U.S. Merit Systems Protection Board 

1120 Vermont Avenue, NW 

Washington, DC 20419 

The President 

The President of the Senate 

The Speaker of the House of Representatives 

Sirs: 

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

the U.S. Merit Systems Protection Board. The report reviews the significant activities of the Board 

during Fiscal Year 1992. It also incorporates statistical information that previously would have been 

included in the annual Study of Cases Decided by the Board. That study henceforth will be 

published every three years, and, in the interim years, the Annual Report will include expanded 

case processing statistical data. 

During the fiscal year, the Board's administrative judges issued 8,371 decisions on appeals, 

stay requests, and addendum cases. The 3-member bipartisan Board issued 1,894 decisions on 

petitions for review (PFRs) of administrative judges' decisions and in other appellate cases. In 

spite of an increased workload, the Board continued to complete old cases, while at the same time 

processing newly-received cases. As a result, the Board reduced its pending PFR workload by 24 

percent, from 769 at the beginning of Fiscal Year 1992 to 584 at the end of the fiscal year. 

The Board also issued 16 decisions in cases arising under its original jurisdiction. These 

included Hatch Act cases, Special Counsel stay requests, requests to review regulations of the 

Office of Personnel Management (OPM), a proposed action against an administrative law judge, 

and addendum cases. 

The Board's decisions continue to be upheld by the U.S. Court of Appeals for the Federal 

Circuit to a significant extent. Of the final Board decisions reviewed by the Court in Fiscal Year 

1992, 93 percent were unchanged by the Court's decisions. 

With respect to its statutory mission to conduct studies of the merit systems and to review the 

significant actions of OPM, the Board published four reports and issued a fifth report jointly with 

OPM during the fiscal year. Two of the Board's reports and the joint report with OPM dealt with 

workforce quality issues. The Board also completed four other studies, with reports released early in 

Fiscal Year 1993. 

As a special feature, this Annual Report includes a review of the Board's alternative dispute 

resolution (ADR) initiatives. The Board has been a pioneer among Federal agencies in its use of ADR 

and has maintained a settlement rate of approximately 50 percent (of cases not dismissed) for the 

past five years. 

Respectfully submitted, 

Daniel R. Levinson Antonio C. Amador Jessica L. Parks 

Chairman Vice Chairman Member
U.S. Merit Systems Protection Board 

TABLE OF CONTENTS 

Page 

Board Mission and Jurisdiction........................................................................................... 7 

Board Members ................................................................................................................10

Board Organization...........................................................................................................11

Regional Officials ............................................................................................................ 14 

Regional Office Jurisdictions ............................................................................................ 15 

SPECIAL FEATURE: MSPB and Alternative Dispute Resolution ..........................................16 

Kinds of Cases and Highlights of Cases Decided in FY 1992 .............................................18 

Adjudication: Appellate Jurisdiction ..................................................................................21 

Adjudication: Original Jurisdiction.....................................................................................25 

Litigation ..........................................................................................................................27 

Merit Systems Studies and Reviews of OPM Significant Actions........................................28 

Outreach Activities............................................................................................................31 

Administration, Finance, and Human Resources ...............................................................35 

Appendix A - Case Processing Statistics............................................................................40 

Appendix B - Significant Board Decisions 

Appellate Jurisdiction Cases .........................................................................................56 

Appendix C - Significant Board Decisions 

Original Jurisdiction Cases............................................................................................64 

Appendix D - Significant Litigation....................................................................................66 

Appendix E - Reports of Merit Systems Studies 

and Reviews of OPM Significant Actions.......................................................................69 
U.S. MERIT SYSTEMS PROTECTION BOARD 

VISION STATEMENT 

To promote and protect, by deed and example, the Federal merit principles 

in an environment of trust, respect and fairness. 

Adopted 1992 
U.S. Merit Systems Protection Board 

BOARD MISSION AND JURISDICTION 

MISSION 

The U.S. Merit Systems Protection Board (MSPB) was established by the Civil Service Reform Act 

of 1978 (CSRA), Public Law No. 95-454, as a successor agency to the Civil Service Commission. It is an 

independent, quasi-judicial agency in the Executive branch that serves as the guardian of Federal merit 

systems. 

The Board's mission is to ensure that Federal employees are protected against abuses by agency 

management, that Executive branch agencies make employment decisions in accordance with the merit 

system principles, and that Federal merit systems are kept free of prohibited personnel practices. The 

Board accomplishes its mission by: 

• Hearing and deciding employee appeals from agency personnel actions (appellate jurisdiction); 

• Hearing and deciding cases brought by the Special Counsel involving alleged abuses of the merit 

systems, and other cases arising under the Board's original jurisdiction; 

• Conducting studies of the civil service and other merit systems in the Executive branch to 

determine whether they are free of prohibited personnel practices; and 

• Providing oversight of the significant actions and regulations of the Office of Personnel 

Management (OPM) to determine whether they are in accord with the merit system principles. 

JURISDICTION 

Appellate Jurisdiction 

The agency actions that Federal employees may appeal to the Board include: adverse actions 

(removals, suspensions of more than 14 days, reductions in grade or pay, and furloughs of 30 days or 

less), performance-based removals or reductions in grade, denials of within-grade increases, certain 

reduction in force (RIF) actions, denials of restoration to duty or reemployment rights, and removals from 

the Senior Executive Service (SES) for failure to be recertified. Determinations by OPM in employment 

suitability and retirement matters are also appealable to the Board. 

When an issue of prohibited discrimination is raised in connection with an appealable action, the 

Board has jurisdiction over both the appealable action and the discrimination issue. Such appeals are 

termed "mixed cases." In these cases, an appellant may ask the Equal Employment Opportunity Commission (EEOC) to review the final decision of the Board. If the EEOC disagrees with the Board's decision on 

the discrimination issue, the case is returned to the Board. The Board may concur with EEOC, affirm its 

previous decision, or affirm its previous decision with modifications. If the Board does not concur with 

the EEOC decision, the case is referred to the Special Panel for a final decision. (The Special Panel is 

composed of a Chairman appointed by the President, one member of the Board, and one EEOC 

commissioner.) 

Under the Whistleblower Protection Act of 1989 (WPA), personnel actions that are not normally 

appealable to the Board may result in the right to a Board appeal under certain circumstances. Included 

are appointments, promotions, details, transfers, reassignments, and decisions concerning pay, benefits, 

awards, education, or training. Such an action may be appealed to the Board only if the appellant alleges 

that the action was taken because of his or her whistleblowing, and if the appellant first filed a 

complaint with the Special Counsel and the Special Counsel did not seek corrective action from the 

Board. 

For the Board to have jurisdiction over an appeal, it must possess jurisdiction over both the action 

and the individual filing the appeal. The employees and others (e.g., applicants for employment, 

annuitants in retirement cases) who may appeal specific actions vary in accordance with the law and 

regulations governing the specific action. For some actions, classes of employees, such as political 

appointees, and employees of specific agencies are excluded. 

Since the CSRA became effective, employees in the competitive service and preference-eligible 

employees in the excepted service have had the right to appeal adverse actions to the Board. In 1987, 

non-preferenceeligible supervisors and managers in the Postal Service gained Board appeal rights for 

adverse actions. 

Under the 1990 Civil Service Due Process Amendments, approximately 100,000 additional 

employees in the excepted service gained the right to appeal both adverse actions and performance-based 

actions to the Board. To be eligible to appeal, these excepted service employees must have completed 

two years current continuous service in an Executive agency. Employees in certain entities, including the 

Postal Service, the Federal Bureau of Investigation, and the intelligence agencies, are excluded from the 

coverage of this law. 

Original Jurisdiction 

Cases that arise under the Board's original jurisdiction include: 

• Corrective and disciplinary actions brought by the Special Counsel against agencies or Federal 

employees who are alleged to have committed prohibited personnel practices, or to have violated 

certain civil service laws, rules or regulations;

• Requests for stays of personnel actions alleged by the Special Counsel to result from prohibited 

personnel practices; 

• Disciplinary actions brought by the Special Counsel alleging violation of the Hatch Act; 

• Certain proposed actions brought by agencies against administrative law judges; 

• Requests for review of regulations issued by the Office of Personnel Management, or of 

implementation of OPM regulations by an agency; and 

• Informal hearings in cases involving proposed performance-based removals from the Senior 

Executive Service. 

Judicial Review 

With two exceptions, judicial review of final Board decisions in both appellate and original 

jurisdiction cases lies in the U.S. Court of Appeals for the Federal Circuit. Board decisions in "mixed cases" 

may be appealed to the appropriate U.S. district court. (A Special Panel decision also may be appealed to 

the appropriate U.S. district court.) If review of all issues but the discrimination issue is requested, 

however, a "mixed case" appellant may elect review by the Federal Circuit. In Hatch Act cases involving 

state or local government employees in federally-funded positions, judicial review lies first in the U.S. 
district courts and then in the regional courts of appeals. 

The Director of OPM may petition the Board for reconsideration of a final decision. The Director 

may also seek judicial review in the Federal Circuit of Board decisions that have a substantial impact on a 

civil service law, rule, regulation, or policy. 

Legislative Impact on Board Jurisdiction 

The Congress expanded the Board's jurisdiction significantly between 1987 and 1990. The Postal 

Employee Appeal Rights Act of 1987, the Whistleblower Protection Act of 1989, and the Civil Service Due 

Process Amendments in 1990 either added new appealable actions or extended appeal rights to 

additional classes of employees. In addition, a provision of the Ethics Reform Act of 1989 added a new 

right for career members of the SES to appeal a removal from the SES for failure to be recertified. 

In Fiscal Year 1992, the Congress enacted the Senior Executive Service Improvements Act, Public 

Law No. 102-175, which allows the Board to mitigate penalties in SES misconduct cases, as it can in 

adverse action cases involving non-SES employees. Although the Congress enacted no new 

legislation during the fiscal year that would expand the jurisdiction of the Board, it continued to consider such legislation. A number of bills that would impact the Board's caseload and its procedures were 

also considered. 

Of particular interest was legislation introduced in both the House and Senate to reform the equal 

employment opportunity (EEO) complaint process for Federal employees. These bills (H.R. 3613 and S. 

2801), which were not enacted, would have eliminated the current "mixed case" procedure by providing 

that employees bringing discrimination complaints in connection with appealable actions elect either 

MSPB or EEOC procedures (or, in appropriate cases, a negotiated grievance procedure). There would no 

longer have been authority for EEOC to review a final Board decision, and the Special Panel would have 

been eliminated. 

The legislation also would have established procedures to ensure that those found to have 

intentionally discriminated were subject to sanctions. Under the bill, where intentional discrimination was 

found, a copy of the order or judgment would have been transmitted to the Special Counsel, who would 

have then been required to investigate the matter and bring a disciplinary action before the Board if there 

were reasonable grounds to believe a prohibited personnel practice had been committed. 

In May of 1992, the House passed H.R. 4384, technical amendments to the Civil Service Due 

Process Amendments, which would have restored adverse action appeal rights to employees of the 

Veterans Health Administration (VHA). These employees were excluded from coverage when the Civil 

Service Due Process Amendments were enacted in 1990. H.R. 4384 would have provided rights only to 

those VHA employees who had appeal rights in effect on August 16, 1990, the day before the Civil 

Service Due Process Amendments were enacted, and it would generally have applied to personnel 

actions taking effect on or after the date of enactment. H.R. 4384 was referred to the Senate Government 

Affairs Committee, but no action was taken before the Senate adjourned. 

Among other legislation considered by the Congress that would have affected the Board were 

Hatch Act reform bills and bills to extend the protections of the WPA, including extending coverage to 

employees of Government corporations and making the use of psychiatric exams as reprisal for 

whistleblowing a covered personnel action. The measure to extend Board appeal rights to civilian technicians in the National Guard was once again introduced in the House, but died in committee. 
The Board anticipates that the Congress will continue to consider legislation affecting its jurisdiction and 

procedures. In addition, downsizing of the Federal Government and budget pressures on agencies, to the 

extent that they result in involuntary separations of employees from Federal service, are expected to 

result in an increased number of appeals to the Board. 

BOARD MEMBERS 

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

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

appointed by the President, confirmed by the Senate, and serve overlapping, nonrenewable 

7-year terms. 

CHAIRMAN 

DANIEL R. LEVINSON became Board Chairman on August 15, 1986, 

following his nomination by President Reagan and confirmation by the Senate. 

At the time of his appointment, Mr. Levinson was General Counsel of the U.S. 

Consumer Product Safety Commission, a position he had held since March 

1985. Previously, he served for two years as Deputy General Counsel of the 

Office of Personnel Management. Prior to joining OPM, Mr. Levinson was, for 

six years, an associate and partner in the Washington, DC law firm of 

McGuiness & Williams, where he represented primarily private sector 

management in a wide variety of employment law matters. 

VICE CHAIRMAN 

ANTONIO C. AMADOR joined the Board as Vice Chairman on 

November 1, 1990, following his nomination by President Bush and 

confirmation by the Senate. At the time of his appointment, Mr. Amador was 

Deputy Director, Program Review Branch, Employment Development 

Department of the State of California. Previously, he served as Director of the 

California Youth Authority, as Chairman of the Youthful Offender Parole Board 

in California, and as a police officer in the Los Angeles Police Department. Mr. 

Amador received his law degree from the McGeorge School of Law, University 

of the Pacific. 

MEMBER 

JESSICA L. PARKS took the oath of office as a Member of the Board on 

May 18, 1990, following her nomination by President Bush and confirmation by 

the Senate. At the time of her appointment, Ms. Parks was Associate Regional 

Counsel for Litigation and Program Enforcement for the U.S. Department of 

Housing and Urban Development in Atlanta, Georgia. From 1982 to 1985, she 

served as an administrative judge in the Board's Atlanta Regional Office. Previously, she was Agency Counsel for the Craven County Department of Social 

Services in New Bern, North Carolina. She has also been in private practice in 

Jacksonville, North Carolina and was an associate in the firm of Bowers and 

Sledge in New Bern. 
BOARD ORGANIZATION 
OFFICES OF THE BOARD 

The Chairman, Vice Chairman, and Member adjudicate the cases brought to the Board. Each 

heads his/her individual office. The Chairman, by statute, is the chief executive and administrative officer 

of the Board. 

OFFICE OF THE CHAIRMAN 

The Office of Equal Employment Opportunity plans, implements, and evaluates the Board's 

equal employment opportunity (EEO) programs. It processes complaints of alleged discrimination and 

furnishes advice and assistance on affirmative action initiatives to the Board's managers and supervisors. 

The Office of the General Counsel, as legal counsel to the Board, provides advice to the Board 

and its organizational components on matters of law arising in day-to-day operations. It represents the 

Board in litigation and prepares proposed decisions and orders for the Board in original jurisdiction cases 

and other assigned cases. The office manages legislative policy and congressional relations functions and 

conducts the Board's ethics program. 

The Office of the Inspector General plans and directs audits, investigations, and internal control 

evaluations in compliance with the requirements of the Office of Management and Budget and the U.S. 

General Accounting Office. The Inspector General evaluates the programs and operations of the Board in 

order to promote economy and efficiency, to prevent and detect fraud and abuse, and to advise the 

Chairman of any deficiencies detected. 

OFFICE OF THE EXECUTIVE DIRECTOR 

The Executive Director manages the operations and programs of the 

Board's headquarters and regional offices under authority delegated by the 

Chairman. This delegation includes the authority to make final decisions inthe 

areas of personnel management, fiscal management, document security, 

procurement and contracts, and general administrative support services. 

Lucretia F. Myers, Executive Director

The Office of Regional Operations manages the appellate functions 

of the 11 MSPB regional offices, which receive and process the initial appeals 

filed with the Board, and reviews the quality of initial decisions issued by the 

Board's administrative judges. The administrative judges have the primary 

function of adjudicating appeals and issuing fair, timely, and well-reasoned 

decisions. 

The Office of Appeals Counsel assists the Board in adjudicating petitions for review from initial 

decisions issued by the administrative judges. The office analyzes the petitions, conducts legal research, 

and submits proposed opinions to the Board for final adjudication. It also processes interlocutory appeals 

of rulings made by administrative judges, makes recommendations on reopening appeals on the Board's 

own motion, and provides research and policy memoranda to the Board on legal issues. 
The Office of the Administrative Law Judge hears cases governed by the Administrative 

Procedure Act and other cases assigned by the Board. 

The Office of the Clerk of the Board receives and processes cases filed with the Board, rules on 

certain procedural matters, and issues the Board's Opinions and Orders. The office also certifies official 

records to the courts and Federal administrative agencies, maintains the Board's law library, and 

administers the Board's Freedom of Information Act, Privacy Act, and Government in the Sunshine Act 

programs. 

The Office of Policy and Evaluation carries out the Board's statutory 

responsibility to conduct special studies of the civil service and other merit 

systems, including annual oversight reviews of the Office of Personnel 

Management. Reports of these studies are directed to the President and the 

Congress. 

The Office of Management Analysis develops and coordinates 

internal management programs and projects, including administrative and 

program management reviews of Board offices. The office manages the 

Board's public affairs program and produces the agency's annual report to the 

President and the Congress, the triennial study of cases decided, and public 

information publications. The office also performs case data analysis and 

internal studies. 

Michael W. Crum, Deputy Executive Director

The Office of Administration manages the Board's administrative operations. It is 

made up of three divisions: The Financial and Administrative Management Division 

administers the budget, accounting, procurement, property management, physical security, 

and general services functions of the Board. The Human Resources Management 

Division manages personnel programs and assists managers, employees, and applicants for 

employment. It administers staffing, classification, employee relations, performance 

management, payroll, personnel security, and training functions. The Information 

Resources Management Division develops, implements, and maintains the Board's 

automated information systems in order to help the Board manage its caseload efficiently 

and carry out its administrative and research responsibilities. 
U.S. MERIT SYSTEMS PROTECTION BOARD 
Thomas J. Lanphear R. J. Payne William Carroll 

Director, Office of Regional Director Regional Director 

Regional Operations Atlanta Office Boston Office 

Martin W. Baumgaertner Paula A. Latshaw Gail E. Skaggs 

Regional Director Regional Director Regional Director 

Chicago Office Dallas Office Denver Office 

Sean P. Walsh Lonnie Crawford Earl A. Witten 

Regional Director Regional Director Regional Director 

New York Office Philadelphia Office St. Louis Office 

Denis Marachi Carl Berkenwald P.J. Winzer 

Regional Director Regional Director Regional Director 

San Francisco Office Seattle Office Washington, DC Office 
REGIONAL OFFICE JURISDICTIONS 

Atlanta Regional Office -- Alabama, Florida, Georgia, Mississippi, North Carolina, and South Carolina 

Boston Regional Office -- Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont 

Chicago Regional Office -- Illinois (all locations north of Springfield), Indiana, Michigan, Minnesota, Ohio, and 

Wisconsin 

Dallas Regional Office -- Arkansas, Louisiana, Oklahoma, and Texas 

Denver Regional Office -- Arizona, Colorado, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, 

South Dakota, Utah, and Wyoming 

New York Regional Office -- New York, Puerto Rico, Virgin Islands, and the following counties in New Jersey: 

Bergen, Essex, Hudson, Hunterdon, Morris, Passaic, Somerset, Sussex, Union, and Warren 

Philadelphia Regional Office -- Delaware, Pennsylvania, Virginia (except cities and counties served by 

Washington Regional Office - see below), West Virginia, and the following counties in New Jersey: Atlantic, 

Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, Middlesex, Monmouth, Ocean, and Salem 

St. Louis Regional Office -- Illinois (Springfield and all locations south), Iowa, Kentucky, Missouri, and 

Tennessee 

San Francisco Regional Office -- California 

Seattle Regional Office -- Alaska, Hawaii, Idaho, Oregon, Washington, and Pacific overseas areas 

Washington Regional Office -- Washington, DC, Maryland, all overseas areas not otherwise covered, and the 

following cities and counties in Virginia: Alexandria, Arlington, Fairfax City, Fairfax County, Falls Church, Loudoun, 

and Prince William 
SPECIAL FEATURE: 

MSPB AND ALTERNATIVE DISPUTE RESOLUTION 

The Civil Service Reform Act of 1978 granted the Board authority to "provide for one or more 

alternative methods for settling matters subject to the appellate jurisdiction of the Board." The 

relevant legislative history stated that suitable forms of conciliation, mediation, arbitration, and other 

methods mutually agreeable to the parties could be used. It explained that this would give the Board the 

opportunity to experiment with and develop efficient and effective alternatives for resolving disputes 

concerning appealable matters. 

One of the first efforts by the Board in exercising this legislative authority to engage in ADR was 

the introduction of the Appeals Arbitration Procedure (AAP) in March 1983, which subsequently evolved 

into the Voluntary Expedited Appeals Procedure (VEAP). Under VEAP, the parties would waive certain 

rights in exchange for receiving an expedited decision from the Board. The Board found that the VEAP 

was an extremely successful learning vehicle. It showed that there was a demand for a less formal 

adjudicatory system and that speedy adjudication could be achieved without sacrificing due process. 

However, the Board also recognized the attractiveness of using a greater variety of ADR techniques, 

which would encourage administrative judges to be innovative in settling cases. Accordingly, in 1987, the 

Board discontinued the VEAP in favor of a flexible and informal approach to ADR. The approach 

employed since that time allows administrative judges to use the techniques developed in the VEAP 

experiment to achieve settlement of appeals brought under the Board's formal appeals procedure. 

The Board implemented its ADR program by undertaking an extensive and on-going training effort 

in ADR and settlement for its administrative judges. Administrative judges employ a variety of ADR 

techniques in handling cases, including prehearing conferences, mediation, settlement negotiations, 

conciliation, facilitation, and, on occasion, mini-trials. Under the Board's ADR procedures, absent some 

unusual circumstance, at least one prehearing conference for settlement and simplification of issues is 

required. The parties may agree to waive the prohibition against ex parte communications during 

settlement discussions. In addition, the Board requires that a representative of a party at a prehearing 

conference have authority to settle the case or have immediate access to someone who does. 

Other than the required prehearing conference, the Board has not mandated any single or formal 

procedure for dispute resolution. Rather, it leaves to the discretion of its administrative judges the ADR 

techniques to be applied in any particular case. However, the Board has adopted a policy favoring 

settlement, and its procedures require administrative judges to focus the parties' attention on settlement 

at the very beginning of an appeal. The Board has found that its administrative judges' familiarity with 

and skill in using a number of ADR techniques have been key factors in the success of its program. 

The use of ADR benefits both the parties and the Government. The Board's reliance on ADR 

procedures has generally resulted in faster, less expensive case processing. Cost savings are achieved 

principally in salaries, travel expenses, and court reporting fees. In addition to the savings in time and 

money achieved by consensual resolution of disputes, the parties and public may also benefit by 

avoiding what is often acrimonious litigation that may damage the relationship between the agency and 

its employees. The settlement process is generally a positive one and often results in a solution that 

satisfies both parties. 
In addition, settlement may have the following advantages for the parties: It eliminates the 

element of surprise at the outcome of the case; it places the parties in control of the case; it can involve 

more options and address more than one administrative or judicial appeal; it can obtain a better 

resolution for both parties than a decision from the administrative judge, who is limited to finding in 

favor of one party on the matter before the Board; and it can prevent the anxiety of proceeding with a 

hearing. Finally, because the settlement process is voluntary, the parties surrender no rights if an 

agreement is not reached. The case then proceeds to adjudication. 

With the use of ADR techniques, the Board's rate of settlement has increased. In Fiscal Year 

1984, the first year for which settlement statistics are available, the settlement rate was six percent of 

cases that were not dismissed. The following year, the rate increased to 18 percent. By Fiscal Year 

1988, the rate had risen to 48 percent, and it has held steady at around 50 percent since that time. The 

success of the Board's settlement program is a major reason why it has been able to manage its 

caseload efficiently in the face of expanding jurisdiction and without substantial increases in 

appropriations. 

The Board's settlement program is also consistent with the civil justice reform proposals released 

by the Council on Competitiveness in August 1991 and the subsequent Executive Order 12778, "Civil 

Justice Reform," issued by President Bush on October 23, 1991. The executive order applied many of the 

reform proposals advanced by the Council to Federal agencies and, among other things, called on 

agencies that adjudicate administrative claims to engage in ADR. Because of its longstanding 

commitment to ADR, the Board had already implemented many of the recommendations contained in 

the Council's proposals and the President's Executive Order by the time they were issued. Furthermore, 

the Board's experience with its ADR program showed that the recommendations could yield the positive 

results anticipated by the President and the Council. 
KINDS OF CASES AND HIGHLIGHTS 

OF CASES DECIDED IN FY 1992 

KINDS OF CASES 

Virtually all initial appellate jurisdiction cases are adjudicated by administrative judges in the 

Board's regional offices. Under a new pilot program, however, a small number of appeals and related 

cases are assigned to headquarters attorneys, who act as administrative judges and issue initial decisions 

in these cases. In addition, certain appeals may be assigned to the Office of the Chief Administrative Law 

Judge for issuance of initial decisions. The kinds of cases in which the Board's administrative judges issue 

initial decisions or orders are: 

• Appeal (or Initial Appeal) - A request by an appellant that the Board review an agency action. 

• Stay Request - A request that the Board order a stay of an agency action (authorized only where 

the appellant alleges that the action was or is to be taken because of whistleblowing). 

• Motion for Attorney Fees - A request by an appellant who prevails in an appeal that the Board 

order the agency to pay the appellant's attorney fees. 

• Petition for Enforcement - A request by a party to an appeal that the Board enforce its final 

decision. 

• Remand - A case returned by the Board to an administrative judge, after an initial decision on an 

appeal has been issued, for additional processing and issuance of a new initial decision. 

Attorney fee cases, petitions for enforcement, and remands, as a group, are termed "addendum 

cases" by the Board. 

Approximately 22 percent of initial appeals decided result in the filing of a petition for review at 

Board headquarters. Initial decisions in addendum cases and orders issued on stay requests are also 

subject to review by the Board. The kinds of appellate cases in which the Board issues final decisions or 

orders are: 

• Petition for Review - A request by a party that the Board review an initial decision of an 

administrative judge. A petition for review may be filed with respect to an initial decision on an 

appeal or in an addendum case. 

• Interlocutory Appeal of Stay Order - A request by a party, certified to the Board by an 

administrative judge, that the Board review the administrative judge's order ruling on a stay 

request. 

• Reopening on the Board's Own Motion - A case that the Board reopens on its own motion, to 

reconsider either an initial decision of an administrative judge or a final Board decision. 

• OPM Request for Reconsideration - A request by the Director of OPM that the Board reconsider a 

final decision. 

• Court Remand - A case returned to the Board by a court, after an appellant or the Director of OPM 

has sought judicial review of a final Board decision, for issuance of a new decision. Also, a case 

returned by a court where the Board has requested remand. 

• EEOC Non-concurrence - A mixed case returned to the Board by the EEOC, after an appellant has 

sought EEOC review of a Board decision, in which the EEOC does not concur with the Board decision 

on the discrimination issue. 
• Compliance Referral - A case referred to the Board by an administrative judge for enforcement of a 

final Board decision, upon the administrative judge's finding that a party is not in compliance. 

The Board also has authority to review an arbitrator's award when the subject of the grievance is 

an action appealable to the Board and the grievant raises a discrimination issue in connection with the 

action. Petitions to review an arbitrator's award are filed at Board headquarters, and decisions are issued 

by the Board. Attorney fee requests and petitions for enforcement related to Board decisions in arbitration 

cases are referred to a headquarters or regional office for issuance of an initial decision, which is then 

subject to a petition for review by the Board. 

The Board issues final decisions in initial cases that arise under its original jurisdiction—Special 

Counsel complaints, Special Counsel stay requests, proposed actions against administrative law judges, 

and requests to review OPM regulations. With respect to attorney fee requests and petitions for 

enforcement related to Board decisions in Special Counsel and administrative law judge cases, an initial 

decision is issued by the Chief Administrative Law Judge, which is then subject to a petition for review by 

the Board. Other kinds of cases that may arise from Board decisions in original jurisdiction cases include 

OPM requests for reconsideration, court remands, and compliance referrals. 

In one kind of original jurisdiction case, the law provides that there is no decision by the Board (or 

any of the Board's judges). This is the SES performance-based removal case, in which an informal 

hearing is held by the Chief Administrative Law Judge, but there is no action by the Board. 

HIGHLIGHTS OF CASES DECIDED IN FY 1992 

Appellate Jurisdiction - Initial Decisions and Orders 

• Number of Decisions Issued - Administrative judges issued a total of 8,371 decisions in FY 1992. 

Of these, 7,294 were initial decisions on appeals and 980 were initial decisions in addendum 

cases. There were 97 orders ruling on stay requests-76 in whistleblower cases and 21 in 

non-whistleblower cases. (Stay requests are authorized in whistleblower cases only. Appellants, 

however, sometimes file stay requests in cases in which no whistleblower issues are involved.) 

• Processing Time - The average processing time for initial appeals was 79 days, compared to 74 

days in FY 1991. Of the initial appeals decided, 97 percent were decided within 120 days. 

• Disposition - Of the initial appeals decided, 44 percent were dismissed, 28 percent were settled, 

and 28 percent were adjudicated on the merits. Of those adjudicated on the merits, 74 percent 

affirmed the agency action and 19 percent reversed it. In the remaining 7 percent, the penalty 

was mitigated, the action was modified, or there was another disposition. 

• Settlement Rate - The rate of settlement of cases not dismissed was 50 percent. The settlement 

rate for adverse action cases was 65 percent; for performance cases, 67 percent; and for denials 

of within-grade increases, 74 percent. 

• Types of Actions Appealed - Of the initial appeals decided, 50 percent were appeals of agency 

adverse actions, 8 percent were RIF appeals, and 3 percent were appeals of performance-based 

actions. Retirement cases (both CSRS and FERS) accounted for 19 percent of the total, and the 

remainder were based on other types of agency actions. 

• Whistleblower Appeals - There were 579 whistleblower appeals and stay requests decided. Of this 

number, 221 were individual right of action (IRA) appeals in which the appellant was required to 

exhaust the procedures of the Office of Special Counsel, 282 were direct appeals to the Board that 

included an allegation of reprisal for whistleblowing, and 76 were requests to stay an action 

allegedly based on whistleblowing. 
• Mixed Cases - Allegations of discrimination were raised in 2,073 of the initial appeals decided; 

however, the allegation was withdrawn in 1,296 of those appeals. The remaining 777 mixed case 

appeals resulted in a finding of no discrimination in 768 and a finding of discrimination in 9. 

Appellate and Original Jurisdiction - Final Board Decisions and Orders 

• Number of Decisions Issued - The 3-member Board issued a total of 1,910 decisions in FY 1992. 

Of these, 1,612 were decisions on petitions for review of initial decisions on appeals, 187 were 

decisions on petitions for review of initial decisions in addendum cases, 95 were decisions in other 

appellate jurisdiction cases, and 16 were decisions in original jurisdiction cases. 

• Processing Time - The average processing time for petitions for review of initial decisions on 

appeals was 165 days, compared to 220 days in FY 1991. The Board processed 70 percent of these 

cases in 110 days or less, averaging 80 days. 

• Disposition - Of the petitions for review of initial decisions on appeals, 9 percent were dismissed, 

80 percent were denied, and 11 percent were granted. Of those granted, 23 percent affirmed the 

initial decision, 34 percent reversed it, and 34 percent remanded the case to the administrative 

judge. In the remaining 9 percent, the initial decision was modified or vacated, or the case was 

subject to another disposition. 

• Other Appellate Cases - The Board issued 2 decisions in cases that it reopened on its own motion 

(excluding decisions on petitions for review where the Board denied the petition but 

simultaneously reopened the case), 3 on OPM requests for reconsideration, and 12 on court 

remands. The Board also issued 2 decisions in EEOC non-concurrence cases, 64 in compliance 

referrals, and 10 on petitions to review an arbitrator's award. 

• Original Jurisdiction Cases - Of the 16 original jurisdiction case decisions, 5 were Hatch Act cases 

brought by the Special Counsel, 2 were Special Counsel stay requests, 1 was a proposed action 

against an administrative law judge, 4 were requests to review an OPM regulation, and 4 were 

attorney fee, enforcement, or other cases arising from Board decisions in original jurisdiction 

cases. 

Judicial Review 

• Of the 694 final Board decisions reviewed by the U.S. Court of Appeals for the Federal Circuit in FY 

1992, 93 percent were left unchanged (case dismissed or Board decision affirmed). The Court 

affirmed the Board decision in 90 percent of the cases it adjudicated. 
ADJUDICATION: APPELLATE JURISDICTION 

PROCEDURES 

Appeals to the Board must be filed in writing with the Board regional office having geographic 

jurisdiction within 20 days of the effective date of the agency action. Where the notice of action does 

not set an effective date, the appeal must be filed within 25 days of the date of the notice. 

Different time limits apply to appeals of actions allegedly based on whistleblowing, where the 

appellant has first filed a complaint with the Special Counsel. An appellant must file with the Special 

Counsel first if the complaint is based on an action that is not otherwise appealable to the Board and may 

file with the Board only after exhausting the procedures of the Office of Special Counsel. Appeals that 

reach the Board in this way are termed "individual right of action" or "IRA" appeals. 

An IRA appeal may be filed with the Board within 65 days after the date of a written notice from 

the Special Counsel stating that the office will not seek corrective action. A direct appeal to the Board is 

also authorized if 120 days have passed since the filing of the complaint with the Special Counsel, and 

the Special Counsel has not advised the appellant that the office will seek corrective action on his or her 

behalf. 

Where an appeal includes a whistleblower allegation and is based on an action that is otherwise 

appealable to the Board, the appellant may file directly with the Board or may first file a complaint with 

the Special Counsel. If the appellant chooses to file directly with the Board, the time limits for filing are 

the same as for all other direct appeals to the Board (20 or 25 days, depending on the kind of action). If 

the appellant chooses to file with the Special Counsel first, the time limits for filing with the Board are the 

same as for an IRA appeal. In either case, such an appeal is termed an "otherwise appealable action" or 

"OAA" appeal. 

Under the Whistleblower Protection Act, an appellant may also ask the Board to stay a personnel 

action allegedly based on whistleblowing. A stay request may be filed when an appellant is eligible to file 

a whistleblower appeal, and it may be filed before, at the same time as, or after the appeal is filed. Stay 

requests are filed in writing with the Board regional office having geographic jurisdiction. By law, stay 

requests must be decided within 10 days of receipt of the request. 

With respect to mixed cases, if an appellant has first filed a discrimination complaint with the 

agency, the appellant may file an appeal with the Board within 20 days after receipt of the agency's 

decision. If the agency has not resolved the discrimination complaint within 120 days of its filing, the 

appellant may file an appeal with the Board at any time after the 120-day time limit expires. If an 

appellant elects to file a mixed case appeal with the Board without first filing a discrimination complaint 

with the agency, the appeal must be filed within 20 days after the effective date of the agency action. 

After an appeal has been received, the regional office issues an order acknowledging receipt of 

the appeal and raising any questions of timeliness or jurisdiction. The appeal is assigned to an 

administrative judge for adjudication. The agency is required to provide its evidentiary file to the 

appellant and the administrative judge. The appellant and the agency then have the opportunity to 

present additional information for the administrative judge's consideration. Under certain circumstances, 

the appellant may have a right to a hearing on the issues of jurisdiction and timeliness. 
Once jurisdiction and timeliness have been established, the appellant has a right to a hearing on 

the merits. During prehearing conferences, issues are defined and narrowed, stipulations to undisputed 

facts are obtained, and the possibility of settlement is discussed. If a hearing is held, each party has the 

opportunity to call and cross-examine witnesses, present evidence, and make arguments to the administrative judge. Hearings, which generally are open to the public, are fully recorded, with copies of 

the record available to the parties. Once the record is closed, an initial decision is issued by the 

administrative judge. 

Appeals involving classified national security information and appeals from MSPB employees are 

assigned to the Chief Administrative Law Judge at headquarters for adjudication. The Chief 

Administrative Law Judge hears these cases and issues an initial decision. 

An initial decision on an appeal becomes the final decision of the Board unless a party files a 

petition for review with the Board within 35 days of the date of the initial decision or the Board reopens 

the case on its own motion. The Board may grant a petition for review when it is established that the 

initial decision of the administrative judge was based on an erroneous interpretation of statute or 

regulation, or that new and material evidence is available that, despite due diligence, was not 

available when the record was closed. 

When an appellant prevails in an appeal, interim relief is provided pending the outcome of any 

petition for review, unless the administrative judge determines that interim relief is not appropriate. If 

the administrative judge's decision requires the return of the appellant to the workplace, and the agency 

determines that such a return would be unduly disruptive, the agency must nevertheless restore the 

appellant to pay and benefits status. When an agency files a petition for review of an initial decision that 

provided interim relief to the appellant, the agency must furnish evidence that it has provided 

appropriate interim relief. If such evidence is not provided, the Board will dismiss the petition for 

review. 

Petitions for review are filed with the Office of the Clerk at Board headquarters by either party, 

or, under certain circumstances, bythe Office of Personnel Management or the Office of Special Counsel 

as an intervenor. The Board also has the discretion to reopen and consider an initial decision on its own 

motion. The Board's decision on a petition for review constitutes the final administrative action. 

FISCAL YEAR 1992 ACTIVITIES -REGIONAL OFFICES 

Regional office receipts of new cases in Fiscal Year 1992 remained at essentially the same level 

as in the previous fiscal year. This levelling off, however, followed several years of increases, including 

a 13 percent increase in receipts of initial appeals from Fiscal Year 1990 to Fiscal Year 1991. 

If Fiscal Year 1992 is compared to Fiscal Year 1987, the year in which the significant expansions 

of Board jurisdiction began, regional office receipts of new cases increased by 17 percent. During that 

same period, the average number of cases per administrative judge, based on case receipts, increased 

from 105 to 139, an increase of almost one-third. 

The number of initial decisions issued in Fiscal Year 1992-8,371—was virtually the same as in 

the previous fiscal year. Decisions on initial appeals declined, while decisions both in addendum cases 

and on stay requests increased. The increase in addendum case decisions was particularly notable-26 

percent. 
Fourth National Administrative Judges' Conference, San 

Diego, California, September 14-18, 1992 

Some regional offices experienced 

significant increases in Fiscal Year 1992. The Seattle 

office, for example, adjudicated approximately 

twice the number of IRA appeals as in Fiscal Year 

1991. In addition, a much higher percentage of 

these appeals were adjudicated on the merits, 

rather than being dismissed on various other 

grounds. Similarly, the Atlanta and Philadelphia offices experienced a significant increase in allegations 

of reprisal for whistleblowing. 

The San Francisco office received a greater number of RIF appeals. Because of the large number 

of military facilities that are slated for closure in California, the office expects this trend to accelerate in 

Fiscal Year 1993. Continuing a trend noted in the previous fiscal year, the Boston office experienced a 

high percentage of Postal Service cases. 

In order to manage its increased caseload and maintain the high quality of its adjudicatory 

process, the Board established eight new administrative judge positions in the regional offices 

and began to fill those positions in the spring of 1992. The Board also established nine temporary 

support positions in the regional offices. 

The Board continued to review the quality of initial decisions issued by its administrative judges. 

A quality review team made an on-site evaluation visit to the Chicago regional office. In addition, indepth reviews of initial decisions issued in the Chicago, New York, and Philadelphia regional offices 

were conducted. 

FISCAL YEAR 1992 ACTIVITIES -HEADQUARTERS 

Decisions issued by the Board on petitions for review of initial decisions, both on appeals and 

in addendum cases, increased 6 percent in Fiscal Year 1992. Receipts of new petitions for review 

were up 3 percent. 

In spite of an increased workload, the Board continued to complete old cases, while at the same 

time processing newly-received cases. As a result, the Board reduced its pending PFR workload by 24 

percent, from 769 at the beginning of Fiscal Year 1992 to 584 at the end of the fiscal year. 

In decisions issued during Fiscal Year 1992, the Board continued to develop its case law under 

the Whistleblower Protection Act, dealing primarily with questions of jurisdiction and issues related to 

interim relief. The Board also issued important precedential decisions dealing with questions of 

timeliness of filing, reasonable accommodation of a handicapping condition, and the award of attorney 

fees where the parties have entered into a contingency fee agreement. 
Robert E. Taylor, Clerk of the Board 

Among the initial appeals decided by the Chief Administrative 

Law Judge was the first case arising from the non-recertification of a 

career member of the SES. The initial decision affirmed the action of 

the agency in removing the appellant from the SES and placing him in 

a GS-15 position on the grounds that his performance did not 

demonstrate the excellence required to meet the goals of the SES. 

(Kampschror v. National Transportation Safety Board, DC-359C-92-

0290-I-1, July 23, 1992.) 

See Appendix A for statistical information on cases decided by the Board during Fiscal Year 1992. 

See Appendix B for summaries of significant Board decisions on appeals issued during Fiscal Year 1992. 
STEPS IN PROCESSING INITIAL APPEALS 

AND PETITIONS FOR REVIEW 

Filing of Appeal by Appellant Within 20 days of effective date of agency personnel action 

MSPB Regional Office 

Appeal received 

Appeal acknowledged 

Appeal entered in Case Management System 

Case file requested from agency 

Appeal assigned to administrative judge 

(If appropriate, show cause order issued re: jurisdiction 

or timeliness)

1-3 days from receipt of appeal

Agency response and case file received 

Discovery begins 

Prehearing conference scheduled 

Notice of hearing issued 

(If show cause order issued, response received)

10 – 25 days from receipt of appeal 

Prehearing motions filed and rulings issued 

Attempts to achieve settlement (various methods) 

Discovery completed 

Prehearing conference held (more than one may be 

held to facilitate settlement) 

Witnesses identified 

If no hearing, close of record set

10 - 60 days from receipt of appeal

Hearing held 

Record closed

60 - 75 days from receipt of appeal

Initial Decision issued Within 120 days from receipt of appeal

Filing of Petition for Review (PFR) by Appellant or

Agency (or OSC or OPM as intervenor)

Within 35 days of date of Initial Decision

Boa d Headquarters r

PFR received 

PFR acknowledged 

PFR entered in Case Management System 

Case file requested from Regional Office 

(If appropriate, show cause order issued re: jurisdiction, 

timeliness, or deficiency of PFR)

1 - 3 days from receipt of PFR

Response to PFR filed 

or 

Cross-PFR filed 

Case file received 

(If show cause order issued, response filed)

Within 25 days of date of service of PFR

If Cross-PFR received Additional 25 days from date of service of Cross-PFR

If Extension of Time request received and granted Additional time specified in Order granting EOT

Final Decision issued (Board time standard for issuance of Final Decisions is 110 

days)

Filing of Appeal with U.S. Court of Appeals for the Federal 

Circuit (or, in discrimination cases, with the appropriate 

U.S. District Court or EEOC)

Within 30 days of the party's receipt of Board Final 

Decision
ADJUDICATION: ORIGINAL JURISDICTION 

PROCEDURES 

Original jurisdiction complaints are filed in writing with the Office of the Clerk at Board 

headquarters. Employees against whom Hatch Act or other Special Counsel disciplinary action 

complaints are filed have 35 days to respond and are entitled to a hearing. An administrative law 

judge against whom an agency proposes an action also has 35 days to respond and is entitled to a 

hearing. These cases are assigned to the Board's Chief Administrative Law Judge, who issues a 

recommended decision to the Board for final action. 

Special Counsel stay requests and requests for regulation review are decided by the Board. An 

initial stay request may be granted by a single Board member, while a request for extension of a stay 

must be acted on by the full Board. 

In SES performance-based removal cases, the Chief Administrative Law Judge holds an 

informal hearing, but the Board does not issue a decision. The record of the hearing is forwarded to 

the employing agency, OPM, and the Special Counsel for whatever action may be appropriate. 

Other cases included in the Board's original jurisdiction caseload include requests for attorney 

fees, petitions for enforcement, compliance referrals, court remands, and OPM requests for 

reconsideration arising out of Board decisions in original jurisdiction cases. 

FISCAL YEAR 1992 ACTIVITIES 

The Board issued a total of 16 decisions in original jurisdiction cases in Fiscal Year 1992. This 

number included five decisions in Hatch Act cases, compared to none the previous fiscal year. There 

was also a significant increase in the number of Hatch Act cases received, and 13 such cases were 

pending at the end of the fiscal year. Continuing the trend noted in earlier years, the majority of these 

cases involved state or local government employees in federally-funded positions. 

In two of the Hatch Act cases decided, Special Counsel v. Mahnke and Special Counsel v. 

Winkler, the Board found that the respondents had violated the Hatch Act and that the circumstances 

of the cases warranted their removal. In Special Counsel v. Narcisse, the Board found that the 

respondent did not violate the Hatch Act and dismissed the complaint. In the two other cases, the 

Board adopted settlement agreements entered into by the Special Counsel and the respondents. 

During the fiscal year, the Board decided one Special Counsel stay request and one request for 

an extension of that stay. The Special Counsel brought the initial stay request on behalf of an 

employee who had made a disclosure protected under the WPA, and the Chairman granted the stay 

request. The Special Counsel later requested an extension of the stay, which was granted by the 

Board. 

Two other Board decisions concerned agency compliance with a Board order granting the 

Special Counsel's request for a stay of a personnel action in the previous fiscal year. One of these 

decisions found the agency in noncompliance with the Board's order and ordered compliance. The 

other found that the agency had brought itself into compliance and dismissed the case as moot. 
Edward J. Reidy, Chief Administrative Law Judge 

Only one administrative law judge case was 

decided in Fiscal Year 1992. The action was brought by 

an administrative law judge alleging constructive 

removal by his agency. The Board dismissed the case 

because the complainant did not show that the agency 

action constituted a removal over which the Board has 

jurisdiction. 

The single administrative law judge case decided 

in Fiscal Year 1992 is in marked contras to the previous 

fiscal year, when the Board decided 27 such cases. The vast majority of those were the result of 

agencies' proposed furloughs of over 1,000 administrative law judges to meet the requirements of a 

sequester that was anticipated to begin October 1, 1990. The decrease in the number of administrative 

law judge cases in the past fiscal year represents a return to a more normal level. 

During the fiscal year, the Board decided four requests for review of an OPM regulation o an 

agency's implementation of an OPM regulation. The Board dismissed two of these cases for lack of 

jurisdiction. In one of these cases, the petitioner requested review of an internal Postal Service 

regulation, but did not assert that this regulation was an implementation of an OPM regulation. In the 

other case, the petitioner challenged an implementation of a regulation which occurred prior to the 

effective date of the Civil Service Reform Act. The Board dismissed the third case for failure to follow 

the Board's procedures in filing a request for review. Finally, the Board dismissed one case because the 

petitioner failed to allege that the regulation required an employee to commit a prohibited personnel 

practice. 

One of the cases arising out of a final Board decision in an original jurisdiction case was a petition 

for attorney fees related to an agency's proposed furlough of its administrative law judges. Because the 

Board had dismissed the proposed furlough action after the Congress passed the Omnibus Budget 

Reconciliation Act, the Board denied the request for attorney fees, finding that the administrative 

law judges were not prevailing parties and the agency's proposed furlough action was substantially 

justified. 

The final original jurisdiction decision issued in Fiscal Year 1992 resulted from an earlier Board 

decision on a Special Counsel disciplinary action complaint. In its decision on that complaint, the Board 

found that the respondent had engaged in a prohibited personnel practice and imposed a 30-day 

suspension. The respondent filed a motion for a stay of the Board's final order, pending the outcome of 

his appeal to the United States Court of Appeals for the Federal Circuit. Although the Board held that it 

had the authority to grant such a motion under appropriate circumstances, it did not do so in this case. 

The 16 original jurisdiction decisions issued in Fiscal Year 1992 represents a substantial decrease 

from the 51 decisions issued during Fiscal Year 1991. This decrease, however, is primarily the result of 

the large number of administrative law judge furlough actions decided in Fiscal Year 1991. 

See Appendix C for summaries of significant Board decisions issued in original jurisdiction cases during 

Fiscal Year 1992. 
LITIGATION 

Fiscal Year 1992 marked the Board's third year litigating cases under a provision of the 

Whistleblower Protection Act that gave the Board an expanded role in defending its decisions before its 

primary reviewing court, the U.S. Court of Appeals for the Federal Circuit. Under the WPA, the Board 

defends its decisions in all Federal Circuit cases except those involving the merits of the underlying 

personnel action or a request for attorney fees. In Fiscal Year 1992, the Board defended 151 cases before 

the Federal Circuit, a 50 percent increase over the number of cases the Board defended in the previous 

fiscal year. 

The Board also defends appeals of final decisions issued under its original jurisdiction authority. 

All of these cases are appealed to the Federal Circuit, except Hatch Act cases involving employees of 

state and local governments, which are heard by Federal district courts. Original jurisdiction cases 

typically involve complex issues such as the extent of the Special Counsel's jurisdiction and novel issues 

involving prohibited personnel practices and Hatch Act violations. Other active litigation includes cases in 

which OPM petitions for review of a Board decision in the Federal Circuit. 

This fiscal year, Board attorneys defended the Board's decisions in three Special Counsel cases 

where the Board had disciplined management officials for taking retaliatory action against employees 

because of their protected whistleblowing disclosures. (See Special Counsel v. Hathaway, Special Counsel 

v. Eidmann, and Special Counsel v. Marple, summarized in the Board's FY 1991 Annual Report.) These 

cases raised complex issues of first impression under the WPA. 

During Fiscal Year 1992, the Board monitored approximately 800 cases involving appeals of 

decisions issued by the Board under its appellate jurisdiction. These cases are filed in the United States 

Court of Appeals for the Federal Circuit. Although the Department of Justice defends the employing 

agency against whom the appeal is filed, the Board monitors this litigation closely. Board activities in 

connection with monitored litigation include evaluating the case to determine if Board intervention is 

appropriate, responding to inquiries, and analyzing the court's decisions in these cases. 

See Appendix D for summaries of the significant litigation activities of the Board during Fiscal Year 

1992.

Martha B. Schneider, Assistant General Counsel and Eric Flores, Attorney, Office of General Counsel 
MERIT SYSTEMS STUDIES AND REVIEWS OF 

OPM SIGNIFICANT ACTIONS 

The CSRA assigned the Board, in addition to its adjudicatory functions, the responsibilities of 

reviewing the significant actions of OPM and conducting studies of the civil service and other merit 

systems. The Board's legislative mandate with respect to its OPM oversight and studies functions is 

broad in scope and gives the Board a great deal of latitude in deciding what to review and how to 

review it. 

Typically, the Board solicits potential study topics from a wide variety of sources in developing 

its OPM oversight and studies agenda. The Board's studies, usually governmentwide in scope, are 

conducted through a variety of research 

methods, including mail and telephone surveys, 

on-site systems reviews, written 

interrogatories, formal discussions with subjectmatter experts, computer-based data analysis, 

and reviews of secondary source materials. 

Charles Friedman, Senior Research Analyst and 

Paul van Rijn, Senior Research Psychologist, Office 

of Policy and Evaluation 

The Board's reports on the results of its 

studies are addressed to the President and the Congress, as required by law, and also are made 

available to a large secondary audience of Federal agency officials, employee and public interest groups, 

labor unions, academicians, and other individuals and organizations with an interest in public personnel 

administration. 

During Fiscal Year 1992, the Board released four reports on important civil service issues and 

issued a fifth report jointly with OPM. The Board also completed work on two other merit systems 

studies and two reports on OPM significant actions. These latter reports were to be released early in 

Fiscal Year 1993. 

The reports released in Fiscal Year 1992 were: 

Balancing Work Responsibilities and Family Needs: The Federal Civil Service Response - A study 

of selected employee benefits, the roles of Federal agencies in fostering such benefits, and ways the 

Government can improve its performance as a "model employer" in the work and family benefits area. 

(Note: This report was summarized in the Board's FY 1991 Annual Report.) 

To Meet the Needs of the Nations: Staffing the U.S. Civil Service and the Public Service of 

Canada - A study of the differences in merit staffing in the national civil services of the United States and 

Canada, including issues such as pay and labor-management policies and practices. 

Federal First-Line Supervisors: How Good Are They? - A survey conducted to assess quality 

levels of current first-line supervisors in the Federal Government from their own perspectives and the 

perspectives of second-level supervisors and nonsupervisory employees. 
Workforce Quality and Federal Procurement: An Assessment - A study of the Federal 

procurement workforce and the work it performs, an area of growing concern that is particularly 

important to the efficient operation of the Federal Government. 

Federal Workforce Quality: Measurement and Improvement - A report to the Director of OPM 

and the Chairman of the MSPB, containing the findings and recommendations of the Advisory 

Committee on Federal Workforce Quality Assessment, a panel jointly sponsored by OPM and MSPB. 

The reports to be released early in FY 1993 were: 

A Question of Equity: Women and the Glass Ceiling in the Federal Government - A study 

examining career advancement in the Government and whether there are barriers that account for the 

underrepresentation of women in senior-level jobs. 

Katherine Naff, Research Analyst, Office of Policy and 

Evaluation 

Civil Service Evaluation: The Role of the U.S. Office 

of Personnel Management - A study of the role of OPM's 

personnel management evaluation (PME) program in 

providing oversight of personnel management in Federal 

agencies. 

Federal Blue Collar Employees: A Workforce In 

Transition - A study of the people and systems that make up the Federal crafts and trades workforce, 

analyzing important issues from the perspectives of line managers, employees, personnel offices, and 

unions. 

Federal Personnel Research Programs and Demonstration Projects: Catalysts for Change - A 

study of OPM's accomplishments in promoting and overseeing research programs and demonstration 

projects under the authority granted by the CSRA. 

The Board's studies have become influential in the field of public administration and are 

especially respected within the human resources management community. The reports are widely 

used and referenced by the Congress and Federal agencies, as well as by academicians and public 

interest groups, who influence public personnel policies and operations. Data from the Board's surveys 

are frequently requested by agencies to help with their management improvement efforts. Data are 

also requested by the General Accounting Office, the Congressional Budget Office, and the Office of 

Personnel Management. 

Numerous requests were received for the joint MSPB-OPM report on measuring Federal 

workforce quality, including a request from the National Advisory Council on the Public Service (the 

successor to the Volcker Commission) for copies for its members. The Board's report on the quality of 

Federal first-line supervisors had a significant impact on the public policy debate over the possibly 

declining quality of the Federal workforce. Several agencies used findings from the Board's report for 

training their own supervisors. Other agencies adapted the survey questionnaire to assess the training 

needs of their first-line supervisors. 
The Board's report on the quality of the Federal procurement workforce was praised by the 

General Services Administration, and the Office of Management and Budget (OMB) publicly endorsed 

the study and its findings, stating that the report constituted a significant effort that can help guide 

procurement improvement efforts throughout the Government. Not only did OMB disseminate the 

report to all agency procurement executives, but through its Office of Federal Procurement Policy, it 

joined MSPB in conducting a follow-up study to identify the specific measures needed to improve the 

procurement process. 

Officials of the OPM Career Entry Group requested a briefing and discussion concerning the 

study of the Canadian Public Service, the first time OPM has so reacted to a Board report. Within 

Canada, the report was used to support legislative changes such as introduction of "career ladder" 

promotions into their civil service. 

The report on balancing work responsibilities and family needs was cited in numerous 

professional periodicals and in the media and was discussed at some length in a Congressional hearing. 

The Board distributed over 4,000 copies of the report to individuals, organizations, and agencies in 

both the public and private sectors. A number of Federal agencies requested copies in bulk in order to 

distribute the report to key officials within their organizations. 

There was considerable pre-publication interest among a broad group of individuals and 

organizations in the Board's report on women and the glass ceiling in the Federal Government. OPM 

showed pre-publication interest in the Board's study of Federal blue-collar employees, in such areas as 

blue-collar training needs and inclusion of blue-collar employees in OPM guidance and regulations. Also, 

the Board's recommendations concerning blue-collar pay reform were expected to be cited by OPM in 

support of their proposed strategy for blue-collar pay reform. 

See Appendix E for summaries of the reports released or completed during Fiscal Year 1992. 
OUTREACH ACTIVITIES 

The Board members and headquarters and regional staff conducted or participated in 

approximately 240 outreach activities to major constituencies in Fiscal Year 1992, an average of almost 

one activity for each working day. These activities included addressing groups, participating in 

seminars and conferences, and conducting training programs designed to further an understanding of 

the Board's policies and procedures, developments in Board case law, and important issues in Federal 

personnel law. The Board's outreach program also encompasses its participation in interagency 

organizations, publications and published articles, and the International Visitors Program. 

Board Member Parks and Supreme Court Justice David 

H. Souter at the spring meeting of the Federal Bar 

Association's National Council, on which Member Parks 

serves. 

PERSONAL APPEARANCES, MEETINGS, 

AND INSTRUCTION 

Of particular note was the presentation of 

mock MSPB hearings several times during the fiscal 

year. Developed by Board attorneys to illustrate 

dramatically the procedures followed in a hearing, 

the presentation of both the appellant's and the 

agency's cases, rulings by the administrative judge, 

and various legal issues, the mock hearings developed at headquarters were presented to the Federal 

Circuit Bar Association and, for the second consecutive year, at the Federal Dispute Resolution Conference. At the end of the fiscal year, the second mock hearing was videotaped at Board headquarters 

for use in future outreach activities. In addition, mock hearings were developed and presented 

at the annual outreach sessions for practitioners held by the Dallas, Denver, and Washington regional 

offices and at meetings of the Public Administration Forum in Chicago, San Francisco, and 

Washington. 

During the fiscal year, the regional directors and administrative judges made over 120 outreach 

appearances before thousands of participants. In addition to comprehensive training sessions on Board 

practices and procedures, the Board's regional personnel addressed such topics as alternative dispute 

resolution, effective advocacy at MSPB hearings, sexual harassment, whistleblower protection, 

handicap discrimination, and RIF appeals. 

The Philadelphia regional office cosponsored with the Federal Bar Association a symposium on 

MSPB law, sexual harassment, and the Civil Rights Act of 1991. The "Seminar on Recent Board Law" 

presented by the San Francisco regional office was approved for credit by the State Bar of California 

Committee on Minimum Continuing Legal Education. The St. Louis regional office was asked by 

the U.S. Army Civilian Appeals Review Authority to train its investigators in settlement techniques. 

The Board members and headquarters attorneys participated in over 50 outreach activities to 

inform agencies, employee unions, private practitioners, and other interested parties about the Board, 

its authorities, jurisdiction, practices, and procedures. Topics addressed included recent developments 

in Board case law, cases decided under the WPA, mixed cases, and sexual harassment. 
The Board participated in the annual Federal Circuit Judicial Conference by sponsoring a 

breakout session on Board law, moderated by the Board's General Counsel and Acting General Counsel. 

In August 1992, the Board again cosponsored the Federal Dispute Resolution Conference with EEOC, 

OPM, the Federal Labor Relations Authority (FLRA), the Federal Mediation and Conciliation Service 

(FMCS), and the Office of Special Counsel. The Board presented a mini-track at the conference that included the mock hearing. 

Several attorneys made presentations on the WPA and Board case law under the Act at the 

Justice Department's Legal Education Institute (LEI) in Washington. Presentations were made at the 

Public Administration Forum on "Effective Advocacy at the Merit Systems Protec tion Board Hearings" 

and at the Overseas Education Association on "Practice Before the Merit Systems Protection Board." 

The studies staff participated in over 60 conferences, seminars, and symposia to discuss human 

resources management issues and to report on the results and implications of the Board's studies and 

reviews of OPM significant actions. Among the topics addressed were sexual harassment, the glass 

ceiling, balancing work and family responsibilities, and various workforce quality issues. 

In May of 1992, MSPB again participated in 

the celebration of Public Service Recognition Week, 

sharing a booth on the Mall with FLRA. The 

Chairman attended the opening ceremony and 

fielded questions and gave out information in the 

MSPB booth. 

Chairman Daniel R. Levinson greets the public at the 

1992 Public Service Recognition Week.

REPRESENTATION IN ORGANIZATIONS 

In February 1992, Lucretia F. Myers, MSPB Executive Director, was appointed a member of the 

International Civil Service Commission by the United Nations General Assembly. The 15-member 

Commission, made up of individuals with substantial executive experience in public administration, 

regulates and coordinates the conditions of service of more than 50,000 U.N. employees serving at some 

600 duty stations worldwide. 

The Merit Systems Protection Board is an active participant in the Small Agency Council (SAC), a 

voluntary association of Federal agencies that employ fewer than 6,000 people. The Board's Deputy 

Executive Director serves on the SAC Executive Committee, providing executive-level direction, 

guidance, and coordination in representing the more than 90 participating small agencies. The 

Board is also represented in the Public Employees Roundtable, the 

President's Council on Management Improvement, and the Interagency Committee on Voluntarism. 

The Board's Inspector General represents the agency on the President's Executive Council on Integrity 

and Efficiency. 

The Board's Director of Administration represents MSPB as a member of the Board of Directors 

of the National Capital Area CASU (Cooperative Administrative Support Units). This Board coordinates 

the efforts of agencies to combine their administrative resources to take advantage of economies of 

scale. In addition, several regional directors serve as Board members of CASUs in their cities. 
Several regional directors, administrative judges, and other personnel in the regional offices 

serve on the Federal Executive Board (FEB) and FEB committees in their cities. During Fiscal Year 

1992, the regional directors of the Board's St. Louis and Denver offices served as Chairman and Vice 

Chairman, respectively, of the FEB in those cities. Regional directors and administrative judges also 

participated in various programs, including the Federal Women's Program and the Fiscal Year 1992 

American Society for Public Administration Awards Program. 

PUBLICATIONS AND ARTICLES 

In spring 1992, the Board issued its annual report on case decisions, which provided detailed 

statistical information on the decisions issued by the Board and its administrative judges in Fiscal Year 

1991. (Note: Henceforth, this study will be published every third year.) The report included 

information on initial appeals, petitions for review, and addendum cases. In addition to total numbers, 

various breakdowns were provided by type of appeal, agency, disposition, and case processing time. 

MSPB Mock Hearing 

The report on case decisions also provided information on appeals involving such special 

interest issues as whistleblowing, sexual harassment, agency drug testing, AIDS, and accommodation of 

employees handicapped by drug and/or alcohol abuse. The report reviewed Board decisions in cases 

arising under its original jurisdiction, cases that the Board reopened on its own motion, cases in which 

OPM requested reconsideration, and discrimination cases that were appealed to the Equal Employment 

Opportunity Commission. 

During the fiscal year, the Chairman published an article, "Quayle Law Reforms and the MSPB," 

in The Federal Circuit Bar Journal (Fall 1991) and completed an article on the impact of the Federal 

Circuit on Board law for publication in the law review of George Mason University. Board Member Parks 

published an article, "Creative Settlement Strategies," in The Army Lawyer (September 1992). A senior 

attorney authored a law review article, "An Overview of the Whistleblower Protection Act of 1989," 

which was published in the Spring 1992 issue of The Federal Circuit Bar Journal. Board staff, who are 

regular contributors to this journal, prepared quarterly summaries of significant Federal Circuit 

decisions for publication in the journal. 
Members of the studies staff published nine articles in professional journals, including The 

Federal Circuit Bar Journal, The Public Manager, and various publications of organizations in the public 

administration and human resources management fields. The articles covered a range of subjects, 

including the Board reports on workforce quality assessment, quality of first-line supervisors, work and 

family benefit programs, and the glass ceiling. 

INTERNATIONAL VISITORS PROGRAM 

The Board's international visitors program is conducted at Board headquarters by the Board 

members and senior staff. The program is responsive to requests from foreign visitors who wish to 

learn about merit system principles and the Board's practices and procedures. During Fiscal Year 1992, 

the Board and headquarters staff made presentations to approximately 45 visitors from a number of 

countries, including Taiwan, Bangladesh, the Netherlands, and Japan. The Board also arranged for 

visitors to meet with Board regional office staff. 

The visitors included governors, lieutenant governors, heads of agencies, inspectors general, 

staff directors, and attorneys. Many of these individuals visited the Board during a time when their 

countries were in the process of developing or revising an appeals system. The visitors expressed 

particular interest in the type of issues that the Board addresses in its decisions and the adjudication of 

appeals by the Board's regional offices. 
ADMINISTRATION, FINANCE, AND 

HUMAN RESOURCES 

ADMINISTRATION 

During Fiscal Year 1992, the Board continued to enhance management efficiency and 

effectiveness through its focus on management improvement objectives. The four major improvement 

objectives are: 

• To ensure the quality of decisions and the adjudicatory process; 

• To enhance the merit systems studies and OPM oversight functions; 

• To improve the effectiveness of outreach activities; and 

• To continue to improve management efficiency and effectiveness. 

During the fiscal year, the Board conducted Administrative Program and Management 

Reviews, in accordance with the requirements of OMB Circular No. A-123, in the Atlanta and St. Louis 

regional offices and in the offices of the Chairman, Appeals Counsel, and Clerk of the Board at 

headquarters. These reviews, conducted on a 5-year cycle, cover both administrative management of 

the office plus program management if the office has delegated responsibility for a program. A 

review was conducted during the fiscal year of headquarters controls for handling classified 

information, and a followup evaluation of the Board's use of automated legal research systems was 

performed to review improvements made in response to the Fiscal Year 1990 review. 

Darnell Mallory, Office Automation Assistant, Robert 

W. Lawshe, Director, Richard A. Dorr, Chief, Support 

Services, and Rachel T. Campbell, Budget Analyst - 

Financial and Administrative Management Division 

The Inspector General audited the Board's 

travel program, time and attendance program, 

Diner's Club program, and imprest funds at 

headquarters and in five regional offices. During the fiscal year, the Inspector General responded to 12 

hotline complaints, all from individuals outside the agency. 

Significant enhancements were made to the automated Case Management System (CMS) to 

provide automated generation of case documents such as acknowledgement orders, address sheets, 

certificates of service, hearing orders, and case file indexes. Other enhancements included improved 

documentation and on-line HELP, as well as new reports generated by the system. The minicomputer 

center was enhanced to provide unattended backup of the computer center and the local area network. 

The Board continued to upgrade its personal computer capabilities by installing upgraded word 

processing software and by introducing more advanced software to assist administrative staff in 

performing financial management activities. The agency held computer security training for all 

employees and implemented a virus detection program that enabled the agency to avoid computer 

virus infections. 
Also during this fiscal year, headquarters attorneys began using a local area network that links the 

attorneys' personal computers to each other and to a fileserver. Because the network also connects them 

with the central computer, each attorney now has access to the automated case management system and 

to electronic mail. In addition to allowing for the revision of documents more easily and maintaining final 

recommendations in a central location, the system expedites researching legislative histories of statutes 

and the provisions of Federal regulations. The system also allows for the central storage, maintenance, 

and ready access to a "glossary" or compilation of frequently-cited Board and court decisions. 

A number of administrative initiatives were undertaken that resulted in improved operating 

efficiency and cost savings. Additional personnel in the regional offices were accommodated through 

remodelling and addition of office space. The telecommunications network was expanded to provide 

access to the National Finance Center over FTS 2000 and also to accommodate the additional regional 

office staff. The property system was automated with barcode labels applied to all accountable property. Two pilot projects, use of ATM cards for travel advances and third party drafts for small 

purchases, were implemented to reduce administrative costs. Finally, Prompt Payment Act interest 

charges were reduced dramatically. 

Darlene Rollins, Student Aide, Teresa Jefferson, Computer Programmer! Analyst, William McDermott, Chief, 

User Services & Operations -Information Resources Management Division 
FINANCIAL STATEMENT 

The income and expenses of the Merit Systems Protection Board for Fiscal Year 1992 (October 1, 

1991, through September 30, 1992) are shown below. All figures are in thousands of dollars. 

INCOME

Appropriations 23,320

Reimbursements - 1,850

Civil Service Retirement & Disability Trust Fund 

Reimbursements - Other 60

(interagency agreement and reimbursable detail) 

Total income 25,230

EXPENSES

Direct obligations:

Personnel compensation 

Full-time permanent 

Other than full-time permanent 

Other personnel compensation

13,780

1,163

302

Subtotal, personnel compensation 15,245

Personnel benefits 2,327

Benefits - former employees 5

Travel of persons 524

Transportation of things 63

Rental payment to GSA 2,026

Rental payments to others 49

Communications, utilities, and miscellaneous charges 548

Printing and reproduction 128

Other services 1,211

Supplies and materials 291

Equipment 826

Subtotal, direct obligations 23,243

Reimbursable obligations 1,910

Total obligations 25,153

BALANCE 77

HUMAN RESOURCES 

The full-time equivalent (FTE) employment for the Board in Fiscal Year 1992 was 314. The Board 

established eight new administrative judge positions and nine temporary support positions in the 

regional offices and filled them during the fiscal year. In the previous fiscal year, the FTE was 302. 

In addition to establishing the new administrative judge positions, the Board launched a pilot 

project in which certain attorneys at headquarters acted as administrative judges for some cases. This 

cross-training permitted the headquarters attorneys to develop skills in conducting hearings and 

writing initial decisions and also served to reduce the regional office workload slightly. 
The Board's Fourth Annual Administrative Judges' Conference was held in San Diego in 

September 1992. The purpose of the conference was to promote consistency in the application of 

Board processes and to provide an opportunity for the administrative judges to discuss difficult legal 

issues and approaches for addressing those issues. Administrative judges from the regional offices 

participated in training sessions with staff from the Washington headquarters and heard presentations 

from speakers on such subjects as sexual harassment, civil rights, the Hatch Act, retirement issues, stress 

management for judges, practicing before the Board, and civil justice reform. 

A number of the Board's administrative judges completed courses at the National Judicial 

College (NJC) and Harvard Law School. In addition, one administrative judge continued to serve as 

a faculty member of the NJC. Administrative judges from the San Francisco Regional Office attended the 

National Association of Women Judges 1991 Conference and the Women in Law Conference. 

The representation of women and minorities in the Board's workforce continues to be impressive. 

Women and minorities are not clustered in lower grades, and the Board's representation of these groups 

in professional occupations is high. The following table shows the percentages of female and minority 

attorneys, as well as the percentage representation of 

these groups in the Board's workforce as a whole.

Mary Lincoln, Personnel Management Specialist and Joyce 

Pieritz, Personnel Management Specialist - Human 

Resources Management Division 

MSPB EMPLOYMENT BY MALE/ FEMALE AND MINORITY/ MAJORITY 

Attorneys MSPB (Entire Agency)

No. in Attorney 

Workforce

Percent of 

Attorney

Workforce

No. in Workforce Percent of

Workforce

Male 83 57.2 Male 124 40.4

Female 62 42.8 Female 183 59.6

Total 145 100.0 Total 307 100.0

Minority * 28 19.3 Minority * 101 32.9

Majority 117 80.7 Majority 206 67.1

Total 145 100.0 Total 307 100.0

* Excluding White/Female -- Data as of September 30, 1992
In January 1992, the Chairman presented the Theodore Roosevelt Award, the Board's highest 

honor, to Denis Marachi, Regional Director/Chief Administrative Judge of the San Francisco Regional 

Office. The award was established in Fiscal Year 1988 to honor Board employees who demonstrate 

distinguished performance or leadership in support of the Board's mission to protect Federal merit 

systems through its adjudicatory and studies functions. 

At the annual awards ceremony, 30 other Board employees were honored with the Chairman's 

Awards for Excellence, and 18 employees received Community Service Awards. Over 200 employees 

who received Performance Awards, Quality Step Increases, Performance Bonuses, and Special Act or 

Service Awards during the previous fiscal year were also honored. 

In Fiscal Year 1992, as in the previous fiscal year, Board employees were honored by the 

Combined Federal Campaign of the National Capital Area with The Winner's Circle Award. The award, 

established in 1991, recognizes agencies that achieve a new record high in the dollar amount of 

contributions. Board employees were also recognized, for the second consecutive year, with the 

Honor Roll Award and Minute Man Flag presented by the Department of the Treasury for achievement 

in signing up new savers in the U.S. Savings Bonds campaign. 

Denis Marachi, Chief Administrative Judge, San 

Francisco Regional Office, Theodore Roosevelt Award 

recipient, January 15, 1992 

Eleventh Annual Honor Award Winners 
APPENDIX A - CASE PROCESSING STATISTICS 

Table of Contents 

Types of Initial Appeals Decided in FY 1992 

Disposition of Initial Appeals Decided in FY 1992 

Dispositions of Initial Appeals Adjudicated on the Merits in FY 1992 Disposition of Initial Appeals Decided by Type 

of Case in FY 1992 Disposition of Initial Appeals Adjudicated by Type of Case in FY 1992 Initial Appeals Decided 

in FY 1992 by Selected Agencies 

Case Processing Timeliness in FY 1992 

Time to Process Initial Appeals by Case Type in FY 1992 

Time to Process Initial Appeals by Disposition Type in FY 1992 Nine-Year Trend in Settlement Rates, FY 1984 - FY 

1992 

Settlement Rates by Type of Initial Appeal Decided in FY 1992 

Dispositions of Whistleblower Initial Appeals and Stay Requests Decided, FY 1990 - FY 1992 Initial Appeals With 

Allegations of Discrimination Decided in FY 1992 Types of Discrimination Alleged in Initial Appeals 

Decided in FY 1992 Disposition of Requests for Attorney Fees Decided in FY 1992 Disposition of 

Compliance Requests Decided in FY 1992 

Disposition of Remands Decided in FY 1992 

Disposition of Remands Adjudicated in FY 1992 

Total Board Cases Decided, FY 1992 

Petitions for Review of Initial Appeals Decided in FY 1992 

Disposition of Petitions for Review of Initial Appeals Granted in FY 1992 

Dispositions of Whistleblower Petitions for Review of Initial Appeals and Stay Requests Decided in FY 1992 

Petitions for Review of Initial Appeals with Allegations of Discrimination Decided in FY 1992 Dispositions of 

Petitions for Review of Requests for Attorney Fees, Compliance Requests, and Remands Decided in FY 1992 

NOTE: In tables of "Dispositions" of initial appeals, whistleblower cases, attorney fee requests, 

compliance requests, and remand cases, the number of cases decided is first divided into cases 

"Dismissed" and "Not Dismissed." Cases "Settled" and "Adjudicated" are then expressed as 

percentages of cases "Not Dismissed." The term "Adjudicated" refers to cases that are 

adjudicated on the merits. 
TYPES OF INITIAL APPEALS DECIDED IN FY 1992 

Total Number of Initial Appeals: 7,294 

DISPOSITION OF INITIAL APPEALS DECIDED IN FY 1992 

Total number of initial appeals: 7,294 

Percentages do not total 100% because of rounding. 
DISPOSITIONS OF INITIAL APPEALS ADJUDICATED 

ON THE MERITS IN FY 1992 

Based on 2,023 adjudicated initial appeals. 

DISPOSITION OF INITIAL APPEALS DECIDED 

BY TYPE OF CASE IN FY 1992 

Type of Case Decided Dismissed Not Dismissed Settled Adjudicated 

# % # % # % # % # %

Adverse Action by Agency 3645 50% 1301 36% 2344 64% 1528 65% 816 35%

Termination of Probationers 464 6% 440 95% 24 5% 20 83% 4 17%

Reduction in Force 548 8% 248 45% 300 55% 90 30% 210 70%

Performance 225 3% 38 17% 187 83% 126 67% 61 33%

Denial of Within-Grade 82 1% 40 49% 42 51% 31 74% 11 26%

Suitability 55 1% 15 27% 40 73% 28 70% 12 30%

CSRS Retirement: Legal 752 10% 217 29% 535 71% 16 3% 519 97%

CSRS Retirement: Disability 314 4% 122 39% 192 61% 46 24% 146 76%

CSRS Retirement: 

Overpayment

267 4% 83 31% 184 69% 55 30% 129 70%

Individual Right of Action 221 3% 144 65% 77 35% 41 53% 36 47%

Other 721 10% 601 83% 120 17% 41 34% 79 66%

Total 7294 100% 3249 45% 4045 55% 2022 50% 2023 50%

 
DISPOSITION OF INITIAL APPEALS ADJUDICATED BY TYPE OF CASE IN FY 1992 

Type of Case Adjudicated Affirmed Reversed Mitigated Other 

# # % # % # % # % 

Adverse Action by Agency 816 581 71% 139 17% 95 12% 1 0%

Termination of 

Probationers

4 3 75% 1 25% 0 0% 0 0%

Reduction in Force 210 200 95% 10 5% 0 0% 0 0%

Performance 61 39 64% 22 36% 0 0% 0 0%

Denial of Within-Grade 11 4 36% 6 55% 0 0% 1 9%

Suitability 12 12 100% 0 0% 0 0% 0 0%

CSRS Retirement: Legal 519 441 85% 64 12% 0 0% 14 3%

CSRS Retirement: Disability 146 78 53% 62 42% 0 0% 6 4%

CSRS Retirement: 

Overpayment

129 66 51% 44 34% 14 11% 5 4%

Individual Right of Action 36 20 56% 6 17% 0 0% 10 28%

Other 79 51 65% 26 33% 2 3% 0 0%

Total 2023 1495 74% 380 19% 111 5% 37 2%

NOTE. Percentages may not add to 100 due to rounding. 
INITIAL APPEALS DECIDED IN FY 1992 BY SELECTED AGENCIES 

Decided Dismissed Not Dismissed Settled Adjudicated Affirmed Reversed Mitigated 

/Other 

# # % # % # % # % # % # % # %

Postal Service 1515 671 44% 844 56% 563 67% 281 33% 187 66% 51 18% 43 15%

OPM 1469 467 32% 1002 68% 135 14% 867 86% 634 73% 192 22% 41 5%

Navy 938 466 50% 472 50% 288 61% 184 39% 147 80% 25 14% 12 6%

Army 633 283 45% 350 55% 201 57% 149 43% 109 73% 34 23% 6 4%

VA 490 270 55% 220 45% 140 64% 80 36% 61 76% 12 15% 7 9%

Air Force 398 170 43% 228 57% 133 58% 95 42% 68 72% 17 18% 10 11%

Treasury 290 162 56% 128 44% 82 64% 46 36% 37 80% 7 15% 2 4%

Justice 273 162 59% 111 41% 64 58% 47 42% 35 74% 9 19% 3 6%

Defense 234 95 41% 139 59% 85 61% 54 39% 39 72% 9 17% 6 11%

TVA 160 74 46% 86 54% 16 19% 70 81% 69 99% 1 1% 0 0%

Agriculture 141 63 45% 78 55% 56 72% 22 28% 17 77% 2 9% 3 14%

Interior 128 58 45% 70 55% 52 74% 18 26% 16 89% 0 0% 2 11%

Transportation 125 56 45% 69 55% 38 55% 31 45% 15 48% 10 32% 6 19%

HHS 107 53 50% 54 50% 40 74% 14 26% 11 79% 3 21% 0 0%

GSA 63 37 59% 26 41% 17 65% 9 35% 6 67% 1 11% 2 22%

Labor 45 20 44% 25 56% 15 60% 10 40% 9 90% 0 0% 1 10%

Commerce 41 28 68% 13 32% 9 69% 4 31% 4 100% 0 0% 0 0%

HUD 32 17 53% 15 47% 9 60% 6 40% 6 100% 0 0% 0 0%

Smithsonian 26 15 58% 11 42% 10 91% 1 9% 1 100% 0 0% 0 0%

SBA 24 10 42% 14 58% 9 64% 5 36% 4 80% 1 20% 0 0%

FDIC 22 8 36% 14 64% 6 43% 8 57% 8 100% 0 0% 0 0%

EPA 17 10 59% 7 41% 5 71% 2 29% 2 100% 0 0% 0 0%

Energy 17 9 53% 8 47% 5 62% 3 38% 1 33% 1 33% 1 33%

GPO 16 6 38% 10 62% 8 80% 2 20% 1 50% 0 0% 1 50%

NASA 12 4 33% 8 67% 4 50% 4 50% 3 75% 1 25% 0 0%

EEOC 11 7 64% 4 36% 4 100% 0 0% 0 0% 0 0% 0 0% 

FEMA 11 1 9% 10 91% 5 50% 5 50% 0 0% 3 60% 2 40%

Other 56 27 48% 29 52% 23 79% 6 21% 5 83% 1 17% 0 0%

Total 7294 3249 4045 2022 2023 1495 380 148

NOTE. Percentages may not add to 100 due to rounding. 

CASE PROCESSING TIMELINESS IN FY 1992 

FY 1992 

Initial Appeals (excluding requests for stays, attorney fee requests, compliance requests, and remands) 
TIME TO PROCESS INITIAL APPEALS RV CASE TYPE TN FY 1992 

Average number of days. 

TIME TO PROCESS INITIAL APPEALS BY DISPOSITION TYPE IN FY 

1992 

Average number of days. 
NINE-YEAR TREND IN SETTLEMENTRATES, FY 1984-FY 1992 

Percentage of initial appeals not dismissed for lack of jurisdiction or timeliness 

SETTLEMENT RATES BY TYPE OF INITIAL APPEAL DECIDED IN FY 1992 

Percentage of initial appeals not dismissed for lack of jurisdiction or timeliness 
DISPOSITIONS OF WHISTLEBLOWER INITIAL APPEALS AND STAY 

REQUESTS DECIDED, FY 1990-FY1992 

Fiscal Year Decided Dismissed Not Dismissed Settled Adjudicated 

Individual Right of Action 

(IRA)

# # % # % # % # % 

FY 1990 89 71 80% 18 20% 11 61% 7 39%

FY 1991 196 125 64% 71 36% 49 69% 22 31%

FY 1992 221 144 65% 77 35% 41 53% 36 47%

Otherwise Appealable 

Action (OAA)

FY 1990 163 84 52% 79 48% 43 54% 36 46%

FY 1991 275 141 51% 134 49% 78 58% 56 42%

FY 1992 282 131 46% 151 54% 81 54% 70 46%

Request for Stay on IRA 

or OAA

FY 1990 74 16 22% 58 78% 1 2% 57 98%

FY 1991 73 12 51% 61 49% 0 0% 61 100%

FY 1992 76 16 21% 60 79% 3 5% 57 95%

Note: The individual Right of Action (IRA) appeal was created by the Whistleblower Protection Act of 1989. In this kind of case, the individual is subject 

to a personnel action and claims that the action was taken because of his or her whistleblowing, but the action is not one that is directly appealable to 

the Board. In an IRA, the individual can appeal to the Board only If, after having first filed a complaint with the Office of the Special Counsel, either the 

Special Counsel does not seek corrective action on the individual's behalf or 120 days pass with no action by the Office of Special Counsel. In the 

Otherwise Appalable Action (OAA) appeal, the individual is subject to a personnel action that is directly appealable to the Board, and the 

Individual claims that the action was taken because of his or her whistleblowing. A Request for a Stay can be filed with the Board In 

connection with an IRA or an OAA. A stay orders the agency to suspend the personnel action being appealed.

INITIAL APPEALS WITH ALLEGATIONS OF DISCRIMINATION DECIDED 

IN FY 1992 

Number Percent 

Total Initial Appeals Decided 7,294 100% 

Cases without Allegations of Discrimination -5,221 -72%

Cases with Allegations of Discrimination 2,073 28% 

Cases in which Allegations were Withdrawn -1,296 -18%

Total Mixed Cases Decided 777 11% 

Cases in which Discrimination was Found 9 1% 

Cases in which Discrimination was not Found 768 99% 
TYPES OF DISCRIMINATION ALLEGED IN INITIAL APPEALS DECIDED IN 

FY 1992 

Percentage based on 2,941 allegations. 

Percentages do not total 100% because of rounding. 

DISPOSITION OF REQUESTS FOR ATTORNEY FEES DECIDED IN FY 1992 

Decided Dismissed Not 

Dismissed 

Settled Adjudicated Fees 

Granted 

Fees Not 

Granted 

# # % # % # % # % # % # %

355 43 12% 312 88% 179 57% 133 43% 100 75% 33 25%

DISPOSITION OF COMPLIANCE REQUESTS DECIDED IN FY 1992 

Decided Dismissed Not 

Dismissed 

Settled Adjudicated Compliance 

Found 

Compliance 

Not Found 

Other 

# # % # % # % # % # % # % %

444 121 27% 323 73% 90 28% 233 72% 175 75% 55 24% 3 1%
DISPOSITION OF REMANDS DECIDED IN FY 1992 

Decided Dismissed Not Dismissed Settled Adjudicated

# % # % # % # %

181 49 27% 132 73% 47 36% 85 64%

DISPOSITION OF REMANDS ADJUDICATED IN FY 1992 

Adjudicated Affirmed Reversed Mitigated/ 

Modified/ 

Other 

Attorney Fee 

Granted/ 

Attorney Fee 

Not Granted/ 

Compliance 

Not Found 

# % # % # % # % # % # %

85 64% 51 60% 13 15% 5 6% 14 16% 2 2% 

* NOTE: MSPB refers to attorney fee requests and compliance requests as addendum cases because they are 

filed subsequent to the initial appeal and are directly related to an initial appeal. Cases remanded to an 

administrative judge are also included in addendum cases; decisions on initial appeals, attorney fee requests, and 

compliance requests may all be remanded. Percentages may not add to 100 due to rounding. 

TOTAL BOARD CASES DECIDED, FY 1992 

Type of Case/Activity Number 

APPELLATE JURISDICTION CASES 

Petitions for Review (PFR's) -- Initial Appeals 1,612 

Petitions for Review (PFR's) -- Addendum Cases 187 

Reopenings/Court Remands 17 

Reviews of Stay Rulings 2 

Subtotal 1,818 

Compliance Referrals 64 

EEOC Non-Concurrence 2 

Appeals of Arbitration Awards 10 

 76 

Subtotal 

ORIGINAL JURISDICTION CASES 

Actions brought by Special Counsel - Hatch 5 

Actions Against Administrative Law Judges 1 

OSC Stay Requests 2 

Addendum Cases 4 

Review of Regulations 4 

Subtotal - Original Jurisdiction Cases 16 

TOTAL BOARD CASELOAD 1,910 

NOTE. The Board holds hearings for performance-based removals from the SES although no decisions are Issued. In FY 1992, 

no hearings were held. 
PETITIONS FOR REVIEW OF INITIAL APPEALS DECIDED IN FY 1992 

Type of Case Decided Dismissed Denied Granted

# % # % # % # % 

Adverse Action by Agency 769 50% 99 13% 559 73% 111 14%

Termination of Probationers 63 6% 2 3% 58 92% 3 5%

Reduction in Force 87 8% 3 3% 83 95% 1 1%

Performance 62 3% 7 11% 51 82% 4 6%

Denial of Within-Grade 18 1% 2 11% 14 78% 2 11%

Suitability 7 1% 0 0% 7 100% 0 0%

CSRS Retirement: Legal 250 10% 18 7% 215 86% 17 7%

CSRS Retirement: Disability 58 4% 4 7% 43 74% 11 19%

CSRS Retirement: Overpayment 37 4% 0 0% 32 86% 5 14%

Individual Right of Action 76 3% 6 8% 55 73% 15 20%

Other 185 10% 8 4% 169 91% 8 4%

Total 1612 100% 149 9% 1286 80% 177 11%

DISPOSITION OF PETITIONS FOR REVIEW OF INITIAL APPEALS 

GRANTED IN FY 1992 

AJ AJ 

Type of Case Granted Affirmed Reversed Remanded Other 

# # % # % # % # % 

Adverse Action by Agency 111 31 28% 39 35% 34 31% 7 6% 

Termination of Probationers 3 2 67% 0 0% 1 33% 0 0% 

Reduction in Force 1 0 0% 0 0% 1 100% 0 0%

Performance 4 1 25% 0 0% 3 75% 0 0%

Denial of Within-Grade 2 0 0% 0 0% 2 100% 0 0% 

CSRS Retirement: Legal 17 2 12% 11 65% 3 18% 1 6% 

CSRS Retirement: Disability 11 0 0% 6 55% 2 18% 3 27% 

CSRS Retirement: Overpayment 5 2 40% 0 0% 2 40% 1 20% 

Individual Right of Action 15 0 0% 3 20% 9 60% 3 20% 

Other 8 2 25% 1 12% 4 50% 1 12% 

Total 177 40 23% 60 34% 61 34% 16 9% 

NOTE. Approximately 22% of initial decisions end in the filing of a PFR by the appellant or the agency. As 

the previous chart notes, of all PFR's of initial appeals filed in FY 1992, 9% (n=149) were dismissed and 

80% (n=1286) were denied. The remaining 11% (n=177) were granted. The term "AJ" stands for 

administrative judge. Percentages may not add to 100 due to rounding. 
DISPOSITIONS OF WHISTLEBLOWER PETITIONS FOR REVIEW OF 

INITIAL APPEALS AND STAY REQUESTS DECIDED IN FY 1992 

Dismissed/ 

Appeal Category Decided Denied Granted Affirmed Reversed Remanded Other 

# # % # % # % # % # % # % 

Individual Right of Action 76 61 80% 15 20% 0 0% 3 20% 9 60% 3 20% 

Otherwise Appealable Action 88 77 87% 11 12% 4 36% 2 18% 4 36% 1 9% 

Review of Stay Ruling 2 2 100% 0 0% -- -- -- -- -- -- -- -- 

NOTE, Percentages may not add to 100 due to rounding. 

PETITIONS FOR REVIEW OF INITIAL APPEALS WITH ALLEGATIONS OF 

DISCRIMINATION DECIDED IN FY 1992 

 Number Percent 

Total Petitions for Review Decided 1,612 100% 

Cases without Allegations of Discrimination -1.074 -67%

Cases with Allegations of Discrimination 538 33% 

Cases in which Allegations were Withdrawn -224 -14% 

Total Mixed Cases Decided 314 19% 

Cases in which Discrimination was Found 10 3% 

Cases in which Discrimination was not Found 304 97% 
DISPOSITIONS OF PETITIONS FOR REVIEW OF REQUESTS FOR 

ATTORNEY FEES, COMPLIANCE REQUESTS, AND REMANDS DECIDED 

IN FY 1992 

Type of Case Decided Dismissed Denied Granted 

# # % # % # % 

Request for Attorney Fees 52 2 4% 26 50% 24 46% 

Compliance Request 67 7 10% 50 75% 10 15% 

Remand 68 2 3% 56 82% 10 15% 

Total 187 11 6% 132 71% 44 24% 

NOTE. MSPB refers to PFR's of attorney fee requests and compliance requests as PFR's of addendum cases. PFR's of cases 

remanded to an administrative judge are also included in PFR's of addendum cases. Percentages may not add to 100 due to 

rounding. 
APPENDIX B - SIGNIFICANT BOARD DECISIONS 

APPELLATE JURISDICTION CASES 

This appendix contains summaries of significant appellate jurisdiction cases decided by the Board 

during Fiscal Year 1992, 

Board decisions are published in West Publishing Company's United States Merit Systems 

Protection Board Reporter, The M.S.P.R. citations below are to that publication. 

WHISTLEBLOWER PROTECTION ACT Preface 

The Whistleblower Protection Act (WPA) prohibits agencies from taking, threatening to 

take, or failing to take personnel actions against employees who disclose information concerning 

Government wrongdoing. In deciding whether the Board has the authority or jurisdiction to consider an 

employee's claim of reprisal for whistleblowing in an individual right of action (IRA) appeal, and, 

therefore, the authority to order corrective relief, the Board must first find three things: (1) that the 

agency took a "personnel action," as defined by the WPA, against the employee, (2) that the employee 

first sought relief from the Office of Special Counsel, and (3) that the employee reasonably believed that 

the information disclosed concerned "a violation of any law, rule, or regulation" or "gross 

mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to 

public health or safety," If the Board finds these three things, it can then consider the appellant's claim 

that the agency took the personnel action against him or her in reprisal for whistleblowing. 

Jurisdiction - Protected Activity 

Von Kelsch v. Department of Labor, DC122190W0525 (November 25, 1991) 51 M.S.P.R, 378 

(1991) 

The Board concluded that the act of filing a workers' compensation claim is protected under the 

CSRA, but not under the WPA. As a result, the Board held that it lacks jurisdiction over an allegation of 

reprisal for filing such a claim in an IRA appeal. The Board held, however, that it may still consider such a 

claim as an affirmative defense in the context of an otherwise appealable action. 

Santillan v. Department of the Air Force, DE122191W0331 (April 6, 1992) 53 M.S.P.R. 487 

(1992) 

With respect to the employee's Privacy Act request for correction of his allegedly falsified 

personnel records, the Board held that he had a civil remedy under the Privacy Act for any agency failure 

to grant his request for correction. The Board concluded that the employee's disclosure of the alleged 

falsification in his Privacy Act request, therefore, was not protected under the WPA. 

Wooten v, Department of Health and Human Services, SF122190W0740 (May 21, 1992) 54 M,S.P.R, 

143 (1992) 

Alleged reprisal for performing union representational duties by presenting grievances and unfair 

labor practice charges is protected by the CSRA, which prohibits reprisal for "testifying for or otherwise 

lawfully assisting any individual in the exercise of any" complaint, appeal, or grievance right. The Board 

held, therefore, that such an allegation may not form the basis of an IRA appeal. 
Jurisdiction - "Personnel Action" 

Caddell v. Department of Justice, AT122191W0681 (January 31, 1992) 52 M.S.P,R. 529 

(1992) 

The Board decided in this case that an order to undergo a fitness for duty examination is not a 

"personnel action" under the WPA. The appellant's argument that the order meets the statutory definition 

because it was disciplinary and was imposed in retaliation for his whistleblowing, would render every 

agency action allegedly made in reprisal for whistleblowing the proper subject of an IRA appeal. In the 

Board's view, Congress cannot have intended this result. 

Wagner v. Environmental Protection Agency, DC122190W0655 (November 21, 1991) 51 M,S,P,R. 

326 (1991) 

The Board concluded that neither an agency's removal of an employee from coverage under a 

compressed work schedule nor an agency's requiring an employee to report to an acting supervisor 

constitutes a "personnel action" under the WPA. 

Slake v. Department of the Treasury, CH122190W0568 (March 2, 1992) 53 M.S.P.R. 207 

(1992) 

The Board held that issuance of a vacancy announcement is not a "personnel action," but 

nonselection for the vacancy is, Conversely, the Board held that it has no jurisdiction over the cancellation 

of a vacancy announcement. 

Kochanoff v. Department of the Treasury, NY3443920045I1, NY1221920044W1 (July 21, 1992) 54 

M.S.P.R. 517 (1992) 

The Board held that, unlike the regular evaluation of an employee's performance under 5 U.S.C. 

Chapter 43, the evaluation of an employee's qualifications for promotion is not a "personnel action," 

Changing an employee's work shift also falls outside the scope of "personnel actions," the Board ruled, 

Coverage 

Duda v. Department of Veterans Affairs, CH122190W0634 (November 26, 1991) 51 M,S.P.R, 

444 (1991) 

The Board held that the WPA protects an employee who has not made a protected disclosure 

where a personnel action is allegedly taken against him because of his relationship with an employee who 

has made such a disclosure. The Board based this holding on the following considerations: (1) the WPA 

prohibits taking action against "any" employee because of "an" employee's disclosure; (2) the purpose of 

the Act was to encourage whistleblowers and strengthen the protections afforded them; and (3) such a 

holding would be consistent with court interpretations of other statutes. 

Defenses 

Marren v, Department of Justice, DAl22190W0432 (December 13, 1991) 51 M.S.P.R. 632 (1991) 

The Board concluded, with respect to the appellant's allegation of discrimination, that its authority 

in IRA appeals does not extend beyond the whistleblower issues and that it may take corrective action in 

such cases only where the appellant is the victim of retaliation for whistleblowing activities. The Board 

pointed out that an employee who believes that he has been discriminated against may seek EEOC 

review of his complaint where the Board lacks jurisdiction over the appealed matter, 
Timeliness 

Wood v. Department of the Air Force, AT1221920335W1 (July 31, 1992) 54 M.S.P,R. 587 

(1992) 

The Board held that an IRA appeal under the WPA must be filed within 65 days of the date of 

issuance of the Special Counsel's letter notifying the employee of the termination of its investigation. 

Although the statutory language is somewhat ambiguous, the Board reasoned, the regulatory language 

allowing 65 days is clear. The Board found further that the statutory and regulatory language permits no 

waiver of the filing deadline based on a showing of good cause. The Board declined to consider whether 

the deadline can be waived based on equitable estoppel or equitable tolling, however, electing to wait for 

cases in which those issues are directly raised. 

Merits Issues 

McClellan v. Department of Defense, NY122190W0254 (February 26, 1992) 53 M.S.P.R, 139 

(1992) 

Here, the Board rejected the contention that the appellant must prove actual knowledge of the 

protected disclosure on the part of the acting agency officials in order to prove reprisal for 

whistleblowing. The Board held that the legislative history of the WPA allows for the possibility that 

agency officials may be held culpable where they had only constructive knowledge of a protected 

disclosure, The Board found it unnecessary to elaborate on the constructive knowledge issue, though, 

because there was sufficient circumstantial evidence that the agency official knew of the appellant's 

protected disclosure in this case. 

INTERIM RELIEF 

Ginocchi v, Treasury, DC315I8910527 (February 19, 1992) 53 M.S.P.R. 62 (1992) 

The Board first held that an order of interim relief is appropriate in most adverse action cases, but 

that the administrative judge must make an individual determination in each case in which an appellant 

prevails. The Board ruled that it would not look behind an agency's determination that returning an 

appellant to the position he encumbered would be unduly disruptive, Finding that "presence" has a 

broader meaning than "return," the Board ruled that an agency may comply with an interim relief order 

by returning the prevailing appellant to his position with altered or restricted duties, or assigning him to 

a different position, so long as the appellant receives the pay and benefits of his former position, The 

Board stated that it would apply a "bad faith" test to an agency's determination that, although an 

appellant's return to his former position would be unduly disruptive, his presence performing other 

duties would not be, Finally, the Board ruled that an appellant who asserts that the agency is not in 

compliance with an interim relief order may move for dismissal of the agency's petition for review; the 

Board will not entertain a petition for enforcement of an interim relief order. 

McLaughlin v. United States Postal Service, BN07529010188 (August 18, 1992) 55 M.S.P,R. 192 

(1992) 

The Board held that an agency, in granting interim relief to a prevailing appellant, does not 

necessarily have to include overtime pay. The Board reasoned that, because the assignment of overtime 

work is typically discretionary with the agency, it is not payable as a term and condition of employment 

under law, rule, or regulation. If a collective bargaining agreement or binding agency policy requires the 

payment of overtime, however, the agency must include overtime pay in granting interim relief. 
Cassity v, Office of Personnel Management, SE831M9110075 (August 6, 1992) 55 M.S.P.R. 25 

(1992) 

In this annuity overpayment case in which the appellant prevailed, the Board held that it lacks the 

authority to order interim relief in retirement appeals generally because neither the plain language of the 

statute, nor its legislative history, suggests that interim relief is applicable to such cases. 

TIMELINESS OF PLEADINGS AND OTHER SUBMISSIONS 

Raphel v. Department of the Army, DA07529010417 (October 18, 1991) 50 M.S,P.R. 614 

(1991) 

In this case, the Board expanded its consideration of evidence regarding timeliness of filing based 

on postmark. Board regulations state that where submissions bear postmarks, the postmark date is 

the filing date. Under the Federal Rules of Civil Procedure, however, a paper is "mailed" when it is placed 

in a properly addressed envelope and deposited with a U.S. post office or in a post office mailbox. 

Under this rule, the date that an item is actually placed in the mail stream is the mailing date. Thus, 

despite the postmark, a party must be allowed to present evidence that the submission was actually 

placed in the mail stream before the filing deadline and, therefore, was timely filed, In these 

circumstances, if an affidavit or sworn statement filed by a party is unrebutted by the opposing party and 

is not inherently incredible, the Board may find the submission timely. 

Jude v. Department of the Treasury, DC07529110232 (December 13, 1991) 52 M.S.P.R. 5 

(1991) 

Here, the Board adopted the rule that the automatic dating of a facsimile transmission when it is 

made proves the filing date, although it may not have been date stamped as received until the next day. 

Davis v. Department of the Air Force, AT04329110297 (November 21, 1991) 51 

M.S.P.R. 246 (1991) 

Under the Soldiers' and Sailors' Civil Relief Act of 1940, the running of the appeal period is 

automatically halted from the date on which the appellant enters military service until the date on which 

he is released from military duty, The Board found that this provision applies to time limits that are not 

just statutes of limitation but also jurisdictional prerequisites. The Board concluded that the appellant, as 

a member of the Air Force, even though a reservist, was entitled to the advantage of the statute. 

ADVERSE ACTION CHARGES 

Criminal Misconduct 

Nazelrod v. Department of Justice, SL07528910448 (October 2, 1991) 50 M,S,P.R. 456 

(1991) 

The Board in this case overruled earlier case law on proof of theft. Where an agency specifically 

charges an employee with theft, the Board held, it must prove by preponderant evidence the elements 

of that crime, namely, the taking and possession of another's property in a manner inconsistent with the 

owner's rights and benefits, with an intent to permanently deprive the owner of the possession or use of 

his property. In a subsequent decision issued on July 1, 1992, the Board reaffirmed this ruling upon 

request for reconsideration by the Office of Personnel Management. See 54 M.S.P.R. 461 (1992). 
Prior Record 

Lewis v. Department of the Air Force, DE07528910199 (December 3, 1991) 51 M.S.P,R. 475 

(1991) 

In addition to the current charges against the appellant, the Board considered the appellant's past 

disciplinary record on which the agency had relied in imposing the penalty of removal, That the 

misconduct for which the prior discipline was imposed was unrelated in nature to the action on appeal, 

the Board majority found, does not require that it be discounted. The Chairman's dissent in this case 

went to the merits of the charges. 

HANDICAP DISCRIMINATION Accommodation 

McQueen v. Department of Justice, DC07528910031 (April 10, 1992) 53 M.S.P.R. 530 

(1992) 

The Board held that where an appellant is employed by a component of an agency—here, for 

example, the Immigration and Naturalization Service, which is part of the Department of Justice—he is 

entitled to accommodation of his handicap by consideration for reassignment throughout the agency, 

not just the component. Nonetheless, each component part of an agency generally has a mission that is 

separate from the other components, as well as separate appointing authority, budget, and employee 

allocation. The Board concluded, therefore, that reassignment across components will cause an undue 

burden in most cases. This gives rise to a presumption of undue burden where the appellant seeks 

accommodation by reassignment to a different component. The appellant may rebut that presumption, 

however, by showing that the agency would suffer no undue burden or by showing that the agency's 

claim of undue burden is actually a pretext for handicap discrimination. 

Gumper v. Department of Justice, SF0752910545B1 (August 26, 1992) 55 M.S.P.R. 173 

(1992) 

Further developing its precedent in McQueen v. Justice, the Board ruled here that the agency's 

obligation to accommodate an employee's handicapping condition by reassignment is nonetheless limited 

geographically to the commuting area where the employee is currently assigned. The Board was guided 

in this ruling by an EEOC regulation scheduled to take effect on October 1, 1992. 

RESTORATION TO DUTY 

Farrell v. Department of Justice, CH07528810420 (October 9, 1991) 50 M,S,P.R, 504 (1991) 

The Board found that the appellant was partially recovered from a work-related compensable 

injury and, therefore, his employing "agenc[y] must make every effort to restore" him to work, 

according to the circumstances of his case, under 5 C.F,R. 353.306. In the context of this regulation, the 

Board held that the word "agency" means all component parts of an agency and not just the component 

for which the appellant formerly worked. The Board held further, however, that the appellant was not 

entitled to nationwide consideration for restoration, but only within his commuting area. In so holding, 

the Board overruled its 1985 decision in Withers v. Air Force. 
SETTLEMENT 

Kelley v. Department of the Air Force, DE075286C0942 (October 29, 1991) 50 M.S.P.R. 635 

(1991) 

The Board held in this case that, unlike a Board decision, a settlement agreement provision 

calling for the "cancellation" of an agency action on appeal does not necessarily require the award of 

back pay, In future cases, the Board will not interpret the term "cancelled" to include entitlement to back 

pay and related benefits. If the intent of the parties entering into the agreement is to include the right to 

back pay, the terms of the agreement must specifically spell out that right. 
Cardoza v. Department of Justice, DE075289CO301 (March 6, 1992) 53 M.S.P.R. 264 

(1992) 

The parties here agreed that the agency had breached their settlement agreement by providing 

negative oral statements about the appellant's performance to prospective employers. The Board held 

that, although it could not grant damages in place of the wages the appellant would have earned if he 

had gotten one of the jobs, it would order the agency to comply with the settlement terms. The Board 

rejected the appellant's claim for the addition to the settlement of a safeguard against a future similar 

breach because the Board is without authority to modify the parties' contract unilaterally. The Board 

noted, however, that the appellant may request that his original appeal be reinstated because of the 

breach, 

Paderick v, OPM, PH083189A9094 (June 26, 1992) 54 M,S,P.R, 456 (1992) 

The Board announced in this case that henceforth it would interpret a settlement that provides 

that it is a "full and final settlement of all matters" in the appeal as constituting a waiver of the right to 

move for the payment of attorney fees. In so announcing, the Board overruled prior precedent. 

BACK PAY AND COMPLIANCE ISSUES 

Davis v, Department of the Navy, PH075286C0117 (October 1, 1991) 50 M.S.P.R. 592 

(1991) 

The Board held that the issue of handicap discrimination can be addressed for the first time in 

connection with a petition for enforcement of a Board order. It noted that normally the appellant is 

entitled to back pay in a case only if he was ready, willing, and able during the period of the unjustified 

adverse action to work in his job, but, where the appellant has raised an allegation of handicap 

discrimination, the inquiry is broadened to include whether he is able to work in his position or another 

position to which he could have been reassigned as a reasonable accommodation, 

Dobratz v. Department of Health & Human Services and OPM, DC04328810188 (January 31, 1992) 53 

M,S.P.R, 9 (1992) 

The Board held that where an employee qualifies for discontinued service retirement only because 

of a Chapter 43 performance-based removal that the Board has subsequently reversed, the legal basis for 

the retirement is terminated, The fact of retirement, therefore, cannot divest the Board of authority to 

enforce its decision to reinstate the appellant. Thus, the Board ruled, an agency's argument that it 

cannot reinstate him because of the retirement is without merit, 
Maddox v. General Services Administration, DA0432870276C1 (March 13, 1992) 53 M.S.P,R. 288 

(1992) 

Board precedent recognizes a distinction between a petition for enforcement of a Board order and 

a petition for enforcement of a settlement agreement. In complying with a settlement agreement, the 

agency need not serve notice of compliance. The Board ruled that a petition for enforcement of a 

settlement agreement, therefore, must be filed within a reasonable period of time after the appellant 

discovers the asserted noncompliance. 

ATTORNEY FEES 

Mitchell v, Department of the Navy, PH075287A0252 (November 7, 1991) 51 M,S.P.R, 103 

(1991) 

The Board announced here its new ruling that a determination of whether an award of attorney fees 

is warranted in the interest of justice must be made based on the existing record in an appeal, The Board 

also announced, over the Chairman's dissent, its new ruling that a fee award may be ordered under the 

more generous Title VII standards only where the Board has made a finding of prohibited discrimination. 

Both announcements overruled prior Board case law. 

Lopez v. United States Postal Service, DE075290A0402 (June 10, 1992) 54 M.S.P.R. 230 

(1992) 

The Board reiterated in this case that the relevant market rate is normally based on the place 

where the case was heard, but higher rates in effect where out-of-town counsel practices can be 

paid if there are compelling reasons, or if it was reasonably necessary, for the appellant to employ the 

out-of-town counsel, The absence of local attorneys with specialized expertise is one such compelling 

reason. The appellant bears the burden of proof on this point, Once the appellant presents evidence 

relating to the reasonableness of his fee request, the burden of production shifts to the agency to show 

the unreasonableness of the appellant's claim, 

Pecotte v. Department of the Air Force, SF075289A0340 (August 25, 1992) 55 M,S.P.R. 165 

(1992) 

The Board reconsidered its rulings on the award of attorney fees where the parties have 

entered into a contingency fee agreement. In view of the Supreme Court's decision in City of Burlington 

v. Dague, ____________ U.S. ___ , 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), regarding statutes that allow 

for the award of reasonable fees against the Federal Government, the Board found that it can no longer 

enhance an attorney fee award where the relevant market provided for an upward adjustment for 

contingency cases as a class. 

Chin v. Department of the Treasury, PH0752890168A1 (September 8, 1992) 55 M.S.P.R. 84 

(1992) 

In the context of a motion for attorney fees under 5 U,S.C. 7701(g)(2), where a U,S. district court 

had found that the agency discriminated against the appellant, the Board ruled that an appellant is 

entitled to reimbursement for reasonable out-of-pocket expenses incurred personally by him in 

accordance with the Civil Rights Act standard. 
BOARD PROCEDURES 

Dismissal Without Prejudice 

Thomas v. Department of Veterans Affairs, CH07529110191 (November 19, 1991) 51 M.S.P.R. 

218 (1991) 

Because of the importance of a hearing to the appellant in the statutory scheme, the Board found 

that, as a matter of policy, an administrative judge should not grant an agency's request for dismissal of 

an appeal without prejudice to refiling the appeal within a specified period of time, Where the delay is 

for the agency's benefit, the appellant should not face the additional burden of refiling or otherwise 

reinstating his appeal. If the circumstances warrant, a continuance should be granted instead. 

Moore v. Department of Treasury, SL07529110273 (January 13, 1992) 52 M.S.P.R. 362 

(1992) 

The Board found here that the administrative judge's dismissal of an indefinite suspension appeal 

without prejudice to its refiling after criminal proceedings end is error. An indefinite suspension is 

appropriate despite the pendency of criminal proceedings because it is based only on reasonable cause, 

not proven misconduct. 

Dismissal for Failure to Prosecute 

Wright v. Department of Treasury, AT07529110724 (March 6, 992) 53 M.S.P.R, 244 (1992) 

The Board held in this case that the sanction of dismissal for failure to prosecute an appeal is 

appropriate only when a party has failed to exercise the basic due diligence expected in complying with 

an order or has exhibited negligence or bad faith in its efforts to comply, Good faith efforts falling short 

of full compliance must be considered. 

Hearing Waiver by Failure to Appear 

Berry v. Department of Veterans Affairs, NY07529010467 (November 19, 1991) 51 M,S.P.R, 317 (1991) 

The Board held here that, when an appellant fails to appear for his requested hearing, but his 

representative does appear, the administrative judge should give the representative a choice of 

proceeding with the hearing, having a decision rendered on the written record, or requesting a 

continuance, The presence of the appellant's representative and his witnesses in this case weighed 

against finding that the appellant had waived his right to a hearing under the Federal Circuit Court's 

decision in Callahan, 746 F.2d 1556, 1559 (Fed. Cir, 1984). 
APPENDIX C - SIGNIFICANT BOARD DECISIONS 

ORIGINAL JURISDICTION CASES 

This appendix contains summaries of significant original jurisdiction cases decided by the Board 

during Fiscal Year 1992. 

Board decisions are published in West Publishing Company's United States Merit Systems 

Protection Board Reporter. The M.S.P.R. citations below are to that publication. 

SPECIAL COUNSEL DISCIPLINARY ACTIONS - HATCH ACT 

Special Counsel v. Mahnke, CB1216910004T1 (April 23, 1992) 54 M.S.P.R. 13 (1992) 

The Board held that when a party designation appears with the name of a candidate in an 

election, that candidate represents the party within the meaning of the Hatch Act, and the election is, 

therefore, a partisan election, The Board further held that the petitioner, a local employee in a 

federally-funded position, violated the Hatch Act by participating as a candidate in a partisan election for 

alderman, The Board examined the seriousness of the respondent's violation, together with all the 

mitigating and aggravating factors, including the fact that he had received a warning from the Special 

Counsel after he participated in a partisan election in 1988, and concluded that the circumstances 

warranted the respondent's removal. 

Special Counsel v. Narcisse, CB1216910025T1 (Nov. 20, 1991) 51 M,S.P.R. 222 (1991) 

The Board held that a Federal employee's part-time employment conducting telephone voter 

preference polls, without soliciting votes, did not constitute participating in a partisan political campaign 

in violation of the Hatch Act. The Board also determined that the respondent's statement of support made 

during a television interview at the polling organization's office, which was not arranged or approved by 

any campaign organization, was not made in concert with an organized campaign. Rather, the Board held 

that the respondent was merely expressing her personal opinion concerning the candidates, a right 

protected by the Hatch Act. Finding that the Special Counsel failed to prove the charges against the 

respondent, the Board dismissed the complaint, 

Special Counsel v. Winkler, CB1216910003T1 (June 9, 1992) ** M.S.P.R. *" (1992) 

The Board held that, in deciding whether a violation of the Hatch Act warrants removal, a 

respondent's cessation of the violative activity may be considered as a mitigating factor, but will not 

necessarily be the determinative factor. The Board found that the respondent violated the Hatch Act by 

running as a Democratic candidate for alderman in 1989. The Board held that the fact that the 

respondent ceased his violation by not running for reelection was a factor to consider in mitigation, but, 

given the seriousness of the respondent's violation and the need to effectuate the purpose of the Hatch 

Act, that factor would not justify a decision not to impose a penalty. The Board concluded that the 

respondent's violation of the Hatch Act warranted removal. 
SPECIAL COUNSEL STAY REQUESTS - WHISTLEBLOWER PROTECTION ACT 

Special Counsel v. Department of the Air Force, CB1208920017U1 (May 27, 1992) ** M.S.P.R. *** 

(1992) 

The Special Counsel requested a stay of the removal of an employee, alleging that there were 

reasonable grounds to believe the removal was ordered in reprisal for the employee's protected 

disclosure. The Chairman found that it would not be inappropriate under these circumstances to stay the 

action and granted the stay. 

Special Counsel v, Department of the Air Force, CB1208920017U2 (July 9, 1992) ** M.S.P.R. *** 

(1992) 

The Special Counsel requested that the Board extend the stay granted in the above case for 120 

days. The Special Counsel described the present state of her investigation and stated that the case was 

unusually complex and would require investigation into activities over a 3-year period. The Board, 

viewing the record in the light most favorable to the Special Counsel, determined that the Special 

Counsel's prohibited personnel practice claim was not unreasonable and granted the 120-day extension. 

PROPOSED ACTIONS AGAINST ADMINISTRATIVE LAW JUDGES 

In re Stephens, CB7521910010T1 (January 30, 1992) 52 M.S.P.R. 522 (1992) 

The Board held that an unsupported, nonspecific claim that an agency seeks improperly to 

interfere with an administrative law judge's judicial independence is insufficient to invoke Board 

jurisdiction. The petitioner claimed that the agency, by requiring his attendance at an instructional 

program, sought to interfere with his judicial independence and, therefore, was constructively 

removing him. The Board found that the petitioner did not demonstrate that the required instruction was 

calculated to interfere with his impartial exercise of the judicial function. Determining that the petitioner 

failed to proffer evidence to show he was making a non-frivolous allegation of constructive removal, the 

Board dismissed the claim for lack of jurisdiction. 

ADDENDUM DECISIONS 

Special Counsel v. Department of the Air Force, CB1214910028C1 (November 25, 1991) 51 M.S.P.R. 

412 (1991) 

In this case, the Board held htat when it orders a stay of a personnel action, the agency must 

maintain the employee in duty status and allow the employee to pursue the duties of her position. Here, 

the agency returned the employee to duty only after assigning her to a new duty station and placing her 

in compensatory time status. The Board found that the language of the stay order requiring the agency 

to maintain the employee in duty status was clear and unambiguous, and that the agency disregarded 

this order and altered the status quo. On these and other grounds, the Board found the agency in 

noncompliance and ordered the agency to reinstate the employee's compensatory time. The agency 

complied with this order, and the Board then dismissed the case as moot. See Special Counsel v, 

Department of the Air Force, CB1214910028C1 (January 13, 1992), 52 M,S.P.R, 125 (1992) (Table). 
National Labor Relations Board v, Boyce, CB7521910027A1 (November 18, 1991) 51 M.S.P.R. 

295 (1991) 

The Board held that attorney fees may be awarded to an administrative law judge who prevails in 

an action brought before the Board by an agency seeking authorization of a proposed personnel action. 

Here, the personnel action was a proposed furlough to meet the requirements of a sequester anticipated 

to begin October 1, 1990. After the threat of sequester was removed, the Board granted the agency's 

motion to withdraw the complaint and dismissed the case with prejudice. In regard to the respondents' 

motion for attorney fees, the Board held that the respondents were not prevailing parties because the 

relief they obtained was not causally related to the Board proceeding, but to action by the Congress. The 

Board also found that fees were not warranted because the agency's proposed furlough action was 

substantially justified, given the President's sequester order and the Gramm-Rudman-Hollings Act. 

Accordingly, the Board denied the motion for attorney fees. 
APPENDIX D - SIGNIFICANT LITIGATION 

Significant litigation involving the Board during Fiscal Year 1992 included the following: 

RETIREMENT BENEFITS FOR FORMER SPOUSES 

Newman v, Love, 962 F.2d 1008 (Fed. Cir, 1992) 

When the two petitioners in this case were divorced from their respective retired Federal 

employee spouses, the divorce decrees provided that property division issues would be determined at 

a later date. The petitioners were subsequently awarded future survivor annuity benefits in their 

property settlements, but OPM found these settlements ineffective as a basis for a survivor annuity, 

citing its regulation that prohibits any property division after an initial divorce decree from being 

effective as a basis for an award of a former spouse annuity. The Board reversed OPM's determination 

on the grounds that its regulation was contrary to the plain meaning of the statute. The court held that 

the petitioners' property settlement orders were not prohibited "modifications" because they were the 

first orders dividing the marital property and did not change, alter, or limit anything, The court, 

therefore, agreed with the Board's decision that the petitioners were entitled to future survivor annuities 

as former spouses. 

TIMELINESS 

Mendoza v. Merit Systems Protection Board, 966 F.2d 650 (Fed. Cir. 1992)(in banc) 

In an in banc decision, the United States Court of Appeals for the Federal Circuit upheld the 

Board's decision dismissing the petitioner's appeal as untimely, The petitioner, who was 

five weeks late in filing her appeal to the Board of an OPM retirement decision, asserted that her appeal 

was late because she was "very old and sickly." The Board's administrative judge ordered the petitioner 

to address the timeliness issue, she did not respond, and OPM moved to dismiss for untimeliness, The 

administrative judge then issued a second order directing the petitioner to submit "evidence and 

argument" concerning her delay in filing her appeal. She again failed to respond, and the Board dismissed the appeal for untimeliness. She petitioned the court for review, and it reversed the Board in a 

panel decision. 

The Board requested reconsideration and suggested rehearing in banc. A divided panel denied 

the request for reconsideration; however, the court in banc granted rehearing and affirmed the 

Board's decision with one judge dissenting, The court noted that the only evidence in the record 

supporting the petitioner's claim of old age and sickliness was a document stating that she was 

born in 1925. The court held she failed at "her peril" to respond to the Board's order requesting evidence. It held, therefore, that she failed to show good cause for her untimely filed appeal, and 

the administrative judge, therefore, did not abuse her discretion by dismissing the appeal, 
WHISTLEBLOWER PROTECTION ACT -JURISDICTION AND EXHAUSTION OF REMEDIES 

Knollenberg v. Merit Systems Protection Board, 953 F.2d 623 (Fed. Cir. 1992) 

In this case of first impression under the WPA, the court affirmed the Board's decision dismissing 

the petitioner's appeal for lack of jurisdiction, agreeing with the Board's determination that the petitioner 

had not first presented a basis for corrective action to the Special Counsel, as required by the Act, 

When the petitioner filed an IRA appeal with the Board, he alleged that his employing agency, the 

Department of the Navy, had not selected him for a position because of his protected whistleblowing 

disclosures. The Board dismissed the appeal for lack of jurisdiction, finding that he had not raised 

the alleged retaliatory nonselection before the Special Counsel. See Knollenberg v. Department of the 

Navy, 47 M.S.P,R. 92, 97 (1991). The court agreed, finding that, before the Special Counsel, the petitioner 

did not tie his nonselection to allegations of reprisal for whistleblowing, The court found, therefore, that 

he did not meet the exhaustion requirement of the WPA. 

WHISTLEBLOWER PROTECTION ACT -SAVINGS PROVISION AND STANDARD OF PROOF 

Eidmann v. Merit Systems Protection Board, No. 913587 (Fed. Cir., September 4, 1992) (petition for reh'g 

filed September 17, 1992) 

In this case, a Special Counsel disciplinary action, the Board ordered discipline imposed on the 

petitioner for taking a personnel action because of an employee's whistleblowing. The court affirmed the 

Board's decision, while reversing the Board's ruling on the standard to be applied in determining the 

relationship between the protected disclosure and the personnel action, The court first affirmed the 

Board's determination that the provisions of the WPA apply because the administrative proceeding was 

not "pending," under the terms of the Act's savings clause, until the Special Counsel filed the complaint 

with the Board, and that date was after the effective date of the WPA. 

The Board had ruled that the new "contributing factor" standard of the WPA applies to disciplinary 

actions brought by the Special Counsel under 5 U.S,C. 1215 as well as to corrective actions brought under 

5 U.S,C. 1214. The court disagreed, reasoning that, because the Congress specifically changed the 

standard under 1214, but not under 1215, the Special Counsel must continue to show in disciplinary action 

complaints that the protected disclosure was a "significant factor" in the decision to take the personnel 

action. The court concluded, however, that, although the Board adopted the wrong standard, it reached 

the right result because the evidence was sufficient to meet the higher "significant factor" standard. 

ADVERSE ACTIONS - JUDICIAL SANCTIONS FOR FRIVOLOUS APPEALS 

McEnery v. Merit Systems Protection Board, 

963 F,2d 1512 (Fed, Cir, 1992), reh'g denied (July 23, 1992) 

The court affirmed the Board's decision dismissing the petitioner's appeal for lack of jurisdiction 

and concluded that the appeal was frivolous. Before the Board, the petitioner contended that his 

reassignment constituted a reduction in grade and pay. Although he received the same salary before and 

after his reassignment, he asserted that the Postal Service had constructively reduced his pay because his 

former peers received a pay increase. He also contended that his assignment to a position of lesser 

responsibilities was a reduction in grade. The Board rejected these claims. 
On review, the court concluded that the Board properly interpreted Federal Circuit and Claims 

Court precedents in dismissing the petitioner's appeal. The Court found that under Garbacz v, United 

States, 656 F.2d 628 (Ct. Cl. 1981), the petitioner suffered no pay reduction because a reduction must be 

ascertainable at the time of the personnel action, not at some future date. The court determined that the 

petitioner's failure to distinguish Garbacz and other controlling case law in his briefs was inexcusable and 

warranted sanctions, Also inexcusable, the court said, was his attempt to escape the effect of precedent 

by presenting inconsistent characterizations of the facts. The court held the petitioner and his counsel 

jointly and severally liable for the Government's costs and damages of $500. 

67 

ADVERSE ACTIONS - INDEFINITE SUSPENSIONS 

Dunnington v. Department of Justice, 

956 F,2d 1151 (Fed, Cir. 1992), reh'g denied (May 5, 1992) 

The court affirmed the Board's decision, 45 M.S.P.R. 305 (1990), which held that the agency had 

reasonable cause to suspend the petitioner indefinitely from his position as a border patrol agent on the 

basis of criminal complaints and warrants of arrest against him for alleged sexual abuse of children. The 

Board concluded that, although an arrest, standing alone, may not meet the reasonable cause standard, an 

arrest pursuant to a warrant may be sufficient because warrants generally are based on a magistrate's 

finding of probable cause. The court agreed that the suspension action met the statutory standard. It 

declined to hold, however, that the issuance of an arrest warrant based on probable cause, standing 

alone, satisfied the reasonable cause standard. The court reasoned that warrants are typically issued ex 

parte and are often based on information supplied by confidential informants. However, the court found 

that the agency relied not only on the warrant but also on "additional factual material culled from the 

[criminal] complaints and supporting allegations...," 
APPENDIX E - MERIT SYSTEMS STUDIES AND 

REVIEWS OF OPM SIGNIFICANT ACTIONS 

The following are summaries of the Board's reviews of OPM significant actions and merit systems 

studies released during Fiscal Year 1992 or completed for release early in Fiscal Year 1993. 

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

Balancing Work Responsibilities and Family Needs: The Federal Civil Service Response - This 

report was summarized in the Board's FY 1991 Annual Report. 

Civil Service Evaluation: The Role of the U,S. Office of Personnel Management - This study 

reviewed the role of the OPM personnel management evaluation (PME) program in providing oversight 

of personnel management in Federal agencies. Although the Board found that the regulatory compliance 

aspects of the program had improved since the last Board review, it found that significant additional 

program initiatives were needed. These initiatives need to address the means to link personnel 

management practices to agency mission accomplishment, including convincing managers of the value of 

the evaluation process in identifying solutions to their human resources management problems. Further, 

much more needs to be done to assist agencies in creating personnel management evaluation programs 

that identify and meet managers' needs. 

The Board recommended that OPM undertake initiatives to improve their written guidance on 

agency PME programs and that a number of communications initiatives to agency PME staffs and 

managers be undertaken. The report also recommended that OPM consider the joint development of a 

model agency personnel management evaluation program that would develop techniques and 

approaches that could be exported to other agencies. Finally, the Board recommended that PME be 

made a part of agencies' internal management controls. 

Federal Personnel Research Programs and Demonstration Projects: Catalysts for Change -This 

report reviewed OPM's accomplishments in promoting and overseeing research programs and 

demonstration projects under the authority granted by the CSRA. The study found that the authority has 

been a viable tool in making changes in Federal personnel management policies and systems, As an 

example, results from various pay studies conducted or commissioned by OPM, as well as results from 

various demonstration projects, were used, in part, to formulate some provisions of the Federal Employees Pay Comparability Act and to develop the Administrative Careers With America examination, 

The report concluded, however, that the effectiveness of the authority is weakened by some 

structural, procedural, and other obstructions. To make the authority a more effective catalyst for 

change, the Board recommended that OPM be more proactive by promoting research programs and 

demonstration projects and simplifying the project approval process, To encourage agencies to 

participate, OPM should take fuller advantage of its authority to request appropriations to fund agencies 

that assist OPM in carrying out such projects. Moreover, strong OPM leadership would be enhanced if 

Congress would consider streamlining the legal requirements and expanding the use of demonstration 

projects. 

MERIT SYSTEMS STUDIES 

To Meet the Needs of the Nations: Staffing the U,S. Civil Service and the Public Service of Canada 

- This study examined differences between the national civil services of the United States and Canada in 

merit staffing, pay, and labor-management relations. The report concluded that recruiting efforts in the 

United States might be improved by adapting some of the Canadian practices for use in the U.S. Civil 

Service. 
With respect to outside hires, for example, the central staffing agency in Canada refers a list of 

well-qualified candidates to the manager, who then participates in ranking the candidates and must select 

the top-ranked candidate, By contrast, U.S, candidates are referred in rank order by either OPM or an 

agency examining office, and the manager, who may not participate in the ranking, must select from 

among the top three available candidates. For internal hires, the Canadian ranking panel functions about 

the same as for outside hires. Again, the Canadian manager participates in the ranking process and 

must select the top-ranked candidate, in contrast with U.S. managers, who may select any of the 

referred candidates but may not participate in the ranking process. Unlike the U.S, system, the Canadian 

system permits only rare use of "career ladder" advancement, so that virtually every movement upward 

within the system is through competition. 

Canadian managers have broad authority to determine which employees will be retained 

following a reduction in force. U.S, managers, however, operate within a closely prescribed system that 

limits their ability to determine which employees will be in which jobs after a down-sizing. The greater 

authority of Canadian managers is balanced by greater opportunity for employees to challenge the 

managers' decisions through the appeals process. The U.S. system provides its employees fewer 

opportunities to challenge the decisions, and relies on more restrictive rules to protect employees from 

unfair management decisions. 

Federal First-Line Supervisors: How Good Are They? - This study examined the quality of first-line 

supervisors in the Federal Government. Results of surveys indicated that although the quality of 

supervisors was generally seen as fairly high, there were differences in how positively the various groups 

surveyed viewed first-line supervisors. The supervisors themselves viewed their performance much 

more positively than did second-level supervisors and nonsupervisory employees. These differences in 

perceptions were found not only for ratings of task performance, but also for ratings of abilities and 

overall effectiveness. 

Of 118 possible supervisory tasks included on the surveys, 14 were rated by at least 85 percent of 

first-line and second-level supervisors as being important to success to either a considerable or great 

extent. These tasks included not only what a supervisor does (such as planning work and establishing 

priorities), but also how the supervisor does it (such as being consistent and fair in dealing with 

employees). While ratings of supervisors on these 14 tasks were fairly positive overall, there were 

some disturbing findings. For example, although all first-line supervisors thought they did an acceptable 

or better job of setting a good example for employees, almost one out of four nonsupervisory 

employees (23 percent) disagreed, and 8 percent of the second-level supervisors also disagreed. 

The Board suggested that agencies: (1) re-examine their procedures for selecting supervisors in 

the first place to ensure that these procedures are resulting in selection of individuals highly qualified 

for these difficult jobs, and (2) use training needs assessment information to tailor their training and 

development programs to best meet the needs of individual supervisors. 

Workforce Quality and Federal Procurement: An Assessment - This study, an analysis of data 

obtained through four surveys of affected groups, revealed that, for the most part, the current 

members of the Federal procurement workforce believed that they were well qualified to perform their 

jobs, Nevertheless, most employees also said that they needed additional training in a variety of areas, 

Their supervisors, although positive about the capabilities of their subordinates, also thought that there 

was considerable room for improvement and that their subordinates needed additional training. 
Their clients believed that contract specialists perform some aspects of their jobs well, but these 

same clients were not entirely satisfied with the quality of the service they received. Senior executives 

were concerned about the timeliness of some procurement actions. Many did not believe that the 

procurement process was particularly responsive to the needs of their organizations. In their view, and 

the view of private sector vendors, the procurement process has become so complicated that the 

complexities may exceed the capabilities of the contract specialists who must administer the system. 

The report recommended that: (1) contract specialists be better trained to make good business 

decisions and to provide customer-oriented support for their clients; (2) that contract specialists be 

encouraged by their supervisors to be more creative in responding to customer needs efficiently without 

compromising the integrity of the system; and (3) the overly complicated procurement process be vastly 

simplified to enable the users to improve the efficiency of Government procurement, 

Federal Workforce Quality: Measurement and Improvement - The report of the Advisory 

Committee on Federal Workforce Quality Assessment, jointly established by the Board and OPM in 1990, 

During its 2-year term, the committee, composed of public and private sector executives, union officials, 

and academicians, met to study the Federal Government's assessment program and to provide advice 

on how it could be improved. 

The committee concluded that the Government has not experienced the decline in worker quality 

that had been feared by many. At the same time, the panel found room for improvement in the way the 

Government measures quality and offered a number of suggestions for refining the assessment process 

as well as for improving workforce quality in general. 

A major recommendation of the committee was that the Government define and deal with 

workforce quality in a way that takes into account the complexity of the subject. This means recognizing 

the interaction of individual worker attributes, the environmental factors that affect work and workers, the 

processes that organizations use to do their jobs, and the results of the employees' and the organization's 

efforts. 

The committee called for all Federal department and agency heads to identify their customers and 

to set standards for the quality of the services provided them. The Committee also recommended that a 

council be formed to coordinate the many workforce assessment projects currently underway in Federal 

agencies. 

A Question of Equity: Women and the Glass Ceiling in the Federal Government - This study 

examined career advancement in the Federal Government and whether there are barriers that account for 

the underrepresentation of women in senior-level jobs. The Board found that such barriers do exist and 

have resulted in women being promoted fewer times over the course of their careers than men with 

comparable education and experience. The Board also found that reliance on traditional criteria for 

evaluating job commitment and advancement potential have often had an adverse impact on women. 

Some women reported that they experience stereotyping that cast doubts on their competence. 

The report concluded that the imbalance in the percentage of women in higher grades can be 

corrected through concerted action, The Board recommended that: (1) the Government reaffirm its 

commitment to equal employment opportunities and that agencies make special efforts to increase the 

representation of women in senior positions; (2) women take full advantage of opportunities to increase 

their competitiveness and demonstrate their abilities, and theagencies make these opportunities available; 

(3) managers seek to curtail, within themselves and their organizations, any expressions of stereotypes or 

attitudes that may create an environment hostile to the advancement of women, and evaluate the criteria 

they may be using to evaluate employees' potential for advancement; and (4) agencies conduct their 

own assessment of barriers to advancement for women. 
Federal Blue Collar Employees: A Workforce In Transition - This study examined the people and 

systems that make up the Federal crafts, trades, and labor force, analyzing important issues from the 

perspectives of line managers, employees, personnel offices, and unions. 

Little attention has been focused on the one out of every six Federal civilian employees who are 

"blue collar" employees. Yet three out of four of the 5,753 employees who were separated from their 

jobs in FY 1991 were blue collar employees, mostly in the Defense Department, Despite the decrease in 

their numbers, the importance of the blue-collar employees who remain will increase as defense spending 

shifts from procurement of new systems to maintenance and upgrading of existing systems. 

The report concluded that blue-collar employees are confronted by unique problems and 

unresolved issues that need to be addressed apart from their white-collar colleagues. For example, over 

half of blue-collar employees are at the top step of their grade, with little room or expectation for 

advancement; and, although the blue-collar pay system provides most blue-collar employees a rate of 

pay higher than the prevailing local rate, successive pay caps have resulted in an average pay gap of 9.6 

percent between Federal blue-collar and comparable private sector pay rates. 

Surveys of and interviews with blue-collar employees indicated that, in addition to concerns 

about downsizing, low morale, and pay, many feel treated as second-class citizens in their organizations. 

They believe the quality of their supervisors and performance appraisal systems needs to be improved, 

and they expressed a need for more training, Although 34 percent of the Federal blue-collar workforce 

consists of minority group members, compared to 22 percent minority group members in the national 

workforce, Hispanics remain underrepresented, and women comprise just 10 percent of the Federal bluecollar workforce. 

The report encouraged Federal policymakers and managers to consider blue-collar employees in 

proposed programs, policies, and regulations, and to address the issues that most concern these 

employees. It further recommended that OPM continue to develop and implement a strategy for phasing 

out the pay cap and for more closely aligning blue- and white-collar pay-setting practices.