an employee’s eligibility to occupy a position designated as noncritical sensitive (NCS) under the Department of Defense Personnel Security Program 

Regulation, the Board would apply the limited scope of review set forth in Department of the 

Navy v. Egan, 484 U.S. 518 (1988). In Egan, the Supreme Court held that the Board lacks the 

authority to review the substance of a security clearance determination or to require the 

agency to support the revocation or denial of the security clearance by preponderant 

evidence, as it would be required to do in other adverse action appeals. Rather, the Court 

found that the Board has authority to review only whether the employee’s position required 

a security clearance, whether the clearance was denied or revoked, whether the employee was 

provided with the procedural protections of 5 U.S.C. § 7513, and whether transfer to a 

nonsensitive position was feasible. The parties stipulated that the positions held by Conyers 

and Northover did not require the incumbents to have a confidential, secret, or top secret 

clearance, or to have access to classified information. The Board, Member Rose dissenting, 

held that, because the appellants were not required to have a security clearance or to have 

access to classified information, Egan does not limit the Board’s statutory authority to review 

the appellants’ adverse action appeals; the Board may exercise its full statutory review 

authority and review the agency’s determination that an appellant is no longer eligible to 

hold a “sensitive” position. 
21

Aguzie v. Office of Personnel Management and Barnes v. Office of Personnel Management, 2011 MSPB 

10 (January 26, 2011): Pursuant to its regulations at 5 C.F.R. part 731, OPM may direct 

employing agencies to remove employees based on suitability grounds. The Board held that 

when OPM directs an agency to remove an “employee” who generally has the right to 

appeal his or her removal to the Board under 5 U.S.C. chapter 75 (e.g., those employees who 

have completed their probationary period), the Board is authorized by statute to review the 

removal under chapter 75. The Board’s review of OPM-directed removals therefore includes 

determining whether the action promotes the efficiency of the service, whether the penalty 

was appropriate and whether the removal was the result of harmful procedural error. The 

Board’s review also extends to other suitability actions, i.e., debarment and/or cancellation 

of eligibilities for other positions, that arise out of the same set of circumstances as the 

removal. The Board remanded two such appeals for adjudication under chapter 75.

Veterans’ Rights 

Dean v. Office of Personnel Management/Evans v. Department of Veterans Affairs, 115 M.S.P.R. 157

(2010): In these consolidated appeals under the Veterans Employment Opportunities Act of 

1998, the Board held that the agencies had violated the appellants’ veterans’ preference rights 

by its use of the Federal Career Intern Program (FCIP), which was created by Executive 

Order in 2000. Section 3302(1) of Title 5, U.S. Code, which provides that the President may 

prescribe rules governing the competitive service with “necessary exceptions from the 

competitive service” is a statute relating to veterans preference because it establishes 

competitive-service hiring as the norm. Nothing in OPM’s rules for the FCIP prohibits an 

agency from deciding whether to fill a particular position with a competitive-service 

appointment or an excepted-service Schedule B appointment under FCIP on an ad hoc 

basis, after applications are received. Civil Service Rule 6.1(b), which provides that “OPM 

shall decide whether the duties of any particular position are such that it may be filled as an 

excepted position under the appropriate schedule,” clearly contemplates that a position must 

be classified as competitive-service or excepted-service even before a vacancy announcement 

is issued. The FCIP is inconsistent with the Civil Service rules that govern placement of 

positions in the excepted service because it allows an agency to invoke an appointing 

authority reserved for “positions . . . for which it is not practicable to hold a competitive 

examination” after the agency holds a competitive examination that yields highly qualified

preference-eligible candidates. Neither the Executive Order that created the FCIP nor 

OPM’s implementing regulations except any particular position from the competitive 

service. Instead, OPM’s regulations governing the FCIP leave it to individual agencies to 

determine which positions will be filled under FCIP. Those regulations do not themselves 

find that excepting FCIP positions from the competitive service is “necessary” for 

“conditions of good administration,” nor do they require individual agencies to make such 

findings. As a result, the regulations violate section 3302(1).

Whistleblowing

Chambers v. Department of the Interior, 2011 MSPB 7 (January 11, 2011): The Board decided this 

removal case on remand from the U.S. Court of Appeals for the Federal Circuit after the 

court found that the appellant, then the Chief, U.S. Park Police, had engaged in protected 

whistleblowing activity when she disclosed safety concerns to the Washington Post. See 

Chambers v. Department of the Interior, 602 F.3d 1370 (Fed. Cir. 2010). The court ordered the 
22

Board to determine, among other things, whether the agency would have taken the same 

personnel actions against the appellant in the absence of her protected disclosures. The 

Board held that the agency failed to establish by clear and convincing evidence that it would 

have taken any action against the appellant in the absence of her protected whistleblowing 

activity. The Board therefore granted the appellant’s request for corrective action and 

ordered the agency to cancel both her removal effective July 10, 2004, and her placement on 

administrative leave. 

Significant opinions issued by the U.S. Court of Appeals for the Federal Circuit 

Penalties

 

Williams v. Social Security Administration, 586 F.3d 1365 (Fed. Cir. 2009) When reviewing a 

penalty, the Board must consider whether the penalty imposed on the petitioner is consistent 

with the penalty imposed on similarly-situated employees and, if not, examine whether there 

was a justification for the disparate penalties.

Retirement

Dorsey v. Office of Personnel Management, 587 F.3d 1111 (Fed. Cir. 2009) A spouse is not entitled 

to a survivor annuity where her late husband did not elect the benefit during the two-year 

window provided for by statute. The two-year window is statutory and applies even in cases 

of mental deficiency.

Delgado v. Office of Personnel Management, 590 F.3d 1352 (Fed. Cir. 2010) Back pay received as a 

result of an administrative proceeding constitutes income for purposes of determining 

whether a disability retirement annuity must be terminated on the basis that the annuitant 

has been restored to earning capacity. Under the applicable OPM regulation, all income 

which is subject to federal employment taxes (Social Security) constitutes earned 

income. The petitioner’s back pay was subject to such taxes and therefore it constitutes 

income for purposes of the regulation.

Braza v. Office of Personnel Management, 598 F.3d 1315 (Fed. Cir. 2010) (en banc) OPM Spousal 

Consent to Survivor Election form in use at the time of the petitioner’s retirement was 

sufficient notice to alert readers to its consequences upon reasonable review and was explicit 

enough for the act of signing the form to evidence agreement with the terms of the form. A 

clearly expressed written waiver of annuity benefits is invalid only if it was signed pursuant to 

fraud, duress, or mental incompetence. Here, the petitioner’s claim that she signed the form 

pursuant to a mistake was not sufficient to invalidate the waiver.

Byrum v. Office of Personnel Management, 618 F.3d 1323 (Fed. Cir. 2010) Where OPM and the 

Board failed to address the essential issue in the case, whether the claimant was entitled to 

death benefits as the court-designated assignee of her mother’s spouse, it was necessary to 

return the matter to OPM with instructions to give a full and complete review and decision 

of the claim. The court further instructed that if the matter is thereafter appealed to the 

Board, the Board’s review shall be as broad and complete as necessary to address all of the 

issues brought to it by the petitioner. 
23

VEOA

Marshall v. Department of Health & Human Services, 587 F.3d 1310 (Fed. Cir. 2009) In cases 

where the record shows that an agency would have selected a veteran but for its illegal 

passover of the veteran, the appropriate remedy under VEOA is for the agency to be 

ordered to offer the veteran the position. In addition, the petitioner is entitled to 

compensation for any loss of wages or benefits that he suffered as a result of the agency’s 

VEOA violation, and he may be entitled to an amount equal to back pay as liquidated 

damages if he can show on remand that the agency’s violation was willful. This case is 

different from cases where it is unknown whether a veteran would have been selected for a 

position. In such cases, reconstruction of a selection process may be an appropriate way to 

remedy the situation.

Timeliness

Armstrong v. Department of the Treasury, 591 F.3d 1358 (Fed. Cir. 2010) Although it is 

appropriate for the Board, in determining whether it should waive its time limits, to consider 

whether the petitioner’s new evidence is of sufficient weight to warrant a different outcome 

from that of the initial decision, the Board must also consider whether the petitioner was 

diligent in filing his petition after discovering the new evidence. 

Hubbard v. Merit Systems Protection Board, 605 F.3d 1363 (Fed. Cir. 2010) The administrative 

judge properly dismissed the petitioner’s appeal after she failed to respond to an order 

directing her to file evidence and argument demonstrating that her appeal was timely filed or 

that good cause exists for the delay.

Employment Practice

Dow v. General Services Administration, 590 F.3d 1338 (Fed. Cir. 2010) An aggrieved job 

applicant may pursue an employment practice claim with the Board under 5 C.F.R. 

§ 300.104(a) if an employment practice (1) that he believes constitutes non-merit-based 

discrimination (2) was actually applied to him. Here, the petitioner’s application was not 

rejected because the agency used the challenged employment practice -- the Outstanding 

Scholar Program -- to hire others. Rather, the agency’s decision was based on its conclusion 

that the petitioner was not suitable for the position he sought.

Settlement Agreements

Slattery v. Department of Justice, 590 F.3d 1345 (Fed. Cir. 2010) The good faith clause of the 

parties’ settlement agreement did not require the agency to ignore the petitioner’s past 

conduct in making its hiring decisions, and therefore the agency did not breach the 

agreement by not selecting her to fill a vacancy.

Jurisdiction 

Roche v. Merit Systems Protection Board, 596 F.3d 1375 (Fed. Cir. 2010) Although the FAA is 

generally exempt from title 5, the definition of an “employee,” for purposes of determining 

the Board’s jurisdiction over appeals by FAA employees, is the statutory definition at 5 
24

U.S.C. § 7511. There is no evidence that Congress intended to expand the category of FAA 

personnel who could appeal to the Board beyond what was permitted on March 31, 1996.

Hall v. United States, 617 F.3d 1313 (Fed. Cir. 2010) The threshold question for determining 

whether the Court of Federal Claims has jurisdiction over a federal employee’s pay claim is 

whether the Civil Service Reform Act (“CSRA”) covers the challenged personnel 

action. Here, the CSRA does not encompass the denial of pay for periods in which the 

employee is deemed to be AWOL. Therefore, the Court of Federal Claims has jurisdiction 

over the pay claim, and its jurisdiction “did not evaporate when the agency removed Ms. 

Hall.” However, the Court of Federal Claims lacks jurisdiction over Ms. Hall’s ancillary 

claims for reinstatement and post-removal back pay, which were predicated on the removal 

action.

Morse v. Merit Systems Protection Board, 621 F.3d 1346 (Fed. Cir. 2010) Congress made the 

Federal Aviation Administration’s personnel system exempt from all but certain enumerated 

provisions of title 5, and those enumerated exceptions do not include the VEOA.

Whistleblowing

Chambers v. Department of the Interior, 602 F.3d 1370 (Fed. Cir. 2010) The petitioner’s disclosure 

regarding parkway patrols was protected under the Whistleblower Protection Act because it 

evidenced a substantial and specific danger to public health and safety; to wit: (1) an increase 

in traffic accidents is a significant and serious danger to public safety; (2) the disclosure states 

a specific consequence that resulted from the diversion of officers from the parkway; and (3) 

the disclosure contains specific details as to the cause of the increased danger, namely the 

reduction from four officers to two, and is therefore not vague or speculative.

Significant opinions issued by the U.S. Supreme Court

City of Ontario, Cal v. Quon, 130 S.Ct. 2619 (2010) A city's review of two months' worth of 

text messages on a police officer's city-issued pager was reasonable where the city was 

concerned that, among other things, it might be paying for employees' personal use of those 

pagers. However, the court emphasized the narrowness of its holding and warned that "[t]he 

judiciary risks error by elaborating too fully on the Fourth Amendment implications of 

emerging technology before its role in society becomes clear."

Lewis et al. v. City of Chicago, 130 S.Ct. 2191 (2010) A Title VII plaintiff who does not timely 

file a charge challenging the adoption of a particular employment practice may nevertheless 

assert a disparate impact claim that challenges the employer's subsequent application of that 

practice.

Perdue v. Kenny A. ex rel. Winn, 130 S.Ct. 1662 (2010) An attorney fees award made under a 

federal fee-shifting statute in a civil rights case can include an enhancement for superior 

attorney performance.
25

Case Processing Statistics

Summary of cases decided by MSPB

Table 1: FY 2010 Summary of Cases Decided by MSPB

Cases Decided in MSPB Regional and Field Offices 

 Appeals 6,536

 Addendum Cases1 430

 Stay Requests2 95

TOTAL Cases Decided in RO/FOs 7,061

Cases Decided by Administrative Law Judges (ALJs) – Original 

Jurisdiction3 23

Cases Decided by the Board:

Appellate Jurisdiction:

 Petitions for Review (PFRs) – Appeals 639

 Petitions for Review (PFRs) – Addendum Cases 103

 Reviews of Stay Request Rulings 0

 Requests for Stay of Board Order 2

 Reopenings4 2

 Court Remands 10

 Compliance Referrals 15

 EEOC Non-concurrence Cases 0

 Arbitration Cases 2

Subtotal – Appellate Jurisdiction 773

Original Jurisdiction5

6

Interlocutory Appeals 0

TOTAL Cases Decided by the Board 779

TOTAL Decisions (Board, ALJs, RO/FOs) 7,863

1 Includes 109 requests for attorney fees, 94 Board remand cases, 192 petitions for enforcement, 26 court remand cases, 4 

requests for compensatory damages (discrimination cases only), 3 requests for consequential damages, and 2 requests for 

liquidated damages.

2 Includes 70 stay requests in whistleblower cases and 25 in non-whistleblower cases. 3 Initial Decisions issued by ALJ. Case type breakdown: 13 actions against ALJs, 1 action against a member of the SES, 9 Hatch 

Act cases, and 3 non-Hatch Act disciplinary actions. 4 2 cases were reopened by MSPB on its own motion. 5 Final MSPB decisions. Case type breakdown: 2 Hatch Act cases, 2 non-Hatch Act disciplinary actions, and 2 OSC Stay 

requests.
26

Regional case processing

Table 2: Disposition of Appeals Decided in the Regional and Field Offices, 

by Type of Case

Decided Dismissed1 Not 

Dismissed1 Settled2 Adjudicated2

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

Adverse Action by Agency 2668 1366 51.20 1302 48.80 926 71.12 376 28.88

Termination of Probationers 534 480 89.89 54 10.11 47 87.04 7 12.96

Reduction in Force 67 46 68.66 21 31.34 15 71.43 6 28.57

Performance 98 22 22.45 76 77.55 48 63.16 28 38.84

Acceptable Level of Competence 

(WIGI) 27 21 77.78 6 22.22 5 83.33 1 16.67

Suitability 115 74 64.35 41 35.65 35 85.37 6 14.63

CSRS Retirement: Legal 434 190 43.78 244 56.22 6 2.46 238 97.54

CSRS Retirement: Disability 24 15 62.50 9 37.50 0 0.00 9 100.00

CSRS Retirement: Overpayment 66 29 43.94 37 56.06 16 43.24 21 56.76

FERS Retirement: Legal 112 56 50.00 56 50.00 4 7.14 52 92.86

FERS Retirement: Disability 213 152 71.36 61 28.64 3 4.92 58 95.08

FERS Retirement: Overpayment 130 45 34.62 85 65.38 62 72.94 23 27.06

FERCCA 19 9 47.37 10 52.63 3 30.00 7 70.00

Individual Right of Action 242 172 71.07 70 28.93 45 64.29 25 35.71

USERRA 730 220 30.14 510 69.86 459 90.00 51 10.00

VEOA 212 117 55.19 95 44.81 21 22.11 74 77.89

Other 845 731 86.51 114 13.49 72 63.16 42 36.84

Total 6536 3745 57.30 2791 42.70 1767 63.31 1024 36.69

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

2 Percent Settled and Adjudicated are of the number Not Dismissed.
27

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

Individual Right of Action 

(242)

4%

USERRA (730)

11%

VEOA (212)

3%

Other (845)

13%

Terminaton of Probationers 

(534)

8%

Performance (98)

1%

FERCCA (19)

0%

Adverse Actions (2,668)

41%

Acceptable Level of 

Competence (27)

0%

Suitability (115)

2%

FERS Retirement: 

Disability (213)

3%

FERS Retirement: 

Overpayment (130)

2%

FERS Retirement: Legal 

(112)

2%

CSRS Retirement: 

Overpayment (66)

1%

CSRS Retirement: Disability 

(24)

0%

Reduction in Force (67)

1%

CSRS Retirement: Legal 

(434)

7%

Total Number of Appeals: 6,536
28

Figure 2: Dispositions: Appeals Not Dismissed by Regional and Field Offices

Mitigated (18)

1% Action or Decision Overturned 

or Corrective Action Ordered 

(212)

8%

Action or Decision Upheld or 

Left Undisturbed (785)

28%

Other (9)

0%

Appeal Settled (1,767)

63%

Total Number of Appeals that were Not Dismissed: 2,791

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

Action or Decision Upheld or 

Left Undisturbed (785)

76%

Action or Decision Overturned 

or Corrective Action Ordered 

(212)

21%

Mitigated (18)

2% Other (9)

1%

B

Based on 1,024 appeals adjudicated on the merits
29

Table 3: Disposition of Initial Appeals by Agency

Decided Dismissed1

Not

Dismissed1 Settled2 Adjudicated2

# # % # % # % # %

US Postal Service 1287 868 67.4 419 32.6 291 69.5 128 30.5

Office of Personnel 

Management3

1025 507 49.5 518 50.5 117 22.6 401 77.4

Veterans Affairs 788 457 58.0 331 42.0 245 74.0 86 26.0

Army 634 292 46.1 342 53.9 292 85.4 50 14.6

Homeland Security 380 235 61.8 145 38.2 87 60.0 58 40.0

Air Force 375 189 50.4 186 49.6 147 79.0 39 21.0

Navy 351 200 57.0 151 43.0 113 74.8 38 25.2

Treasury 257 152 59.1 105 40.9 83 79.0 22 21.0

Defense 254 137 53.9 117 46.1 89 76.1 28 23.9

Justice 163 107 65.6 56 34.4 35 62.5 21 37.5

Agriculture 145 79 54.5 66 45.5 48 72.7 18 27.3

Interior 122 63 51.6 59 48.4 35 59.3 24 40.7

Social Security Administration 109 71 65.1 38 34.9 23 60.5 15 39.5

Health & Human Services 106 57 53.8 49 46.2 31 63.3 18 36.7

Transportation 100 57 57.0 43 43.0 23 53.5 20 46.5

Commerce 90 68 75.6 22 24.4 16 72.7 6 27.3

Labor 60 42 70.0 18 30.0 10 55.6 8 44.4

Housing & Urban Development 37 23 62.2 14 37.8 10 71.4 4 28.6

Energy 28 11 39.3 17 60.7 15 88.2 2 11.8

General Services Administration 25 13 52.0 12 48.0 9 75.0 3 25.0

State 22 17 77.3 5 22.7 5 100.0 0 0.0

National Aeronautics and Space 

Administration

19 9 47.4 10 52.6 7 70.0 3 10.0

Environmental Protection 

Agency

17 8 47.1 9 52.9 6 66.7 3 3.33

Smithsonian Institution 17 6 35.3 11 64.7 8 72.7 3 27.3

Equal Employment Opportunity 

Commission

13 9 69.2 4 30.8 1 25.0 3 75.0

Broadcasting Board of 

Governors

11 8 72.7 3 27.3 1 33.3 2 66.7

Government Printing Office 9 2 22.2 7 77.8 4 57.1 3 42.9

Federal Deposit Insurance 

Corporation

8 2 25.0 6 75.0 1 16.7 5 83.3

Agency for International 

Development

7 7 100.0 0 0.0 0 0.0 0 0.0

Securities & Exchange 

Commission

7 4 57.1 3 42.9 1 33.3 2 66.7

Education 6 3 50.0 3 50.0 3 100.0 0 0.0

Tennessee Valley Authority 6 5 83.3 1 16.7 1 100.0 0 0.0

Small Business Administration 5 4 80.0 1 20.0 1 100.0 0 0.0

Court Services and Offender 

Supervision

4 2 50.0 2 50.0 2 100.0 0 0.0

International Boundary & Water 

Commission

4 2 50.0 2 50.0 0 0.0 2 100.0

Judicial Branch 4 4 100.0 0 0.0 0 0.0 0 0.0

 
30

 

Decided Dismissed1

Not

Dismissed1 Settled2 Adjudicated2

# # % # % # % # %

Peace Corps 4 2 50.0 2 50.0 0 0.0 2 100.0

Commodity Futures Trading 

Commission

3 1 33.3 2 66.7 0 0.0 2 100.0

Consumer Product Safety 

Commission

3 1 33.3 2 66.7 1 50.0 1 50.0

National Archives and Records 

Administration

3 0 0.0 3 100.0 3 100.0 0 0.0

Nuclear Regulatory Commission 3 2 66.7 1 33.3 1 100.0 0 0.0

Other 3 3 100.0 0 0.0 0 0.0 0 0.0

Armed Forces Retirement Home 2 1 50.0 1 50.0 1 100.0 0 0.0

Federal Communications 

Commission

2 2 100.0 0 0.0 0 0.0 0 0.0

National Labor Relations Board 2 1 50.0 1 50.0 0 0.0 1 100.0

Pension Benefit Guaranty 

Corporation

2 0 0.0 2 100.0 0 0.0 2 100.0

Railroad Retirement Board 2 1 50.0 1 50.0 0 0.0 1 100.0

Administrative Office of the US 

Courts

1 1 100.0 0 0.0 0 0.0 0 0.0

Chemical Safety Hazard 

Investigation Board

1 1 100.0 0 0.0 0 0.0 0 0.0

Congress 1 1 100.0 0 0.0 0 0.0 0 0.0

Federal Emergency 

Management Agency

1 1 100.0 0 0.0 0 0.0 0 0.0

Federal Housing Finance Board 1 1 100.0 0 0.0 0 0.0 0 0.0

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

Government of the District of 

Columbia

1 1 100.0 0 0.0 0 0.0 0 0.0

National Capital Planning 

Commission

1 0 0.0 1 100.0 1 100.0 0 0.0

National Foundation for the Arts 

& the Humanities

1 1 100.0 0 0.0 0 0.0 0 0.0

Office of Special Counsel 1 1 100.0 0 0.0 0 0.0 0 0.0

Office of the Director of 

National Intelligence

1 1 100.0 0 0.0 0 0.0 0 0.0

Trade and Development Agency 1 1 100.0 0 0.0 0 0.0 0 0.0

TOTAL 6536 3745 57.3 2791 42.7 1767 63.3 1024 36.7

1 Percentages in Columns Dismissed and Not Dismissed are of Decided. 2 Percentages in Columns Settled and Adjudicated are of Not Dismissed.

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

Federal Employees Retirement System.
31

Table 4: Disposition of Initial Appeals Adjudicated on the Merits by Agency

Adjudicated1 Affirmed Reversed Mitigated 

Modified

Other

# # % # % # % # %

US Postal Service 128 91 71.1 31 24.2 6 4.7 0 0.0

Office of Personnel 

Management2

401 281 70.1 107 26.7 4 1.0 9 2.2

Veterans Affairs 86 72 83.7 10 11.6 4 4.7 0 0.0

Army 50 39 78.0 11 22.0 0 0.0 0 0.0

Homeland Security 58 49 84.5 7 12.1 2 3.4 0 0.0

Air Force 39 34 87.2 5 12.8 0 0.0 0 0.0

Navy 38 34 89.5 4 10.5 0 0.0 0 0.0

Treasury 22 21 95.5 1 4.5 0 0.0 0 0.0

Defense 28 23 82.1 5 17.9 0 0.0 0 0.0

Justice 21 20 95.2 1 4.8 0 0.0 0 0.0

Agriculture 18 15 83.3 3 16.7 0 0.0 0 0.0

Interior 24 16 66.7 6 25.0 2 8.3 0 0.0

Social Security Administration 15 14 93.3 1 6.7 0 0.0 0 0.0

Health & Human Services 18 14 77.8 4 22.2 0 0.0 0 0.0

Transportation 20 11 55.0 9 45.0 0 0.0 0 0.0

Commerce 6 6 100.0 0 0.0 0 0.0 0 0.0

Labor 8 6 75.0 2 25.0 0 0.0 0 0.0

Housing & Urban 

Development

4 4 100.0 0 0.0 0 0.0 0 0.0

Energy 2 2 100.0 0 0.0 0 0.0 0 0.0

General Services

Administration

3 1 33.3 2 66.7 0 0.0 0 0.0

National Aeronautics and 

Space Administration

3 2 66.7 1 33.3 0 0.0 0 0.0

Environmental Protection 

Agency

3 3 100.0 0 0.0 0 0.0 0 0.0

Smithsonian Institution 3 3 100.0 0 0.0 0 0.0 0 0.0

Equal Employment 

Opportunity Commission

3 3 100.0 0 0.0 0 0.0 0 0.0

Broadcasting Board of 

Governors

2 2 100.0 0 0.0 0 0.0 0 0.0

Government Printing Office 3 3 100.0 0 0.0 0 0.0 0 0.0

Federal Deposit Insurance 

Corporation

5 5 100.0 0 0.0 0 0.0 0 0.0

Securities & Exchange 

Commission

2 2 100.0 0 0.0 0 0.0 0 0.0

International Boundary & 

Water Commission

2 2 100.0 0 0.0 0 0.0 0 0.0

Peace Corps 2 2 100.0 0 0.0 0 0.0 0 0.0

Commodity Futures Trading 

Commission

2 2 100.00 0 0.0 0 0.0 0 0.0

Consumer Product Safety 

Commission

1 1 100.0 0 0.0 0 0.0 0 0.0

National Labor Relations 

Board

1 1 100.0 0 0.0 0 0.0 0 0.0
32

Table 4 continued 

Adjudicated1 Affirmed Reversed Mitigated 

Modified

Other

# # % # % # % # %

Pension Benefit Guaranty 

Corporation

2 0 0.0 2 100.0 0 0.0 0 0.0

Railroad Retirement Board 1 1 100.0 0 0.0 0 0.0 0 0.0

TOTAL 1024 785 76.7 212 20.7 18 1.8 9 0.9

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

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

Federal Employees Retirement System.

Percentages may not total 100 because of rounding.

Headquarters case processing

Table 5: Disposition of Petitions for Review (PFR),

of Initial Decisions by Type of Case

Decided Dismissed Settled Denied Denied But

Reopened Granted

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

Adverse Action by

 Agency 251 13 5.18 4 1.59 173 68.92 23 9.16 38 15.14

Termination of

 Probationers 46 3 6.52 1 2.17 35 76.09 4 8.70 3 6.52

Reduction in Force 4 1 25.00 0 0.00 3 75.00 0 0.00 0 0.00

Performance 11 0 0.00 0 0.00 8 72.73 2 18.18 1 9.09

Acceptable Level of

 Competence (WIGI) 3 0 0.00 0 0.00 3 100.00 0 0.00 0 0.00

Suitability 5 1 20.00 0 0.00 2 40.00 1 20.00 1 20.00

CSRS Retirement:

 Legal 67 10 14.93 2 2.99 40 59.70 5 7.46 10 14.93

CSRS Retirement:

 Disability 8 2 25.00 0 0.00 5 62.50 0 0.00 1 12.50

CSRS Retirement:

 Overpayment 10 0 0.00 2 20.00 4 40.00 2 20.00 2 20.00

FERS Retirement: 

Legal 9 1 11.11 0 0.00 7 77.78 0 0.00 1 11.11

FERS Retirement: 

Disability 18 3 16.67 0 0.00 10 55.56 3 16.67 2 11.11

FERS Retirement: 

Overpayment 5 1 20.00 0 0.00 2 40.00 0 0.00 2 40.00

FERCCA 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00

Individual Right of

 Action 44 2 4.55 1 2.27 26 59.09 8 18.18 7 15.91

USERRA 32 1 3.13 1 3.13 18 56.25 6 18.75 6 18.75

VEOA 38 3 7.89 0 0.00 20 52.63 5 13.16 10 26.32

Other 88 7 7.95 0 0.00 49 55.68 12 13.64 20 22.73

Total 639 48 7.51 11 1.72 405 63.38 71 11.11 104 16.28
33

Figure 4: Disposition of Petitions for Review of Initial Decisions

Denied (405)

63%

Settled (11)

2%

Dismissed (48)

8%

Granted (104)

16%

Denied but Reopened (71)

11%

Total Number of PFRs: 639

Figure 5: Disposition of Petitions for Review Granted

Case Remanded (78)

75%

Other (2)

2% Initial Decision Affirmed 

(15)

14%

Initial Decision Reversed 

(9)

9%

Based on 104 PFRs Granted
34

Figure 6: Disposition of Petitions for Review

Denied but Reopened

Other (11)

15%

Initial Decision Reversed 

(1)

1%

Case Remanded (21)

30%

Agency Action Mitigated 

(1)

1%

Initial Decision Affirmed 

(37)

53%

Based on 71 PFRs Denied but Reopened
35

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

Decided Dismissed Settled Denied Denied But

Reopened Granted

# # % # % # % # % # %

Office of Personnel 

Management1

125 18 14.40 4 3.20 75 60.00 10 8.00 18 14.40

US Postal Service 114 6 5.26 1 0.88 57 50.00 19 16.67 31 27.19

Veterans Affairs 90 6 6.67 3 3.33 56 62.22 11 12.22 14 15.56

Homeland Security 45 3 6.67 0 0.00 32 71.11 2 4.44 8 17.78

Army 40 2 5.00 2 5.00 26 65.00 2 5.00 8 20.00

Defense 31 0 0.00 0 0.00 20 64.52 7 22.58 4 12.90

Navy 26 3 11.54 0 0.00 20 76.92 1 3.85 2 7.69

Air Force 25 2 8.00 0 0.00 18 72.00 1 4.00 4 16.00

Treasury 24 3 12.50 0 0.00 15 62.50 3 12.50 3 12.50

Justice 20 0 0.00 0 0.00 18 90.00 1 5.00 1 5.00

Interior 15 0 0.00 0 0.00 12 80.00 1 6.67 2 13.33

Social Security 

Administration

13 0 0.00 0 0.00 8 61.54 4 30.77 1 7.69

Agriculture 12 0 0.00 0 0.00 8 66.67 1 8.33 3 25.00

Transportation 12 1 8.33 0 0.00 8 66.67 1 8.33 2 16.67

Health & Human Services 11 2 18.18 0 0.00 8 72.73 1 9.09 0 0.00

Commerce 6 1 16.67 1 16.67 2 33.33 1 16.67 1 16.67

State 5 0 0.00 0 0.00 4 80.00 1 20.00 0 0.00

Labor 4 0 0.00 0 0.00 4 100.00 0 0.00 0 0.00

Housing & Urban 

Development

3 0 0.00 0 0.00 0 0.00 2 66.67 1 33.33

Equal Employment 

Opportunity Commission

3 0 0.00 0 0.00 2 66.67 0 0.00 1 33.33

Government Printing Office 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

National Aeronautics and 

Space Administration

2 0 0.00 0 0.00 1 50.00 1 50.00 0 0.00

Smithsonian Institution 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

Agency for International 

Development

1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Broadcasting Board of 

Governors

1 1 100.00 0 0.00 0 0.00 0 0.00 0 0.00

Education 1 0 0.00 0 0.00 0 0.00 1 100.00 0 0.00

Energy 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Environmental Protection 

Agency

1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Federal Trade Commission 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

General Services 

Administration

1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Office of Special Counsel 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Other 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

TOTAL 639 48 7.51 11 1.72 405 63.38 71 11.11 104 16.28

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

Retirement System and the Federal Employees Retirement System.

Percentages may not total 100 because of rounding.
36
37

Summaries of Merit Systems Studies

The MSPB completed several reports and issued four editions of the Issues of Merit

newsletter. Summaries of the reports and the topics contained in the newsletter are 

presented below. 

A Call to Action: Improving First-Level Supervision of Federal Employees

Effective supervision is essential to employee engagement, workplace fairness, and 

organizational performance. Unfortunately, only half of the Federal employees responding 

to MSPB surveys report that their supervisor has good management skills. In this study, 

MSPB found that there were several factors that contributed to the seemingly indifferent 

quality of first-level supervision, including insufficient emphasis on supervisory 

responsibilities when advertising supervisory positions, suboptimal assessment of 

supervisory competencies, inadequate training for new supervisors, and minimal use of the 

supervisory probationary period.

The report recommended actions that Federal agencies can take to improve the recruitment, 

selection, and management of first-level supervisors. For example, when recruiting and 

selecting first-level supervisors, Federal agencies should provide realistic job previews to help 

applicants make an informed decision about a career in supervision and leadership and use 

highly predictive selection tools to improve the quality of referred candidates and the 

likelihood that any selectee will succeed on the job. If a new supervisor does not perform or 

develop satisfactorily, agencies should use the supervisory probationary period to remove the 

individual from a supervisory role. When managing first-level supervisors, agencies should 

provide supervisors with adequate training; the information needed to manage their work 

units and communicate with their employees; and continuing performance feedback and 

development. Agencies should also strengthen supervisory accountability—both positive and 

corrective—and base that accountability on both work group outcomes and supervisory 

behaviors.

Prohibited Personnel Practices—A Study Retrospective

In Prohibited Personnel Practices—A Study Retrospective, MSPB announced that it was launching a 

reexamination of the prevalence of PPPs within the Federal Government. This report was 

issued to provide MSPB stakeholders with an overview of past MSPB research that explored 

issues related to PPPs. Over the years, MSPB has conducted extensive research to identify 

the occurrence of PPPs in the Federal Government, as well as adherence to their 

complement, the MPs. 

In this retrospective report, MSPB noted that the percentage of employees reporting 

discrimination based on ethnicity/race, sex, age, and religion has declined over time, while an 

increasing percentage of Federal employees believe that they are being treated fairly. 

However, MSPB also acknowledged that the Federal Government still has work to do to 

ensure a workplace free of PPPs. For example, although a decreasing percentage of 

employees believe that they have experienced prohibited discrimination, many employees 

believe that personnel decisions are often based on factors other than merit, such as 
38

favoritism. There is also a continuing gap between minority and nonminority employees’ 

perceptions of the prevalence of discrimination and other PPPs.

Avoiding PPPs is critical since the existence of just one such action can damage the working 

environment in any organization. Continuing to monitor the incidence of PPPs is important 

to ensure that managers treat employees fairly and equitably, while strengthening the trust 

the American public has that their public servants are not being managed arbitrarily or based 

on non-merit factors.

Making the Right Connections: Targeting the Best Competencies for Training

Research on mental abilities distinguishes among competencies that can be developed 

through training, those that are unresponsive to training, and those that are moderately 

responsive. In this report, we refer to this dimension as competency “trainability.” The goal 

of the study was to contrast employee perceptions of the trainability of job-relevant 

competencies with research findings about the actual trainability of these competencies. The 

results should help agencies identify and avoid training which targets less trainable 

competencies and is therefore less likely to be successful. This should help agencies make 

more effective use of their increasingly scarce Federal training dollars.

Whistleblower Protections for Federal Employees

This report is one in a series of reports focusing on PPPs. This particular report described 

the requirements that must be met in order for a Federal employee’s disclosure of 

wrongdoing to be legally protected as whistleblowing under current statutes and case law. To 

qualify as a protected whistleblower, a Federal employee or applicant for employment must 

disclose: a violation of any law, rule, or regulation; gross mismanagement; a gross waste of 

funds; an abuse of authority; or a substantial and specific danger to public health or safety.

However, this disclosure alone is not enough to obtain protection under the law. The 

individual also must: avoid using normal channels if the disclosure is in the course of the 

employee’s duties; make the report to someone other than the wrongdoer; and suffer a 

personnel action, the agency’s failure to take a personnel action, or the threat to take or not 

take a personnel action. Additionally, the employee must seek redress through the proper 

channels before filing an appeal with MSPB. As the report explains, a potential 

whistleblower’s failure to meet even one of these criteria will deprive the Board of 

jurisdiction, and render the Board unable to provide any redress in the absence of a different 

(non-whistleblowing) appeal right. 

Issues of Merit Newsletter

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

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

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

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

professionals, social science researchers, and academics.
39

The MSPB issued four editions of the Issues of Merit newsletter in FY 2010. Each of the four 

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

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

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

findings addressed topics such as the state of fair and equitable treatment in the Federal 

Government, the changing face of the Federal supervisor, the pros and cons of using job 

simulation assessments, and perceptions of the impact of telework on organizational 

performance. 

Other articles provided insight into issues such as how to avoid committing PPPs in hiring, 

engaging employees through partnership, a discussion of the new OPM training and 

development regulations, and how to take advantage of mentoring in career development. 

The OPE Director addressed issues such as how to build a strong supervisory workforce, 

the new Federal hiring reform initiative, and a discussion of the PPPs. In addition, we 

reviewed the results of a survey of newsletter readers to identify possible changes to the 

newsletter, which we will use as appropriate to improve the publication.
40
41

Significant Actions of the Office of Personnel Management

As required by statute, MSPB reviews and reports on the significant actions of OPM. Below, 

we list and briefly discuss selected OPM actions of the greatest long-term significance for the 

Federal civil service for FY 2010. This list is not exhaustive.

Internal structure and management

Publication of 2010-2015 Strategic Plan

OPM has published its 2010-2015 Strategic Plan, A New Day for Federal Service.9

• Hire the best;

 That plan 

includes four broad strategic goals:

• Respect the workforce;

• Expect the best; and 

• Honor service.

Significance

OPM has used these goals to identify its priorities and initiatives. In particular, OPM is 

intensely focused on reform of Federal hiring in support of its “hire the best” strategic goal.

Human capital management policy

Hiring reform initiative: 

Building on previous OPM efforts to improve Federal hiring, such as the 2008 End-to-End 

Hiring Roadmap, the Obama Administration issued a memorandum directing agencies to 

take several actions to simplify and speed Federal hiring. Below, we discuss the following 

selected key actions required by the memorandum and specific steps that OPM has taken to 

support its implementation:

• Simplify initial application requirements; 

• Use category rating to refer and select among applicants;

• Use valid and reliable assessments; 

• Involve supervisors and managers in the hiring process; and

• Notify applicants of their application status at designated points in the hiring 

process.

Simplify the initial application process: The President’s memorandum on hiring reform 

requires agencies to take two specific steps to make it easier to apply for a Federal job. 

Specifically, agencies must (1) allow applicants to apply with a basic application form or a 

resume and cover letter; and (2) eliminate KSA narratives from the initial application.

Significance

 9 The full strategic plan is available online at http://www.opm.gov/strategicplan/.
42

This requirement could materially change Federal application and assessment processes.

KSA narratives have remained central to the hiring process for many Federal jobs, even with 

the introduction of automated hiring systems.10 Change along the lines required by OPM is 

necessary and overdue. In its research, MSPB has documented the need to simplify the 

application process and the practical and theoretical limitations of KSA narratives as a means 

of screening and sorting job applicants.11 Although OPM is providing guidance and technical 

assistance to agencies, we believe that many will struggle to successfully implement this 

requirement. Hiring reform does not relieve Federal agencies of the need to make, and 

document, determinations about an applicant’s minimum and relative qualifications. 

Developing assessment tools and hiring processes to implement OPM’s mandates will 

require considerable innovation and resources. Unfortunately, MSPB research indicates that 

many Federal organizations lack the resources and expertise needed to develop and 

administer acceptable alternatives to KSA narratives.

Use Category Rating: Prior to the Presidential memorandum, agencies had two options for 

ranking and selecting applicants in a competitive examination: the “rule of three” and 

category rating.12 Use of category rating will become mandatory, precluding use of the “rule 

of three” approach.

Significance

Category rating was first permitted by OPM through established demonstration projects in 

the 1990s. The flexibility was then extended to all Federal agencies as part of the Homeland 

Security Act (HSA) of 2002 (P.L. 107-296). Many agencies did not start using the flexibility, 

though, largely due to lack of policies and understanding about the method.13

 10 Many automated hiring systems use questionnaires with multiple-choice rating scales to gauge possession of 

job-related KSAs. However, such questions are often accompanied by a request or requirement that an 

applicant provide specific descriptions of the training and experience in support of the multiple-choice 

response. Such questions are, in essence, electronic KSA narratives.

MSPB 

supported the Governmentwide introduction of category rating because category rating can, 

in most situations, better support the merit system principle of selection based on relative 

ability than the traditional “rule of three.” However, as happened with the 2003 

implementation, transition to category rating from the rule of three will pose technical and 

11 See U.S. Merit Systems Protection Board, Reforming Federal Hiring: Beyond Faster and Cheaper, Washington, DC, 

July 2006 p. 11 and pp. 20-20 and U.S. Merit Systems Protection Board, A Call to Action: Improving First-Level 

Supervision of Federal Employees, Washington, DC, May 2010, pp. 11-13.

12 See U.S. Merit Systems Protection Board, The Rule of Three in Federal Hiring: Boon or Bane?, Washington, DC, 

December 1995.Under the rule of three, agencies assign numeric scores and the manager must select from 

among the top three available candidates. Under category rating, candidates are assigned to a limited number of 

quality groups (usually three) and the manager may select any available candidate in the highest quality group. 

Veterans’ preference applies under either approach. Readers requiring specific information on scoring and 

selection procedures in a competitive examination should refer to OPM’s Delegated Examining Operations 

Handbook: A Guide for Federal Agency Examining Offices, available at

http://www.opm.gov/deu/Handbook_2007/DEO_Handbook.pdf

13 U.S. Government Accountability Office, Increasing Agencies’ Use of New Hiring Flexibilities, Washington, DC, 

July 2004.
43

training challenges in many agency offices. Therefore, it is important that OPM monitor the 

effects of this requirement, as well as its implementation.

Use valid and reliable assessments: The President’s memorandum, while directing agencies 

to simplify initial application and assessment, reiterates the longstanding requirement that 

agencies use assessments that are job-related, fair, and predictive of job performance.14

Significance

The requirement concerning assessment appropriately reminds agencies that simplifying and 

speeding the hiring process should not come at the expense of selectivity (identifying, 

referring, and hiring the best candidates). MSPB’s research has noted that many agencies are 

not using the best assessment tools to distinguish among candidates. In addition, many do 

not have the resources or expertise to improve the validity and reliability of their assessment 

tools to ensure that they are highly predictive of how well the applicant will perform the job. 

This is an area that needs additional attention. As noted below, OPM is taking some steps to 

help improve the quality of agency assessments. Additional help will likely be needed over

the long term. 

Increase involvement of managers in hiring: The President’s memorandum directs Federal 

agencies to more fully involve hiring managers in activities such as workforce planning, job 

analysis, recruitment, and interviewing.

Significance 

Managerial involvement in hiring, when managed properly, can improve recruitment, 

applicant assessment, and the quality and retention of new hires. Managers can provide a 

unique perspective on job requirements, sources of qualified applicants, and how an 

applicant’s abilities and accomplishments meet (or fail to meet) the organization’s needs.

To realize the potential benefits of increasing managerial involvement, agencies must (1) 

educate managers on legal requirements related to hiring, including MPs, PPPs, and veterans’ 

preference; (2) train managers on how to use assessment tools such as interviews and 

reference checks;15

 14 President Barack Obama, “Memorandum for the Heads of Executive Departments and Agencies, Subject: 

Improving the Federal Recruitment and Hiring Process,” May 11, 2010. (

and (3) hold managers accountable for fulfilling their hiring 

responsibilities. We note below that OPM has done much to provide guidance and training 

to agencies; that the President’s memorandum requires agencies to hold hiring managers 

http://www.whitehouse.gov/thepress-office/presidential-memorandum-improving-federal-recruitment-and-hiring-process.)Although most 

observers have focused on the requirement to accept resumes and eliminate knowledge, skill, and ability (KSA) 

narratives, the actual requirement in the memorandum is “Allow individuals to apply for Federal employment 

by submitting resumes and cover letters or completing simple, plain language applications, and assess applicants 

using valid, reliable tools.”

15 Assessments such as interviews and reference checks are much more effective and legally defensible when 

they are structured and conducted by knowledgeable, trained users. See U.S. Merit Systems Protection Board, 

The Federal Selection Interview: Unrealized Potential, Washington, DC, February 2003 and U.S. Merit Systems 

Protection Board, Reference Checking in Federal Hiring: Making the Call, Washington, DC, September 2005.
44

accountable for “recruiting and hiring highly qualified employees and supporting their 

successful transition into Federal service;” and that recently-issued regulations require 

agencies to provide initial training and continuing education to supervisors and managers.16

Nevertheless, MSPB research shows that many Federal managers have received little 

supervisory training,17 suggesting that agencies will need to provide considerable education 

and training to prepare managers to effectively discharge their new—and perhaps even their 

existing—responsibilities related to hiring.

Notify applicants of their application status at designated points in the hiring process: The 

President’s memorandum directs agencies to provide OMB timelines and targets for 

notifying individuals applying for Federal employment through USAJOBS about the status 

of their application at key stages of the application process.

Significance

One of the most common complaints heard from Federal applicants is that they do not 

receive sufficient communication from agencies about the status of their application. This 

has been a common theme in MSPB’s research.18 Applicants are often discouraged by the 

feeling that their application has disappeared into a “black hole.” Given that the Federal 

hiring process is typically longer than that of other sectors, communication with applicants is 

critical to keeping them engaged in the hiring process so that they will be less likely to accept 

positions with other employers who have faster processes or are more communicative. Key 

contact points in the hiring process include; (1) when the application is received, (2) when 

the application is assessed for qualifications, (3) when the applicant is referred to the 

selecting official (or not), and (4) when the applicant is selected (or not). Communication will 

help improve applicant satisfaction with the hiring process which can reduce applicant 

attrition and encourage highly qualified applicants to apply in the future even if they do not 

get the first job for which they apply.

OPM support of hiring reform

Guidance, training, and technical support for agencies: OPM has taken several steps to 

educate agencies, human resources specialists, and hiring managers about hiring reform and 

encourage sharing of concerns, successes, and best practices. Those steps include—

• Establishing Mobile Assistance Teams (MATs) composed of OPM and agency 

experts to help agencies identify and take actions needed to meet the requirements of 

the Presidential memorandum; 

• Delivering workshops, training materials, and webinars on topics such as job 

analysis, designing an assessment strategy, streamlining job announcements, assessing 

resumes, occupational questionnaires, structured interviews, and category rating;

 16 5 CFR 412.202. This regulation was made final in December 2009 (74 Fed. Reg. 65383-65390).

17 U.S. Merit Systems Protection Board, A Call to Action: Improving First-Level Supervision of Federal Employees,

Washington, DC, May 2010, pp. 33-38.

18 See, for example, Competing for Federal Jobs: Job Search Experiences of New Hires (2000), Reforming 

Federal Hiring: Beyond Faster and Cheaper (2006), and Attracting the Next Generation: A Look at Federal 

Entry-Level New Hires (2008).
45

• Developing a website (http://www.opm.gov/HiringReform/) and a collaborative 

online space for sharing information, best practices, and implementation issues;19

• Using social media to disseminate information and encourage discussion among 

individuals, agencies, and OPM on topics related to hiring reform.

and

Significance

As discussed, agencies must improve the quality of applicant assessment while streamlining 

application processes for reform to truly succeed. OPM has taken the initiative to strengthen 

agencies’ ability to design and administer improved hiring processes, providing both general 

guidance and training and direct tailored assistance. However, anecdotal information 

indicates that the assistance may not be getting down to the operating HR offices in some 

agencies. OPM’s resources are limited. They cannot reach every operating HR office in 

Government, so agencies will have to assist in ensuring that the information gets to the 

people who need it to truly reform HR practices. 

Measurement and accountability: OPM and OMB have established a process for evaluating 

agency achievement of hiring reform requirements and goals that includes:

• Development of an action plan template with instructions for agencies to complete 

and identify appropriate actions to be taken, timelines, and key deliverables;

• Assistance to agencies in developing action plans and metrics; and

• Review of preliminary agency action plans and metrics.

Significance

The effort devoted to tracking and measuring agency progress illustrates the importance of 

this initiative to OPM and the Administration. The high-level attention is appropriate, given 

the importance of hiring to agency mission accomplishment, and could encourage agencies 

to make changes or investments in hiring that they have been previously unwilling or unable 

to make. Continued evaluation of agency progress, through follow-up and oversight reviews, 

will be critical to ensuring the success of hiring reform. 

Investments in assessment: In addition to training and guidance for agencies, OPM has 

taken several steps to improve the quality of applicant assessment, such as—

• A survey of job tasks and competency requirements for several important common 

occupations, which could serve as the basis for updated qualification standards and 

new or improved assessments;

• Development of online competency assessment tools for agency use in assessing 

applicants for common occupation; 20

• Issuance of a competency model for five financial management occupations.

and 

21

 19 The online space is OMB MAX, hosted by the Office of Management and Budget, at https://max.omb.gov. 

Access is limited to Federal agencies and employees.

20 As of October 2010, the survey and online competency assessments are in progress.

21 Memorandum for Chief Human Capital Officers from John Berry, Director, U.S. Office of Personnel 

Management, “Subject: Financial Management Competency Study,” dated December 16, 2009.

(http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=2823)
46

Significance

Primary responsibility for identifying job requirements and developing and administering 

applicant assessments rests with individual Federal agencies. However, MSPB has also 

identified areas that call for OPM leadership and investment, such as establishing 

qualification standards and developing assessment tools for common occupations and 

competencies. These actions indicate that OPM is, in fact, devoting greater resources and 

attention to these areas.

Enhancements to USAJOBS: OPM has introduced several enhancements to USAJOBS, the 

Federal Government’s Internet employment portal, including—

• Streamlined job announcements;

• A simplified user interface; and

• A USAJOBS application for mobile devices.

OPM has also announced further improvements, such as USAJOBSRecruit (a set of 

recruitment and collaboration tools for agency managers and human resources specialists) 

and USAJOBSAssess (a set of online competency-based assessment tools).22

Significance

USAJOBS is often the first or only way for members of the public to find and apply for 

Federal job opportunities. Anecdotal evidence suggests that many Federal job applicants still 

have trouble navigating the recruitment site. The enhancements should help make 

USAJOBS more accessible and user-friendly for applicants and, in the long term, more 

functional and powerful for agencies. Improvements in job announcements are particularly 

welcome, as past MSPB research has found that agency job announcements are often poorly 

written, confusing, and uninformative.23

OPM actions related to employment policy

Hiring interns, college students, and recent graduates

The Presidential memorandum24

 22 Stephen Losey, “USAJOBS website to offer new features for recruiters,” FederalTimes.com, September 28, 

2010, accessed at 

that directed Federal agencies to overhaul recruitment and 

hiring also directed OPM to examine the Federal Career Intern Program (FCIP) and to begin

assessing the pathways into Federal service for college students and recent graduates. In June 

2010, OPM held a public hearing on pathways into Federal service for college students and 

recent graduates. The purpose was to hear and consider views on whether competitive 

http://www.federaltimes.com/article/20100928/PERSONNEL02/9280302/1001.

23 See U.S. Merit Systems Protection Board, Help Wanted: A Review of Federal Vacancy Announcements, 

Washington, DC April 2003, pp. 10-17 and U.S. Merit Systems Protection Board, A Call to Action: Improving 

First-Level Supervision of Federal Employees, Washington, DC, May 2010, pp. 8-10.

24 President Barack Obama, “Memorandum for the Heads of Executive Departments and Agencies, Subject: 

Improving the Federal Recruitment and Hiring Process,” May 11, 2010. (http://www.whitehouse.gov/thepress-office/presidential-memorandum-improving-federal-recruitment-and-hiring-process.)
47

service examination is an effective method of hiring recent graduates and, if not, whether 

policy changes and other actions are necessary.

In related actions, the Board issued decisions on November 2, 2010, in Dean v. Office of 

Personnel Management and Evans v. Department of Veterans Affairs, finding that the FCIP violates 

veterans’ preference.25 As a service to our stakeholders, a summary of these decisions is 

included in this Annual Report. In December of 2010, the President issued Executive Order 

13562 Recruiting and Hiring Students and Recent Graduates, which terminates the FCIP 

effective March 1, 2011 and established three pathways programs for hiring students and 

recent graduates.26 In early January 2011, OPM Director issued initial guidance on the 

Executive Order including termination of the FCIP program and implementing the three 

pathways programs.27

Significance

The Federal Government has struggled to find merit-based, efficient ways to recruit and hire 

recent college graduates since the discontinuation of the Professional and Administrative 

Career Examination (PACE). The Federal Career Intern Program (FCIP) is an excepted 

service appointing authority that can be used to fill a wide array of positions and does not 

require formal public notice of job opportunities even though the merit principle of fair and 

open competition still applies. These features have contributed to the growing use of the 

authority since its inception in 2001, but have also led to legal issues and stakeholder 

concerns.28 Prior to its termination, the FCIP accounted for approximately half of new 

appointments to entry-level professional and administrative positions.29 Such positions are 

the primary means of entry into Federal service for recent college graduates. OPM’s 

“pathways” initiative is an effort to develop a means for Federal agencies to recruit and hire 

college students and recent graduates that avoids the problems associated with the FCIP.30

OPM actions related to FCIP and “pathways” to Federal employment for college students 

and recent graduates significantly change how agencies recruit college graduates and fill 

entry-level positions in the professional and administrative occupations, and could set the 

stage for broader reform of hiring under Title 5, United States Code.

 25 Dean v. Office of Personnel Management and Evans v. Department of Veterans Affairs

26 Executive Order 13562 Recruiting and Hiring Students and Recent Graduates

27 Initial OPM Guidance on Executive Order 13562

28 Building a High-Quality Workforce: The Federal Career Intern Program, U.S. Merit Systems Protection 

Board, September 2005; and Federal Appointment Authorities: Cutting through the Confusion, U.S. Merit 

Systems Protection Board, June 2008.

29 MSPB analysis of information from OPM’s Central Personnel Data File. See U.S. Merit Systems Protection 

Board, “Fast Fact: The FCIP Continues to Grow,” Issues of Merit, vol. 15, no. 1, February 2010, p. 3.

30 As noted, one purpose of OPM’s June 2010 public hearing was to hear and consider views on the viability of 

competitive examining as a means of recruiting and hiring recent college graduates. This suggests that OPM is 

open to the possibility that regulatory change or legislation may be needed to facilitate routine, high-volume 

hiring of college graduates in a way that is compatible with MPs and other legal requirements.
48

Memorandum on the technical standards of the uniform guidelines on employee 

selection procedures31 

In a February 2010 memorandum32 to the Chief Human Capital Officers (CHCO) Council, 

OPM reminded agencies that “assessment tools must be consistent with the technical 

standards in the Uniform Guidelines on Employee Selection Procedures.” OPM also indicated that it 

was exploring the development of a user-friendly summary of the Uniform Guidelines’

standards for assessments to help Federal hiring managers and human resources specialists 

understand and navigate the Uniform Guidelines’ requirements.

Significance

Hiring reform initiatives have, understandably, focused on accessibility, timeliness, and 

efficiency. However, fundamental requirements such as job-relatedness, adherence to MPs, 

and compliance with law and regulation have not been relaxed or eliminated. Thus, OPM’s 

reminder that agency assessment practices, whether traditional or “reformed,” must comply 

with the Uniform Guidelines is timely. It is not clear, at this time, whether OPM plans to 

develop any guidance on the Uniform Guidelines. Such guidance could be beneficial, both to 

educate individual managers and HR specialists and to encourage greater agency attention to, 

and investment in, valid assessment tools.

OPM plan to improve agency use of recruitment, relocation, and retention incentives

In 2009, OPM requested that agencies review their use of Federal agency use of recruitment, 

relocation, and retention incentives (the “3Rs” authorities) and convened an interagency 

work group to develop recommendations for improving the use and oversight of 3Rs 

authorities. In a February 2010 memorandum to the Chief Human Capital Officers (CHCO) 

Council, while acknowledging that the 3Rs have been useful, OPM expressed concern that 

use of the 3Rs had increased despite recent labor market conditions and announced a plan to 

increase OPM and agency oversight of use of the 3Rs. The plan includes (1) expanding 

OPM guidance on justifying and monitoring the 3Rs authorities; (2) strengthening agency 

review of the use of 3Rs authorities, to include more explicit cost-benefit analysis; and (3) 

issuing regulations to require annual review of all individual retention incentives and all 

group recruitment incentives.

Significance

The stated need for greater review and oversight of these authorities shows that decisions 

related to Federal employee pay and benefits are subject to scrutiny—which is likely to 

intensify given current economic and fiscal conditions. OPM’s plan also illustrates two 

continuing challenges in modernizing Federal human resources management. First, assuring 

 31 29 CFR 1607.

32 Memorandum for Chief Human Capital Officers from John Berry, Director, U.S. Office of Personnel 

Management, “Subject: Plan to Improve the Administration and Oversight of Recruitment, Relocation, and 

Retention Incentives,” dated February 3, 2010. 

(http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=2848.)
49

proper and adequately documented use of HR flexibilities in a system governed by complex 

laws and regulations may overtax the time and knowledge of many managers and HR 

specialists. Second, there is continuing tension between the desire to delegate authority, 

maximize flexibility, and “cut red tape” and the need to assure stakeholders that HR 

flexibilities are used judiciously and fairly and that public moneys are used wisely.

OPM Support of Agency Labor-Management Forums

In December 2009, President Obama established a National Council of Federal LaborManagement Relations.33 The Director of OPM and the Deputy Director for Management 

of OMB, as the co-chairs of the Council, determine the Council’s agenda and direct its work. 

That work includes supporting the establishment of labor-management forums in Federal 

agencies, developing suggested metrics for evaluating those forums, and guiding the 

implementation of pilot programs for collective bargaining over matters such as the 

technology, methods, and means of performing work.34 As of October 2010, agencies have 

established plans for creating and evaluating forums.35 Metrics and pilot programs have been 

discussed or identified, but implementation is pending.36

Significance

It will be some time until the results of these initiatives are known. We note, however, that 

the intent—substantive involvement of employees and their representatives in work matters 

to improve productivity and delivery of services—is consistent with MSPB research on 

employee engagement and organizational performance. MSPB has found that employee 

engagement (a heightened connection to work and the organization) is correlated with 

organizational performance and other positive outcomes.37 One component of employee 

engagement is a positive work environment, which includes cooperation and employee 

involvement in work decisions. Thus, agency-level labor-management forums could 

potentially increase employee engagement in addition to yielding visible improvements in 

operations and the labor-management climate.

 33 Executive Order 13522, Creating Labor-Management Forums to Improve Delivery of Government Services, 

74 Fed. Reg. 66203-66206, December 14, 2009.

34 The pilot involves bargaining over the subjects listed at title 5, United States Code, § 7106(b)(1). The subjects 

listed in this section, which include staffing patterns and work methods, are often referred to as “permissive” 

subjects because a Federal agency may elect to bargain over them, but is not required to do so by statute.

35 Agency plans for implementing the four requirements of E.O. 13522 (a baseline assessment of labor 

relations, establishment of labor-management forums, metrics, and resources for implementation) are available 

at http://www.lmrcouncil.gov/plans/index.aspx

36 Materials from the September 2010 meeting of the Council include a presentation from a work group tasked 

with researching and developing suggested metrics and a table that lists agreed-upon pilot project for 

bargaining on subjects covered by 5 U.S.C. 7106(b)(1). (http://www.lmrcouncil.gov/meetings/index.aspx?

37 See U.S. Merit Systems Protection Board, The Power of Federal Employee Engagement, Washington, DC, 

September 2008. In addition to higher scores on the Program Assessment and Rating Tool (PART), Federal 

agencies with higher levels of employee engagement experienced lower rates of sick leave use and equal 

employment opportunity complaints than did agencies with lower levels of employee engagement.
50

Delivery of benefits and services

Results-only work environment (ROWE) pilot

As part of its effort to promote increased availability and use of telework and other flexible 

work arrangements, OPM has proceeded with a pilot test of a Results-Only Work 

Environment (ROWE) in which employees have greater control over where and when they 

work. The pilot was scheduled to run through 2010, with an evaluation to follow in 2011.

Significance

As OPM notes, ROWE differs markedly from existing work-life flexibilities in the Federal 

Government, in that flexibility is contingent on performance (whether work gets done) 

rather than permission (whether the agency authorizes or tolerates alternative work 

arrangements). ROWE, if successful, has the potential to transform working conditions and 

work arrangements for many Federal employees. 

OPM has cautioned that “Implementing ROWE is more challenging in the Federal 

government than in a private corporation because of the restrictions that Federal law places 

on some aspects of the workplace flexibilities that are usually implemented under ROWE.” 

Thus, due to current Federal pay and leave laws, full Governmentwide implementation of 

ROWE may require legislative change in addition to cultural change. Nevertheless, the pilot 

should provide useful insight into the systems, behaviors, and supervisory and employee 

characteristics required by ROWE or other nontraditional work arrangements, and into how 

Federal agencies can assure the public that Federal funds and staff time are used efficiently in 

the absence of extensive formal controls over work site and hours of work.

Redefining and expanding employee benefits

In June 2010, OPM issued regulations modifying the definitions of “family member” and 

“immediate relative” for purposes such as sick leave and leave transfer. As OPM stated in a 

memorandum to the Chief Human Capital Officers Council, those definitions “now cover 

grandparents and grandchildren, same-sex and opposite-sex domestic partners, step parents, 

step children, foster, guardianship, and similar relationships.”38 In addition, pursuant to a 

2009 Presidential memorandum39 that directed Federal agencies to act to extend benefits to 

same-sex domestic partners of Federal employees, OPM issued guidance40

 38 Memorandum for Directors of Human Resources and Equal Employment Opportunity from Nancy H. 

Kichak, Associate Director, Employee Services, U.S. Office of Personnel Management, “Subject: Final 

Regulations on Definitions of Family Member, Immediate Relative, and Related Terms,” June 14, 2010. 

(

that (1) 

http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=2996.)

39 See President Barack Obama, “Memorandum for the Heads of Executive Departments And Agencies, 

Subject: Federal Benefits and Non-Discrimination,” June 17, 2009. (http://www.whitehouse.gov/the-pressoffice/memorandum-heads-executive-departments-and-agencies-federal-benefits-and-non-discri.)

40 Memorandum to the Chief Human Capital Officers Council from John Berry, Director, U.S. Office of 

Personnel Management, “Subject: Federal Benefits for Same-Sex Domestic Partners,” dated July 10, 2009. 

(www.chcoc.gov/Transmittals/Index.aspx.)
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enumerated specified benefits that agencies should provide to same-sex domestic partners, if 

permitted by law and (2) established a definition of “domestic partner” to promote 

consistent provision of such benefits. In September 2010, OPM instructed agencies that 

these benefits included the use of a limited amount of leave without pay for certain family 

support purposes.41

Significance

These actions continue Administration and OPM efforts to maximize employee access to 

family-friendly leave and to extend benefits to same-sex domestic partners to the extent 

permissible under current law. (OPM has also expressed support for providing health, life, 

and survivor benefits to the same-sex domestic partners of Federal employees,42 but such 

change would require legislation.)

Proposal to establish health claims data warehouse

In October 2010, OPM announced its intent to establish a Health Claims Data Warehouse 

as a system of records subject to the Privacy Act of 1974, stating that “The purpose of this 

system of records is to provide a central and comprehensive database from which OPM may 

analyze Federal Employee Health Benefit Program (FEHBP)...costs and actively manage 

the programs to ensure the best value for both enrollees and tax-payers.” 43

Significance

Actions related to employee benefit programs do not directly affect traditional merit system 

concerns such as fairness, openness, and effective use of the Federal workforce. However, 

competitive and sustainable benefit programs are essential to the Federal Government’s 

ability to recruit and retain highly skilled, high-performing employees. The establishment of 

the health claims data warehouse is one element of a significant shift in how OPM manages 

the FEHBP. This shift may prove challenging, both in its demands on OPM staff and 

capacity and in maintaining Federal employee confidence that their privacy will be protected 

and the program will be administered in their best interests.

 41 Memorandum to the Chief Human Capital Officers Council from John Berry, Director, U.S. Office of 

Personnel Management, “Subject: Extension of 24-Hour LWOP Family Support Policy to Same-Sex Domestic 

Partners of Federal Employees,” dated September 10, 2010. (http://www.chcoc.gov/Transmittals/Index.aspx.)

This benefit permits a Federal employee to use 24 hours of leave without pay for purposes such as attending to 

an elderly relative’s care and participating in a child’s school activities.

42 Statement of John Berry, Director, U.S. Office of Personnel Management, before the Committee on 

Homeland Security and Governmental Affairs, United States Senate, on S. 1102, the Domestic Partnership 

Benefits and Obligations Act of 2009, October 15, 2009. 

(http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=d5347e63-e680-

4ebf-8b9d-5eb5f8cd5e79.)

43 Action: Notice of a new system of records, 75 Fed. Reg. 61532-61533 (Tuesday, October 5, 2010).
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Financial Summary

Fiscal Year 2010 Financial Summary

(dollars in thousands)

Budget Authority $42,930

Appropriation 40,339

Offsetting Collections 12

Transfer from the Civil Service Retirement 

and Disability Trust Fund 2,579

Obligations Incurred $41,784

Personnel Compensation 26,073

Personnel Benefits 6,317

Benefits for Former Employees 14

Travel and Transportation of Persons 451

Transportation of Things 57

Rental, Communications and Utilities 4,377

Printing and Reproduction 31

Other Contractual Services 2,586

Supplies and Materials 207

Equipment 1,671
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