United States 

Merit Systems Protection Board 

Annual Report for FY 2013

May 30, 2014 
ii Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

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Foreword

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

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

2013. This report includes summaries of the most significant Board decisions, relevant opinions 

issued by our reviewing courts during the year, case processing statistics, summaries of MSPB’s 

merit systems study reports and Issues of Merit newsletter topics, and a summary of MSPB’s financial 

results. The report also contains a review of the significant actions of the Office of Personnel 

Management (OPM) and examines whether those actions are in accord with merit system principles 

and free from prohibited personnel practices. The review of OPM significant actions conducted 

under 5 U.S.C § 1206 is not, and should not be construed as, an advisory opinion (which is 

prohibited under 5 U.S.C. § 1204(h)). In addition, when there have been significant MSPB 

activities since the end of the FY, the report includes updated information as a service to the reader. 

Additional information about FY 2013 program performance results is available in the Annual 

Performance Report and Annual Performance Plan (APR-APP) published at the same time as the 

FY 2015 Congressional Budget Justification. Financial accountability and audit information is 

included in MSPB’s Annual Financial Report (AFR), published in November each year. MSPB 

Annual Reports, AFRs, PR-APPs, and Strategic Plans are posted on MSPB’s website, 

www.mspb.gov, when they are released.

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

listservs, follow us on twitter (@USMSPB), or download the MSPB app (for android or iphone). 
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Table of Contents

 Page

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

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

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

MSPB Offices and Their Functions.......................................................................................................... 4

Fiscal Year 2013 in Review ............................................................................................ 7

Adjudication and Enforcement.................................................................................................................. 7

Furlough Cases Resulting from Federal Sequestration .......................................................................... 8

Merit Systems Studies................................................................................................................................ 10

The Significant Actions of the Office of Personnel Management..................................................... 10

Outreach and Merit Systems Education................................................................................................. 11

International Activities .............................................................................................................................. 11

Legislative and Congressional Relations................................................................................................. 11

Internal Management Activities and Challenges................................................................................... 12

Significant External Trends and Issues................................................................................................... 14

Significant Board Decisions and Court Opinions Issued in FY 2013..........................17

Significant Board Decisions Issued in Fiscal Year 2013 ...................................................................... 17

Selected Significant Board Decisions Issued in Early FY 2014.......................................................... 26

Significant Opinions Issued by the U.S. Court of Appeals for the Federal Circuit......................... 26

Case Processing Statistics for FY 2013 ........................................................................ 29

Summary of Cases Decided by MSPB.................................................................................................... 29

Summary of Cases Processed in the Regional and Field Offices ....................................................... 30

Headquarters Case Processing ................................................................................................................. 38

Summaries of Merit Systems Studies .......................................................................... 45

Clean Record Settlement Agreements and the Law ............................................................................. 45

Issues of Merit Newsletter Topics........................................................................................................... 45

Merit Systems Studies Reports Published in Early FY 2014............................................................... 46

Updating the Merit Systems Studies Research Agenda........................................................................ 46

Significant Actions of the U.S. Office of Personnel Management.............................. 47

Scope and Coverage of this Review........................................................................................................ 47

Factors Affecting the U.S. Office of Personnel Management ............................................................ 47

New OPM Significant Actions................................................................................................................. 48

OPM Significant Actions Underway or Completed ............................................................................. 55

Financial Summary...................................................................................................... 57
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1 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

U.S. Merit Systems Protection Board

Fiscal Year 2013 Annual Report

Introduction

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

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

2013. The report includes summaries of the most significant Board decisions, relevant Court 

opinions, case processing statistics, summaries of MSPB’s merit systems study reports and Issues of 

Merit (IoM) newsletter topics, and summaries of the significant actions of the Office of Personnel 

Management (OPM). The report also contains summaries of the Board’s financial status, outreach 

and merit systems education activities, legislative and congressional relations activities, international 

activities, internal management issues, and the external factors that affect MSPB’s work. When there 

have been significant activities or events since the end of the FY 2013, the report includes updated 

information as a service to MSPB’s stakeholders. 

About MSPB

MSPB has its origin in the Pendleton Act of 1883, which was passed following the assassination of 

President Garfield in 1881 by a frustrated Federal job seeker. The Pendleton Act created the Civil 

Service Commission (CSC) and provided the foundation for improvements in Government 

efficiency and effectiveness by helping to ensure that a stable, highly qualified Federal workforce, 

free from partisan political pressure, was available to provide effective service to the American 

people. 

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

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

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

motivating factor behind the passage of the Civil Service Reform Act of 1978 (CSRA). The CSRA 

replaced the CSC with three new agencies: MSPB as the successor to the CSC; OPM to serve as the 

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

Relations Authority (FLRA) to oversee Federal labor-management relations.

1

MSPB inherited the adjudication functions of the CSC by providing due process to employees and 

agencies as an independent, third-party adjudicatory authority for employee appeals of adverse 

actions and retirement decisions. Under the CSRA, MSPB was authorized to develop its adjudicatory 

processes and procedures, issue subpoenas, call witnesses, and enforce compliance with final MSPB 

decisions. MSPB was also granted broad new authority to conduct independent, objective studies of 

the Federal merit systems and Federal human capital management issues. In addition, MSPB was 

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

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

systems as the merit system principles (MSPs) and delineated specific actions and practices as the 

 

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

Historical Society, Volume 4, 2010.

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

invalid OPM regulations if such regulations, or the implementation of such regulations, would require an employee to 

commit a prohibited personnel practice (PPP). Pursuant to 5 U.S.C. § 1206, MSPB also is responsible for annually 

reviewing and reporting on OPM’s significant actions.
2 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

prohibited personnel practices (PPPs) that were proscribed because they were contrary to merit 

system values.3Since the CSRA, Congress has given MSPB jurisdiction to hear cases and complaints 

filed under a variety of other laws.4

Board Members

The bipartisan Board consists of the Chairman, Vice Chairman, and Board Member, with no more 

than two of its three members from the same political party. Board members are appointed by the 

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

SUSAN TSUI GRUNDMANN

Chairman

November 2009 to Present

Susan Tsui Grundmann was nominated by President Barack Obama 

to serve as a Member and Chairman of the U.S. Merit Systems 

Protection Board on July 31, 2009. She was confirmed by the U.S. 

Senate on November 5, 2009, and sworn in on November 12, 2009. 

Chairman Grundmann’s term expires on March 1, 2016. 

Previously, Ms. Grundmann served as General Counsel to the 

National Federation of Federal Employees (NFFE), which represents 

100,000 Federal workers nationwide and is affiliated with the 

International Association of Machinist and Aerospace Workers. At 

NFFE, she successfully litigated cases in the U.S. District Court for the District of Columbia and the 

U.S. Court of Appeals for the District of Columbia. In 2004, Ms. Grundmann represented NFFE 

and other labor unions in the statutory “meet and confer” process with officials from the 

Department of Homeland Security (DHS) and OPM, which sought agreement on how to proceed 

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

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

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

(DoD). In addition to DoD employees, Ms. Grundmann represented employees in the Forest 

Service, Department of Agriculture, Passport Service, Veterans Administration, General Services 

Administration, and some 25 additional Federal agencies. From 2003 to 2009, she was a regular 

instructor on Federal sector labor and employment law at the William W. Winpisinger Education 

Center in Placid Harbor, Maryland. Prior to joining NFFE, Ms. Grundmann served as General 

Counsel to the National Air Traffic Controllers Association. She began her legal career as a law clerk 

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

and at the Sheet Metal Workers National Pension Fund. Chairman Grundmann earned her 

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

Center.

 

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

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

Veterans Employment Opportunity Act (VEOA), 5 U.S.C. § 3309 et seq.; the Whistleblower Protection Act (WPA), Pub. 

L. No. 101-12, 103 Stat. 16; 5 U.S.C. § 4304; 5 U.S.C. § 7513; and those set out at 5 C.F.R. § 5 Code of Federal 

Regulations (C.F.R.) § 1201.3.
3 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

ANNE M. WAGNER

Vice Chairman

November 2009 to Present

Anne M. Wagner was nominated by President Barack Obama to serve 

as a Member of the U.S. Merit Systems Protection Board with the 

designation of Vice Chairman on July 31, 2009. Her nomination was 

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

sworn in November 12, 2009. Although Ms. Wagner’s term expired

on March 1, 2014, she continues to serve in her position in 

accordance with MSPB’s governing statute, which specifies that a 

member may remain on the Board for a period of one year past the 

end of her term, or until a successor is confirmed, whichever occurs 

first.

Ms. Wagner came to the Merit Systems Protection Board after serving as General Counsel of the 

Personnel Appeals Board of the U.S. Government Accountability Office (GAO). Prior to that, Ms. 

Wagner was appointed by the U.S. Comptroller General to serve a five-year statutory term as a 

Member of the GAO Personnel Appeals Board. Ms. Wagner began her career as a staff attorney in 

the Office of the General Counsel of the General Services Administration, where she primarily 

handled labor and employment issues. From there, she went on to become an Assistant General 

Counsel for the American Federation of Government Employees (AFGE), AFL-CIO, the largest 

Federal sector labor organization representing more than 600,000 Federal and District of Columbia

government employees. In her nearly 20years with AFGE, she led precedent-setting litigation and 

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

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

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

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

MARK A. ROBBINS

Member 

May 2012 to Present

Mark A. Robbins was nominated by President Barack Obama on 

December 5, 2011 to serve as a Member of the Merit Systems 

Protection Board. He was confirmed by the U.S. Senate on April 26, 

2012. Mr. Robbins' term expires on March 1, 2018.

At the time of his nomination, Mr. Robbins was the General 

Counsel of the U.S. Election Assistance Commission. In that 

capacity, Mr. Robbins worked to certify elections systems and 

maintain information on the best practices of conducting elections. 

He previously served as a Senior Rule of Law Advisor for the State 

Department in Babil Province, Iraq. Mr. Robbins also served as 

Executive Director of the White House Privacy and Civil Liberties Oversight Board between 2006 

and 2008 and as General Counsel of the Office of Personnel Management from 2001 to 2006. He 

worked in private practice as a litigation attorney in Los Angeles, California between 1988 and 2000, 

and in the White House Office of Presidential Personnel from 1984 to 1988. He began his career as 

a legislative assistant to two members of the U.S. House of Representatives, where, among other 

issues, he covered the Federal civil service and human resources management.
4 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Mr. Robbins earned both his undergraduate and law degrees from George Washington University. 

He is a member of the California and District of Columbia bars. In 2013, in recognition of his 

extensive professional involvement and continued leadership in public administration, Mr. Robbins 

was elected as a Fellow of the National Academy of Public Administration.

MSPB Offices and Their Functions

MSPB is headquartered in Washington, DC and has eight regional and field offices located 

throughout the United States. The agency is currently authorized to employ 226 Full-time 

Equivalents (FTEs) to conduct and support its statutory duties. 

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

chief executive and administrative officer. The Office Directors report to the Chairman through the 

Executive Director.

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

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

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

assigned by MSPB. The functions of this office are currently performed under interagency 

agreements by ALJs at the Federal Trade Commission (FTC), the Coast Guard, and the 

Environmental Protection Agency (EPA).

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

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

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

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

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

advice on legal issues to the Board.

The Office of the Clerk of the Board receives and processes cases filed at MSPB headquarters (HQ), 

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

information center, coordinates media relations, operates MSPB’s library and on-line information 

services, and administers the Freedom of Information Act (FOIA) and Privacy Act programs. It also 

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

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

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

employment opportunity programs. It processes complaints of alleged discrimination brought by 

agency employees and provides advice and assistance on affirmative employment initiatives to 

MSPB’s managers and supervisors.

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

travel, time and attendance, human resources, procurement, property management, physical security, 

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

programs, including review of agency internal controls. It also administers the agency’s cross-agency 

servicing agreements with the U.S. Department of Agriculture (USDA), National Finance Center for 

payroll services, U.S. Department of the Treasury, Bureau of the Public Debt for accounting 

services, and USDA’s Animal and Plant Health Inspection Service for human resources services.
5 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

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

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

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

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

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

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

drafts regulations, conducts MSPB’s ethics program, performs the Inspector General function, and 

plans and directs audits and investigations. 

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

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

out its administrative and research responsibilities.

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

studies of the civil service and other Federal merit systems. Reports of these studies are sent to the 

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

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

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

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

has responsibility for coordinating MSPB’s performance planning and reporting functions required 

by the Government Performance and Results Act Modernization Act of 2010 (GPRAMA).

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

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

(MAP). AJs in the regional and field offices are responsible for adjudicating assigned cases and for 

issuing fair, well-reasoned, and timely initial decisions.

MSPB Organizational Chart

CHAIRMAN MEMBER

General Counsel

Equal

Employment

Opportunity

Clerk of the 

Board

Administrative 

Law Judge

Regional 

Operations

Appeals Counsel Policy and 

Evaluation

Regional Offices 

Atlanta, Chicago,

Dallas,

Philadelphia,

San Francisco, and 

Washington, DC 

VICE CHAIRMAN

Field Offices 

Denver and

New York

Financial and

Administrative 

Management

Information

Resources 

Management

Executive 

Director

Human Resources Management services are provided by the U.S. Department of Agriculture’s (USDA), 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, Bureau of the Public Debt.

The functions of the Administrative Law Judge (ALJ) are performed by ALJs employed by the Federal Trade 

Commission (FTC), the U.S. Coast Guard, and the Environmental Protection Agency (EPA) under reimbursable 

interagency agreements.

U.S. Merit Systems Protection Board
6 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

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7 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Fiscal Year 2013 in Review

Adjudication and Enforcement

MSPB issued 7,459 decisions in FY 2013 including 6,340 initial decisions issued by the regional and 

field offices and 952 decisions issued by the Board at HQ. (ALJs issued 167 decisions.) HQ and the 

regional and field offices continued to issue high quality decisions and the average processing times 

were within targets for initial appeals. The average processing time continued to increase for PFRs at 

HQ. However, PFR processing stabilized in FY 2013 during which MSPB processed PFRs (and 

addendum cases) at approximately the same rate at which they were received. Therefore, the existing 

inventory of PFRs did not increase as had occurred in recent years. MSPB provides alternative dispute 

resolution options to its customers including the Mediation Appeals Program. MSPB conducted 

dozens of outreach events for its adjudication stakeholders. To improve the availability of pro bono

representation for pro se appellants, MSPB continued its partnerships with local law school clinics in San 

Francisco and Denver, began a partnership with law firm in Boston, and began negotiations with local 

law school clinics in Philadelphia and Dallas. The average processing time for enforcement cases closed 

at HQ increased in FY 2013. Because the new adjudication regulations change the way enforcement 

cases are processed in the regional and field offices, MSPB will calculate the overall processing time for 

all enforcement cases closed in the regional and field offices and at HQ rather than just at HQ. 

The most significant issue related to adjudication was the arrival of almost 32,400 appeals from 

employees who were furloughed in FY 2013 due to budget sequestration. More information about 

how furlough appeals are impacting MSPB and how MSPB is processing them is provided below. In 

addition, the Whistleblower Protection Enhancement Act of 2012 (WPEA), which became effective in 

December 2012, resulted in substantive changes in MSPB’s adjudication and reporting of 

whistleblower cases. More detail about these changes is included in the MSPB FY 2012 Annual 

Report. In accordance with the WPEA, information about FY 2013 whistleblower appeals is 

contained in MSPB’s Annual Performance Report (APR-APP) for FY 2013. 

In addition to sequestration and the WPEA, other external events had an effect on MSPB. In late 

October and early November 2012, MSPB’s regional office in Philadelphia and field office in New 

York were closed or operating at limited capacity, and individual MSPB employees were effected as a 

result of Hurricane Sandy. As a result of the Government Shutdown in October 2013, MSPB was 

closed for business, and the majority of MSPB employees were furloughed, with the exception of the 

three Board Members and very limited emergency staff. This Government shutdown, on the heels of 

receiving tens of thousands of furlough appeals, will further delay the final resolution of cases filed 

with MSPB. It is worthwhile to note that during the Government shutdown, MSPB Board Members 

continued to work and processed 55 cases. MSPB also successfully relocated the Washington Regional 

Office from Alexandria, Virginia to Crystal City, Virginia effective July 29, 2013.

MSPB continued its efforts to improve the transparency of its adjudication processes and decisions at 

HQ. The Board requested amicus briefs in Day v. Department of Homeland Security and in King v. 

Department of the Air Force on retroactive application of specific provisions of the WPEA.

5 The Board 

expects to continue to request amicus briefs and to hear oral arguments in cases that have 

Governmentwide effect on the Federal civil service workforce and the merit systems. The Board

continued to issue nonprecedential decisions (NPOs) with expanded explanations of its reasoning, 

which improve the parties’ understanding of the Board’s decisions and PFR process. NPOs are

available on MSPB’s website. 

 

5

 Summaries of and links to these decisions are provided later in this report.
8 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

MSPB’s new adjudication regulations related to 5 C.F.R. Parts 1200, 1201, 1203, 1208, and 1209 

(summarized in more detail in the FY 2012 Annual Report) became effective on November 13, 

2012. In May 2013, following a development period which included public comment, MSPB 

implemented a new streamlined version of its appeal form (MSPB Form 185) and updated MSPB’s 

e-Appeal Online system to reflect the content of the new form. Further information about the new 

form is posted on MSPB’s website. In November 2013, MSPB gave public notice that began the 

formal rule-making process to revise its regulations related to how jurisdiction is established over 

Board appeals. On April 3, 2014, after notice and comment, MSPB published a proposed rule to 

amend its jurisdiction regulations. Information about MSPB’s previous and current regulations 

review processes can be found on our website. 

This Annual Report contains brief summaries of the most significant Board decisions issued in FY 

2013, which addressed a number of issues including whistleblower protection, national security 

determinations, and furloughs. Summaries of selected significant decisions issued by the Board in 

early FY 2014 are included for the convenience of MSPB’s stakeholders. Moreover, the report 

includes summaries of significant opinions relevant to MSPB’s work issued during FY 2013 by the 

U.S. Court of Appeals for the Federal Circuit. This report also contains case processing statistics for 

initial appeals decided by MSPB’s regional and field offices and for PFRs and other cases decided by 

the Board at HQ. Case processing statistics include the type of case and overall disposition of cases,

such as the number dismissed (e.g., for lack of jurisdiction or untimeliness), the number settled and 

the number adjudicated on the merits. Disposition of cases is also listed by agency. 

Furlough Cases Resulting from Federal Sequestration

The most significant external factor currently affecting MSPB’s ability to carry out its mission is the 

tens of thousands of furlough appeals filed with MSPB regional and field offices as a result of budget 

sequestration. Soon after Governmentwide sequestration took effect in March 2013 several agencies 

(e.g., EPA, Federal Aviation Administration, Internal Revenue Service, Social Security Administration, 

and others) began implementing furloughs of their employees. In July 2013, DoD began implementing 

furloughs for most of its 650,000 employees. Under Federal law, employees have the right to appeal 

furloughs to MSPB. In FY 2013, almost 32,400 furloughed employees filed appeals in MSPB’s 

regional and field offices, approximately five times the 6,200 initial appeals MSPB receives on average 

each year (2007-2012, not counting addendum appeals). In addition, in accordance with statute, seven

agencies requested permission from MSPB to furlough 158 ALJs.6

Almost 32,000 DoD employees filed furlough appeals over a 5-6 week period in July and August 

2013. This volume of initial appeals had and continues to have an extraordinary impact on MSPB’s 

regional and field offices. Accurate docketing requires reviewing the appeal and entering additional 

information into our case management system (even when appeals are filed electronically through eAppeal Online). MSPB’s paralegals and legal assistants in the regional and field offices worked 

overtime to manage this massive workload and MPSB hired temporary employees to assist in 

docketing cases. In addition, a furlough appeal docketing “strike team” was established at HQ to 

assist the regional and field offices in docketing these appeals.

The overall volume of furlough appeals, number of furlough appeals filed per day, and subsequent 

processing spikes created during the normal receipt and distribution of case documents (orders, 

 

6 MSPB incurred direct costs (e.g., salary, travel, and transcript costs) in the adjudication of these cases by ALJs under an 

interagency reimbursable agreement with the United States Coast Guard. Adjudication of the ALJ furlough cases also 

required substantial administrative and ministerial support from MSPB legal staff.
9 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

responses, pleadings, etc.) to and from the parties during the adjudication process, are also straining 

MSPB’s processes and IT infrastructure. On the busiest day, 1,656 appeals were filed electronically

via e-Appeal Online, 80 times the average daily number of appeals filed online. This one-day total 

was over half the 2,872 appeals filed online through the first nine months of FY 2013. The volume 

of electronic filing and subsequent processing caused IT resources such as processors, memory, disk 

space, and internet bandwidth to exceed maximum operational capacity at various points; this 

required constant monitoring during filing and processing peaks and frequent rebooting of the 

system to recover system resources. MSPB developed and implemented new ad hoc processes such as 

docketing short cuts and batch processing of legal notices to help manage the workload. MSPB also 

reached agreement with several agencies to use a common agency file containing the agency’s 

documentation regarding its furloughs. MSPB’s programmers also updated multiple case processing 

systems to accommodate case docket numbers that could exceed 9,999 cases per office in a FY. In 

addition, the number of external help-desk tickets increased proportionally to the number of first 

time users of e-Appeal Online, overwhelming MSPB’s help-desk services.

As a result of furlough appeals, MSPB responded to a larger than normal number of press inquiries 

and interview requests and managed a large increase in telephone calls, voicemails, and emails from 

individuals, attorneys, and agencies requesting information on the appeal process, identifying 

problems with e-Appeal Online, and requesting status of their appeals. MSPB had additional 

contacts with Members of Congress and Congressional staff to provide information about furlough 

appeals and their impact on MSPB. MSPB posted and continues to post notices on our website and 

through social media to share important information on furlough appeals. 

By the end of the FY 2013, nearly all of the DoD furlough appeals were docketed—entered into 

MSPB’s system—so our AJs could begin the adjudication process. MSPB is using a variety of 

adjudication strategies to effectively and efficiently process furlough appeals. One strategy is to

consolidate cases with common elements such as agency, duty location, or deciding official. 

Consolidating cases and processing consolidated cases takes more time and is a more complex 

undertaking than processing a single adverse action case. Nonetheless, this is one of the most useful 

methods available to ensure due process and efficient adjudication of this enormous number of cases. 

By the end of FY 2013, a small number of furlough appeals had been processed, including one 

important Board decision issued on an interlocutory appeal. On September 18, 2013, the Board issued 

a decision in Chandler v. Department of Treasury regarding the issues the Board will consider in furlough 

appeals.

The sheer number of furlough appeals resulting from Federal sequestration was unprecedented—

32,400 initial furlough appeals compared to an average of 6,200 initial appeals received per year.

7 By 

the end of March 2014, approximately 64 percent of individual furlough appeals had been 

consolidated into 724 consolidated cases. Additionally, approximately 2,000 individual furlough 

appeals have been processed (dismissed, settled, or adjudicated on the merits) as individual appeals 

or as part of consolidated cases. Of those processed, about 40% were dismissed for a variety of 

reasons including for lack of jurisdiction or timeliness, withdrawn, cancelled, or dismissed without 

prejudice. Of those dismissed, about 63% were withdrawn by appellants or cancelled due to failure 

to prosecute. Of the appeals not dismissed, 99% were adjudicated on the merits—meaning that only 

about 1% of furlough appeals were settled—a far smaller portion than is normally resolved through 

settlement. Of the appeals adjudicated on the merits, 100% of the initial decisions affirmed the 

 

7 As a comparison, MSPB AJs issued 11,555 decisions in FY 1981-1983 in cases resulting from the firing of striking Air 

Traffic Controllers. U.S. Merit Systems Protection Board: 10 Years After the CSRA. A Ten Year Retrospective of the MSPB 1978-

1988, U.S. Government Printing Officer, 1989, 250-215 – 814/00828.
10 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

furlough action taken by the agency. We generally anticipate a proportional increase in the number 

of furlough PFRs filed at HQ. As of the end of March 2014, 4 furlough PFRs had been filed at HQ 

(all in the second quarter). These PFRs are currently being processed.

MSPB will continue to use a variety of strategies to process furlough appeals in conjunction with 

other adverse action cases and cases filed on other matters for which MSPB jurisdiction (e.g., 

appeals related to whistleblowing, retirements, various veterans’ hiring authorities, etc.). MSPB is 

committed to issuing initial decisions in all furlough initial appeals by the end of FY 2015, while 

maintaining the processing of non-furlough appeals as effectively as possible. In addition, MSPB is 

investing in long-term improvements in electronic adjudication and electronic case-processing. 

Although sequestration is suspended for FY 2014 or FY 2015, future budget reductions for 

individual agencies may lead to additional furloughs or more permanent workforce reduction actions 

such as reductions in force (RIFs). At this time, we cannot anticipate how these budget actions will 

affect the number of initial appeals (and subsequently PFRs) in FY 2014 or 2015.

Merit Systems Studies

In FY 2013, MSPB approved one study report involving clean record agreements and the law, the FY 

2012 MSPB Annual Report, and three editions of the Issues of Merit (IoM) newsletter.8 Summaries of FY 

2013 MSPB merit systems study reports and of IoM newsletter topics are included in this annual 

report. This annual Report also includes summaries of two merit systems study reports approved and 

issued in early FY 2014. In addition, eight “Research Highlights”—one-page summaries of recent 

merit system study—reports were posted on the MSPB website.

MSPB studies continued to be referenced by policy makers and in professional literature, legislation, 

and the media. For example, in December 2012, OPM cited MSPB research to reinforce the 

importance of supervisory training in guidance issued to Federal agencies.9 In February 2013, OPM 

cited MSPB’s study on employee perceptions of workplace violence in its guidance for agencyspecific policies on domestic violence, sexual assault, and stalking.10 In addition, MSPB reports on 

employee engagement were cited in a book on public employee engagement published by the 

American Management Association. MSPB staff conducted dozens of outreach presentations and 

media interviews about a variety of MSPB studies. It is also important to note that MSPB has begun 

the process of updating its merit systems studies research agenda. This process will include 

opportunities for stakeholder and public input. More information about the research agenda 

development process can be found on the website at www.mspb.gov. 

The Significant Actions of the Office of Personnel Management

In accordance with 5 U.S.C. § 1206, MSPB is responsible for reviewing the significant actions of 

OPM to ensure that these actions conform with MSPs and do not result in PPPs. MSPB reviewed 

OPM’s new significant actions, ranging from those related to guidance on agency policies to prevent 

workplace violence, the senior executive service exit survey, supervisory training, USA Hire, 

extension of benefits to same-sex spouses, proposed rules of designation of national security 

clearances, and USERRA guidance. MSPB updated OPM’s progress on significant actions 

 

8

 In FY 2013 published two study reports that were approved in FY 2012. These reports, one on motivation potential

and employee engagement and one on managing employees in the public interest, were summarized in MSPB’s FY 2012 

Annual Report.

9

 U.S. Office of Personnel Management, Supervisory Training Fact Sheet, December 2012.

10

 U.S. Office of Personnel Management, Guidance for Agency-Specific Domestic Violence, Sexual Assault, and 

Stalking Policies, February 2013. More information is provided in the OPM Significant Actions section of this report.
11 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

summarized in previous annual reports. More information about MSPB’s review of OPM significant 

actions is included in a later section of this report.

Outreach and Merit Systems Education

In FY 2013, MSPB staff conducted 94 outreach events with customers, stakeholders, and sister 

agencies on the merit systems, MSPs, PPPs, MSPB’s adjudication processes and decisions, and its

studies’ findings and recommendations. MSPB continued to increase its efforts to educate people 

about the concept of merit, MSPs, and PPPs through online activities, such as the MSP of the 

Month and PPP of the Month, which continue to be among the most visited webpages and the most 

accessed documents on MSPB’s website. In FY 2013, MSPB had nearly 400,000 visits to the MSPs, 

PPPs, IoM newsletter, case report, and training webpages, and nearly 11.5 million hits (one or more

documents accessed per hit) to documents on these pages. MSPB’s education and outreach efforts 

help enhance the understanding of merit, ensure that MSPs are consistently applied throughout the 

Government, reduce the likelihood of PPPs, promote better management practices, and strengthen 

employee engagement. This in turn helps to improve employee and organizational performance, 

improves service to the American people, and provides value to the taxpayer. 

International Activities

During FY 2013, MSPB hosted international representatives for the purpose of educating participants 

on the Federal merit systems, MSPB’s organization, and its responsibilities to protect the Federal merit 

systems. MSPB’s Chairman Grundmann hosted India’s Chairman for the Union Public Service 

Commission to discuss MSPB’s review of OPM significant actions, MSPB’s role in protecting the 

Federal merit systems, its use of technology, and the assessment of managers. The Atlanta Regional 

Office hosted an executive delegation from China’s State-Owned Assets Supervision and 

Administration Commission of State Council, which had interests in performance management of civil 

servants, internal working procedures, and internal codes of conduct.

Legislative and Congressional Relations 

MSPB senior and legislative staff conducted two briefings for House and Senate legislative oversight 

staff on the Board’s revisions to its adjudication regulations. Senior MSPB officials communicated 

with Members of Congress to ensure that they were aware of the unique impact sequestration and 

Governmentwide furloughs could and did have on MSPB. In March 2013, after meeting with MSPB 

Chairman Grundmann, Senator Carper, Chairman of the Senate Homeland Security and 

Governmental Affairs Committee, sent a letter to the majority and minority leaders of the Senate 

committees and subcommittees on appropriations asking that that they “consider providing the Board 

with additional funding in the [then pending] Continuing Resolution to ensure it is able to process the 

wave of claims that could result from the expected [governmentwide] furloughs.”

On November 20, 2013, the Senate Subcommittee on the Efficiency and Effectiveness of Federal 

Programs and the Federal Workforce held a hearing entitled: “Safeguarding our Nation’s Secrets: 

Examining the National Security Workforce.” The hearing examined issues related to an MSPB case

(Kaplan v. Conyers) that was appealed to the U.S. Court of Appeals for the Federal Circuit. The 

Federal Circuit’s en banc decision—which reversed the Board’s decision—held that the Board cannot 

review a Federal agency’s determinations concerning the eligibility of an employee to occupy a 

“sensitive” position, regardless of whether that sensitive position requires the employee to access 

classified information. 
12 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

On December 12, 2013, Senator Tester introduced S. 1809 to amend chapter 77 of title 5 to clarify 

that MSPB would have the authority to review on the merits an appeal by an employee or applicant 

regarding a determination of ineligibility for a sensitive position if the sensitive position does not 

require a security clearance or access to classified information, and such action is otherwise 

appealable to the MSPB. A similar bill (H.R. 3278) was introduced in the House by Delegate Norton 

on October 8, 2013. This legislation would reverse the Federal Circuit’s decision in Kaplan v. Conyers. 

Internal Management Activities and Challenges

Due to sequestration, MSPB’s FY 2013 resources were down significantly from FY 2012. MSPB was 

able to avoid furloughing its own employees, however it continues to operate below the resource 

level needed to execute its mission as effectively and efficiently as possible. Even ignoring the recent 

arrival of approximately 32,400 furlough appeals (more information on furloughs available earlier in 

this report), MSPB will continue to struggle with internal challenges primarily related to the 

retirement eligibility of its workforce, persistent number of vacancies, limited resources, and 

competing priorities for existing resources. 

Approximately one-third of MSPB employees including nearly half of MSPB AJs are eligible to retire 

in the next two years. MSPB was able to replace the OAC staff attorneys at HQ who conduct legal 

research and draft PFR decisions for the Board Members review who resigned or retired in FY 

2013. However, the number of OAC staff attorneys is still significantly lower than in the past. In 

addition, key existing vacancies among our adjudication staff (in the regional and field offices and at 

HQ), and new vacancies that occurred in FY 2013, were not filled, which compromised, MSPB’s 

ability to transfer critical knowledge of the adjudication process. Once hired, it generally takes 2–3 

years for an AJ or an OAC staff attorney to reach journey-level status. Replacing experienced AJs 

and OAC staff attorneys with relatively less experienced attorneys affects overall adjudication 

processing and typically increases average processing time, at least temporarily. The average 

processing times for initial decisions and PFRs are increasing and will increase further as a result of 

furlough cases. In addition, MSPB is pursuing changes to its regulations covering jurisdiction. It is 

unclear how such changes may affect the adjudication process. 

MSPB made appointments in several key agency leadership positions in FY 2013, filling some 

leadership positions that had been held by people in acting positions for several months. In January 

2013, Chairman Grundmann appointed a new Executive Director (previously the General Counsel), 

new General Counsel, and new Director of the Office of Appeals Counsel (OAC). In November 

2013, the Chairman appointed a new Director of the Office of Policy and Evaluation, and new 

Regional Director/Chief AJ of the Dallas Regional Office. In December 2014, the Chairman 

appointed a new Director of Financial and Administrative Management (FAM), and a new Chief 

Counsel to the Board Member. The Regional Director/Chief AJ of the San Francisco Regional Office 

departed in late summer and that office is currently being led by an Acting Regional Director. These 

changes, in general, have improved the stability of the agency’s leadership team, which will benefit the 

agency as it deals with these workload and resource issues. 

Although several positions were filled in FY 2013, several key vacancies remain in other Board 

offices and a number of employees in key positions (e.g., where the agency has only one person 

performing essential agency functions) are eligible to retire in the near future. Having an enacted 

budget earlier in FY 2014 will assist in planning and recruitment for anticipated retirements and 

vacancies. However, there are not sufficient resources to fill all of these vacancies or to hire in 

advance of all anticipated retirements in key positions. In addition, uncertain budgets for FY 2015 
13 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

and beyond require a balanced approach to filling vacancies, meeting short-term resource needs, and 

investing for the long term. 

The receipt of tens of thousands of furlough appeals has had a tremendous impact on MSPB 

operations, especially those involving initial appeals processed in the regional and field offices, 

automated case management and processing applications, and other IT services and systems. This 

wave of appeals will begin to affect PFRs filed at HQ in FY 2014. The volume of furlough appeals 

emphasizes the need to shift from mostly paper processing to mostly electronic processing of initial 

appeals and subsequently to PFRs. MSPB needs to be able to electronically process cases for 

customers who have access to electronic systems and to support the Government’s focus on 

increasing efficiency and customer service through improved automated systems. Our enacted FY 

2014 resource levels will assist us in processing furlough appeals, but, even with this budget, we will 

not be able to sustain previous results for adjudication timeliness. In FY 2015, MSPB is requesting 

resources to obtain technical and professional services to assist in developing the requirements and an 

implementation plan for this shift to electronic case processing. This effort, along with necessary and 

continued investments in professional staff, will yield significant potential improvements in efficiency 

in the long term but will require an initial investment of resources and time. 

MSPB also is affected by competing priorities for its limited analytic and research staff. The external 

issues discussed below, including sequestration and furloughs, challenge the ability of Federal 

agencies to achieve their missions within resource constraints. Efforts to manage resources almost 

always directly or indirectly impact Federal employees. Such tension can adversely affect the culture 

of merit-based management and potentially weaken adherence to merit principles and even increase 

the occurrence of PPPs. It is critical for MSPB to continue to conduct merit systems studies to track 

such issues and to make recommendations that will support agencies’ ability to both manage 

resources and support merit. Likewise, MSPB must maintain its review of OPM rules, regulations, 

and significant actions. However, the analytic and research staff skills needed for merit systems 

studies and OPM review are also needed to conduct internal program evaluation and support

agency-wide requirements under GPRAMA including the collection of customer service and 

customer satisfaction data. This competition for resources will continue absent an increase in the 

number of analytic and research staff members. Limited and competing resources are also affecting 

MSPB’s ability to conduct outreach (involving both adjudication and studies staff), especially if it 

involves travel or extensive preparation time, which competes with participants’ other work. 

During FY 2013, MSPB developed and consulted on its new Strategic Plan for FY 2014-2018. The 

new plan retains the strategic framework from the previous plan which reflects MSPB’s broad role in 

protecting the merit systems and preventing PPPs as intended by the Civil Service Reform Act of 1978 

(CSRA). The new plan adds key management objectives related to leading employees, managing 

budget and improving efficiency, managing IT and information services, and ensuring safety and 

security. MSPB’s Annual Performance Plan (APP) for FY 2014-2015 is based on this new strategic 

plan. The new plans comprehensively and coherently convey MSPB’s commitment to protect merit 

systems, increase adherence to MSPs, and prevent or reduce PPPs, which will ultimately result in 

better Federal management, improved Federal employee and agency performance, better service to the 

public, and increased value to American taxpayers. MSPB’s new strategic plan and new performance 

plan are available on MSPB’s website at www.mspb.gov. 

MSPB employees continue to report high levels of commitment to MSPB’s mission. Employee 

ratings on Federal Employee Viewpoint Survey (EVS) questions related to having the resources 

needed to accomplish the agency’s mission dropped significantly in 2012 and dropped further in 

2013. MSPB will focus on setting clear priorities and strong internal management, communication, 
14 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

and other strategies to mitigate the impact of fewer resources. MSPB will use its FY 2014 enacted

budget resources to help offset its short term resource issues and make long-term investments to 

ensure its ability to effectively achieve its mission. MSPB will continue to request and justify the 

resources it requires to conduct its mission and make clear the impact that resource constraints have 

on its performance.

Significant External Trends and Issues 

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

include: Budget reduction (including sequestration) and related consequences such as thousands of 

furlough appeals; increasing retirements of Federal employees; changes in law and jurisdiction; and 

changes in employee management flexibilities. This section contains information about these trends 

and how they may effect MSPB.

Budget reductions, sequestration, and related consequences such as furlough appeals. As 

MSPB receives and processes tens of thousands of furlough appeals, it must continue to process its 

existing caseload of approximately 7,500-8,500 initial appeals and PFRs. It must also perform its 

other statutory functions to conduct studies, review OPM’s rules, regulations and significant actions, 

promote stronger merit-based policy and practice, and improve the understanding of merit. MSPB is 

performing this work with 196 (as of the end of FY 2013) employees (approximately 13 percent of 

its FTE are vacant due to resource constraints and budget uncertainty). Moreover, MSPB must 

continue to perform this work when it, like most other executive agencies, is uncertain of its budget 

for FY 2015 and beyond. 

Although Governmentwide sequestration is suspended in FY 2014 and FY 2015, overall Federal 

budgets are still expected to decrease over the long term. Agencies have already begun to use 

retirement incentives to reduce their workforces. As budgets continue to be lower over the long term, 

agencies may begin to use RIFs and other actions to permanently decrease or restructure their 

workforces. Historical data indicate that RIFs would lead to potentially large increases in the number 

of RIF appeals filed with MSPB. In response to reduced budgets, agencies may also implement hiring 

delays or freezes and reductions in training and development. Governmentwide actions in response to 

decreasing Federal budgets have included and may continue to include pay freezes or small cost-ofliving increases, severe limitations in employee awards (e.g., performance awards, special act awards, 

and quality step increases), and limits on within-grade increases. Pay freezes and limits on awards may 

increase retirements and may be related to recent survey results showing decreases in employee 

morale, which could in turn lead to decreases in productivity. Constraints on pay and awards may shift 

employees’ attention to the application of performance appraisal systems and ratings, which could in 

turn increase performance-based appeals to MSPB. 

Repetitive Federal pay freezes may encourage employees to leave Government jobs, and budget 

reductions may lead to reductions or long delays in hiring and reductions in workforce training. These 

actions have logical consequences such as the loss of workforce expertise and reduction in workforce 

capacity to carry out agencies’ missions. In addition, it is difficult to predict how personal financial 

stress may affect employee conduct, performance, morale, or engagement. Depending on how these 

issues develop and affect the workforce, it could take years for Federal agencies to recover from these 

issues. Emphasis on merit systems studies is important to continue studying the effect of these 

workforce changes on adherence to MSPs and avoidance of PPPs. It is also important to promote 

merit and educate the workforce, especially managers and leaders, about how to adhere to MSPs and 

to avoid PPPs when making management decisions such as those related to reducing the workforce.
15 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Increasing retirements of Federal employees. The proportion of retirement-eligible Federal 

employees also continues to increase. The number of Federal employees who are retiring has begun 

to increase and that trend will likely continue. As retirements increase, we may expect to see an 

increase in retirement appeals. Although OPM’s efforts to reduce the retirement backlog have been 

affected by sequestration, it has reduced some of the backlog of retirement claims, increasing the 

number of retirement decisions that may be appealable to MSPB. As the Government replaces 

retiring employees with relatively younger, less experienced employees, the average age of the 

workforce is likely to decrease. As this occurs, we may see an increase in appeals as historical 

information indicates that less experienced employees typically have more appealable actions taken 

against them than do more experienced employees. 

Statutory changes in Federal retirement such as the authority that phases in the opportunity for 

employees in the FERS to claim service credit toward retirement for their sick leave balance, and the 

potential to allow full-time Federal employees to phase their retirements or work in part-time status, 

may alter retirement rates and thus may increase retirement appeals. Changes to Federal retirement 

programs, such as increasing the level of employees’ contributions to fund their annuities or 

changing the calculations for annuities (such as basing annuities on the average high five years 

instead of the average high three years), especially for current retirement-eligible employees, could 

lead to a surge in retirements, followed by a surge in retirement appeals to MSPB. 

Changes in law and jurisdiction. The most recent changes in law and jurisdiction that have a 

direct impact on MSPB involve the WPEA and changes to the Hatch Act. The modifications and 

supplemental coverage contained in the WPEA both extend coverage to matters not previously 

within the jurisdiction of MSPB and expand MSPB’s adjudicatory authority in such cases. The 

WPEA is likely to: increase the number of individual right of action (IRA) and otherwise appealable 

action (OAA) whistleblower appeals; reduce the number of dismissals through the expanded 

definition of a protected disclosure; and increase the complexity of whistleblower appeals in terms 

of content and review of MSPB decisions by multiple Circuit Courts. The WPEA is also likely to: 

increase the number and length of hearings on the merits in such cases; increase the information and 

data collected and reported for such cases; increase travel to represent MSPB at various Circuit 

Courts; and increase addendum appeals related to attorney’s fees, compensatory damages (related to 

IRA appeals or if the agency conducts an investigation of an employee in retaliation for 

whistleblowing), monetary awards, and enforcement of MSPB decisions. The Act also requires 

MSPB to track and report additional information on whistleblowing cases. These changes have 

required MSPB to commit greater resources to implement Congress’s mandates for adjudication, 

tracking, and reporting of whistleblower cases. MSPB established working groups to facilitate 

smooth implementation of the WPEA including changes in the coding of these cases, ensuring 

accurate data, and reporting information about these cases as required by the WPEA. FY 2013 data 

on whistleblower cases is available in MSPB’s APR-APP.

11

 

The Hatch Act Modernization Act of 2012 broadens the scope of permissible political activities for 

some Federal, state, and local employees. Under the new law, Federal employees who live in the 

District of Columbia may run for local political office and take an active role in political 

management and political campaigns to the same degree that residents of Maryland and Virginia 

who live in the immediate vicinity of the District of Columbia may engage in those activities. The 

amendments also expand the range of penalties that apply to violations of the Act by Federal 

 

11 The WPEA does not alter MSPB’s responsibility to hear additional evidence and/or witnesses in select whistleblower

cases that would increase case complexity and/or the length of hearings, in accordance with the Court of Appeals for the 

Federal Circuit’s decision in Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), (No. 2011-3084).
16 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

employees. Under certain conditions, these new penalty provisions for Federal employees apply 

retroactively to any violation that occurred before the effective date. 

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

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

on the merit systems, MSPs, PPPs, and MSPB appellate procedures, processes, and case law. 

Education on these issues, promoting merit, and sharing important information about appeals 

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

appellants, and the Government.

Changes in employee management flexibilities. Management flexibilities might include 

expanded legislative authorities (such as the alternative personnel systems in DoD or DHS) or may 

be directed through administrative actions such as Presidential Executive Orders. For example, 

President Obama issued Executive Order 13562 in December 2010, establishing the Pathways 

Programs. The Pathways Programs create a set of excepted service appointing authorities tailored to 

ease and encourage recruitment, hiring, development, and retention of students and recent 

graduates. The Pathways Programs formally acknowledge a long-standing interest of Federal 

agencies and Federal managers—the ability to hire high-quality college graduates into professional 

and administrative occupations. It is not clear what affect the Pathways Programs will have on hiring 

and management or if it will succeed in its goals. MSPB plans to follow closely the evolution and 

implementation of these programs.

Changes in Federal management flexibilities emphasize the importance of MSPB’s responsibility to 

conduct studies of Federal merit systems and human capital management practices in order to 

ensure the flexibilities are implemented and operated in accordance with MSPs and are free from 

PPPs. Flexibilities and other changes in human resource management policies issued through OPM 

regulation make it imperative that MSPB maintain its ability to exercise its statutory authority to 

review OPM regulations. Reviewing OPM regulations can save the Government costs such as those 

associated with transferring employees out of new management systems when the new systems are 

terminated. Finally, changes in management flexibilities also increase the importance of MSPB’s role 

in promoting and educating employees and the public about the merit systems, MSPs, and PPPs.
17 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Significant Board Decisions and Court Opinions Issued in FY 2013

MSPB issued a number of noteworthy decisions in FY 2013, several of which are summarized 

below. As a service to our stakeholders, we have also provided brief summaries of selected 

significant opinions issued by the U.S. Court of Appeals for the Federal Circuit. This section also 

includes summaries of selected significant Board decisions issued in early FY 2014.

Significant Board Decisions Issued in Fiscal Year 2013

Due Process

Hodges v. U.S. Postal Service, 2012 MSPB 116, 118 M.S.P.R. 591 (2012): The agency reduced the 

appellant in grade for failure to follow instructions. On appeal, the Board set aside the action on the 

ground that the agency violated the appellant’s right to minimum due process. Although the 

deciding official considered statements that the appellant had made during an investigative interview, 

he did not consider the appellant’s written response to the proposed reduction in grade or allow the 

appellant to present an oral reply. Due process requires that a tenured employee have the 

“opportunity to present reasons, either in person or in writing, why [a] proposed [adverse] action 

should not be taken.” The investigative interview did not satisfy this requirement because it had 

been conducted before the agency proposed the appellant’s reduction in grade. 

Martinez v. of Veterans Affairs, 2012 MSPB 121, 119 M.S.P.R. 37 (2012): The agency removed the 

appellant after an investigation and reported findings by the agency’s Office of Inspector General 

(OIG). Prior to undertaking the role of decisionmaker in the adverse action proceedings, the 

deciding official had concurred in the OIG draft investigative report. The Board found that there is 

no general proscription against appointing a deciding official who is familiar with the case and who 

has expressed a predisposition contrary to the appellant’s interests. The burden is on the appellant to 

establish actual bias or an intolerable risk of unfairness, and at this stage of the proceedings, there 

had been no such showing. 

Jurisdiction

Levy v. Department of Labor, 2012 MSPB 123, 118 M.S.P.R. 619 (2012): The appellant accepted a 

promotion to a GS-15 supervisory IT Project Manager position, and immediately following the 

effective date of his promotion, he went on annual leave. On his return he was informed that the 

promotion was being held “in abeyance” pending an investigation by the agency’s Office of 

Inspector General. The appellant filed an appeal alleging that the agency had demoted him from a 

GS-15 to a GS-14 position. The Board modified its jurisdictional test to hold that in such cases the 

appellant must show the following: (1) the promotion actually occurred; that is, it was approved by 

an authorized appointing official aware that he or she was making the promotion; (2) the appellant 

took some action denoting acceptance of the promotion; and (3) the promotion was not revoked 

before it became effective. Additionally, the Board held that an employee who has received an initial 

appointment as a supervisor must show that he has successfully completed the required 

probationary period in the supervisory position. The Board remanded the case in order to determine 

whether the appellant could establish jurisdiction under the modified standard. 

Nelson v. Department of Health & Human Services, 2013 MSPB 4, 119 M.S.P.R. 276 (2013): The appellant 

was appointed to a position under 5 C.F.R. § 213.3116(b)(8), a Schedule A excepted service hiring 

authority granting Indian hiring preference. The agency terminated her employment less than 2 years 
18 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

after the effective date of her appointment, and she appealed to the Board. The jurisdictional issue to 

be decided was whether the appellant was an “employee” within the meaning of 5 U.S.C. 

§ 7511(a)(1)(C)(i), i.e., a nonpreference eligible in the excepted service “who is not serving a 

probationary or trial period under an initial appointment pending conversion to the competitive 

service.” Because it was undisputed that the appellant was a nonpreference eligible in the excepted 

service who was serving in an initial appointment pending conversion to the competitive service, the 

dispositive question was whether the appellant was serving a “probationary or trial period” at the time 

of her termination. On PFR, the Board overruled Lopez v. Department of the Navy, 103 M.S.P.R. 55

(2006), and Taylor v. Dept. of the Navy, 63 M.S.P.R. 99 (1994), finding that the holding of those cases, 

which relied on interim OPM guidance, was in conflict with the statute. The Board reasoned that if the 

entire period of an appointment pending conversion to the competitive service is a “probationary or 

trial period”, then the statute should simply state that appeal rights should attach if an individual “is 

not serving under an initial appointment pending conversion to the competitive service”. The statute 

contemplates that whether an individual had the type of employment covered by the section and 

whether the individual completed a probationary or trial period are separate inquiries. The appellant 

did not qualify as an “employee” because the agency required nonpreference eligible employees hired 

under 5 C.F.R. § 213.3116(b)(8) to complete a 2-year probationary period, the appellant was on notice 

of that requirement, and the agency terminated the appellant prior to the completion of the 

probationary period. 

Ingram v. Department of Defense, 2013 MSPB 78, 120 M.S.P.R. 420 (2013): The issue in this case was 

whether the Board could review the merits of the appellant’s demotion from a non-critical sensitive 

position based on the denial of her eligibility for access to classified information and/or occupancy 

of a sensitive position, regardless of whether the position requires such access. The Federal Circuit’s 

en banc decision in Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013) (No. 2011-3207), held that the 

limited scope of review set forth by the Supreme Court’s decision in Dept. of the Navy v. Egan, 

484 U.S. 518 (1988) applies to Board appeals of such determinations. The Board affirmed the 

appellant’s demotion, finding that the appellant's position required eligibility to access non-critical 

sensitive information, that eligibility was denied, and the agency complied with the procedural 

protections of 5 U.S.C. § 7513 in demoting the appellant to a vacant non-sensitive position. 

Whistleblower Protection

MaGowan v. Environmental Protection Agency, 2012 MSPB 120, 119 M.S.P.R. 9 (2012): The appellant 

filed an IRA appeal alleging that in 2010 the agency converted approved sick leave to AWOL in 

retaliation for a disclosure she made to the agency’s Office of Inspector General (OIG) in 2003. The 

Board found that the appellant had nonfrivolously alleged that she made a protected disclosure in 

2003 and that her disclosure was a contributing factor in the agency’s decision to classify her leave as 

AWOL in 2010. In so finding, the Board noted the appellant had alleged that, when she requested a 

promotion about six months before the personnel action in question, the agency official asked her 

about the 2003 OIG disclosure, demanded the details of the disclosure, and requested that the 

appellant provide her with a copy of the OIG report. 

Mattil v. Department of State, 2012 MSPB 127, 118 M.S.P.R. 662 (2012): The appellant, who held a 

temporary appointment as Chief of Staff with the agency’s Office of Accountability and 

Transparency in its Iraq offices, filed an IRA appeal alleging that the agency took numerous 

personnel actions in retaliation for protected whistleblowing disclosures. The appellant also alleged 

that the agency conducted an investigation into whether he was the source of a leak of information 

and “blacklisted” him from employment opportunities. The Board found that, although there are 

times when a judge may properly determine whether the agency met the clear and convincing 
19 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

standard before proceeding to the question of whether the appellant established a prima facie case 

of reprisal, that approach was not appropriate where, as here, the substance of the alleged disclosure, 

as well as the extent to which the retaliating official was aware of the disclosure, are relevant to 

retaliatory motive. With regard to the alleged personnel actions, the Board further found, inter alia, 

that: (1) while an investigation is not generally a personnel action, it is proper to consider evidence 

regarding an investigation if it so closely related to a covered personnel action that it could have 

been a pretext for gathering information to retaliate for whistleblowing; and (2) although 

“blacklisting” an employee from employment opportunities is not a specifically enumerated 

personnel action, construed broadly it could constitute a significant change in working conditions. 

Agoranos v. Dept. of Justice, 2013 MSPB 41, 119 M.S.P.R. 498 (2013): Before filing his removal appeal 

with the Board, the appellant filed a whistleblower complaint with the Office of Special Counsel 

(OSC). While his removal appeal was pending before the Board, OSC closed its file in his complaint 

without taking corrective action, and the appellant then filed an IRA appeal. The Board concluded that 

the removal appeal should proceed on the merits. The Board explained that 5 U.S.C. § 7121 contains 

three provisions giving employees options for avenues of relief other than the negotiated grievance 

procedure for certain personnel actions – § 7121(d),(e), and (g) – and in each instance, whichever 

remedy is sought first by an aggrieved employee is deemed an election of that procedure and precludes 

pursuing the matter in another forum. Under 5 U.S.C. § 7121(g), which is applicable here, an employee 

who has been subjected to an action that is appealable to the Board and alleges that he has been 

affected by a prohibited personnel practice other than a claim of discrimination under § 2302(b)(1),

may elect to pursue a remedy by filing either a Board appeal, a grievance, or an OSC complaint. For 

matters arising under 5 U.S.C. § 7121(d) and (e), the Board has long held that an agency’s failure to 

provide proper notice of “‘potential avenues of recourse’ and of the limitations of those rights 

precludes finding that the employee has made a knowing and informed election and thus renders it 

invalid.” However, in Feiertag v. Department of the Army, 80 M.S.P.R. 264, ¶ 5 (1998), the Board held that 

an election of remedies made pursuant to 5 U.S.C. § 7121(g) is binding regardless of whether the 

“individual is aware of all of his options, and of the effect that a particular option will have on his 

ability to pursue other options.” The Board overruled Feiertag, holding that for adverse actions 

appealable to the Board under 5 U.S.C. § 4303 and 7512, an employee’s election of remedies under 

5 U.S.C. § 7121(g) must be knowing and informed, and, if it is not, it will not be binding upon the 

employee. The Board found that the agency removed the appellant without notifying him of his right

to file a request for corrective action with OSC and of the effect that such an election would have on 

his appeal rights before the Board. Therefore, the Board found, his filing of the OSC complaint did 

not constitute a valid, informed election under 5 U.S.C. § 7121(g). Consequently, he was not precluded 

from filing a subsequent appeal of his removal, and he was not restricted to the issues within the scope 

of an IRA appeal. 

Day v. Department of Homeland Security, 2013 MSPB 49, 119 M.S.P.R. 589 (2013): At issue in this 

interlocutory appeal was whether the provisions of section 101 of the Whistleblower Protection 

Enhancement Act of 2012 (WPEA) providing protection to disclosures made in the course of the 

employee’s normal duties and disclosures made to the alleged wrongdoer apply to cases that were 

pending before the effective date of the WPEA. In Huffman v. Office of Personnel Management, 263 F.3d 

1341 (Fed. Cir. 2011), the Federal Circuit held that such disclosures are not protected whistleblowing 

disclosures. Applying the analytical framework for determining whether a new statute should be 

given retroactive effect set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994), the 

administrative AJ found that Congress had not clearly expressed an intention that the terms of the 

WPEA should apply retroactively and that, therefore, the Huffman decision should apply to the case 

before him. A majority of the Board, Member Robbins concurring in part and dissenting in part, 

reversed the administrative judge's ruling, finding that the application of the provisions of the 
20 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

WPEA at issue in this appeal does not raise retroactivity concerns because these provisions clarify, 

rather than effect substantive changes to, existing law. Therefore, the provisions of section 101 of 

the WPEA should be applied to determine whether protected disclosures had been made.

King v. Department of the Air Force, 2013 MSPB 62, 119 M.S.P.R. 663 (2013): At issue in this 

interlocutory appeal was whether the compensatory damages provision of the WPEA applies to 

cases that were pending on the effective date of the WPEA. Applying the framework set forth in 

Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Board concluded that the compensatory 

damages provision of the WPEA does not clarify the WPA. Rather, the addition of compensatory 

damages significantly alters the consequences of relevant past events and would undeniably attach an 

important new legal burden to the agency's past conduct that did not previously exist. Accordingly, 

the reasoning supporting the Board's conclusion in Day v. Department of Homeland Security, 2013 MSPB 

49, 119 M.S.P.R. 589 (2013) regarding which disclosures are protected under the WPA cannot be 

applied in this case. Therefore, the Board held compensatory damages are not available in cases 

pending on the effective date of the WPEA. 

Van Lancker v. Department of Justice, 2013 MSPB 42, 119 M.S.P.R. 514 (2013): A preference eligible 

employee of the Federal Bureau of Investigation (FBI) who has the right to appeal an adverse action 

to the Board may not raise an affirmative defense of retaliation for whistleblowing. The Board 

acknowledged that it has held that, in general, an individual who may appeal an action may raise any 

affirmative defense available under 5 U.S.C. § 7701(c), including whistleblower retaliation. A 

majority of the Board with Vice Chairman Wagner dissenting, declined to apply the general rule, 

however, in the case of an FBI employee who has Board appeal rights and claims whistleblower 

retaliation, because Congress has created a separate statutory process outside of the Board for FBI 

employees to seek redress for whistleblower retaliation. 

O’Donnell v. Department of Agriculture, 2013 MSPB 69, 120 M.S.P.R. 94 (2013): The appellant was 

suspended for three days without pay for refusing to comply with “rules, regulations, written 

procedures, or proper supervisory instructions” after he had sent to a collaborating agency a 

memorandum stating his disagreement with his supervisor’s position on a mutually-administered

program matter. The appellant filed an IRA appeal with the Board alleging that the suspension was 

retaliation for whistleblowing. The Board dismissed the appeal for lack of jurisdiction, noting that in 

Meuwissen v. Department of the Interior, 234 F.3d 9, 13-14 (Fed. Cir. 2000), the Federal Circuit found that 

that an employee’s disagreement with an agency ruling or adjudication does not constitute a 

protected disclosure even if that ruling was legally incorrect. The Board ruled that a subordinate's 

refusal to abide by his supervisor's instructions is not protected by 5 U.S.C. § 2302(b)(8). 

Review Rights

The Board issued four decisions interpreting and applying the Supreme Court’s decision in Kloeckner 

v. Solis, 133 S. Ct. 596 (2012).

Mills v. U.S. Postal Service, 2013 MSPB 40, 119 M.S.P.R. 482 (2013): Under Kloeckner, a case is mixed 

if the appellant was affected by an action that is appealable to the Board and claims that the action 

was the product of unlawful discrimination. A decision in a mixed case is reviewable before the 

Equal Employment Opportunity Commission or in federal district court; there is no right of review 

before the Federal Circuit in a mixed case. The Board thus held that an individual who receives a 

final Board decision that adjudicates a discrimination claim may not seek review before the Federal 

Circuit, even if he is willing to abandon his discrimination claim. 
21 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Vaughn v. Department of the Treasury, 2013 MSPB 50, 119 M.S.P.R. 605 (2013): An appellant has three 

options for seeking review of a final Board decision in cases involving both whistleblower and 

discrimination claims in the context of an otherwise appealable action: (1) if the appellant wishes to 

challenge the Board's findings on her discrimination claims alone, she may petition the Equal 

Employment Opportunity Commission for review; (2) if the appellant wishes to challenge the 

Board’s findings on her discrimination claims and other matters, she may file a civil action in the 

appropriate federal district court under the applicable anti-discrimination statute; or (3) if the 

appellant wishes to challenge the Board's decision on her whistleblower claim, to the exclusion of 

any discrimination claim or other alleged prohibited personnel practice described in 5 U.S.C. 

§ 2302(b), she may seek review before the Federal Circuit or any court of appeals of 

competent jurisdiction. 

Cunningham v. Department of the Army, 2013 MSPB 7, 119 M.S.P.R. 147 (2013): The Board dismissed 

this appeal for lack of jurisdiction on the ground that the appellant was a probationer, and thus, had 

no right to appeal her termination. Although the appellant claimed that her termination was the 

product of unlawful discrimination, the Board concluded that the appeal was not a “mixed case” 

under 5 U.S.C. § 7702(a)(1) because the appellant was not affected by an action that was appealable to 

the Board. Accordingly the Board majority, Vice Chairman Wagner dissenting on this issue, provided 

notice of non-mixed review rights before the U.S. Court of Appeals for the Federal Circuit. 

Johnson v. U.S. Postal Service, 2013 MSPB 68, 120 M.S.P.R. 87 (2013): Judicial review of a Board 

decision in which an individual withdraws all discrimination claims before the Board issues a final 

decision is properly before the Federal Circuit. 

Adverse Action Charges

Miller v. Department of the Interior, 2013 MSPB 35, 119 M.S.P.R. 438 (2013): The Board reopened, 

vacated, and substituted a new decision for its April 3, 2013 decision. The Board held that, in 

evaluating adverse actions based on a refusal to accept a directed reassignment, it would no longer 

apply the three-step, burden-shifting analytical framework set forth in Ketterer v. Department of

Agriculture, 2 M.S.P.R. 294 (1980). The Board found that the previous framework, which included a 

prima facie case, does not meaningfully add to the Board’s adjudication of an adverse action based on 

a refusal to accept a directed geographic reassignment because determining whether the agency made a 

prima facie case is irrelevant where, as here, the record is complete. Instead, the Board will weigh all 

the evidence to determine whether the agency proved by a preponderance of the evidence that the 

misconduct occurred and that its action promotes the efficiency of the service. The Board determined 

that here, the record evidence did not support a finding that the agency directed the geographic 

reassignment for bono fide management reasons and that the removal for failing to accept a directed 

reassignment did not promote the efficiency of the service. As a result, the Board reversed the 

appellant’s removal.

Shibuya v. Department of Agriculture, 2013 MSPB 44, 119 M.S.P.R. 537 (2013): The appellant filed a 

Board appeal challenging his demotion based on two charges of poor judgment. The first charge 

alleged that the appellant solicited the unauthorized destruction of Government records, and the 

second charge alleged that the appellant engaged a contract attorney to review case analyses drafted 

by agency employees so that the attorney-client or work-product privilege would attach, thereby 

protecting the analyses from disclosure in third-party proceedings. The Board found that the agency 

proved both charges. With respect to the first charge, the Board rejected the appellant’s contention 

that the charge was impermissibly vague, finding that the information provided in the proposal 

notice was sufficiently specific to permit the appellant to respond to the charge. The Board further 
22 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

found that the issue of whether the agency identified any law, rule, or regulation that the appellant 

violated pertains to whether there is a nexus between the charge and the efficiency of the service but 

is immaterial to whether the agency proved the charge. As for the second charge, the Board found 

that the fact that the appellant abandoned his scheme with the contract attorney in less than a 

month and that only one employee actually sent materials to the attorney is relevant to the issues of 

nexus and penalty but does not mean that the agency failed to prove its charge. The Board 

remanded the appeal for new findings on the issues of nexus and penalty.

Furloughs

Chandler v. Department of the Treasury, 2013 MSPB 74, 120 M.S.P.R 163 (2013): At issue before the 

Board on interlocutory appeal were several discovery-related rulings in a furlough appeal filed by an 

Internal Revenue Service employee. A majority of the Board denied most of the appellant’s 

discovery requests, including requests for information concerning how or why the agency chose 

specific days for furloughs. In addressing the standard of review in adverse action furlough appeals, 

the majority opinion stated that to satisfy the efficiency of the service standard in a furlough appeal, 

the agency must show that it applied the furlough “uniformly and consistently.” This means that the 

agency must treat similarly situated employees similarly and justify any deviations with legitimate 

management reasons. The Board's efficiency of the service determination does not encompass 

agency spending decisions per se, including spending on personnel matters, or an agency's decision 

to allocate furlough days in a certain manner among employees who are not similarly situated. Such 

matters belong to the judgment of agency managers, who are in the best position to decide what 

allocation of funding will best allow the agency to accomplish its mission. Instead, the efficiency of 

the service determination encompasses issues relating to the uniform and consistent application of 

the furlough, including whether the agency used a furlough to target employees for personal reasons 

or attempted to exempt certain employees from the furlough without legitimate 

management reasons.

Department of Labor v. Avery, 2013 MSPB 75, 120 M.S.P.R. 150 (2013): At issue in this case was 

whether the agency met its burden under 5 U.S.C. § 7521 of establishing “good cause” for furloughing 

the respondent ALJs. The Board’s ALJ found that good cause required the agency to prove, among 

other things, that ALJs were treated like other employees of the agency, that the agency failed to 

satisfy this requirement in proposing to furlough ALJs for a greater number of days than other 

employees whose positions were funded from the same budget account and issued an initial decision 

authorizing the agency to furlough the respondents for fewer days than the agency had requested. In 

determining what constitutes good cause for purposes of 5 U.S.C. § 7521, the Board considered 

whether the action improperly interferes with an ALJ's ability to function as an independent and 

impartial decision maker. The Board found that the agency showed that it had sound business reasons 

to furlough ALJs, and there is no evidence that the decision was made for an improper reason or to 

interfere with the ALJs' qualified judicial independence. The Board, Vice Chairman Wagner 

concurring in part and dissenting in part, vacated the initial decision and found that the agency had 

shown good cause to furlough the respondent ALJs the requested number of days. 

Constructive Suspension

Crutch v. U.S. Postal Service, 2013 MSPB 38, 119 M.S.P.R. 460 (2013): For a period of 10 years, the 

agency provided the appellant with a reasonable accommodation for his medical condition by 

allowing him to sit down intermittently to rest. However, after the appellant took sick leave under 

the Family and Medical Leave Act, the agency barred him from returning to work unless the 

appellant stated he no longer needed reasonable accommodation or he submitted a written request 
23 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

for light duty. The majority found that the agency’s failure to continue to provide reasonable 

accommodation for the appellant’s disability may constitute a constructive suspension. In doing so, 

the decision overruled precedent that declined to consider an appellant’s claim of denial of 

reasonable accommodation as the basis for establishing a constructive suspension when the record 

shows that the employee had initiated the absence by taking sick leave. Member Robbins concurred 

in the result, but disagreed with the majority’s analysis, finding that the agency initiated the 

appellant’s absence when it barred him from work upon the expiration of his sick leave and, 

therefore, the appellant’s claim of denial of reasonable accommodation was immaterial in 

determining whether a constructive suspension had occurred.

Indefinite Suspension

Camaj v. Department of Homeland Security, 2012 MSPB 133, 119 M.S.P.R. 95 (2012): The agency placed 

the appellant on indefinite suspension on February 9, 2009, based on a reasonable cause to believe 

that he had committed a crime for which a sentence of imprisonment might be imposed. The 

criminal charges against the appellant subsequently were resolved on February 22, 2010. However, 

the agency continued the appellant’s indefinite suspension after the criminal case was completed. It 

ultimately proposed his removal on May 19, 2010, and removed him on November 16, 2010. The 

Board found that the continuation of the indefinite suspension was improper because the agency’s 

delay in proposing the appellant’s removal was unreasonable. The Board specifically determined that 

the agency already had all the information it needed to commence adverse action proceedings in 

February 2010, and that the agency’s decision to investigate additional alleged misconduct did not 

warrant continuation of the indefinite suspension because the mere existence of an open agency 

investigation into alleged misconduct does not serve as cause for taking (or continuing) an adverse 

action. Accordingly, the Board ordered the agency to terminate the indefinite suspension with an 

effective date of February 22, 2010.

National Security Determinations

Schnedar v. Department of the Air Force, 2013 MSPB 16, 119 M.S.P.R. 246 (2013): Based on the 

revocation of his security clearance, the agency indefinitely suspended the appellant pending his appeal 

of the revocation to the agency’s appeals board. The appellant argued that the suspension violated the 

agency’s internal regulations. Specifically, he cited Department of Defense Regulation 5200.2-R which 

provides that, with certain exceptions, “no unfavorable administrative action shall be taken under the 

authority of this Regulation unless the individual concerned has been ... [p]rovided a final written 

decision by the [appeals board].” Citing Romero v. Department of Defense, 527 F.3d 1324 (Fed. Cir. 2008), 

the Board found it had authority under 5 U.S.C. § 7701(c)(2)(A) to review the issue of the agency’s 

compliance with its regulation. The Board remanded the case to afford the agency an opportunity to 

interpret Regulation 5200.2-R in light of the appellant’s assertions. 

Retirement

Whittacre v. Office of Personnel Management, 2013 MSPB 71, 120 M.S.P.R. 114 (2013): The appellant 

sought civilian retirement credit for periods during which he was absent from his Criminal 

Investigator position on leave without pay (LWOP) to perform active military duty. OPM denied 

credit on the ground that the appellant had not made a deposit for the periods of LWOP. On appeal 

the Board agreed concluding that the relevant provisions of the retirement law and the Uniformed 

Services Employment and Reemployment Rights Act, read together, require an employee who 

performs active duty military service to make a deposit in order to gain civilian retirement credit.
24 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Hatch Act

Special Counsel v. Jackson, 2013 MSPB 10, 119 M.S.P.R. 175 (2013): Respondent Jackson was 

employed by a state agency engaged in programs financed, in whole or in part, by Federal funds. 

Acting against advice from the Special Counsel that doing so would violate the Hatch Act, Jackson 

ran for election for a seat on a county council. The Special Counsel filed a complaint with the Board 

seeking Jackson’s removal. The ALJ granted the Special Counsel’s motion for summary adjudication, 

found there were not material facts in dispute, and ordered Jackson’s removal. In granting the 

motion for summary adjudication, the ALJ relied on case law allowing for the procedure in Federal 

Hatch Act cases. The Board remanded the case, finding that it was governed by 5 U.S.C. § 1515, 

which provides that, in cases involving state or local government employees, the employee is 

“entitled to appear with counsel at the hearing[.]” The Board also found that the judge erred in 

failing to address Jackson’s claim that the Special Counsel violated his constitutional rights to due 

process and equal protection. In so finding, the Board noted that while it lacks authority to 

adjudicate the constitutionality of statutes, it does have authority to adjudicate a constitutional 

challenge to an agency’s application of a statute. 

VEOA

Launer v. Department of the Air Force, 2013 MSPB 18, 119 M.S.P.R. 252 (2013): The agency accepted 

applications for a competitive service position through an automated system operated by OPM, 

which used a “category ranking” system under 5 U.S.C. § 3319 in lieu of a traditional examination. 

Based on his score the appellant was placed in the Well Qualified category instead of the Best 

Qualified category and was selected only after one of the selectees from the Best Qualified category 

declined the position. The Board denied the appellant’s request for corrective action, finding that the 

appellant’s score had included the addition of 10-point veterans’ preference and explained that, 

under the category ranking process set forth at § 3319, an examining agency defines two or more 

categories; candidates are assessed and those with similar proficiency are placed in the same 

category; a preference eligible with a service-connected disability of 10 percent or more must be 

listed in the highest quality category; within a category, preference eligible veterans are listed ahead 

of non-preference eligible veterans; and an agency may not select a non-preference eligible ahead of 

a preference eligible in the same category unless it seeks and receives approval or a pass over. 

However, if the agency assigns numerical scores for purposes of placing applicants in categories, as 

it did here, veterans’ preference points are not added to such scores. Here, the appellant did not 

claim in his application that he had a compensable service-connected disability of 10 percent or 

more, and the agency afforded the appellant the appropriate veterans’ preference under the category 

ranking process.

USERRA

McMillan v. Department of Justice, 2013 MSPB 53, 120 M.S.P.R. 1 (2013): At issue in this Uniformed 

Services Employment and Reemployment Rights Act (USERRA) appeal was whether and to what 

extent USERRA prohibits an agency from taking adverse employment actions based on an 

employee’s specific military duties and the manner in which they are performed. The appellant, an 

officer in the U.S. Army Reserves and a Special Agent with the agency’s Drug Enforcement 

Administration, alleged that the agency denied his request for an extension of his tour of duty 

overseas based not only on his reservist status and use of military leave, but also on conflicts with 

management over his specific military assignments. The AJ denied the appellant’s request for 

corrective action, finding that there was no evidence that the appellant’s status or obligations as a 

military reservist played any part in the agency’s decision. The Board vacated the initial decision, 
25 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

finding that although Congress was concerned primarily with acts of discrimination and reprisal 

based on an employee's military service and the absences such service entails, USERRA should be 

read to prohibit adverse employment actions based on the content and performance of any military 

assignment. Therefore, the Board held, 38 U.S.C. § 4311(a) protects both military status (e.g., 

membership in the reserves) and military activity (e.g., performance of service). 

Discrimination

Southerland v. Department of Defense, 2013 MSPB 46, 119 M.S.P.R. 566 (2013): A majority of the Board, 

Member Robbins concurring, overruled its prior finding in Southerland v. Department of Defense, 

117 M.S.P.R. 56 (2011), that a mixed-motive analysis does not apply to disability discrimination claims 

arising under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). After 

Southerland was issued, the EEOC applied a mixed-motive analysis in a case involving a claim of 

reprisal for protected activity under the Rehabilitation Act, Feder v. Holder, Appeal No. 0720110014 

(2012). A majority of the Board found it appropriate to defer to the EEOC's analysis in Feder and held 

that a mixed-motive analysis does apply to disability discrimination claims arising under the ADAAA. 

Penalties

Lange v. Department of Justice, 2013 MSPB 52, 119 M.S.P.R. 625 (2013): The deciding official in this 

removal appeal had been a supervisor in the agency’s Office of Professional Responsibility (OPR) at 

the time that OPR investigated the misconduct for which the appellant was later removed. The AJ

issued an initial decision reversing the appellant’s removal based upon a due process violation, 

finding that the deciding official was not an impartial decision maker due to his prior involvement 

with the OPR investigation. The Board reversed the initial decision’s due process finding based on 

two decisions which were issued after the initial decision in this case: Norris v. Securities & Exchange 

Commission, 675 F.3d 1349 (Fed. Cir. 2012), and Martinez v. Department of Veterans Affairs, 2012 MSPB 

121, 119 M.S.P.R. 37 (2012). Under those decisions, a deciding official only violates due process 

when he relies upon his personal knowledge of an employee’s background, without notice to the 

employee, as a basis for his determinations on either the merits of the underlying charge or the 

penalty to be imposed. The Board found that there is no evidence that the deciding official relied 

upon his past involvement in or knowledge of the appellant’s OPR investigation when considering 

the appellant’s proposed removal.

Boucher v. U.S. Postal Service, 2012 MSPB 126, 118 M.S.P.R. 640 (2012): The appellant was placed on 

indefinite suspension following her arrest for possession of cocaine and marijuana, while on lunch 

break in a car near the worksite. The Board found that the judge did not err in relitigating the 

reasonableness of the penalty. The Board found that two exceptions to the law of the case doctrine 

applied: (1) there was material new evidence the agency did not submit during the initial 

adjudication of the appellant’s removal appeal; and (2) a manifest injustice would result from failure 

to reconsider the appropriateness of the penalty under these circumstances. The Board also found 

that the judge did not err in mitigating the penalty. The Board noted that, under Lewis v. Department

of Veterans Affairs, 113 M.S.P.R. 657 (2010), the appellant must show that there is enough similarity 

between the nature of the conduct and other factors to lead a reasonable person to conclude that the 

agency treated similarly-situated employees differently, and that if the appellant makes the required 

showing, the agency must prove a legitimate reason for the difference in treatment by preponderant 

evidence before the penalty can be upheld. The Board concluded that the agency failed to explain by 

preponderant evidence why the comparator employee received no discipline while the appropriate 

penalty for the appellant was removal. In his dissent, Member Robbins expressed the view that the 

Board should reconsider its holding in Lewis and similar cases.
26 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Settlement

Shirley v. Department of the Interior, 2013 MSPB 76, 120 M.S.P.R. 195 (2013): The parties settled the 

appellant’s appeal from his removal from a Park Ranger position in Tennessee, in an agreement that 

included a confidentiality clause. The appellant later claimed that agency officials in Tennessee 

breached the agreement by revealing details of the appellant’s removal to agency officials in Alaska 

who had offered him a job. The Board found no breach, holding that ordinarily, a confidentiality 

clause in a settlement agreement will not be interpreted to prohibit intra-agency disclosures. 

Selected Significant Board Decisions Issued in Early FY 2014

Davis v. Department of the Navy, 120 M.S.P.R. 457 (2013): Disparate penalty claim not established where, 

among other things, the deciding official believed the comparison employee was treated too leniently.

Bean v. U.S. Postal Service, 120 M.S.P.R. 397 (2013): Clarification of the Board's constructive 

suspension jurisdictional standard; lowered the appellant’s burden of proving involuntariness where 

the agency’s action would force him to choose absence or working outside his medical restrictions.

Miller v. Department of the Interior, 120 M.S.P.R. 426 (2013): Denied OPM’s request for 

reconsideration of Miller v. Department of the Interior, 119 M.S.P.R. 438 (2013), which reversed the 

agency’s action removing the appellant for failing to accept a management-directed geographic 

reassignment, where the agency failed to provide bona fide reasons for the reassignment.

Boudrealt v. Department of Homeland Security, 120 M.S.P.R. 372 (2013): Affirmed the continued validity 

of the Exum/Yeressian line of cases; did the agency inform the appellant that he would lose appeal 

rights upon accepting a new position for which he applied?

Burroughs v. Department of the Army, 120 M.S.P.R. 392 (2013): Standard established for proving a 

USERRA reprisal claim under 38 U.S.C.A. § 4311(b); an agency violates § 4311(b) if the agency 

would not have taken the action but for the appellant’s protected activity.

Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285 (2013): Granted corrective action in an IRA 

appeal, finding that the appellant was terminated in retaliation for protected whistleblowing; 

although disclosures made by the appellant, a licensed nurse, did not name a specific law, rule, or 

regulation that was allegedly violated, those disclosures were protected because a reasonable person 

in her position would believe they constituted a substantial and specific danger to health and safety.

Rumsey v. Department of Justice, 120 M.S.P.R. 259 (2013): Granted corrective action in an IRA appeal, 

finding that cancellation of the appellant’s telework agreement and lowering of her 2007 

performance rating constituted whistleblowing retaliation; under the WPEA, disclosures do not lose 

protection because they were previously known, made to a coworker, or involved matters within an 

appellant’s job duties.

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

Review Rights

Conforto v. Merit Systems Protection Board, 713 F.3d 1111 (Fed. Cir. 2013) (No. 2012-3119). In Conforto, 

the Federal Circuit ruled that when the Board dismisses a mixed case appeal for lack of jurisdiction,

the proper venue for judicial review of that decision is the Federal Circuit, not a United States 
27 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

District Court. The Federal Circuit declined to read the Supreme Court’s decision in Kloeckner v. Solis, 

133 S. Ct. 596 (2012), which held that judicial review of procedural dismissals of mixed cases by the 

Board is properly in a United States District Court, to cover mixed case appeals over which the 

Board does not have jurisdiction. 

Whistleblower Protection

MacLean v. Department of Homeland Security, 714 F.3d 1301 (Fed. Cir. 2013) (No. 2011-3231). In 

MacLean, the Federal Circuit held that the Whistleblower Protection Act prohibits taking a 

“personnel action” against a Government employee because of any disclosure of information by the 

employee provided that the disclosure is not specifically prohibited by law. In this case, the court 

agreed with Mr. MacLean that, while an FAA regulation prohibited disclosure of the information in 

question, the Aviation and Transportation Security Act did not “specifically prohibit” it. 

Security Clearance Determinations

Gargiulo v. Department of Homeland Security, 727 F.3d 1181 (Fed. Cir. 2013) (No. 2012-3157). In 

Gargiulo, the Federal Circuit held that employees are entitled to notice of the reasons for a 

suspension of their security clearance and an opportunity to make a meaningful response regarding 

those reasons to someone in the agency with the authority to affect that decision. Specifically, the 

court held that these rights are found in 5 U.S.C. § 7513(b), not in the Due Process Clause of the 

Fifth Amendment. 

Kaplan v. Conyers, et al., 733 F.3d 1148 (Fed. Cir. 2013) (No. 2011-3207). In Conyers, et al the Federal 

Circuit held that the Board cannot review an agency’s determinations concerning the eligibility of an 

employee to occupy a “sensitive” position, regardless of whether that sensitive position requires the 

employee to access classified information. 

Retirement

Stephenson v. Office of Personnel Management, 705 F.3d 1323 (Fed. Cir. 2013). (No. 2012-3074). Under 5 

U.S.C. § 8452(a)(2)(A), a FERS disability annuity must be reduced for each month in which the 

recipient is also “entitled to” social security administration disability benefits. In this case, the 

Federal Circuit examined the meaning of “entitled to.” It held that when an employee performs 

substantial gainful activity, despite having earlier qualified for social security disability benefits, then 

he or she is not entitled to such benefits, and his or her FERS annuity need not be reduced during 

any such time period.

Due Process

Young v. Department of Housing & Urban Development, 706 F.3d 1372 (Fed. Cir. 2013). (No. 2012-3232). 

The Federal Circuit reversed a deciding official’s decision to remove an appellant where, after the 

appellant replied to the charges, the deciding official conducted interviews of witnesses but failed to 

notify the appellant about the interviews or allow him the opportunity to rebut the new evidence 

resulting from them. The Federal Circuit found that the deciding official’s gathering and 

consideration of “new and material” evidence denied the appellant due process. It also found that 

the ex parte communications in question were more than “confirming and clarifying information” 

that was already on the record. 
28 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

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29 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Case Processing Statistics for FY 2013 

Summary of Cases Decided by MSPB

Table 1: FY 2013 Summary of Cases Decided by MSPB

Cases Decided in MSPB Regional and Field Offices 

 Appeals 5,767

 Addendum Cases1492

 Stay Requests281

TOTAL Cases Decided in RO/FOs 6,340

Cases Decided by Administrative Law Judges (ALJs) - Original 

Jurisdiction3 167

 Cases Decided by the Board

 Appellate Jurisdiction:

 Petitions for Review (PFRs) - Appeals 736

 Petitions for review (PFRs) - Addendum Cases 105

 Reviews of Stay Request Rulings 0

 Requests for Stay of Board Order 0

 Reopenings49

 Court Remands 11

 Compliance Referrals 34

 EEOC Non-concurrence Cases 0

 Arbitration Cases 8

 Subtotal - Appellate Jurisdiction 903

 Original Jurisdiction5 49

 Interlocutory Appeals 0

 TOTAL Cases Decided by the Board 952

 TOTAL Decisions (Board, ALJs, RO/FOs) 7,459

1 Includes 111 requests for attorney fees, 148 Board remand cases, 214 petitions for enforcement, 6 court remand cases, 

7requests for compensatory damages (discrimination cases only), and 6 requests for consequential damages.

2 Includes 66 stay requests in whistleblower cases and 15 in non-whistleblower cases.

3 Initial Decisions by ALJ. Case type breakdown: 1 Petition for Rulemaking, 3 Hatch Act cases, and 163 Actions Against ALJs.

4 Includes 8 cases reopened by the Board on its own motion and 1 request for reconsideration by OPM.

5 Final Board Decisions. Case Type Breakdown: 16 OSC stay requests, 1 reopening of a Hatch Act case, 2 PFRs of Hatch Act 

case, 22 PFRs of Actions Against ALJs, and 8 request for regulation review.
30 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Summary of Cases Processed in the Regional and Field Offices

Table 2: Disposition of Appeals Decided in the Regional and

Field Offices, by Type of Case

Decided Dismissed1 Not 

DIsmissed1 Settled2

Adjudicated2

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

Adverse Action by Agency 2703 1381 51.09 1322 48.91 858 64.90 464 35.10

Termination of Probationers 365 331 90.68 34 9.32 32 94.12 2 5.88

Reduction in Force 18 15 83.33 3 16.67 2 66.67 1 33.33

Performance 141 41 29.08 100 70.92 74 74.00 26 26.00

Acceptable Level of 

Competence (WIGI) 40 24 60.00 16 40.00 14 87.50 2 12.50

Suitability 50 31 62.00 19 38.00 13 68.42 6 31.58

CSRS Retirement: Legal 375 219 58.40 156 41.60 1 0.64 155 99.36

CSRS Retirement: Disability 21 17 80.95 4 19.05 1 25.00 3 75.00

CSRS Retirement: 

Overpayment

33 17 51.52 16 48.48 11 68.75 5 31.25

FERS Retirement: Legal 147 93 63.27 54 36.73 1 1.85 53 98.15

FERS Retirement: Disability 262 203 77.48 59 22.52 1 1.69 58 98.31

FERS Retirement: 

Overpayment

119 51 42.86 68 57.14 40 58.82 28 41.18

FERCCA 16 15 93.75 1 6.25 0 0.00 1 100.00

Individual Right of Action 346 293 84.68 53 15.32 36 67.92 17 32.08

USERRA 207 82 39.61 125 60.39 104 83.20 21 16.80

VEOA 210 133 63.33 77 36.67 15 19.48 62 80.52

Other3

714 655 91.74 59 8.26 44 74.58 15 25.42

Total 5767 3601 62.44 2166 37.56 1247 57.57 919 42.43

1

Percent Dismissed and Not Dismissed are of the number Decided.

2

Percent Settled and Adjudicated are of the number Not Dismissed

3

“Other” appeals include Restoration to Duty (131), Miscellaneous (511), and additional types such as Reemployment Priority, 

Employment Practices, and others.
31 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

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

Total Number of Appeals: 5,767

Termination of 

Probationers (365) 

6%

Reduction in Force 

(18) 0%

Performance (141) 

2%

Acceptable Level of 

Competence (40) 1%

Suitability (50) 1%

CSRS Retirement: 

Legal (375) 7%

CSRS Retirement: 

Disability (21) 0%

CSRS Retiremant: 

Overayment (33) 1%

FERS Retirement: 

Legal (147) 3%

FERS Retirement: 

Disability (262) 5%

FERS Retirement: 

Overpayment (119) 

2%

FERCA (16) 0%

Indivual Right of 

USERRA (207) 4% Action (346) 6%

VEOA (210) 4%

Other (714) 12%

Adverse Actions 

(2703) 47%
32 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Figure 2: Dispositions: Initial Appeals Not Dismissed 

by Regional/Field Offices

Total Number of Appeals that were Not Dismissed: 2,166

Figure 3: Dispositions: Initial Appeals Not Dismissed or Settled 

by Regional/Field Office

Based on 919 Appeals Adjudicated on the Merits

Appeal Settled 

(1247) 58%

Action or Decision 

Upheld or Left 

Undisturbed (686) 

32%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (201) 9%

Mitigated (26) 1%

Other (6) 0%

Action or Decision 

Upheld or Left 

Undisturbed (686) 

74%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (201) 

22%

Mitigated (26) 3%

Other (6) 1%
33 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Table 3: Disposition of Initial Appeals by Agency

Decided Dismissed1Not DIsmissed1 Settled2 Adjudicated2

# # % # % # % # %

Office of Personnel 

Management3 955 599 62.7 356 37.3 67 18.8 289 81.2

United States Postal 

Service

809 523 64.6 286 35.4 205 71.7 81 28.3

Department of Veterans 

Affairs 804 510 63.4 294 36.6 211 71.8 83 28.2

Department of the Army 546 330 60.4 216 39.6 151 69.9 65 30.1

Department of Homeland 

Security

373 223 59.8 150 40.2 71 47.3 79 52.7

Department of the Navy 294 166 56.5 128 43.5 82 64.1 46 35.9

Department of Defense 288 190 66.0 98 34.0 67 68.4 31 31.6

Department of the Air 

Force

269 127 47.2 142 52.8 107 75.4 35 24.6

Department of the 

Treasury

213 139 65.3 74 34.7 49 66.2 25 33.8

Department of 

Transportation

201 119 59.2 82 40.8 25 30.5 57 69.5

Department of Justice 152 107 70.4 45 29.6 26 57.8 19 42.2

Department of 

Agriculture 136 82 60.3 54 39.7 38 70.4 16 29.6

Department of the 

Interior

121 72 59.5 49 40.5 30 61.2 19 38.8

Department of Health and 

Human Services

103 68 66.0 35 34.0 26 74.3 9 25.7

Department of Housing 

and Urban Development 76 63 82.9 13 17.1 5 38.5 8 61.5

Social Security 

Administration 70 46 65.7 24 34.3 12 50.0 12 50.0

Department of Commerce 46 33 71.7 13 28.3 9 69.2 4 30.8

Department of Labor 44 31 70.5 13 29.5 5 38.5 8 61.5

Environmental Protection 

Agency

30 18 60.0 12 40.0 5 41.7 7 58.3

Department of State 29 19 65.5 10 34.5 8 80.0 2 20.0

General Services 

Administration 26 15 57.7 11 42.3 10 90.9 1 9.1

Department of Energy 25 16 64.0 9 36.0 5 55.6 4 44.4

Federal Deposit Insurance 

Corporation

13 10 76.9 3 23.1 1 33.3 2 66.7
34 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Table 3: Disposition of Initial Appeals by Agency

Decided Dismissed1Not DIsmissed1 Settled2 Adjudicated2

# # % # % # % # %

Equal Employment 

Opportunity Commission

12 10 83.3 2 16.7 2 100.0 0 0.0

Government Printing 

Office 12 8 66.7 4 33.3 3 75.0 1 25.0

Agency for International 

Development 10 7 70.0 3 30.0 2 66.7 1 33.3

Federal Trade 

Commission

9 5 55.6 4 44.4 2 50.0 2 50.0

Securities and Exchange 

Commission

9 7 77.8 2 22.2 2 100.0 0 0.0

Small Business 

Administration 9 5 55.6 4 44.4 2 50.0 2 50.0

Tennessee Valley 

Authority 9 4 44.4 5 55.6 3 60.0 2 40.0

Department of Education 8 7 87.5 1 12.5 1 100.0 0 0.0

National Aeronautics and 

Space Administration

8 4 50.0 4 50.0 2 50.0 2 50.0

Smithsonian Institution 8 6 75.0 2 25.0 1 50.0 1 50.0

Federal Emergency 

Management Agency

4 3 75.0 1 25.0 1 100.0 0 0.0

National Credit Union 

Administration 4 1 25.0 3 75.0 1 33.3 2 66.7

Armed Forces Retirement 

Home

3 1 33.3 2 66.7 2 100.0 0 0.0

Corporation for National 

and Community Service 3 1 33.3 2 66.7 1 50.0 1 50.0

Federal Reserve System 3 3 100.0 0 0.0 0 0.0 0 0.0

National Science 

Foundation 3 2 66.7 1 33.3 1 100.0 0 0.0

Nuclear Regulatory 

Commission

3 3 100.0 0 0.0 0 0.0 0 0.0

Administrative Office of

the U.S. Courts 2 2 100.0 0 0.0 0 0.0 0 0.0

Architect of the Capitol 2 2 100.0 0 0.0 0 0.0 0 0.0

Broadcasting Board of 

Governors

2 1 50.0 1 50.0 1 100.0 0 0.0

Central Intelligence 

Agency

2 2 100.0 0 0.0 0 0.0 0 0.0
35 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Table 3: Disposition of Initial Appeals by Agency

Decided Dismissed1Not DIsmissed1 Settled2 Adjudicated2

# # % # % # % # %

Federal Communications 

Commission

2 1 50.0 1 50.0 0 0.0 1 100

National Archives and 

Records Administration 2 1 50.0 1 50.0 0 0.0 1 100

National Labor Relations 

Board 2 2 100.0 0 0.0 0 0.0 0 0.0

Selective Service System 2 1 50.0 1 50.0 1 100.0 0 0.0

Consumer Product Safety 

Commission

1 0 0.0 1 100.0 1 100.0 0 0.0

Federal Housing Finance 

Agency

1 0 0.0 1 100.0 1 100.0 0 0.0

Federal Mediation and 

Conciliation Service 1 0 0.0 1 100.0 0 0.0 1 100.0

Federal Retirement Thrift 

Investment Board 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

Inter-American 

Foundation 1 1 100.0 0 0.0 0 0.0 0 0.0

Judicial Branch 1 1 100.0 0 0.0 0 0.0 0 0.0

Office of Management 

and Budget 1 1 100.0 0 0.0 0 0.0 0 0.0

Office of the Director of 

National Intelligence 1 1 100.0 0 0.0 0 0.0 0 0.0

Office of the U.S. Trade 

Representative

1 0 0.0 1 100.0 1 100.0 0 0.0

Other 1 1 100.0 0 0.0 0 0.0 0 0.0

TOTAL 5767 3601 62.4 2166 37.6 1247 57.6 919 42.4

1

Percent Dismissed and Not Dismissed are of the number Decided.

2

Percent Settled and Adjudicated are of the number Not Dismissed.

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

administrator of the Civil Service Retirement System and the Federal Employees Retirement System.
36 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

By Agency

Adjudicated1 Affirmed Reversed Mitigated 

Modified Other

# # % # % # % # % 

Office of Personnel 

Management2 289 214 74.0 69 23.9 0 0.0 6 2.1

Department of Veterans 

Affairs 83 62 74.7 16 19.3 5 6.0 0 0.0

United States Postal Service 81 48 59.3 26 32.1 7 8.6 0 0.0

Department of Homeland 

Security

79 63 79.7 15 19.0 1 1.3 0 0.0

Department of the Army 65 41 63.1 19 29.2 5 7.7 0 0.0

Department of 

Transportation

57 56 98.2 1 1.8 0 0.0 0 0.0

Department of the Navy 46 32 69.6 13 28.3 1 2.2 0 0.0

Department of the Air 

Force

35 24 68.6 9 25.7 2 5.7 0 0.0

Department of Defense 31 24 77.4 5 16.1 2 6.5 0 0.0

Department of the 

Treasury

25 23 92.0 2 8.0 0 0.0 0 0.0

Department of Justice 19 14 73.7 4 21.1 1 5.3 0 0.0

Department of the Interior 19 11 57.9 7 36.8 1 5.3 0 0.0

Department of Agriculture 16 11 68.8 5 31.3 0 0.0 0 0.0

Social Security 

Administration 12 12 100.0 0 0.0 0 0.0 0 0.0

Department of Health and 

Human Services

9 8 88.9 1 11.1 0 0.0 0 0.0

Department of Housing and 

Urban Development 8 7 87.5 1 12.5 0 0.0 0 0.0

Department of Labor 8 8 100.0 0 0.0 0 0.0 0 0.0

Environmental Protection 

Agency

7 7 100.0 0 0.0 0 0.0 0 0.0

Department of Commerce 4 3 75.0 1 25.0 0 0.0 0 0.0

Department of Energy 4 1 25.0 2 50.0 1 25.0 0 0.0

Department of State 2 2 100.0 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

Federal Trade Commission 2 2 100.0 0 0.0 0 0.0 0 0.0
37 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

By Agency

Adjudicated1 Affirmed Reversed Mitigated 

Modified Other

# # % # % # % # % 

National Aeronautics and 

Space Administration 2 1 50.0 1 50.0 0 0.0 0 0.0

National Credit Union 

Administration 2 2 100.0 0 0.0 0 0.0 0 0.0

Tennessee Valley Authority 2 2 100.0 0 0.0 0 0.0 0 0.0

Corporation for National 

and Community Service 1 0 0.0 1 100.0 0 0.0 0 0.0

Federal Communications 

Commission

1 0 0.0 1 100.0 0 0.0 0 0.0

Federal Mediation and 

Conciliation Service 1 1 100.0 0 0.0 0 0.0 0 0.0

General Services 

Administration 1 0 0.0 1 100.0 0 0.0 0 0.0

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

National Archives and 

Records Administration 1 1 100.0 0 0.0 0 0.0 0 0.0

Smithsonian Institution 1 1 100.0 0 0.0 0 0.0 0 0.0

Total 919 686 74.6 201 21.9 26 2.8 6 0.7

1

Adjudicated on the Merits, i.e., not dismissed or settled.

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

Civil Service Retirement System and the Federal Employees Retirement System. 

Percentages may not total 100 because of rounding. 
38 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Headquarters Case Processing

Table 5: Disposition of Petitions for Review (PFRs) of Initial Decisions 

by Type of Case

Decided Dismissed Settled Denied Denied But 

Reopened Granted

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

Adverse Action by 

Agency

361 29 8.03 9 2.49 241 66.76 11 3.05 71 19.67

Termination of 

Probationers 33 4 12.12 1 3.03 25 75.76 0 0.00 3 9.09

Reduction in Force 2 0 0.00 0 0.00 1 50.00 1 50.00 0 0.00

Performance 15 1 6.67 1 6.67 12 80.00 1 6.67 0 0.00

Acceptable Level of 

Competence (WIGI) 7 1 14.29 0 0.00 6 85.71 0 0.00 0 0.00

Suitability 12 0 0.00 0 0.00 11 91.67 0 0.00 1 8.33

CSRS Retirement: 

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

CSRS Retirement: 

Disability 9 1 11.11 0 0.00 6 66.67 0 0.00 2 22.22

CSRS Retirement: 

Overpayment

3 1 33.33 0 0.00 0 0.00 2 66.67 0 0.00

FERS Retirement: 

Legal 12 1 8.33 0 0.00 9 75.00 0 0.00 2 16.67

FERS Retirement: 

Disability 21 3 14.29 0 0.00 13 61.90 0 0.00 5 23.81

FERS Retirement: 

Overpayment

6 0 0.00 0 0.00 4 66.67 1 16.67 1 16.67

FERCCA 2 0 0.00 0 0.00 0 0.00 0 0.00 2 100.0

Individual Right of 

Action

56 2 3.57 0 0.00 28 50.00 6 10.71 20 35.71

USERRA 25 5 20.00 0 0.00 12 48.00 2 8.00 6 24.00

VEOA 43 2 4.65 0 0.00 29 67.44 3 6.98 9 20.93

Other 97 6 6.19 1 1.03 75 77.32 4 4.12 11 11.34

Total 736 60 8.15 12 1.63 496 67.39 32 4.35 136 18.48
39 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Figure 4: Types of Petitions for Review (PFRs)

Total Number of Petitions for Review (PFR): 736

Adverse Actions 

(361) 49%

Termination of 

Probationers (33) 4%

Reduction In Force 

(2) 0% Performance (15) 2%

Acceptable Level of 

Competence (7) 1%

Suitability (12) 2%

CSRA Retirement: 

Legal (32) 4%

CSRA Retirement: 

Disability (9) 1%

CSRA Retirement: 

Overpayment (3) 0%

FERS Retirement: 

Legal (12) 2%

FERS Retirement: 

Disability (21) 3%

FERS Retirement: 

Overpayment (6) 1%

FERCCA (2) 0%

Individual Right of 

Action (56) 8% USERRA (25) 3%

VEOA (43) 6%

Other (97) 13%
40 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Figure 5: Disposition of Petitions for Review of Initial Decisions

Based on 736 Total PFRs

Figure 6: Disposition of Petition for Review Granted

Based on 136 PFRs Granted

Dismissed (60) 8%

Settled (12) 2%

Denied (496) 67%

Denied but 

Reopend (32) 4%

Granted (136) 19%

Initial Decision 

Affirmed (12) 9%

Initial Decision 

Reversed (17) 12%

Case Remanded (96) 

71%

Agency Action 

Mitigated (1) 1%

Other (10) 7%
41 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Figure 7: Disposition of Petitions for Review Denied but Reopened

Based on 32 PFRs Denied but Reopened

Initial Decision 

Affirmed (18) 56%

Initial Decision 

Reversed (0) 0%

Case Remanded 

(5) 16%

Agency Action 

Mitigated (0) 0%

Other (9) 28%
42 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

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

Decided Dismissed Settled Denied Denied But 

Reopened Granted

# # % # % # % # % # %

United States Postal 

Service 128 13 10.16 4 3.13 88 68.75 4 3.13 19 14.84

Department of Veterans 

Affairs 96 7 7.29 0 0.00 69 71.88 4 4.17 16 16.67

Office of Personnel 

Management1 94 10 10.64 0 0.00 64 68.09 5 5.32 15 15.96

Department of the Army 63 4 6.35 2 3.17 43 68.25 3 4.76 11 17.46

Department of Homeland 

Security 55 8 14.55 3 5.45 31 56.36 0 0.00 13 23.64

Department of the Navy 42 1 2.38 1 2.38 29 69.05 3 7.14 8 19.05

Department of the 

Treasury 37 1 2.70 0 0.00 29 78.38 2 5.41 5 13.51

Department of Defense 34 1 2.94 1 2.94 24 70.59 2 5.88 6 17.65

Department of the Air 

Force 30 5 16.67 0 0.00 19 63.33 3 10.00 3 10.00

Department of Justice 27 1 3.70 0 0.00 16 59.26 0 0.00 10 37.04

Department of Agriculture 23 3 13.04 0 0.00 14 60.87 3 13.04 3 13.04

Department of Health and 

Human Services 17 1 5.88 0 0.00 10 58.82 0 0.00 6 35.29

Department of Labor 16 2 12.50 0 0.00 9 56.25 1 6.25 4 25.00

Department of the Interior 10 0 0.00 0 0.00 6 60.00 0 0.00 4 40.00

Social Security 

Administration 10 0 0.00 0 0.00 8 80.00 0 0.00 2 20.00

Department of Commerce 9 0 0.00 0 0.00 5 55.56 1 11.11 3 33.33

Department of Energy 6 0 0.00 0 0.00 6 100.0 0 0.00 0 0.00

Environmental Protection 

Agency 6 0 0.00 0 0.00 5 83.33 0 0.00 1 16.67

Department of 

Transportation 5 0 0.00 0 0.00 4 80.00 0 0.00 1 20.00

General Services 

Administration 5 0 0.00 1 20.00 2 40.00 0 0.00 2 40.00

Department of Housing 

and Urban Development 3 0 0.00 0 0.00 2 66.67 0 0.00 1 33.33
43 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

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

Decided Dismissed Settled Denied Denied But 

Reopened Granted

# # % # % # % # % # %

Federal Deposit Insurance 

Corporation 3 0 0.00 0 0.00 3 100.0 0 0.00 0 0.00

Agency for International 

Development 2 0 0.00 0 0.00 2 100.0 0 0.00 0 0.00

Department of State 2 0 0.00 0 0.00 0 0.00 0 0.00 2 100.0

Equal Employment 

Opportunity Commission 2 0 0.00 0 0.00 2 100.0 0 0.00 0 0.00

Federal Trade Commission 2 1 50.00 0 0.00 1 50.00 0 0.00 0 0.00

Smithsonian Institution 2 1 50.00 0 0.00 1 50.00 0 0.00 0 0.00

Court Services and 

Offender Supervision 

Agency for DC

1 0 0.00 0 0.00 0 0.00 0 0.00 1 100.0

Government Printing Office 1 0 0.00 0 0.00 0 0.00 1 100.0 0 0.00

International Boundary and 

Water Commission: U.S. 

and Mexico

1 1 100.0 0 0.00 0 0.00 0 0.00 0 0.00

National Aeronautics and 

Space Administration 1 0 0.00 0 0.00 1 100.0 0 0.00 0 0.00

Office of Special Counsel 1 0 0.00 0 0.00 1 100.0 0 0.00 0 0.00

Securities and Exchange 

Commission 1 0 0.00 0 0.00 1 100.0 0 0.00 0 0.00

Tennessee Valley Authority 1 0 0.00 0 0.00 1 100.0 0 0.00 0 0.00

TOTAL 736 60 8.15 12 1.63 496 67.39 32 4.35 136 18.48

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

Service Retirement System and the Federal Employees Retirement System.

Percentages may not total 100 because of rounding.
44 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

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45 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Summaries of Merit Systems Studies

In FY 2013, MSPB approved one merit system study report and three editions of the IoM

newsletter.

12 The contents of these publications are summarized below. To provide timely 

information to our stakeholders, we also include summaries of two MSPB reports published in early 

FY 2014. All MPSB reports and newsletter editions, along with additional merit systems studies

content can be found on the studies page of the MSPB website at www.mspb.gov.

Clean Record Settlement Agreements and the Law

Many settlement agreements that resolve adverse action appeals before MSPB include a clean record 

agreement (CRA), in which a Federal agency agrees to remove potentially negative information from 

an employee’s record. CRAs are relevant to the parties to the agreement and MSPs related to fair 

treatment of employees and effective use of the workforce. In addition, because CRAs have 

implications for future job applications and the information that Federal agencies can provide and 

obtain in making employment-related decisions, CRAs are related to the MSPs involving selection 

based on ability and maintaining high standards of conduct and integrity.

This report uses case law to discuss why it is important for a CRA to contain clear and specific 

language addressing a variety of aspects of the agreement, including: what systems of records will be 

cleaned; what information will be cleaned from those systems; and what will be communicated to 

others and by whom. The report also explains how statutory and regulatory obligations placed on 

the parties—and the inability of the CRA to bind third parties—can complicate the ability of the 

parties to achieve the goals they may have for the CRA. Particular attention is paid to the issues of 

applying for Federal positions and security clearances.

Issues of Merit Newsletter Topics

MSPB issued three editions of IoM during FY 2013. Additional articles regarding Federal human 

capital management were posted to MSPB’s studies web page. These IoM and website articles 

informed readers regarding the broad range of ongoing MSPB research studies and their linkage to 

supporting the MSPs and avoiding the prohibited personnel practices. Therefore, the findings and 

recommendations contained in the IoM articles are designed to foster the fair and effective 

management of the Federal workforce. 

FY 2013 IoM articles were related to recruiting and retaining employees, the effects of favoritism on 

recruitment and quality of hires, the necessity of employee training even during times of austerity, as 

well as the advantage of cross-training the workforce to increase skills and improve results. Additional 

IoM articles involved employee performance including tips on how supervisors could become effective 

employee coaches, how to fully engage employees to improve performance, the importance of 

informal recognition, and how to capitalize on employee talents by developing effective supervisoremployee relationships. Additionally, FY 2013 IoM articles examined topics related to PPPs and

provided a synopsis of MSPB’s FY 2012 adjudication activities. The wide range of topics ensures 

publication of articles relevant to the diverse interested of our IoM audience. 

 

12 In FY 2013 published two study reports that were approved in FY 2012. These reports, one on motivation potential

and employee engagement and one on managing employees in the public interest, were summarized in MSPB’s FY 2012 

Annual Report.
46 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Merit Systems Studies Reports Published in Early FY 2014

Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing 

Perceptions of Favoritism

The MSPs state the expectation for Federal employees to be selected and advanced based on merit 

and protected from personal favoritism. Avoidance of favoritism is relevant to all employees and 

personnel systems—and critical to fair treatment of employees, quality of hire and the integrity of 

the hiring process, proper and effective use of rewards, and employee engagement and retention. 

However, survey results indicate that some Federal employees suspect that relationships currently 

exert undue influence on many management decisions. For example, 28% of employees believe their 

own supervisor practices favoritism, while just over half agree other supervisors in their 

organizations practice favoritism.

This report clarifies what constitutes favoritism—a concept that is not clearly defined in statute—

and summarizes Federal employees’ views on the frequency of favoritism and the potential impacts 

on employees and organizations. The purpose of this report is to reduce the likelihood that 

favoritism is occurring (or believed to be occurring) by providing recommendations to strengthen 

supervisory and managerial practices. The report also identifies steps that employees can take to 

better understand the Federal merit systems and improve their ability to advance within them.

Evaluating Job Applicants: The Role of Training and Experience in Hiring

In accord with the first MSP, that “selection and advancement should be determined solely on the 

basis of relative ability, knowledge and skills,” it is critical for agencies to use selection tools that will 

fairly and effectively identify highly qualified applicants. Training and experience (T&E) assessments 

can be used to collect information about a person’s past to make inferences about that person’s 

current proficiency in a given area and his or her likelihood of success on a job. Whenever prior 

T&E is considered as part of a Federal hiring or promotion decision, it must be done in a manner 

that best identifies true differences in ability as accurately as possible.

This report discusses the strengths and weaknesses of T&E assessments to gauge an individual’s job 

qualifications and provides recommendations for the most effective use of such assessments. The 

report also recommends specific strategies to improve T&E assessment, which can result in more 

effective hiring decisions and a better qualified and more productive Federal workforce.

Updating the Merit Systems Studies Research Agenda

MSPB is currently in the process of updating its merit systems studies research agenda. More 

information about this process, and the opportunity for public input, is available here.
47 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

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

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

analysis of whether OPM’s actions are in accord with MSPs (5 U.S.C. § 2301) and free from PPPs

(5 U.S.C. § 2302). OPM’s actions broadly affect the Federal workforce, multiple Federal agencies, or 

applicants for Federal jobs. Almost all OPM actions have the potential to impact the effectiveness 

and efficiency of the Federal workforce (MSP 5) and/or fair and equitable treatment in a variety of 

contexts (MSP 2). Depending on the nature of a particular OPM action, it has the potential to affect 

or involve other specific MSPs and/or PPPs. Brief information about the additional MSPs and/or 

PPPs that may be affected by a particular OPM action is included in the ‘significance’ section 

following each action.

Scope and Coverage of this Review

Below, we summarize OPM’s most significant actions or initiatives, focusing on those policies and 

initiatives that have the potential to affect one or more of the MSPs or PPPs. This report is not a 

comprehensive digest of OPM activities, as OPM has many programs and responsibilities that do 

not directly affect MSPs and PPPs. For example, OPM now has the responsibility to implement 

certain provisions of the Patient Protection and Affordable Care Act (PPACA). OPM’s actions 

related to the PPACA are not included in this summary because they do not affect the Federal 

workforce or a specific MSP or PPP.

Also, this summary does not discuss in detail every OPM significant action that was underway or 

completed in FY 2013. Instead, it should be read in conjunction with previous MSPB reports of 

OPM’s significant actions. For example, our FY 2012 summary discussed several OPM proposals 

that were finalized during FY 2013 (such as the phased retirement program and the GoalsEngagement-Accountability-Results pilot). Those discussions are not repeated here. Also, where we 

have commented on operational OPM programs in the past, and no significant changes have been 

made to those programs, our previous comments remain applicable.

Factors Affecting the U.S. Office of Personnel Management

This review should be read in the context of issues and developments that directly affect OPM and 

can indirectly affect the nature and scope of the OPM policy initiatives that are the primary focus of 

MSPB’s review. Those issues and developments include—

 Governmentwide spending cuts (the sequester) that were effected in FY 2013. In response, 

OPM offered limited voluntary early retirements and voluntary separation incentive 

payments to its workforce;13

 Congressional focus on OPM operations in areas such as retirement processing and 

background investigations;

 Continuing implementation—and heightened stakeholder scrutiny—of provisions of 

PPACA; and

 A leadership transition. The four-year term of OPM Director John Berry ended in April 

2013. In October 2013, the Senate confirmed Katherine Archuleta14 as the next OPM 

Director.

 

13 Kellie Lunney, “OPM Buyouts Could Threaten Progress on Retirement Claims Backlog,” Government Executive, June 4, 

2013. (See http://www.govexec.com/pay-benefits/2013/06/opm-buyouts-could-threaten-progress-retirement-claimsbacklog/64253/).

14 Library of Congress, Thomas, Presidential Nomination 509-113: Katherine Archuleta 
48 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

New OPM Significant Actions 

Guidance on Agency Policies to Prevent Domestic Violence

A Presidential memorandum of April 18, 2012, required that policies be established for addressing 

domestic violence in the Federal workforce.15 The memorandum noted that as the Nation’s largest 

employer, the Federal Government should act as a model in responding to the effects of domestic 

violence on its workforce. Such effects include lost productivity, increased health care costs, 

harassment in the workplace, and other employment-related effects. The memorandum required 

OPM to issue guidance on the content of agency-specific policies to prevent domestic violence and 

address its effects on the Federal workforce.

In February 2013, OPM issued the required guidance, Government-wide Guidance to Address the Effects of 

Domestic Violence, Sexual Assault, and Stalking on the Federal Workforce,

16 which was developed by an 

interagency working group. The guidance outlines agency roles and responsibilities and the steps for 

developing policies to address domestic violence, sexual assault, and stalking. Components of agency 

policies are outlined including:

 Several workplace flexibilities including different types of leave that agencies can use in 

collaboration with victims to help employees remain safe and maintain their work 

performance;

 Disciplinary actions pertaining to employees as well as contractors;

 Training, awareness, and Employee Assistance Programs;

 Building safety and security; and

 Accountability, including assigning the responsibility within agencies for monitoring, 

evaluating, and reporting on the progress of agency programs.

Significance

OPM’s guidance, in seeking to mitigate the effects of domestic violence on the Federal workforce, 

directly supports two merit system principles—efficient and effective use of the Federal workforce 

and, as Federal employees may unfortunately be the perpetrators of such violence, maintaining high 

standards of integrity and conduct.

MSPB research confirms that such violence is real and consequential, reinforcing the value of 

measures to address it. In 2012, MSPB released the report, Employee Perceptions of Federal Workplace 

Violence, that focused on the workplace being the site of a violent event. Seven percent of the 

Federal employee respondents to a 2010 MSPB survey who reported witnessing a violent act at work 

said that the act was perpetrated by the abusive intimate partner of an employee. Almost one-third 

of those incidents resulted in property damage or physical injury. The effects of domestic violence in 

the workplace do not end there. For example, the Centers for Disease Control and Prevention, U.S. 

Department of Health and Human Services, has estimated that, nationally, 96 percent of victims of 

domestic violence experience work-related problems, and that 30 percent of victims actually lose 

their jobs due to attendance or performance issues.17 OPM’s policy guidance cites the MSPB study 

and acknowledges and seeks to mitigate the impact of violence in the workplace.

 

15 Establishing Policies for Addressing Domestic Violence in the Federal Workforce, 77 Fed. Reg. 24,339 (April 23, 2012).

16 Available at http://www.chcoc.gov/transmittals/index.aspx.

17 Kim M. Kerr, Workplace Violence—Planning for Prevention and Response, Elsevier Inc., Burlington, MA, 2010, p. 120.
49 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Among the MSPB survey participants who witnessed workplace violence perpetrated by criminals or 

customers, approximately half agreed that their agencies take sufficient steps to ensure their safety 

from violence occurring at their workplace. However, only about one-third of employees who 

witnessed workplace violence perpetrated by the abusive intimate partners of employees agreed this 

was the case. This disparity may indicate that employees believe their agencies could do more to 

ensure their safety from violence perpetrated by their colleagues’ abusive intimate partners. OPM’s 

guidance may help to remedy this disparity.

Senior Executive Service Exit Survey

In March 2013, OPM announced a Governmentwide exit survey to be administered to all departing 

members of the Senior Executive Service (SES).18 The SES exit survey is a web-based survey hosted 

by OPM that agencies can distribute electronically to departing members of the SES. The survey 

asks respondents about factors (outlined in the table below) that might have encouraged them to 

stay or contributed to their decision to leave and requests information about demographics, recent 

performance, and future plans for analytical purposes. OPM plans to make the survey available 

indefinitely and to compile data at least annually to meet agency needs.

Factors Covered in OPM SES Exit Survey

Items that might encourage staying—

 Work-life balance (e.g., geographic 

relocation, increased telework, or flexible 

scheduling)

 Increased authority and support 

(e.g., greater engagement from senior 

leadership, increased autonomy, or 

increased support in dealing with poor 

performers)

 Developmental opportunities 

(e.g., coaching, executive development 

training, or reassignment to a new agency 

job)

 Compensation and benefits (e.g., increase in 

pay, performance or other award, or 

retention incentive)

Items that might contribute to leaving—

 Advancement and recognition (e.g., lack of 

opportunities for development or 

advancement or a lack of recognition for 

accomplishments)

 Work environment (e.g., senior leadership, 

political environment, or organizational 

culture)

 Work-life balance (e.g., long work hours, 

job stress, commute)

 Personal reasons (e.g., more attractive job 

offer, desire to pursue education, health 

reasons)

Significance

Exit surveys can collect important information from departing employees, and analysis of that 

information can help agencies identify problems and concerns affecting performance and retention 

and take action to address and resolve those concerns. Sharing results of exit survey data among 

agencies will help agencies benchmark their SES programs (including development, which is the 

focus of an ongoing MSPB study) against others that SES members view as the best in Government.

 

18 Angela Bailey, Associate Director, Employee Services, U.S. Office of Personnel Management, Memorandum for 

Human Resources Directors, “Exit Survey for Senior Executive Service (SES) Members,” March 22, 2013. Available at 

www.chcoc.gov/transmittals/index.aspx.
50 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

This effort to develop insight into the SES and improve its functioning directly supports the merit 

system principles requiring that employees be treated fairly and equitably in employment matters and 

that the Federal workforce be used efficiently and effectively. It also indirectly relates to all the MSPs 

and PPPs, given the responsibility of the SES for leading employees and making personnel decisions.

The exit survey is particularly timely given the role and demographics of the SES and continuing 

concern about its effectiveness as a Governmentwide personnel system.19 According to a 2012 OPM 

report, just over two-thirds of SES members agreed that their agency is able to attract and retain 

high-quality executives.20 The 2012 OPM survey showed that there was considerable variability in 

SES members’ perceptions across Federal agencies. The importance of making the SES attractive to 

new entrants and improving the retention of current SES members will only increase in the coming 

years as retirements from the SES have been increasing since 2009, and by 2017 nearly two-thirds of 

the SES cadre will be eligible to retire. 

Supervisory Training Guidance

OPM’s Supervisory Training Guidance and Framework was released in December 2012.

21 All agencies are

required to provide supervisors with appropriate training within one year of their initial appointment 

as well as refresher training at least every three years.22 Such training must address, at a minimum, 

strategies to improve employee performance. This requirement, while helpful, does not address the 

full range of skills that a Federal supervisor must attain to be effective. This guidance was developed 

with the Federal Chief Learning Officers Council to offer a more thorough supervisory training 

framework to Federal agencies. This guidance is intended to assist agency instructional designers and 

training staff in developing agency programs, as well as aspiring, new, and current supervisors to 

chart the development of their leadership and technical competencies.

The framework lists a number of leadership competencies that employees should possess at 

successive stages of leadership (aspiring leader, new supervisor, and supervisor after the first year on 

the job), such as talent management, individual performance management, and organizational 

performance management. The framework also outlines other training required by a number of 

sources including ethics, equal employment opportunity, veterans’ employment, and handling 

unacceptable performance.

In incorporating key training recommendations outlined by the National Council on Federal LaborManagement Relations (“LMR Council”), OPM’s Supervisory Training Guidance and Framework also 

supports OPM’s Goals-Engagement-Accountability-Results (GEAR) pilot program,23 an initiative of 

the LMR Council to improve Federal organizational and individual performance.

 

19 For example, following a hearing in 2011, a bill was introduced in the Senate in 2012 (S. 2249, the Senior Executive 

Service Reform Act of 2012) that would have modified pay and performance management provisions for the SES and 

required agencies to designate certain administrative or management positions as career reserved.

20 U.S. Office of Personnel Management, Senior Executive Service Survey Results for Fiscal Year 2011, May 2012, p. 70.

21 Angela Bailey, Associate Director, Employee Services, U.S. Office of Personnel Management, Memorandum for 

Human Resources Directors, “OPM’s Supervisory Training Guidance and Framework,” December 3, 2012. Available at 

www.chcoc.gov/transmittals/index.aspx.

22 5 C.F.R. § 412.202.

23

 The LMR Council’s effort seeks to improve management practices and behaviors and the assessment, selection, training, 

and development of supervisors. GEAR’s purpose and focus is described in more detail in the summary of significant 

actions in MSPB’s 2012 Annual Report. 
51 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Significance

The seventh merit system principle states that employees should be provided effective education and 

training in cases where better organizational and individual performance would result. MSPB 

research documents both the importance of effective supervisors to Federal agency performance 

and the need to strengthen supervisory training. Federal supervisors are the nexus between 

Government policy and action and the link between management and employees, ensuring that the 

decisions made by the President and Congress are implemented through the information and 

services provided by employees to the American public.24 Unfortunately, many new supervisors have 

not received the training and development opportunities they need both to understand the agency’s 

expectations for supervisors and to manage their employees effectively. In a 2007 MSPB survey of 

Federal employees, less than two-thirds of supervisors said that they received training prior to or 

during their first year as a supervisor. Of those who received training, almost half (48 percent) 

received one week or less. Overall, more than three-quarters of new supervisors did not receive 

training in each of the basic areas of performance management, including developing performance 

goals and standards; assigning, reviewing, and documenting employees’ work; providing feedback; 

developing employees; evaluating employee performance; and managing poor performers.25 OPM’s 

supervisory training framework cites the MSPB study report and should help to rectify this situation.

As discussed above, improved training of Federal supervisors is necessary and welcome. However, 

Federal agencies should recognize the limitations of training. Attendance at training does not guarantee 

that employees have acquired the competencies that the course purported to impart. Additionally, some 

competencies needed to excel as a Federal supervisor may not be well-suited to development through 

training.26 Accordingly, Federal agencies also need to maintain (or establish) sound programs for 

selecting supervisors and monitor the performance of supervisors—and take appropriate action when a 

supervisor is unable or unwilling to adequately carry out supervisory responsibilities.

USA Hire

OPM’s USA Hire is a technology-based approach that Federal agencies may use to assess applicants 

for many commonly-filled Governmentwide occupations. Pilot testing of USA Hire concluded at 

the end of FY 2012, and its functionality was made available to all agencies on a fee-for-service basis 

during FY 2013. This functionality includes using existing, online OPM assessments to inform 

selection and promotion decisions; the ability for agencies to develop customized, online 

assessments for selection, promotion, and training; and automating existing agency assessments.

USA Hire nowincludes an assessment module that agencies may use to conduct Pathways Program 

Internship hiring. This internship battery targets critical general competencies needed for successful 

performance in any trainee position. Also available are assessment batteries covering 12 occupational 

series within the Pathways Recent Graduates program. OPM’s Pathways Programs were finalized in 

2012 to provide streamlined paths to Federal internships and opportunities for careers in Federal 

service for students and recent graduates.

OPM actively seeks feedback from USA Hire users (i.e., job applicants) on the overall process as 

well as how user-friendly the automated assessments are. In addition, better ways to track the 

 

24 U.S. Merit Systems Protection Board, As Supervisors Retire: An Opportunity to Reshape Organizations, October 2009 and 

Managing for Engagement – Communication, Connection, and Courage, July 2009.

25 U.S. Merit Systems Protection Board, A Call to Action: Improving First-Level Supervision of Federal Employees, May 2010.

26 U.S. Merit Systems Protection Board, Making the Right Connections: Targeting the Best Competencies for Training, February 2011.
52 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

experiences of hiring managers with the USA Hire process are under consideration as are ways to 

compile performance data on new hires made through USA Hire to track the overall quality of the 

individuals hired.

Significance

The use of high-quality assessments that are predictive of future job performance is a cornerstone of 

good management practice and a standard of a strong merit system. The first merit system principle 

requires that selection for Federal jobs be based solely on an individual’s relative ability, knowledge, 

and skill, while the second merit system principle states that all employees and applicants for 

employment receive fair and equitable treatment in all aspects of personnel management. Relying on 

predictive assessments to select employees as opposed to any other method of selection also 

promotes the effectiveness and efficiency of the Federal workforce.

Many Federal agencies have neither the expertise nor the funds to develop quality, predictive 

assessments as well as the platforms needed to host them in an easy-to-use online fashion. The types 

of assessments that are included in USA Hire have been shown to be better predictors of job 

performance than point-method ratings of training and experience.27 Therefore, USA Hire has the 

potential to improve the quality of hires across the Government while providing economies of scale 

for all agencies.

Extension of Certain Benefits to Same-Sex Spouses of Federal Employees

In June 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act was 

unconstitutional. Two days later, OPM issued guidance on extending certain employee benefits to 

gay and lesbian Federal employees and annuitants who were legally married and to their families. 

The affected benefits included Federal Employees Health Benefits, Federal Employees’ Group Life 

Insurance, Federal Employees Dental and Vision Insurance Program, Federal Long Term Care 

Insurance Program, Federal retirement programs, and Flexible Spending Account Programs.28 (OPM 

made no changes to the employee benefits previously extended to the same-sex domestic partners of 

Federal employees.)

Significance

Expanding the benefits available to same-sex spouses of Federal employees helps the Federal 

Government maintain a contemporary and competitive benefits package, which is important to 

recruiting a qualified and diverse workforce and creating inclusive workplaces, consistent with the 

merit system principles requiring the Federal Government to strive for a workforce that is 

representative of all segments of society and treats all employees fairly and equitably.

Proposed Rules for Designation of National Security Positions

On May 28, 2013, OPM and the Office of the Director of National Intelligence (ODNI) jointly 

issued through the Federal Register a proposed change to OPM’s regulations regarding the 

 

27 U.S. Merit Systems Protection Board, Reforming Federal Hiring: Beyond Faster and Cheaper, September 2006.

28 Elaine Kaplan, Acting Director, U.S. Office of Personnel Management, Memorandum for Heads of Executive 

Departments and Agencies, “Guidance on the Extension of Benefits to Married Gay and Lesbian Federal Employees, 

Annuitants, and Their Families,” June 28, 2013. Available at www.chcoc.gov/transmittals/index.aspx.
53 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

designation of national security positions.29 The proposed rule would create a new section in the 

regulations, 5 C.F.R. § 1400, setting forth rules regarding the designation of positions as national 

security sensitive and the investigative requirements for such positions.

30 Among other things, the

new section is intended to “clarify that ‘critical-sensitive’ positions include positions involving 

national security adjudicative determinations generally, not just security clearance adjudications.”31

Significance

In 2010, the Board was confronted with two adverse action cases—Conyers v. Department of Defense

and Northover v. Department of Defense—that could not be resolved without first addressing the scope 

of MSPB’s review authority for related adverse action appeals.32 The question was whether, pursuant 

to 5 C.F.R. Part 732, the rule in Department of the Navy v. Egan, 484 U.S. 518, 530–31 (1988) (limiting 

the scope of MSPB review of an adverse action based on the revocation of a security clearance) also 

applies to an adverse action involving an employee in a “non-critical sensitive” position due to the 

employee having been denied continued eligibility for employment in a sensitive position.33 In 

August 2013, the Federal Circuit held in an en banc decision that Egan prohibits Board review of 

agency determinations concerning eligibility of an employee to occupy a “sensitive” position, 

regardless of whether the position requires access to classified information.34 For more information, 

see the “Significant Board Decisions and Court Opinions Issued in FY 2013” chapter of this report.

The proposed regulations will affect the statutory protections and appellate rights afforded to many 

Federal employees.35 The use of the designations in this proposed regulation, in conjunction with the 

holding in Kaplan v. Conyers, would not only potentially limit review of the merits of adverse actions, 

but might also preclude Board and judicial review of whistleblower retaliation and a whole host of 

other constitutional and statutory violations for Federal employees subjected to otherwise appealable 

removals and other adverse actions.36 As the commission of a prohibited personnel practice is an 

affirmative defense in an adverse action, all prohibited personnel practices may be implicated by this 

proposed regulation.37

 

29 Designation of National Security Positions in the Competitive Service, and Related Matters, 78 Fed. Reg. 31,847 (May 

28, 2013). 

30 Id. 

31 78 Fed. Reg. 31,847.

32 Conyers v. Department of Defense, 115 M.S.P.R. 572, ¶ 5 (2010), rev'd, Berry v. Conyers, 692 F.3d 1223 (Fed. Cir. 2012), vacated 

and petition for rehearing en banc granted (Fed. Cir. Jan. 24, 2013); Northover v. Department of Defense, 115 M.S.P.R. 451, ¶ 5 (2010); 

rev'd, Berry v. Conyers, 692 F.3d 1223 (Fed. Cir. 2012), vacated and petition for rehearing en banc granted, (Fed. Cir. Jan. 24, 2013); 5 

C.F.R. § 732.201 (2010). See 75 Fed. Reg. 56146 (notice of oral argument); 75 Fed. Reg. 6728 (opportunity to file briefs).

33 Conyers v. Department of Defense, 115 M.S.P.R. 572, ¶ 5; Northover, 115 M.S.P.R. 451, ¶ 5. See 75 Fed. Reg. 56146 (notice of 

oral argument); 75 Fed. Reg. 6728 (opportunity to file briefs).

34 Kaplan v. Conyers, No. 2011-3207.

35 Berry v. Conyers, 692 F.3d 1223, 1239 (2012) (Dyk, J., dissenting). The dissent to the court’s en banc decision states that 

“Meanwhile, the number of employees affected is likely to increase, as a new rule proposed by OPM would allow agencies

to designate as non-critical sensitive any [p]ositions not requiring eligibility for access to classified information, but having 

the potential to cause significant or serious damage to the national security...If positions of grocery store clerk and

accounting secretary are deemed to be sensitive, it is difficult to see which positions in the DoD or other executive 

agencies would not be deemed sensitive.”

36 Berry v. Conyers, 692 F.3d 1223, 1239 (2012) (Dyk, J., dissenting); Conyers v. Department of Defense, 115 M.S.P.R. 572, ¶ 24;

Northover, 115 M.S.P.R. 451, ¶ 24.

37 5 U.S.C. § 7701(c)(2)(B) (requiring the Board to overturn an agency action if the decision was based on any prohibited 

personnel practice).
54 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Guidance on USERRA

On July 19, 2012, the President issued a memorandum to improve Federal agency compliance with the 

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) through 

outreach, education, and oversight.38 USERRA protects individuals who have performed uniformed 

service in accordance with 38 U.S.C. § 4301-4335 from employment discrimination on the basis of that 

service, provides for the prompt restoration of civilian employment upon return to civilian life, and 

prohibits reprisal for exercising a right under the statute.

In September 2013, OPM published the guidance required by the Presidential memorandum.39 This 

guidance addresses—

 Agency training efforts;

 New data collection procedures;

 New metrics to evaluate the implementation of the Presidential memorandum;

 Guidance and tools to assist agencies in reintegrating service members as quickly and as 

efficiently as possible to civilian life; and 

 Strengthening relationships between service members and stakeholder groups.

Significance

Public policy has long required the Federal Government to be a model employer of veterans,40 and 

full compliance with USERRA is essential to that goal. OPM’s guidance should help Federal 

agencies better understand and meet their obligations under USERRA, consistent with the merit 

system principle requiring equitable treatment of employees, and also may help Federal agencies 

avoid the prohibited personnel practice of an action (or inaction) that would violate a veteran’s 

preference requirement. As illustrated by the decision in Butterbaugh v. Department of Justice41 and 

related appeals before MSPB,42 Federal agencies have not always accurately understood their 

obligations under USERRA.

OPM’s guidance also emphasizes the integration of service members into the civilian service, going 

beyond nominal compliance with legal requirements. Such integration supports the merit system 

principles’ vision of a “workforce representative of all segments of society” and the efficient and 

effective use of a diverse workforce.

Proposed Nondiscrimination Rules

In September 2013, as a part of its ongoing retrospective analysis of existing regulations, OPM 

proposed changes to certain nondiscriminatory provisions found in Title 5 of the Code of Federal 

 

38 Ensuring the Uniformed Services Employment and Reemployment Rights Act (USERRA) Protections, 77 Fed. Reg. 

43,699 (July 25, 2013).

39 Available at http://www.chcoc.gov/transmittals/index.aspx.

40 For example, veteran’s preference in Federal employment has its origins in a 1865 Congressional resolution (Res. of 

Mar. 3, 1865, No. 27, 13 Stat. 571).

41 336 F.3d 1332 (Fed. Cir. 2003). In this case, the U.S. Court of Appeals for the Federal Circuit held that Federal 

employees had to take military leave under 5 U.S.C. § 6323(a) only for days spent training with military reserves on which 

they were otherwise required to work at their Federal jobs.

42 For several years following the decision in Butterbaugh vs. Department of Justice, MSPB received appeals in which individuals 

alleged—correctly, in many cases—that they had been improperly required to take leave to meet military training 

obligations.
55 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Regulations.43 The analysis also further responded to a Presidential memorandum of June 17, 2009, 

that directed OPM to issue guidance regarding compliance with certain civil service laws, rules, and 

regulations including 5 U.S.C. 2302(b)(10) which make it unlawful to discriminate against Federal 

employees on the basis of conduct that is not related to job performance. The changes aim to 

provide greater consistency among nondiscriminatory provisions and reflect recent legal 

developments including enactment of the Genetic Information Nondiscrimination Act of 2008, 

Pub. L. 110-233, which prohibits discrimination on the basis of genetic information. 

Significance.

The proposed regulations would include sexual orientation as a nondiscriminatory factor in certain 

competitive Federal employment practices, including agency merit promotion programs, the 

selection of Federal employees for training and to receive student loan repayments, and in the 

operation of merit personnel systems in accordance with the Intergovernmental Personnel Act of 

1970. The changes would provide uniform nondiscrimination provisions to the extent permitted by

law and, as such, would provide no new avenues of redress for allegations of sexual orientation 

discrimination.

OPM Significant Actions Underway or Completed

This section lists selected OPM significant actions discussed in previous MSPB Annual Reports that 

were completed or remained underway in FY 2013. This year’s report does not discuss these actions 

in detail because: (1) further action or results are pending; or (2) the intent and significance of the 

final action is essentially unchanged from the (previously reviewed) proposed action.

The table below lists the action, its current status, and the previous MSPB Annual Report(s) which 

discussed the action. MSPB intends to monitor actions in progress and will discuss those, as 

appropriate, in future Annual Reports or merit systems studies. 

OPM Action 2013 Status Year(s) 

Discussed

Recruitment, relocation, and 

retention incentives Final regulations issued in August 2013.44 2010

Pathways Programs

Fifty-seven agency memoranda of understanding (which 

are required to make an appointment under Pathways) 

are in place. Hiring has been limited but continues to 

increase.

2011, 2012

Goals-EngagementAccountability-Results 

(GEAR) pilot

Pilot programs continue. The Chief Human Capital 

Offices (CHCO) Council is to review workgroup 

recommendations in FY 2014 in anticipation of a 

Governmentwide roll-out.

2012

Standardized SES performance 

management system

Additional agencies are implementing this system.45 2011, 2012

 

43 Nondiscrimination Provisions (Proposed rule), 78 Fed. Reg. 54,434 (September 4, 2013).

44 Pay Under the General Schedule and Recruitment, Relocation, and Retention Incentives, 78 Fed. Reg. 49,359 (August 

14, 2013).

45 As outlined in a 2012 joint OPM/OMB memorandum to the CHCO Council, adoption of the standardized system is 

effectively required to receive continued certification of the agency’s SES performance appraisal system. Under Public Law 

108-136 (2003), that certification enabled an agency to set the pay of an SES member above the rate for Executive Level 

III, up to the rate for Executive Level II.
56 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

OPM Action 2013 Status Year(s) 

Discussed

Phased retirement Proposed regulations issued in June 2013.46 2012

Revision of appointment 

authority for persons with 

disabilities

Final regulations to simplify the authority and update 

terminology were issued in February 2013.47 2011

 

46 Phased Retirement, 78 Fed. Reg. 33,912 (June 5, 2013).

47 Excepted Service—Appointment of Persons With Intellectual Disabilities, Severe Physical Disabilities, and Psychiatric 

Disabilities, 78 Fed. Reg. 12,219 (February 22, 2013).
57 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

Financial Summary

Fiscal Year 2013 Financial Summary

(Dollars in thousands)

Financial Sources

FY 2013 Appropriation $ 38,152

Civil Service Retirement and Disability Trust Fund 2,340

Total Financial Sources $ 40,492

Obligations Charged to FY 2013

Personnel Compensation $ 22,618

Personnel Benefits 6,051

Travel of Things 92

Travel of Persons 209

Rents, Communications and Utilities 4,040

Printing and Reproduction 51

Other Services 1,316

Supplies and Materials 132

Equipment 748

Reimbursable Obligations 2,340

Total Obligations Incurred $ 37,597
58 Merit Systems Protection Board Annual Report for FY 2013 May 30, 2014

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