U.S. Merit Systems Protection Board

Annual

Report

MAY 2008

FISCAL YEAR

2 0 0 7
U.S. Merit Systems Protection Board

Annual

Report

MAY 2008

FISCAL YEAR

2 0 0 7

Foreword

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

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

during FY 2007. This report includes summaries of the most significant Board 

and court decisions issued during the year, case processing statistics, summaries of 

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

of Personnel Management (OPM), and a summary of MSPB’s financial results. In 

addition, where there have been significant activities since the end of the fiscal year, 

the report includes updated information as a service to the reader. 

Additional information about FY 2007 program performance results and financial 

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

Report (PAR). This Annual Report and the PAR as well as other information about 

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

Annual Report for Fiscal Year 2007

Fiscal Year 2007 in Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Protecting merit: Evolving management policies and practices 

 and changing demographics of the workforce. . . . . . . . . . . . . . . . . . . . . . . . . . . 1

MSPB leadership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Adjudication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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

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

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

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

Board members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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

Organization chart. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Significant Board Decisions and

Court Opinions Issued in FY 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Significant Board decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Significant opinions issued by the United States Court of Appeals 

 for the Federal Circuit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

FY 2007 Case Processing Statistics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Summary of cases decided by MSPB. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Regional case processing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Headquarters case processing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Summaries of Merit Systems Studies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Accomplishing Our Mission: Results of the Merit Principles Survey 2005. . . . . . . . 35

Attracting the Next Generation: A Look at Federal Entry Level New Hires. . . . . . . 36

Issues of Merit Newsletter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Merit Principles Survey 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Career Advancement Survey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Significant Actions of the

Office of Personnel Management (OPM). . . . . . . . . . . . . . . . . . . . . . . . 39

Policy and leadership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Compliance and accountability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Delivery of services and products. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Financial Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Table of

Contents

Annual Report for Fiscal Year 2007

Annual Report for Fiscal Year 2007

Fiscal Year

2007

in Review



Protecting merit: Evolving management policies

and practices and changing demographics

of the workforce

The most significant FY 2007 trends or issues affecting the MSPB’s role to protect 

the Federal merit systems include changes and developments in management 

flexibilities, employee protections, appeals processing, and the changing 

demographics of the workforce. These factors will make the MSPB’s ability to 

hire and retain skilled staff all the more critical. 

Changes and developments in management flexibilities,

employee protections and appeals processing

There continues to be an emphasis on more flexible human resources management 

policies and procedures. In FY 2007, there were further developments in the 

DHS and DoD personnel systems. After two years of litigation, DHS is moving 

forward with the implementation of the uncontested portions of its personnel 

system including a provision that would change the standards by which the MSPB 

may mitigate penalties imposed by DHS. In addition, DoD has announced 

that it does not intend to alter its appeals processes. Therefore, the MSPB will 

continue to process adverse action appeals from DoD employees based on existing 

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

whistleblower rights, veterans’ rights and administrative retirement decisions) will 

continue to be processed as they have been. In addition, changes in areas that are not 

themselves appealable, such as the performance management systems, will affect the 

adjudication of performance-based appeals. The management flexibilities that are 

underway in DHS and DoD, and those that are implemented in other agencies may 

lead to increases in the complexity of the MSPB’s adjudication work.

The increasing number of employees who are managed under non-traditional 

human resources management systems will also affect the MSPB’s statutory mission 

to conduct studies of the merit systems. The flexibilities granted to DHS and DoD 

and to other agencies in recent years, provide that the Title 5 provisions governing 

merit system principles and prohibited personnel practices may not be waived, 

modified or otherwise affected. Therefore, there will be an even greater need for the 

MSPB to conduct studies of these new management systems to ensure that they 

Annual Report for Fiscal Year 2007
Fiscal Year 2007 in Review

U.S. MERIT SYSTEMS PROTECTION BOARD

are operating in accordance with merit system principles and free from prohibited 

personnel practices. Studying these new systems may also identify ways to improve 

the effectiveness and efficiency of Government operations.

In addition to changes in management flexibilities, legislation was introduced in 

FY 2007, which, if enacted, would potentially increase the number of cases brought 

to the MSPB. For example, the House of Representatives passed H.R. 985, the 

Whistleblower Protection Enhancement Act of 2007, which would expand the scope 

of whistleblower protections and increase the number of covered employees. The 

Senate whistleblower bill, S. 274, which is similar in scope, was recently reported out 

of the Senate Committee on Homeland Security and Governmental Affairs.

Finally, a court decision was issued in FY 2007 which impacts the way the MSPB 

processes certain appeals. In Kirkendall v. Department of the Army, the U.S. Court 

of Appeals for the Federal Circuit held that an appellant who brings a Uniformed 

Services Employment and Reemployment Rights Act (USERRA) claim before the 

MSPB has an unconditional right to a hearing even when the Administrative Judge 

who is adjudicating the appeal has determined that there is no need for a hearing. 

This decision will increase the number of hearings in appeals brought under the 

USERRA, leading to an increase in the overall number of hearings.

 

Changing demographics of the Federal workforce

The increasing proportion of retirement-eligible Federal employees and the need 

to hire employees to replace them, has a significant potential impact on agency 

workload. The average age of the current Federal workforce is the highest it has ever 

been. As these older employees retire we are likely to see an increase in the number of 

retirement-related appeals. In addition, older, more experienced employees are not as 

likely to be subjected to as many appealable actions as are younger, less experienced 

employees. As the proportion of younger employees increases through shifts in the 

workforce, we may experience an increase in the number of appealable actions. These 

changes will result in an overall increase in our adjudicatory workload. 

Each of the four generations of employees that now make up the workforce may have 

different expectations for work, their employers and their colleagues. Each generation 

may be motivated by different factors, and may have different expectations for 

balancing work and family life. These differences increase the potential for conflict 

in the workplace and add to the complexity of the supervisor’s role in managing 

all employees to achieve results. Overseeing how these workforce shifts impact the 

workplace may add to the complexity of our merit systems studies work. 
Annual Report for Fiscal Year 2007 

Fiscal Year 2007 in Review

The MSPB performs its role as chief protector of the Federal merit systems in 

accordance with the determinations made by the Congress and the President. The 

MSPB’s experience in independently adjudicating appeals and conducting merit 

systems studies will continue to provide effective and efficient protection for the 

Federal merit systems and the rights of individuals within those systems. In this way, 

the MSPB will continue to assure the public of the Government’s commitment to 

merit-based management. 

MSPB leadership

Several senior office directors retired or were selected for new positions in FY 2007. 

The MSPB is taking a deliberate, strategic approach to filling these positions. 

William Spencer was selected as Clerk of the Board early in FY 2008 to replace the 

previous Director who retired from Federal service. Plans are underway to select a 

new Director for the Office of Policy and Evaluation to replace the previous Director 

who also retired. Plans are also underway to select a new Director for the Office of 

Appeals Counsel to replace the previous Director who was appointed as the Chief 

Counsel to the Vice Chairman. 

Adjudication

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

laws and regulations governing such appeals. The MSPB issued 8,105 decisions in 

FY 2007. The regional, field offices and MSPB headquarters issued timely, high 

quality initial decisions and MSPB headquarters offices issued timely, high quality 

decisions in response to PFRs. The MSPB provided a full menu of successful 

alternative dispute resolution options to its customers, including settlement programs 

in the regional and field offices, the Mediation Appeals Program, and the availability 

of administrative judges (AJs) separately designated for settlement of a case. The case 

processing statistics presented in this report give detailed information regarding the 

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

This report also contains brief summaries of the most significant Board decisions 

as well as Court opinions published in FY 2007. Significant Board decisions 

addressed such issues as the Whistleblower Protection Act, veterans rights under 

statutes including the Veterans Employment Opportunities Act of 1994 (VEOA) 

and the Uniformed Services Employment and Reemployment Rights Act of 1994 

(USERRA), adverse actions, discrimination and restoration, and MSPB procedures. 

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

addressed the same issues and also the right to a disability retirement annuity.
Fiscal Year 2007 in Review

 U.S. MERIT SYSTEMS PROTECTION BOARD

Merit systems studies

The MSPB completed several studies and issued reports on such issues as the results 

of the 2005 Merit Principles Survey (MPS) and Federal career-entry new hires. The 

MSPB issued four editions of the Issues of Merit newsletter, which included articles 

on attracting entry-level and upper-level new hires, balancing training strategies, 

coaching employees, using better assessment instruments, establishing intern programs 

and using veterans’ skills. In addition, the MSPB began administration of two large 

Governmentwide surveys, the 2007 MPS and the career advancement survey.

Legislative and congressional relations update

As required by statute, Chairman McPhie submitted a request for reauthorization 

along with draft legislation to the House Committee on Oversight and Government 

Reform and to the Senate Committee on Homeland Security and Governmental 

Affairs as the MSPB’s current authorization was set to expire on September 30, 

2007. Representative Danny K. Davis, Chairman of the House Subcommittee 

on Federal Workforce, Postal Service, and the District of Columbia, introduced 

the reauthorization bill (H.R. 3551) for both the MSPB and the Office of Special 

Counsel on September 17, 2007. Senator Daniel Akaka, Chairman of the Senate 

Subcommittee on Oversight of Government Management, the Federal Workforce, 

and the District of Columbia, introduced a companion bill (S. 2057) on the same 

day. The House Subcommittee held a mark up of H.R. 3551 on September 18, 

2007, and the bill was ordered to be reported favorably to the full Committee 

on Oversight and Government Reform. The House and the Senate will resume 

consideration of H.R. 3551 and S. 2057, respectively, during the Second Session 

of the 110th Congress.

The FY 2007 appropriation for the MSPB was enacted on February 15, 2007. 

It provided a total funding level of $38,666,176, which included $2,602,858 in 

reimbursements from the Civil Service Retirement and Disability Fund. The amount 

was approximately $444,000 less than requested by the President. Later in the fiscal 

year, the House and the Senate Appropriations subcommittees approved the MSPB’s 

request to use 50% of its unobligated balance that remained available at the end of 

fiscal year 2006.

The MSPB’s Congressional relations activities during FY 2007 included providing 

testimony during Congressional hearings and statements for the hearing record 

where the Chairman was not required to testify in person, conducting briefings for 

Congressional committee staff, and meeting with members of Congress. 

On February 13, 2007, Chairman McPhie submitted testimony for the record for 

the House Committee on Oversight and Government Reform hearing on H.R. 

985 entitled: H.R. 985, The Whistleblower Protection Enhancement Act of 2007.
Annual Report for Fiscal Year 2007 

Fiscal Year 2007 in Review

On March 6, 2007, Chairman McPhie testified before the House Appropriations 

Subcommittee on Financial Services and General Government at a hearing entitled: 

Issues Regarding the Federal Workforce. On March 22, 2007, Chairman McPhie 

testified before the Senate Subcommittee on Oversight of Government Management, 

the Federal Workforce, and the District of Columbia at a hearing entitled: 

Safeguarding the Merit System Principles: A Review of the Merit Systems Protection 

Board and the Office of Special Counsel. On July 12, 2007, Chairman McPhie 

testified before the House Subcommittee on Federal Workforce, Postal Service and 

the District of Columbia at a hearing entitled: Ensuring a Merit-Based Employment 

System: An Examination of the Merit Systems Protection Board and the Office of Special 

Counsel. Finally, on September 6, 2007, Chairman McPhie testified before the 

House Committee on Veterans’ Affairs Subcommittee on Economic Opportunity 

at a hearing entitled: Veterans’ Preference. 

During FY 2007, the MSPB staff conducted Congressional committee staff briefings 

on the MSPB’s reauthorization request, its FY 2008 budget request, the agency’s 

operations and accomplishments, and the MSPB’s procedures for adjudicating 

and processing Hatch Act cases. In addition, Chairman McPhie met with the 

Chairs of the MSPB’s House and Senate oversight subcommittees, and the Chair 

of the MSPB’s House appropriations subcommittee, as well as other Congressional 

members of the District of Columbia, Maryland and Virginia local delegations. 

Further, as part of his efforts to increase outreach to members of Congress and to be 

of further assistance to them in their representational and constituent services duties, 

the Chairman sent letters of introduction to new Congressional members who 

represent districts and states where MSPB regional and field offices are located, and 

to Congressional members of the DC, Maryland and Virginia local delegations. 

The MSPB expects to continue this work during FY 2008.

Significant actions of the

Office of Personnel Management

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

actions of OPM to ensure that these actions conform with merit principles and do 

not result in prohibited personnel practices. The MSPB reviewed the significant 

policy and leadership actions of OPM including clarification of adverse action rules 

and the announcement of a new administrative law judge (ALJ) examination. 

The MSPB reviewed OPM’s significant compliance and accountability actions 

including electronic Official Personnel Folders (eOPF) and Senior Executive 

Service (SES) pay for performance system certification. The MSPB also reviewed 

OPM’s significant actions related to delivering products and services including 

providing automated recruitment guidance, improvements to the Labor Agreement 

Information Retrieval Systems (LAIRS), electronic delivery of security clearance 

investigations, and implementation of the new Federal employee dental and vision 

insurance programs. 

Annual Report for Fiscal Year 2007

Board Members

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

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

members are appointed by the President, and confirmed by the Senate, and serve 

overlapping, non-renewable 7-year terms. 

Chairman

NEIL A. G. McPHIE was confirmed as Chairman of the U.S. Merit Systems 

Protection Board on November 21, 2004. Chairman. McPhie had served as Acting 

Chairman since December 10, 2003, when President Bush designated him to be 

Vice Chairman. He was sworn in as a member of 

the Board on April 23, 2003, following his recess 

appointment by President Bush. Chairman McPhie’s 

term will expire on March 1, 2009. Prior to joining 

the Board, he was Senior Assistant Attorney General 

in the Office of the Attorney General of Virginia. 

Among other responsibilities, he defended employment 

discrimination claims brought under Federal law and 

wrongful discharge claims brought under state law. 

Previously, he was Executive Director of the Virginia 

Department of Employment Dispute Resolution 

(EDR). In that position, he directed implementation 

of EDR’s statewide grievance, mediation, training and 

consultation programs. He was an Assistant Attorney 

General in the Office of the Attorney General of 

Virginia from 1982 to 1988. From 1976 until he joined the Attorney General’s 

Office, he was a Trial and Appellate Attorney in the Office of the General Counsel at 

the U.S. Equal Employment Opportunity Commission. He received his J.D. degree 

from Georgetown University Law Center in 1976. He received a B.A. in Economics 

from Howard University in 1973, graduating magna cum laude. He is a member of 

Phi Beta Kappa. He is admitted to the bars of the District of Columbia, Virginia, 

New York and Iowa, the United States Supreme Court, the United States District 

Court for the District of Columbia, several of the United States circuit courts of 

appeals, and district courts in Virginia.

Board Members

and Board 

Organization
Board Members and Board Organization

 U.S. MERIT SYSTEMS PROTECTION BOARD

Vice Chairman

MARY M. ROSE was designated by President Bush as Vice Chairman of the U.S. 

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

Board Member on December 28, 2005, following her confirmation by 

the Senate on December 17, 2005. Vice Chairman Rose’s appointment 

will expire on March 1, 2011. Prior to joining the Board, Mrs. Rose 

was appointed by the President to serve as Vice Chairman of the Federal 

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

Committee where she advised the Director of the U.S. Office of Personnel 

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

Mrs. Rose served as Deputy Associate Director of the Office of Presidential 

Personnel at the White House. She served four years as the Elected Clerk 

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

as Assistant Director for Executive Administration, Office of Personnel 

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

Deputy Undersecretary for Management at the Department of Education. 

Her private sector experience includes positions as a consultant with an 

Annapolis law firm and as a Visiting Fellow with The Heritage Foundation where she 

recruited, interviewed, and recommended Presidential appointments to the George 

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

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

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

M.D., and has four children.

Member

BARBARA J. SAPIN was confirmed as a Member of the Merit Systems Protection 

Board on November 21, 2004. Ms. Sapin’s term expired on March 1, 2007. She 

continued to serve as a Board Member until February 29, 2008 pursuant 

to 5 U.S.C. 1202(c) of MSPB’s enabling statute, which permits a 

member whose term has expired to continue to serve until a successor 

has been appointed but no longer than one year after the term has 

expired. Previously, Ms. Sapin served as Vice Chairman during a recess 

appointment (January 2001 – December 2001). Ms. Sapin served in a 

number of labor and employment law related positions, including General 

Counsel and Labor Counsel to the American Nurses Association from 

1990 until the time of her initial appointment to the Board. In addition, 

Ms. Sapin held several positions at the National Labor Relations Board 

from 1981 to 1990, including attorney for the Appellate Court Branch 

in Washington, D.C., field attorney in the Chicago Regional Office, 

and Senior Counsel to a Board Member. Prior to 1981, Ms. Sapin’s 

Government service included positions with the Occupational Safety 

and Health Review Commission and the U.S. Environmental Protection 

Agency. Ms. Sapin received her B.A. in Psychology from Boston University and a 

Juris Doctorate from the Columbus School of Law, Catholic University of America. 

She is admitted to the District of Columbia and Maryland Bars.
Annual Report for Fiscal Year 2007 

Board Members and Board Organization

Board offices and structure

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

and conduct merit systems studies, and it has offices that support these missions. 

In addition to its three appointed Board members, the MSPB has approximately 

225 employees assigned to headquarters and to its eight regional and field offices 

located throughout the United States. 

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

statute, is the chief executive and administrative officer. Office heads report to the 

Chairman through the Chief of Staff. 

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

or recommended decisions on petitions for corrective action and disciplinary action 

complaints (including Hatch Act complaints) brought by the Special Counsel, 

proposed agency actions against administrative law judges, MSPB employee appeals, 

and other cases assigned by the Board. (The functions of this office are currently 

performed by administrative law judges at the National Labor Relations Board 

with staff support from the MSPB headquarters legal offices under an interagency 

agreement.)

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

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

judges’ initial decisions and in most other cases decided by the Board. The 

office conducts the MSPB’s petition for review settlement program, prepares 

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

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

research and policy memoranda to the Board on legal issues.

The Office of the Clerk of the Board (OCB) receives and processes cases filed 

at the MSPB headquarters, rules on certain procedural matters, and issues the 

Board’s decisions and orders. The office serves as the MSPB’s public information 

center, coordinates media relations, publishes public information, operates the 

MSPB’s library and on-line information services, and administers the Freedom of 

Information Act and Privacy Act programs. The office also certifies official records 

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

and directives systems, legal research programs, and the Government in the 

Sunshine Act program.

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

and evaluates the MSPB’s equal employment opportunity programs. It processes 

complaints of alleged discrimination and furnishes advice and assistance on 

affirmative employment initiatives to MSPB managers and supervisors.
Board Members and Board Organization

10 U.S. MERIT SYSTEMS PROTECTION BOARD

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

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

property management, physical security and general services functions of the MSPB. 

It develops and coordinates internal management programs and projects, including 

review of internal controls agency-wide. It also administers the agency’s crossservicing agreements with the U.S. Department of Agriculture (USDA) National 

Finance Center for payroll services, the Department of the Treasury Bureau of 

the Public Debt for accounting services, and USDA’s Animal and Plant Health 

Inspection Service for human resources management services.

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

the Board and MSPB offices on a wide range of legal matters arising in day-to-day 

operations. The office represents the MSPB in litigation, prepares proposed decisions 

for the Board on compliance recommendations issued by the administrative judge, 

requests to review OPM regulations and other assigned cases, and coordinates 

MSPB’s legislative policy and congressional relations functions. The office also drafts 

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

investigations. 

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

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

caseload efficiently and carry out its administrative and research responsibilities.

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

responsibility to conduct studies of the civil service and other Federal merit systems. 

Reports of these studies are directed to the President and Congress and distributed to 

a national audience. The office provides information and advice to Federal agencies 

on issues that have been the subject of MSPB studies. The office also conducts special 

projects for the Board and has responsibility for preparing the MSPB’s plans and 

reports required by the Government Performance and Results Act (GPRA). 

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

two field offices, which receive and process appeals and related cases, and manages 

the MSPB’s mediation appeals program (MAP). Administrative judges (AJs) in 

the regional and field offices are responsible for adjudicating assigned cases and for 

issuing fair and well-reasoned initial decisions.
Annual Report for Fiscal Year 2007 11

Board Members and Board Organization

Organization chart

Administrative

Law Judge

Appeals

Counsel

Clerk of

the Board

General

Counsel

Policy and

Evaluation

Regional

Operations

Administrative

Law Judge

Financial and

Administrative

Management

Information

Resources

Management

Regional

Offices

Atlanta,

Chicago,

Dallas,

Philadelphia,

San Francisco,

and

Washington, DC

CHAIRMAN MEMBER VICE

CHAIRMAN

Chief

of Staff

Equal

Employment

Field Offices

Denver

and

New York

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.

U.S. Merit Systems Protection Board

13

Significant 

Board Decisions and 

Court Opinions 

Issued in FY 2007

The MSPB issued a substantial number of noteworthy decisions in fiscal year 2007, 

a number of which are summarized below. The report also includes brief summaries 

of a number of significant opinions issued by the United States Court of Appeals 

for the Federal Circuit as a service to our stakeholders. 

Significant Board decisions

Whistleblower Protection Act

In Greenup v. Department of Agriculture, 106 M.S.P.R. 202 (June 28, 2007), the 

Board addressed, for the first time, the question of whether a disclosure made by an 

individual who is neither an applicant for employment nor an employee can later 

be found to have been protected whistleblowing. The Board held that 5 U.S.C. § 

2302(b)(8), which proscribes retaliation for “any disclosure of information by an 

employee or applicant” that is reasonably believed to evidence certain wrongdoing, 

does not specify that the disclosure must have been made when the individual 

seeking protection was either an employee or applicant for employment. Thus, 

the fact that the appellant in Greenup was not an “employee” under 5 U.S.C. § 

2105, by virtue of her position with a county committee of the USDA when she 

made her disclosures, did not prevent the Board from taking jurisdiction over her 

claim that the agency subsequently did not select her for employment based on 

those disclosures when she became an applicant for employment. The Board held 

that, “[i]n the case of applicants for employment who were not Federal employees 

at any time prior to their application, such a limitation would severely restrict any 

recourse they might otherwise have, since the disclosure would necessarily have to 

be made while their application was pending.” The Board held that Congress could 

not have intended to grant such a limited right of review when it decided to protect 

applicants for employment.

VEOA, USERRA, Veterans Rights

In Brandt v. Department of the Air Force, 103 M.S.P.R. 671 (October 20, 2006), 

the Board addressed the question of what it means, under 5 U.S.C. § 3304(f)(1), 

for preference eligibles or certain veterans not to be denied the opportunity “to 

compete” for vacant positions for which the agency making the announcement 

will accept applications from individuals outside its own workforce “under merit 

promotion procedures.” The appellant, a 10-point preference eligible, applied 

Annual Report for Fiscal Year 2007 13
Significant Board Decisions and Court Opinions Issued in FY 2007

14 U.S. MERIT SYSTEMS PROTECTION BOARD

for a vacant firefighter position in the competitive service. The agency’s vacancy 

announcement indicated that applications would be accepted from external 

candidates and would be considered under “noncompetitive” appointing authorities, 

such as the Veterans Employment Opportunities Act of 1998 (VEOA) and the 

authority to transfer employees from other Federal agencies. The appellant’s 

name was listed on three certificates issued under various appointing authorities, 

including the certificate issued under VEOA. The agency did not, however, assign 

numerical ratings to the candidates it referred to the selecting official, and did not 

restrict consideration to a few top-ranked candidates on any list; instead, it listed 

all candidates who had been found to be among the “best qualified” in alphabetical 

order on each of the certificates, permitting the selecting official to select any listed 

candidate. The appellant was not selected for the two vacancies that were filled. The 

Board noted that, although the effect of subsection (f)(1) on entitlement to veterans’ 

preference was unclear, the Office of Personnel Management (OPM) promulgated 

reasonable regulations interpreting the phrase “under merit promotion procedures” 

as modifying the verb “to compete,” such that covered veterans may compete 

for vacancies under merit promotion when an agency accepts applications from 

individuals outside its own workforce. The Board held that such competition under 

merit promotion procedures differed considerably from the requirements applicable 

to open competitive examinations, and provided for selection of any of a group of 

“best qualified” candidates. The Board also found that 5 U.S.C. § 3304(f)(1)-(2), 

under which the selectees in this case were eligible for appointment, was a valid 

exception to the general requirement, under 5 U.S.C. § 3304(b), that individuals 

appointed in the competitive service either have passed an examination or have been 

specifically excepted from doing so. Thus, the Board denied the appellant’s request 

for corrective action.

Similarly, in Joseph v. Federal Trade Commission, 103 M.S.P.R. 684 (October 24, 

2006), the Board held that a competitive examination is not required when an 

agency selects an internal candidate, i.e., someone who is already on its employment 

rolls, under “merit promotion” procedures, and that veterans’ preference rules do 

not apply to a merit promotion action. The Board held that OPM reasonably 

interpreted 5 U.S.C. § 3304(f)(1) as merely conferring on preference eligibles 

and certain other veterans the right to be considered alongside internal candidates 

under merit promotion procedures. The Board noted that OPM did not interpret 

section 3304(f)(1) as requiring an agency to conduct a competitive examination 

with veterans’ preference, and deferred to OPM’s interpretation in that regard. 

Further, the Board found nothing in 5 U.S.C. § 3304(f), the purpose of which was 

to prohibit agencies from limiting applications for vacancies to internal candidates 

and those with competitive status, that disallows simultaneous external and internal 

competitions for a single position. The Board concluded that the appellant’s 

veterans’ preference rights were not violated when he received veterans’ preference 

in the competitive examination the agency used to assess external candidates, but 

did not receive such preference in the concurrent assessment under merit promotion 

procedures.
Annual Report for Fiscal Year 2007 15

Significant Board Decisions and Court Opinions Issued in FY 2007

In Belhumeur v. Department of Transportation, 104 M.S.P.R. 408 (January 11, 2007), 

appeal dismissed, 224 F. App’x 967 (Fed. Cir. 2007), the Board addressed for the first 

time the question of whether the Federal Aviation Administration (FAA) is excluded 

by statute from 5 U.S.C. § 3330a, which grants the Board jurisdiction over a claim 

that a non-selection for a position violated a statute or regulation relating to veterans 

preference under VEOA. The Board held that, because Congress granted the FAA 

the authority to establish a personnel system not subject to the provisions of Title 5, 

with certain enumerated exceptions that do not include 5 U.S.C. § 3330a, the 

Board does not have jurisdiction over a case filed under VEOA by an FAA employee 

or applicant.

The Board addressed, in Jolley v. Department of Homeland Security, 105 M.S.P.R. 104 

(February 21, 2007), the issue of whether a preference eligible who was a current 

Federal employee, and whose duty station was not physically located within the area 

of consideration set forth in a vacancy announcement, could be denied consideration 

for the position when the area of consideration was limited to employees of 

the Federal Law Enforcement Training Center (FLETC) and on-site partner 

organizations. Rejecting as dispositive both a nonprecedential Federal Circuit 

decision, O’Brien v. Office of Personnel Management, 118 F. App’x 484 (Fed. Cir. 

2004), and a provision in OPM’s VetsGuide suggesting that 5 U.S.C. § 3304(f)(1) 

only covers individuals seeking initial Federal appointment, the Board held that 

“the version of section 3304(f)(1) that became law is not limited to ensuring 

competition by those covered individuals who have not acquired competitive status 

or who are not currently employed by the hiring agency. Instead, the plain language 

of the enacted version provides that any covered individual – i.e., any preference 

eligible or individual whose military service and conditions of discharge bring him 

within the scope of section 3304(f)(1) – may compete for a vacancy whenever the 

hiring agency will accept applications from outside its own workforce.” The Board 

concluded that, because the agency indicated in its vacancy announcement that it 

would accept applications from individuals not employed by the Department of 

Homeland Security, 5 U.S.C. § 3304(f)(1) prohibited it from declining to consider 

the appellant on the ground that he was not currently employed at FLETC. The 

Board ordered the agency to determine whether the appellant was qualified for the 

supervisory law enforcement specialist position for which he applied, and if he was 

qualified, to reconstruct the selection process for that position.

In Styslinger v. Department of the Army, 105 M.S.P.R. 223 (February 22, 2007), 

the appellant, who retired as a Major in the U.S. Army and was employed by the 

Department of Energy, applied for a position with the Department of the Army that 

was open to veterans eligible under VEOA. The agency did not consider him for 

the position, however, because he was a current Federal employee and the agency 

believed that VEOA eligibility applied only to veterans who have no other “status” to 

apply on a merit promotion announcement. The Board noted, first, that the vacancy 

announcement may have been incomplete, because VEOA covers veterans and 
Significant Board Decisions and Court Opinions Issued in FY 2007

16 U.S. MERIT SYSTEMS PROTECTION BOARD

preference eligibles, and not all of the latter are themselves veterans. It then found 

that, unlike a complaint filed under 5 U.S.C. § 3330a(a)(1)(A), which requires an 

appellant to allege that he is a preference eligible and that an agency has violated 

his rights under any statute or regulation relating to veterans’ preference, in order 

to state a viable claim on a complaint filed pursuant to 5 U.S.C. § 3330a(a)(1)(B), 

an appellant need only allege he is a veteran described in 5 U.S.C. § 3304(f)(1) 

and that the agency violated his rights under that section. The Board then held 

that it has jurisdiction to adjudicate an appeal filed by a non-preference eligible 

veteran who alleges that an agency violated his rights under 5 U.S.C. § 3304(f)(1), 

which provides that preference eligibles or certain other veterans may not be denied 

the opportunity to compete for vacant positions for which the agency making the 

announcement will accept applications from individuals outside its own workforce 

under merit promotion procedures. The Board further found that, even though 

the appellant maintained some connection to the U.S. Army as a regular officer 

on its retired list, he still qualified as a “veteran described in section 3304(f)(1)” 

because he was a veteran who had been separated from the armed forces under 

honorable conditions after 3 years or more of active service. The Board also set 

forth, for the first time, the jurisdictional test for a VEOA appeal filed under 5 

U.S.C. § 3330a(a)(1)(B); specifically, the appellant must establish that he exhausted 

his Department of Labor remedy and make nonfrivolous allegations that he is a 

veteran described in section 3304(f)(1), that the agency denied him the opportunity 

to compete under merit promotion procedures for a vacant position for which 

the agency accepted applications from individuals outside its own workforce, and 

that the denial occurred on or after the December 10, 2004 enactment date of the 

Veterans’ Benefits Improvement Act of 2004.

In Davis v. Department of Defense, 105 M.S.P.R. 604 (May 7, 2007), the Board set 

forth its first interpretation of the U.S. Court of Appeals for the Federal Circuit’s 

en banc decision in Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. 

Cir. 2007), which held that an individual who brings a USERRA appeal has an 

unconditional right to a hearing on the merits. The Board noted that the court did 

not address the question of whether that unconditional right to a hearing extended 

to appeals brought under VEOA. The Board reasoned that its regulations provide 

for the possible disposition of a VEOA claim on the merits without a hearing, and 

that VEOA does not contain any language relating to a “hearing” comparable to the 

language in USERRA that the Kirkendall plurality relied upon. Thus, the Board 

held that it continues to have the authority to decide a VEOA claim on the merits, 

without a hearing, when there is no genuine dispute of material fact and one party 

must prevail as a matter of law.

The Board addressed the hiring authority set forth in the Federal Career Intern 

Program (FCIP) in Gingery v. Department of Defense, 105 M.S.P.R. 671 (May 30, 

2007), finding that the FCIP is a valid exception to the competitive examination 

requirement set forth at 5 U.S.C. § 3304(b), because it was expressly authorized 

by an Executive Order promulgated under 5 U.S.C. § 3302. In reaching this 
Annual Report for Fiscal Year 2007 17

Significant Board Decisions and Court Opinions Issued in FY 2007

conclusion, the Board rejected the appellant’s argument that cases such as Dean v. 

Department of Agriculture, 99 M.S.P.R. 533 (2005), aff’d on recons., 104 M.S.P.R. 1 

(2006), and Olson v. Department of Veterans Affairs, 100 M.S.P.R. 322 (2005), 

aff’d on recons. sub nom. Dean v. Department of Agriculture, 104 M.S.P.R. 1 (2006), 

which found that the Outstanding Scholar Program (OSP) did not create an 

exception that superseded veterans’ preference rights under the competitive process, 

established that hiring under the FCIP constituted an improper circumvention of 

such rights. Thus, the Board denied the appellant’s request for relief under VEOA in 

this nonselection case.

In Isabella v. Department of State, 106 M.S.P.R. 333 (August 10, 2007), the Board 

found, based on the record in the case, that the agency’s maximum entry age 

requirement of 37 years was not essential to the performance of the duties of the 

position of Diplomatic Security Service Special Agent, and that the agency’s failure 

to waive that requirement violated the appellant’s rights under statutes related to 

veterans preference, specifically, 5 U.S.C. §§ 3312(a)(1) and 3320. As a remedy 

for this VEOA violation, the Board ordered the agency to waive the maximum 

entry age and to reconstruct the selection process under which the appellant was not 

hired, including affording the appellant any other advantage to which his status as a 

preference eligible might entitle him.

Adverse Actions/Discrimination/Restoration

In McAlexander v. Department of Defense, 105 M.S.P.R. 384 (April 6, 2007), the 

Board held that a Police Officer’s acceptance of a lower-paying Office Support 

Assistant position, in lieu of a proposed removal for failure to meet new, more 

stringent hearing requirements for Police Officers, could not be considered a legally 

involuntary result of disability discrimination. The Board noted that, under 42 

U.S.C. § 12113(a), an employer may lawfully exclude an individual from a job 

on the basis of a qualification standard that tends to screen out individuals with 

disabilities as long as the standard is job-related and consistent with business 

necessity. The Board found that the agency’s auditory qualification standard was 

manifestly job-related and consistent with business necessity, and that although the 

appellant claimed that he could not be removed unless the agency first conducted 

an “individualized assessment” of whether he would pose a “direct threat” to the 

safety of himself or others if he remained in the position, the agency’s occupational 

audiologist performed such an assessment in this case, and the agency established 

that the appellant would pose a direct threat to the safety of himself or others if he 

remained in the Police Officer position. 

The Board in Brehmer v. U.S. Postal Service, 106 M.S.P.R. 463 (August 31, 2007), 

noted that under its existing case law, a partially-recovered employee may normally 

appeal only for a determination as to whether the agency acted arbitrarily and 

capriciously in denying restoration. The appellant, who had been restored by the 

agency, claimed that the restoration was terminated when the agency ended his 
Significant Board Decisions and Court Opinions Issued in FY 2007

18 U.S. MERIT SYSTEMS PROTECTION BOARD

limited-duty assignment and stated that it had no light-duty work available. The 

Board held, under these circumstances, that a claim that restoration rights previously 

granted were rescinded may constitute an appealable denial of restoration within the 

meaning of 5 C.F.R. § 353.304(c).

Board Procedures

In a case clarifying its mootness doctrine, Fernandez v. Department of Justice, 105 

M.S.P.R. 443 (April 6, 2007), the Board held that for an appeal to be deemed moot, 

the employee must have received all of the relief that he could have received “if the 

matter had been adjudicated and he had prevailed,” citing five Board decisions in 

support of this holding. The Board noted that six other Board decisions had held 

that an appeal was moot if, after cancellation of the appealed action, the employee 

was placed in the position he would have been in if the action had never occurred. 

The Board overruled those six decisions, finding that the correct focus in deciding 

whether an appeal is moot is on whether there is any relief the appellant could 

receive if the Board ruled in his favor.

The Board addressed the doctrine of equitable estoppel in Blaha v. Office of Personnel 

Management, 106 M.S.P.R. 265 (July 16, 2007), a case in which the parties 

stipulated that, at the time of the appellant’s retirement, she asked an employee in 

her employing agency’s retirement section if she could get a survivor annuity for her 

domestic partner of 15 years, and was told that no such benefit was available. In 

fact, under 5 U.S.C. § 8339(k)(1), an employee who is found to be in good health 

by OPM may elect a reduced annuity and name in writing an individual having 

an insurable interest in the employee to receive an annuity after the death of the 

retired employee. OPM denied the appellant’s request to elect a survivor annuity as 

untimely filed, and the Board’s administrative judge affirmed OPM’s determination, 

but the Board vacated the initial decision and remanded the appeal. The Board 

noted that an agency’s affirmative misconduct may preclude the enforcement of a 

statutory or regulatory deadline under the doctrine of equitable estoppel, at least 

where such estoppel would not result in the expenditure of appropriated funds in 

contravention of a statute. The Board held that the principle set forth in Office of 

Personnel Management v. Richmond, 496 U.S. 414 (1990), that the government 

cannot be estopped from denying benefits not otherwise permitted by law, even if 

the claimant was denied monetary benefits due to reliance on the mistaken advice of 

a government official, does not apply in situations when a claim of equitable estoppel 

is raised and there is no claim for payment of money from the U.S. Treasury, as in 

this case. Thus, the Board remanded this case to allow the appellant to develop 

her misinformation claim, including proving that she reasonably relied on the 

misinformation provided by her employing agency’s retirement counselor.

In Bennett v. Department of Transportation, 105 M.S.P.R. 634 (May 9, 2007), 

the Board held that in addition to lacking the authority to award back pay to an 
Annual Report for Fiscal Year 2007 19

Significant Board Decisions and Court Opinions Issued in FY 2007

employee of the Federal Aviation Administration, as set forth in Ivery v. Department 

of Transportation, 102 M.S.P.R. 356 (2006), the Board also lacks the authority to 

award such an employee specific or equitable relief because there has been no express 

waiver of sovereign immunity in that regard. This case involved the reversal of the 

appellant’s placement on enforced leave, and the remedy at issue was restoration of 

leave that had been improperly charged to the appellant.

In Ortiz v. Department of Justice, 103 M.S.P.R. 621 (Oct. 6, 2006), the Board 

declined to create a rigid, mechanical test for determining whether to grant 

anonymity in a proceeding before the Board, but for the first time did set forth 

general principles that should apply to such determinations. The Board agreed 

with several courts of appeals that a party seeking anonymity must overcome the 

presumption that parties’ identities are public information, that anonymity should 

be granted only in unusual circumstances, and that the determination of whether 

to grant anonymity must depend on the particular facts of each case. A litigant 

seeking anonymity must present evidence that harm is likely, not merely possible, if 

his or her name is disclosed, and that the likelihood and extent of the harm to the 

appellant significantly outweighs the public interest in disclosure of the appellant’s 

identity. The Board denied the appellant’s request for anonymity in this case, finding 

that his speculative claim that publication of his medical condition might harm his 

employment prospects was not enough to justify shielding his identity. The Board 

also noted that the appellant did not request anonymity until 2 months after filing 

his petition for review, the appellant himself raised the issue of his medical condition 

as a justification for the delay in filing his petition for review, a third-party’s privacy 

interests were not at issue in the case, and there was no reason to believe that 

disclosing the details of the appellant’s medical condition would cause extreme 

embarrassment or expose him to public ridicule.

Finally, the Board addressed the issue of the reasonableness of an attorney fee award 

in Del Prete v. U.S. Postal Service, 104 M.S.P.R. 429 (January 18, 2007), finding for 

the first time that when an appellant in an adverse action appeal does not prevail on a 

challenge to the merits of the charge, but wins only on the issue of mitigation of the 

penalty, and is otherwise found to be a prevailing party because the agency knew or 

should have known that its penalty would not stand in light of the mitigating factors, 

the attorney fee award will be limited to fees and expenses attributable to the penalty 

issue only, and the fees attributed to the appellant’s unsuccessful challenge to the 

merits of the charge are not compensable. Relying on the Supreme Court’s decisions 

in Farrar v. Hobby, 506 U.S. 103 (1992), and Hensley v. Eckerhart, 461 U.S. 424 

(1983), the Board held that once an appellant meets the threshold requirement 

of being the prevailing party in a case, the degree of success obtained is “the most 

critical factor” in determining the reasonableness of an attorney fee award. Thus, 

the Board held that an award of attorney fees is not “all or nothing” in a case in 

which the appellant prevails only on the issue of an appropriate penalty.
Significant Board Decisions and Court Opinions Issued in FY 2007

20 U.S. MERIT SYSTEMS PROTECTION BOARD

Significant opinions issued by the United States

Court of Appeals for the Federal Circuit

Gooden v. Office of Personnel Management, 471 F.3d 1275 (Fed. Cir. 2006). 

Applicants for disability benefits are not required to request accommodation in order 

to prove that accommodation was unreasonable.

Lary v. United States Postal Service, 472 F.3d 1363 (Fed. Cir. 2006), clarified on denial 

of reh’g, 493 F.3d 1355 (Fed. Cir. 2007). The agency’s failure to provide documents 

that the appellant needed to timely file his disability retirement application 

constituted a material breach of the parties’ settlement agreement, and specific 

performance was the only adequate remedy given that the appellant was irreparably 

harmed by the missed deadline.

Stoyanov v. Department of the Navy, 474 F.3d 1377 (Fed. Cir.), cert. denied, 128 S.Ct. 

247 (2007). The Whistleblower Protection Act does not protect against retaliation 

by an agency against a whistleblower’s family members; the allegedly improper 

personnel action must have been taken or have been proposed against the person 

bringing the IRA appeal.

Parrish v. Merit Systems Protection Board, 485 F.3d 1359 (Fed. Cir. 2007). When an 

agency asserts that it has ousted, pursuant to its demonstration project authority, 

the jurisdiction of the Board, the Board must fully and carefully analyze the agency’s 

action to ensure that the agency has complied with the requirements Congress has 

imposed as a condition for limiting the Board’s jurisdiction.

Kalil v. Department of Agriculture, 479 F.3d 821 (Fed. Cir. 2007). The character of a 

whistleblower disclosure may supply clear and convincing evidence that the agency 

would have taken the action absent the whistleblowing activities.

Cheney v. Department of Justice, 479 F.3d 1343 (Fed. Cir. 2007). When an indefinite 

suspension is imposed on an employee due to the suspension of his security 

clearance, the agency must provide the employee with the allegations that formed 

the basis for the suspension of the security clearance so that the employee can make a 

meaningful response to the proposed suspension.

Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. Cir.) (en banc), cert. denied 

sub nom., Department of the Army v. Kirkendall, 128 S.Ct. 375 (2007). The filing 

deadlines contained in VEOA are subject to equitable tolling; veterans are entitled 

to a hearing on their claims brought under USERRA because USERRA claims are 

“appeals” within the meaning of 5 U.S.C. § 7701.
Annual Report for Fiscal Year 2007 21

Significant Board Decisions and Court Opinions Issued in FY 2007

Toyama v. Merit Systems Protection Board, 481 F.3d 1361 (Fed. Cir. 2007). An agency 

provided incorrect appeal rights when it stated that the employee’s options were 

to file with the Equal Employment Opportunity Commission or in district court, 

rather than that her options were to file before the Board or in district court; the 

failure to provide adequate notice constituted good cause for the employee’s late 

Board appeal.

Perez v. Department of Justice, 480 F.3d 1309 (Fed. Cir. 2007). When an agency 

provides at least 30 days written notice, it need not have reasonable cause to believe 

an employee has committed a crime before suspending the employee indefinitely; 

5 U.S.C. § 7513(b)(1) only requires a reasonable cause determination if the agency 

gives less than 30 days notice.

Tully v. Department of Justice, 481 F.3d 1367 (Fed. Cir. 2007). A “leave of absence,” 

for purposes of USERRA, is not any leave of absence, but rather one comparable to 

the leave provided to the service member for military service.

Rapp v. Office of Personnel Management, 483 F.3d 1339 (Fed. Cir. 2007). An 

individual is entitled to a hearing before the Board on whether she is mentally 

competent to represent herself where she is challenging the denial of the 

continuation of her disability retirement annuity because of failure to prove 

continuing mental disability and she is seeking legal assistance.

Lutz v. United States Postal Service, 485 F.3d 1377 (Fed. Cir. 2007). The agency 

materially breached the parties’ settlement agreement, which included an agency 

promise that it would cooperate and facilitate the acceptance of Mr. Lutz’s disability 

retirement application and not place negative statements in the supervisor statement, 

when a supervisor’s negative statements discouraged OPM’s acceptance of the 

application.

Pittman v. Department of Justice, 486 F.3d 1276 (Fed. Cir. 2007). Pursuant to 

5 U.S.C. § 7121(e), the Board was barred from adjudicating Mr. Pittman’s USERRA 

claims because he had elected to raise similar matters by challenging his removal 

under the negotiated grievance procedure. 

Rhodes v. Merit Systems Protection Board, 487 F.3d 1377 (Fed. Cir. 2007). For 

purposes of an election made under 5 U.S.C. § 7121(e), the matter raised by an 

appeal from an imposition of an indefinite suspension is not the same as the matter 

raised by an appeal from the continuation of an indefinite suspension. Therefore, 

the petitioner’s election to grieve the former does not preclude an appeal to the 

Board of the latter.
Significant Board Decisions and Court Opinions Issued in FY 2007

22 U.S. MERIT SYSTEMS PROTECTION BOARD

Hernandez v. Department of the Air Force, 498 F.3d 1328 (Fed. Cir. 2007). Where a 

governmental action violated a veterans’ protection statute in effect at the time the 

conduct occurred, the Board has jurisdiction under USERRA to adjudicate claims 

arising from that past violation, regardless of whether it occurred before, on, or after 

the enactment of USERRA.

Pucilowski v. Department of Justice, 498 F.3d 1341 (Fed. Cir. 2007). The Board has 

authority under USERRA to order correction of civilian and military leave records 

to remedy improper charges of military leave; however, claimants are entitled to 

monetary compensation or its equivalent only where they demonstrate actual harm.

Jacobsen v. Department of Justice, 500 F.3d 1376 (Fed. Cir. 2007). USERRA does 

not impose a “prevailing party” requirement in order to be entitled to attorney fees; 

however the Board may consider a litigant’s nominal degree of success in relation to 

the relief he sought as a factor in denying fees.
Annual Report for Fiscal Year 2007 23

FY 2007 

Case Processing

Statistics

Summary of cases decided by MSPB

Table 1: FY 2007 Summary of Cases Decided by MSPB

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

Appeals 6,305

Addendum Cases1 518

Stay Requests2 60

TOTAL Cases Decided in RO/FOs 6,883

Cases Decided by Administrative Law Judges (ALJs) – Original 

Jurisdiction3

13

Cases Decided by the Board:

Appellate Jurisdiction:

Petitions for Review (PFRs) – Appeals 1,023

Petitions for Review (PFRs) – Addendum Cases 133

Reviews of Stay Request Rulings 0

Requests for Stay of Board Order 4

Reopenings4 4

Court Remands 3

Compliance Referrals 22

EEOC Non-concurrence Cases 1

Arbitration Cases 6 

 Subtotal – Appellate Jurisdiction 1,196

 Original Jurisdiction5 12

 Interlocutory Appeals 1

TOTAL Cases Decided by the Board 1,209

TOTAL Decisions (Board, ALJs, RO/FOs) 8,105

1 Includes 100 requests for attorney fees, 5 requests for compensatory damages (discrimination cases 

only), 2 requests for consequential damages, 2 requests for liquidated damages, 255 petitions for 

enforcement, 

126 Board remand cases, and 28 court remand cases.

2 Includes 36 stay requests in whistleblower cases and 24 in non-whistleblower cases.

3 Initial Decisions issued by ALJ. Case type breakdown: 1 OSC corrective action, 7 Hatch Act 

cases; 1 action against a member of the SES; and 4 actions against ALJs.

4 3 cases were reopened by the Board on its own motion and 1 by request of OPM.

5 Final Board decisions. Case type breakdown: 6 requests for regulation review, 3 OSC stay requests, 

and 3 Hatch Act cases.
FY 2007 Case Processing Statistics

24 U.S. MERIT SYSTEMS PROTECTION BOARD

Regional case processing

Table 2: Disposition of Appeals Decided 

in the Regional and Field Offices, by Type of Case

Type of Case

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

# # % # % # % # %

Adverse Action 

by Agency 2746 1237 45.05 1509 54.95 978 64.81 531 35.19 

Termination of 

Probationers 356 323 90.73 33 9.27 27 81.82 6 18.18 

Reduction in Force 88 63 71.59 25 28.41 9 36.00 16 64.00 

Performance 142 32 22.54 110 77.46 69 62.73 41 37.27 

Acceptable Level of 

Competence (WIGI) 26 17 65.38 9 34.62 3 33.33 6 66.67 

Suitability 75 26 34.67 49 65.33 25 51.02 24 48.98 

CSRS Retirement: 

Legal 455 183 40.22 272 59.78 5 1.84 267 98.16 

CSRS Retirement: 

Disability 83 47 56.63 36 43.37 0 0.00 36 100.00 

CSRS Retirement: 

Overpayment 120 41 34.17 79 65.83 48 60.76 31 39.24 

FERS Retirement 515 229 44.47 286 55.53 68 23.78 218 76.22 

FERCCA 20 12 60.00 8 40.00 0 0.00 8 100.00 

Individual Right 

of Action 199 128 64.32 71 35.68 41 57.75 30 42.25 

Other 1480 930 62.84 550 37.16 457 83.09 93 16.91 

Total 6305 3268 51.83 3037 48.17 1730 56.96 1307 43.04 

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

2 Percent Settled and Adjudicated are of the number Not Dismissed.
Annual Report for Fiscal Year 2007 25

FY 2007 Case Processing Statistics

Total Number of Appeals: 6,305

(Percentages do not total 100 because of rounding)

CSRS Retirement: Disability (83) 

1%

Acceptable Level of Competence (26) 

0%

Other Appeals (1,480) 

23%

Termination of Probationers (356) 

6%

Performance (142) 

2%

CSRS Retirement: Legal (455) 

7%

FERCCA (20) 

0%

Adverse Action (2,746) 

44%

Suitability (75) 

1%

Reduction in Force (88) 

1%

Individual Right of Action (199) 

3%

CSRS Retirement: Overpayment (120) 

2% FERS 

Retirement (515) 

8%

Mitigated (16) 

1%

Action or Decision Overturned or 

Corrective Action Ordered (212) 

7%

Action or Decision 

Upheld or Left 

Undisturbed (1,073) 

35% Appeal Settled (1,730) 

57%

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

Other (6) 

0%

Total Number of Appeals that were Not Dismissed: 3,037

Figure 1: Type of Appeals Decided in the Regional and Field Offices
FY 2007 Case Processing Statistics

26 U.S. MERIT SYSTEMS PROTECTION BOARD

Mitigated (16) 

1%

Action or Decision Overturned or 

Corrective Action Ordered (212) 

16%

Action or Decision 

Upheld or Left 

Undisturbed (1,073) 

82%

Figure 3: Dispositions: Appeals Not Dismissed 

or Settled by Regional/Field Office

Other (6) 

0%

Based on 1,307 appeals adjudicated on the merits

(Percentages do not total 100 because of rounding)

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

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

# # % # % # % # %

Office of Personnel 

Management* 1173 494 42.1 679 57.9 138 20.3 541 79.7 

US Postal Service 1022 648 63.4 374 36.6 244 65.2 130 34.8 

Army 667 286 42.9 381 57.1 304 79.8 77 20.2 

Veterans Affairs 548 301 54.9 247 45.1 156 63.2 91 36.8 

Air Force 416 159 38.2 257 61.8 197 76.7 60 23.3 

Homeland Security 381 231 60.6 150 39.4 94 62.7 56 37.3 

Navy 355 194 54.6 161 45.4 106 65.8 55 34.2 

Treasury 263 125 47.5 138 52.5 97 70.3 41 29.7 

Defense 243 141 58.0 102 42.0 65 63.7 37 36.3 

Justice 229 137 59.8 92 40.2 61 66.3 31 33.7 

Agriculture 182 104 57.1 78 42.9 52 66.7 26 33.3 

Interior 177 94 53.1 83 46.9 38 45.8 45 54.2 

Transportation 126 63 50.0 63 50.0 33 52.4 30 47.6 

Health & Human Services 98 52 53.1 46 46.9 32 69.6 14 30.4 

Commerce 57 31 54.4 26 45.6 21 80.8 5 19.2 

Social Security Administration 55 26 47.3 29 52.7 15 51.7 14 48.3 

Labor 53 26 49.1 27 50.9 15 55.6 12 44.4 
Annual Report for Fiscal Year 2007 27

FY 2007 Case Processing Statistics

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

# # % # % # % # %

Housing & Urban Development 36 19 52.8 17 47.2 12 70.6 5 29.4 

General Services Administration 32 22 68.8 10 31.3 6 60.0 4 40.0 

Energy 23 18 78.3 5 21.7 4 80.0 1 20.0 

State 20 10 50.0 10 50.0 3 30.0 7 70.0 

Environmental Protection 

Agency 15 8 53.3 7 46.7 3 42.9 4 57.1 

National Aeronautics and 

Space Administration 15 10 66.7 5 33.3 3 60.0 2 40.0 

Broadcasting Board of Governors 13 12 92.3 1 7.7 1 100.0 0 0.0 

Education 13 7 53.8 6 46.2 3 50.0 3 50.0 

Government Printing Office 8 4 50.0 4 50.0 3 75.0 1 25.0 

Nuclear Regulatory Commission 8 4 50.0 4 50.0 2 50.0 2 50.0 

Court Services & 

Offender Supervision 6 2 33.3 4 66.7 2 50.0 2 50.0 

Securities & Exchange 

Commission 6 3 50.0 3 50.0 3 100.0 0 0.0 

Small Business Administration 6 5 83.3 1 16.7 0 0.0 1 100.0 

National Archives and 

Records Administration 5 3 60.0 2 40.0 1 50.0 1 50.0 

Smithsonian Institution 5 0 0.0 5 100.0 5 100.0 0 0.0 

Tennessee Valley Authority 5 4 80.0 1 20.0 0 0.0 1 100.0 

Equal Employment 

Opportunity Commission 4 1 25.0 3 75.0 2 66.7 1 33.3 

Armed Forces Retirement Home 3 0 0.0 3 100.0 2 66.7 1 33.3 

Federal Deposit Insurance 

Corporation 3 1 33.3 2 66.7 0 0.0 2 100.0 

National Credit Union 

Administration 3 1 33.3 2 66.7 2 100.0 0 0.0 

Peace Corps 3 0 0.0 3 100.0 0 0.0 3 100.0 

Central Intelligence Agency 2 2 100.0 0 0.0 0 0.0 0 0.0 

Commodity Futures Trading 

Commission 2 2 100.0 0 0.0 0 0.0 0 0.0 

Consumer Product Safety 

Commission 2 2 100.0 0 0.0 0 0.0 0 0.0 

Corporation for National & 

Community Service 2 1 50.0 1 50.0 1 100.0 0 0.0 

Judicial Branch 2 2 100.0 0 0.0 0 0.0 0 0.0 

Other 2 2 100.0 0 0.0 0 0.0 0 0.0 

Pension Benefit Guaranty 

Corporation 2 0 0.0 2 100.0 2 100.0 0 0.0 

Administrative Office 

of US Courts 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 

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

(Continued)
FY 2007 Case Processing Statistics

28 U.S. MERIT SYSTEMS PROTECTION BOARD

Decided Dismissed1 Not Dismissed1 Settled2 Adjudicated2

# # % # % # % # %

Federal Communications 

Commission 1 1 100.0 0 0.0 0 0.0 0 0.0 

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

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

Government of the 

District of Columbia 1 1 100.0 0 0.0 0 0.0 0 0.0 

Library of Congress 1 1 100.0 0 0.0 0 0.0 0 0.0 

National Council on Disability 1 1 100.0 0 0.0 0 0.0 0 0.0 

National Foundation for Arts 

and the Humanities 1 1 100.0 0 0.0 0 0.0 0 0.0 

National Science Foundation 1 1 100.0 0 0.0 0 0.0 0 0.0 

National Transportation 

Safety Board 1 0 0.0 1 100.0 0 0.0 1 100.0 

Office of Administration, 

Executive Office of President 1 0 0.0 1 100.0 1 100.0 0 0.0 

Panama Canal Commission 1 1 100.0 0 0.0 0 0.0 0 0.0 

The World Bank 1 1 100.0 0 0.0 0 0.0 0 0.0 

TOTAL 6305 3268 51.8 3037 48.2 1730 57.0 1307 43.0

* 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.

1 Percentages in columns Dismissed and Not Dismissed are of Decided.

2 Percentages in columns Settled and Adjudicated are of Not Dismissed.

Table 4: Disposition of Appeals Adjudicated on the Merits 

in the Regional and Field Offices, by Agency

Adjudicated1 Affirmed Reversed

Mitigated

Modified Other

# # % # % # % # %

Office of Personnel 

Management* 541 429 79.3 108 20.0 2 0.4 2 0.4 

US Postal Service 130 103 79.2 22 16.9 5 3.8 0 0.0 

Army 77 70 90.9 6 7.8 1 1.3 0 0.0 

Veterans Affairs 91 78 85.7 10 11.0 3 3.3 0 0.0 

Air Force 60 41 68.3 17 28.3 1 1.7 1 1.7 

Homeland Security 56 49 87.5 5 8.9 2 3.6 0 0.0 

Navy 55 51 92.7 3 5.5 1 1.8 0 0.0 

Treasury 41 39 95.1 2 4.9 0 0.0 0 0.0 

Defense 37 33 89.2 4 10.8 0 0.0 0 0.0 

Justice 31 25 80.6 6 19.4 0 0.0 0 0.0 

Agriculture 26 26 100.0 0 0.0 0 0.0 0 0.0 

Interior 45 41 91.1 2 4.4 0 0.0 2 4.4 

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

(Continued)
Annual Report for Fiscal Year 2007 29

FY 2007 Case Processing Statistics

Adjudicated1 Affirmed Reversed

Mitigated

Modified Other

# # % # % # % # %

Transportation 30 16 53.3 13 43.3 1 3.3 0 0.0 

Health & Human Services 14 10 71.4 4 28.6 0 0.0 0 0.0 

Commerce 5 4 80.0 1 20.0 0 0.0 0 0.0 

Social Security Administration 14 11 78.6 3 21.4 0 0.0 0 0.0 

Labor 12 11 91.7 1 8.3 0 0.0 0 0.0 

Housing & Urban 

Development 5 5 100.0 0 0.0 0 0.0 0 0.0 

General Services 

Administration 4 1 25.0 2 50.0 0 0.0 1 25.0 

Energy 1 0 0.0 1 100.0 0 0.0 0 0.0 

State 7 6 85.7 1 14.3 0 0.0 0 0.0 

Environmental Protection 

Agency 4 4 100.0 0 0.0 0 0.0 0 0.0 

National Aeronautics and 

Space Administration 2 2 100.0 0 0.0 0 0.0 0 0.0 

Education 3 2 66.7 1 33.3 0 0.0 0 0.0 

Government Printing Office 1 1 100.0 0 0.0 0 0.0 0 0.0 

Nuclear Regulatory 

Commission 2 2 100.0 0 0.0 0 0.0 0 0.0 

Court Services & 

Offender Supervision 2 2 100.0 0 0.0 0 0.0 0 0.0 

Small Business Administration 1 1 100.0 0 0.0 0 0.0 0 0.0 

National Archives and Records 

Administration 1 1 100.0 0 0.0 0 0.0 0 0.0 

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

Equal Employment 

Opportunity Commission 1 1 100.0 0 0.0 0 0.0 0 0.0 

Armed Forces Retirement 

Home 1 1 100.0 0 0.0 0 0.0 0 0.0 

Federal Deposit Insurance 

Corporation 2 2 100.0 0 0.0 0 0.0 0 0.0 

Peace Corps 3 3 100.0 0 0.0 0 0.0 0 0.0 

National Transportation 

Safety Board 1 1 100.0 0 0.0 0 0.0 0 0.0 

TOTAL 1307 1073 82.1 212 16.2 16 1.2 6 0.5 

* 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.

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

Percentages may not total 100 because of rounding.

Table 4: Disposition of Appeals Adjudicated on the Merits 

in the Regional and Field Offices, by Agency

(Continued)
FY 2007 Case Processing Statistics

30 U.S. MERIT SYSTEMS PROTECTION BOARD

Figure 4: Disposition of Petitions for Review of Initial Decisions

Headquarters case processing

Table 5: Disposition of Petitions for Review (PFR) 

of Initial Decisions by Type of Case

Type of Case

Decided Dismissed Settled Denied Denied But

Reopened Granted

# # % # % # % # % # %

Adverse Action by 

Agency 477 24 5.03 3 0.63 386 80.92 12 2.52 52 10.90 

Termination of 

Probationers 33 5 15.15 0 0.00 22 66.67 2 6.06 4 12.12 

Reduction in Force 17 1 5.88 0 0.00 16 94.12 0 0.00 0 0.00 

Performance 31 4 12.90 1 3.23 21 67.74 0 0.00 5 16.13 

Acceptable Level of 

Competence (WIGI) 3 0 0.00 0 0.00 3 100.0 0 0.00 0 0.00 

Suitability 10 1 10.00 0 0.00 7 70.0 0 0.00 2 20.0 

CSRS Retirement: 

Legal 98 4 4.08 3 3.06 84 85.71 2 2.04 5 5.10 

CSRS Retirement: 

Disability 20 0 0.00 0 0.00 18 90.0 0 0.00 2 10.00 

CSRS Retirement: 

Overpayment 13 0 0.00 0 0.00 8 61.54 3 23.08 2 15.38 

FERS Retirement 92 7 7.61 4 4.35 56 60.87 10 10.87 15 16.30 

FERCCA 5 0 0.00 0 0.00 4 80.0 0 0.00 1 20.00 

Individual Right 

of Action 67 3 4.48 2 2.99 42 62.69 9 13.43 11 16.42 

Other 157 11 7.01 0 0.00 96 61.15 19 12.10 31 19.75 

Total 1023 60 5.87 13 1.27 763 74.58 57 5.57 130 12.71 

Dismissed (60) 

6% Granted (130) 

13%

Denied (763) 

75%

Settled (13) 

1%

Total Number of Petitions for Review: 1,023

Denied but Reopened (57) 

6%
Annual Report for Fiscal Year 2007 31

FY 2007 Case Processing Statistics

Figure 5: Disposition of Petitions for Review Granted

Initial Decision 

Affirmed (22) 

17%

Other (7) 

5%

Initial Decision 

Reversed (19) 

15%

Based on 130 Petitions for Review Granted

Case Remanded (82) 

63%

Figure 6: Disposition of Petitions for Review 

Denied but Reopened

Other (5) 

9%

Case

Remanded (18) 

32%

Initial Decision

Affirmed (31) 

54%

Based on 57 Petitions for Review Denied But Reopened

Initial Decision 

Reversed (3) 

5%
FY 2007 Case Processing Statistics

32 U.S. MERIT SYSTEMS PROTECTION BOARD

Table 6: Disposition of Petitions for Review 

of Initial Decisions, by Agency

Decided Dismissed Settled Denied

Denied But

Reopened Granted

# # % # % # % # % # %

Office of Personnel 

Management* 212 12 5.66 6 2.83 155 73.11 14 6.60 25 11.79 

US Postal Service 173 6 3.47 1 0.58 132 76.30 7 4.05 27 15.61 

Veterans Affairs 99 6 6.06 2 2.02 81 81.82 4 4.04 6 6.06 

Army 76 10 13.16 0 0.00 51 67.11 2 2.63 13 17.11 

Defense 59 3 5.08 0 0.00 48 81.36 5 8.47 3 5.08 

Homeland 

Security 52 3 5.77 0 0.00 41 78.85 4 7.69 4 7.69 

Air Force 47 4 8.51 1 2.13 29 61.70 5 10.64 8 17.02 

Navy 44 0 0.00 1 2.27 36 81.82 1 2.27 6 13.64 

Justice 40 3 7.50 0 0.00 27 67.50 4 10.00 6 15.00 

Treasury 39 4 10.26 0 0.00 24 61.54 2 5.13 9 23.08 

Interior 33 2 6.06 1 3.03 29 87.88 1 3.03 0 0.00 

Agriculture 32 1 3.13 0 0.00 24 75.00 4 12.50 3 9.38 

Transportation 28 2 7.14 1 3.57 17 60.71 2 7.14 6 21.43 

Social Security 

Administration 15 0 0.00 0 0.00 15 100.00 0 0.00 0 0.00 

Health & 

Human Services 10 0 0.00 0 0.00 9 90.00 0 0.00 1 10.00 

Commerce 8 1 12.50 0 0.00 4 50.00 1 12.50 2 25.00 

Labor 8 1 12.50 0 0.00 7 87.50 0 0.00 0 0.00 

Nuclear 

Regulatory 

Commission 

5 0 0.00 0 0.00 4 80.00 0 0.00 1 20.00 

Housing & Urban 

Development 4 1 25.00 0 0.00 2 50.00 0 0.00 1 25.00 

State 4 0 0.00 0 0.00 3 75.00 0 0.00 1 25.00 

Small Business 

Administration 4 0 0.00 0 0.00 3 75.00 0 0.00 1 25.00 

Armed Forces 

Retirement Home 3 0 0.00 0 0.00 2 66.67 0 0.00 1 33.33 

Broadcasting 

Board of 

Governors

3 1 33.33 0 0.00 1 33.33 0 0.00 1 33.33 

Environmental 

Protection Agency 3 0 0.00 0 0.00 1 33.33 0 0.00 2 66.67 
Annual Report for Fiscal Year 2007 33

FY 2007 Case Processing Statistics

Decided Dismissed Settled Denied

Denied But

Reopened Granted

# # % # % # % # % # %

General Services 

Administration 3 0 0.00 0 0.00 3 100.00 0 0.00 0 0.00 

Education 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00 

Energy 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00 

Federal Deposit 

Insurance 

Corporation 

2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00 

Peace Corps 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 0 0.00 0 0.00 1 100.00 

Commodity 

Futures Trading 

Commission

1 0 0.00 0 0.00 0 0.00 1 100.00 0 0.00 

Equal 

Employment 

Opportunity 

Commission

1 0 0.00 0 0.00 0 0.00 0 0.00 1 100.00 

Federal Trade 

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

Government 

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

National 

Aeronautics 

and Space 

Administration

1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00 

National Archives 

and Records 

Administration

1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00 

National 

Transportation 

Safety Board

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 

Smithsonian 

Institution 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00 

Tennessee Valley 

Authority 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00 

TOTAL 1023 60 5.87 13 1.27 763 74.58 57 5.57 130 12.71 

* 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.

Table 6: Disposition of Petitions for Review 

of Initial Decisions, by Agency

(Continued)

Annual Report for Fiscal Year 2007 35

Summaries

of Merit 

Systems Studies

The MSPB issued reports to the President and Congress on such issues as Federal 

employee perceptions about the practice of merit in the workplace and entry-level 

hiring in the Federal Government. The MSPB issued four editions of the Issues of 

Merit newsletter which included articles on improving Federal assessment practices, 

survey findings on how to better attract entry-level and upper level new hires, and 

the progress being made toward executive pay for performance. The MSPB also 

administered the FY 2007 Merit Principles Survey (MPS) to almost 69,000 Federal 

employees and managers and administered another governmentwide survey on the 

career advancement issues of Federal employees.

Accomplishing Our Mission:

Results of the Merit Principles Survey 2005 

The MSPB conducted the Merit Principles Survey (MPS) in FY 2005 to elicit the 

views of Federal employees about the practice of merit in the workplace including 

working conditions, job satisfaction, and interactions with their coworkers and 

supervisors. We published a report of the survey findings in FY 2007. The report 

reveals that Federal employees largely agree that they are well managed, have jobs 

they like, and are motivated by the opportunity to help their agencies succeed. 

Employees at all levels confirmed that they are dedicated to ensuring that their 

agencies achieve their missions. However, they are concerned about how the Federal 

Government can maintain a qualified and motivated workforce. The MPS 2005 

also found continuing high job satisfaction despite perceptions of less organizational 

stability and fear of pending changes in the Federal pay system. 

The report also explores challenges agencies face in managing the workforce. For 

example, hiring officials are often not satisfied with the applicant pools available 

to fill Federal job vacancies. Employees already on the job would like additional 

training to perform their jobs at a higher level of competence. A large percentage 

of nonsupervisory employees feel uninformed about performance management 

practices, organizational changes, and other issues. Additionally, both supervisors 

and nonsupervisors report a moderate level of serious conflict in the workplace that 

may erode the motivation of some employees to succeed. 
Summaries of Merit Systems Studies 

36 U.S. MERIT SYSTEMS PROTECTION BOARD

The good news is that most employees and their supervisors have formed good 

relationships and are working together to meet these challenges. A key finding in this 

report is the importance of trust between employees and their first-line supervisors. 

Attracting the Next Generation:

A Look at Federal Entry Level New Hires

There is concern that the Federal Government is facing a “brain drain” as the result 

of an aging workforce and high retirement eligibility rates. Using input from new 

entry-level employees about why they chose to work for the Federal Government 

and what obstacles they faced in the job search, the MSPB completed a study that 

assesses how Federal agencies can better attract and select qualified applicants for 

entry-level opportunities to build a sufficient pipeline for journey-level positions. 

The research points to a number of positive conclusions about the Federal 

Government’s ability to attract highly qualified candidates. The Federal Government 

offers what many new hires—regardless of age or generation—want in an employer, 

including job security, good benefits and the ability to make a difference with their 

work. In addition, many of the new hires faced fewer obstacles in the hiring process 

than one might expect, were fairly determined to obtain a Federal job, and plan to 

stay with the Government for a long time.

However, there are areas where the Government can improve. For instance, it appears 

that agencies are relying more and more on excepted service appointment authorities 

to hire new employees. The report cautions that these authorities can inadvertently 

circumvent merit because they often narrow recruitment sources, potentially shortcircuiting fair and open competition. 

The MSPB makes a number of recommendations that agencies and Federal policy 

makers should consider when reflecting on how to improve the Federal hiring 

process. In particular, we recommend that agencies use a variety of recruitment 

strategies to reach a large segment of society, use better assessment tools to 

distinguish the most qualified candidates, and not rely on generational stereotypes 

to target applicants. 

Issues of Merit Newsletter

The MSPB’s Issues of Merit newsletter is designed to offer 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 practitioners, social 

science researchers, and academics. 
Annual Report for Fiscal Year 2007 37

Summaries of Merit Systems Studies 

The MSPB issued four editions of the Issues of Merit newsletter in FY 2007. Each of 

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

readers’ understanding of employment issues, and perspectives from the Director 

of the Office of Policy and Evaluation (OPE) about specific human capital matters. 

To communicate research findings, newsletter articles addressed topics such as what 

factors influence whether or not agencies recommend their agency as a place to 

work, survey findings on how to better attract entry-level and upper level new hires, 

and how agencies can balance their training strategies. Articles provided insight 

into issues like how to coach employees, using better assessment instruments, and 

agency best practices in keeping in touch with retirees, establishing intern programs, 

and making use of veterans’ skills. The OPE Director addressed issues such as 

the perception of favoritism in the Federal workforce, how to improve applicant 

assessment tools, issues and trends that will affect the future workforce, and the role 

of human resources in addressing organizational challenges. 

Merit Principles Survey 2007

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

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

incidence of prohibited personnel practices among Federal employees, assesses the 

degree to which merit principles are followed, and gathers information to support 

OPE research studies. OPE conducted preparatory work for the MPS during FY 

2006 and administered the survey during FY 2007. 

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

perceptions of the implementation of the merit system in the workplace. The 

topics addressed included the merit system principles, job satisfaction, supervision, 

performance management, training and development, and agency leadership. The 

MPS was administered to 68,789 employees in 28 agencies in the fall of 2007. Sixty 

percent of these employees responded to the survey. Fourteen of the participating 

agencies used the MPS to conduct their annual employee survey, required by the 

National Defense Authorization Act for Fiscal Year 2004. We provided these agencies 

with reports and raw data files of the annual survey questions. During FY 2008, we 

will analyze the MPS data and prepare a written report of the results for the President 

and Congress. 

Career Advancement Survey

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

feel they are treated in terms of career advancement, we developed the Career 

Advancement Survey. The survey covered a variety of topics, including work 

satisfaction, career experiences, perceptions of the work environment, pay and 

performance management, and work/life issues. In FY 2007, the MSPB administered 
Summaries of Merit Systems Studies 

38 U.S. MERIT SYSTEMS PROTECTION BOARD

this survey via the web and paper to a stratified random sample of full-time 

permanent employees in over 30 agencies. We received responses from 11,538 

individuals for a response rate of 53 percent. 

We will compare the results of the Career Advancement Survey with similar items on 

earlier surveys to provide a longitudinal perspective on attitudes within the Federal 

Government. We will be able to analyze results by sex, race/ethnicity and income 

level. We will also examine our findings in the context of changes in the composition 

of the workforce, based upon analysis of the Civilian Personnel Data File. These 

results will be combined into a future report for the President and Congress. 
Annual Report for Fiscal Year 2007 39

Significant Actions 

of the 

Office of Personnel 

Management (OPM)

1 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2007_register&docid=E7-8061

As required by statute, the MSPB reports on the significant actions of OPM. Below, 

we list and briefly discuss the OPM actions in these areas that have the greatest longterm implications for the Federal civil service. This list is not exhaustive.

Policy and leadership

In FY 2007, OPM addressed several human resources issues. While each individual 

resolution was significant, it is perhaps equally noteworthy that in FY 2007 OPM 

demonstrated a commendable commitment to resolving multiple problem areas that 

had required attention previously.

Clarification of adverse action rules

In May 2007, OPM issued new proposed regulations to address changes in case law 

that have taken place over the past decade,1 including those raised in the MSPB’s 

2006 report, Navigating the Probationary Period After Van Wersch and McCormick. 

OPM’s proposed regulations clarify the adverse action rules already in place as a 

result of court and Board decisions. 

Significance:

At the end of FY 2006, the MSPB issued a report which noted that in 1999 the 

Federal Circuit issued a decision that invalidated certain OPM regulations related 

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

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

upheld by the MSPB and its reviewing court. OPM’s new proposed regulations 

should help reduce any agency or employee confusion about agencies’ obligations 

when taking adverse actions against individuals who work for them. The new 

regulations should make it easier for agencies to comply with the law. 

Administrative Law Judge (ALJ) examinations

In May 2007, OPM announced a new ALJ examination using a new examining 

process. This was the first time since 1999 that the ALJ register was opened to 

individuals who did not have eligibility for 10-point preference. Applicants who 
40 U.S. MERIT SYSTEMS PROTECTION BOARD

successfully completed the examination had their names placed on the ALJ register 

which OPM uses to make referrals to agencies for employment.

Significance:

With an average age in excess of 60 years, the ALJ population is particularly 

vulnerable to the effect of the expected retirement wave. One possible reason for 

the higher-than-typical average age for ALJs is that the examination method 

previously in place was suspended in 1999 as a result of litigation, and the register 

had not been open to all qualified U.S. citizens since then. (In 2003, OPM began 

re-using the examination, but only accepted applications from veterans eligible for 

10-point preference.) Given that approximately 80 percent of ALJs are employed 

by the Social Security Administration, and the expected influx of baby boomer 

retirement applications in the next decade, the availability of a new register is of 

clear importance. 

Compliance and accountability

Senior Executive Service (SES) systems certification

In its FY 2007 Performance and Accountability Report, OPM reported that 33% of 

agency SES systems that applied for certification have been fully certified. 

Significance:

The National Defense Authorization Act for Fiscal Year 2004 established a new 

performance-based pay system for members of the Senior Executive Service, but 

agency systems had to be certified by OPM. Agency certification was initially 

limited, likely in large part because of the need to have a system in place for two 

years before full certification could be granted.2 As a result, only 3 percent of agency 

SES systems that sought certification had received full certification in FY 2006. 

However, in FY 2007, that number increased to 33 percent, three times as many 

systems as OPM had targeted for certification in FY 2007.3 Given the large number 

of Federal employees moving into pay for performance systems (most notably in 

DoD), and the importance of leading change at the top, this increase in certified 

agency SES systems is noteworthy. We hope the number of fully certified agency 

systems will continue to increase. However, the certification of a system does not 

automatically correlate to its effectiveness. In FY 2008, OPM announced it would 

conduct a survey to measure how executives perceive their systems, and we look 

forward to seeing the results. 

Significant Actions of the Office of Personnel Management (OPM)

2 5 CFR 430.405 (b) (5)

3 OPM PAR, p. 18
Annual Report for Fiscal Year 2007 41

Electronic Official Personnel Folders (eOPF)

By the end of FY 2007, 46 percent of Federal agencies had switched to the use of an 

eOPF – an electronic record of personnel actions throughout an employee’s career.

Significance:

Electronic OPFs help agencies and employees in the short-term, as well as employees 

and OPM in the long term. In the short term, eOPF systems make it easier for 

agencies to provide employees with copies of their personnel documents. (The 

most desirable eOPF systems will enable employees to use a secure system to view 

their own OPF.) In the long term, OPM is expecting to process an atypically large 

number of retirement requests, and electronic OPFs should help it process these 

requests more quickly and efficiently.

Delivery of services and products

Automated Recruitment Guidance

In FY 2007, OPM introduced to its website the Hiring Toolkit and the Personnel 

Assessment and Selection Resource. With the Hiring Toolkit, OPM emphasized 

the element of attracting candidates and moving the process along quickly, 

while the Personnel Assessment and Selection Resource balanced that with more 

comprehensive guidance on how to create assessment tools and what benefits each 

assessment tool has to offer.

Significance:

Streamlining the recruitment process is necessary if the Government is to compete 

for talent. However, it is also necessary to select the best candidates in order to 

have an efficient and effective workforce as intended by the merit principles. By 

providing guidance in each of these areas through its website, OPM took advantage 

of technology to help agencies face their recruitment challenges. 

Improvements to Labor Agreement Information

Retrieval System (LAIRS)

In September 2007, a re-designed LAIRS system was brought on-line on 

OPM’s website. 

Significance:

The previous version of LAIRS was technologically archaic and difficult to use, 

whereas the new system enables users to design a search more effectively and to craft 

reports. By creating a system that can be used more effectively, OPM increases the 

likelihood that agencies will submit timely data and that the information will be put 

into use. 

Significant Actions of the Office of Personnel Management (OPM)
42 U.S. MERIT SYSTEMS PROTECTION BOARD

Electronic Delivery of Security Clearances

In August 2007, OPM announced a pilot program to deliver completed background 

investigations electronically, beginning with the U.S. Army Central Personnel 

Security Clearance Facility. 

Significance:

Paper-based delivery is largely inefficient in today’s world. Not only are there postage 

costs and days lost while the paperwork is moved, but paper documents also require 

additional tracking processes. With this program, OPM should be able to take 

better advantage of secure technology to move cases to the clearance stage faster. 

Federal Employees Dental and Vision Insurance Program

Offering supplemental dental and vision insurance is a new program that took effect 

in 2007. According to OPM figures, there were over 700,000 elections to enroll in 

three vision and seven dental plans.

Significance:

The Federal Government has been—and will continue to be—in competition with 

the private sector and non-profit organizations to recruit and retain the most talented 

employees. Providing access to these additional benefits may assist agencies as they 

seek to make themselves attractive to potential employees. 

Significant Actions of the Office of Personnel Management (OPM)
Annual Report for Fiscal Year 2007 43

Financial

Summary

Fiscal Year 2007 Financial Summary

(dollars in thousands)

Financial Sources

Appropriations $36,063

Civil Service Retirement and Disability Trust Fund 2,603

Carryover Authority 103

Total Revenue	 $38,769

Obligations Incurred

Personnel Compensation $24,875

Personnel Benefits 5,688

Benefits to Former Employees 17

Travel of Persons 472

Transportation of Things 173

Rental Payments 3,316

Communications, Utilities, and Miscellaneous 313

Printing and Reproduction 150

Other Services 2,367

Supplies and Materials 318

Equipment 532

Land and Structure 235

Total Obligations Incurred	 $38,456

Obligated Balance $313

Annual Report

FISCAL YEAR

2 0 0 7

U.S. Merit Systems Protection Board

1615 M Street, NW, Washington, DC 20419

Fax: (202) 653-7130

Toll Free: 1-800-209-8960

V/TDD: 1-800-877-8339

MSPB Inspector General Hotline: (800) 424-9121

E-Mail: mspb@mspb.gov

www.mspb.gov