United States 

Merit Systems Protection Board 

Annual Report for FY 2014 

May 29, 2015 
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Foreword

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

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

(FY) 2014.

We invite customers and stakeholders to send comments to improve the MSPB Annual Report to:

DeeAnn Batten, Ph.D.

Performance Improvement Officer

U.S. Merit Systems Protection Board 

1615 M Street, NW

Washington, DC 20419

Email: mspb@mspb.gov (to the attention of the PIO)

Toll Free: 1-800-209-8960

Fax: 202-653-7130

Information about MSPB’s FY 2014 program performance results (as required under the 

Government Performance and Results Act Modernization Act) is available in the Annual 

Performance Report and Annual Performance Plan (APR-APP) for FY 2014-2016. Financial 

accountability and audit information is included in MSPB’s Annual Financial Report (AFR). MSPB 

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

www.mspb.gov, when they are released.

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

listservs, follow us on twitter(@USMSPB), or download the MSPB app (for Android or iPhone). 
iv Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

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v Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Table of Contents

 Page

Message from the Chairman ...................................................................................1

Introduction...........................................................................................................3

About MSPB................................................................................................................................................. 3

MSPB’s Mission and Vision ....................................................................................................................... 3

Board Members............................................................................................................................................ 4

MSPB Offices and Their Functions.......................................................................................................... 5

MSPB Organizational Chart....................................................................................................................... 8

Fiscal Year 2014 in Review ......................................................................................9

Adjudication.................................................................................................................................................. 9

MSPB Regulations...................................................................................................................................... 10

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

The Significant Actions of the Office of Personnel Management..................................................... 11

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

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

Legislative and Congressional Relations Activity.................................................................................. 12

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

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

Case Processing Statistics for FY 2014 ................................................................... 17

Summary of Cases Decided by MSPB.................................................................................................... 17

Cases Processed in the Regional and Field Offices.............................................................................. 18

Cases Processed at Headquarters............................................................................................................. 28

Significant Board Decisions and Court Opinions Issued in FY 2014 ....................... 35

Significant Board Decisions Issued in Fiscal Year 2014 ...................................................................... 35

Significant Opinions Issued by the U.S. Court of Appeals for the Federal Circuit......................... 45

Significant Board Decisions and Court Opinions Issued in early FY 2015...................................... 45

Summary of Merit Systems Studies Activity in FY 2014 .......................................... 47

Summaries of Reports Released in FY 2014.......................................................................................... 48

Summaries of Reports Released in Early FY 2015 ............................................................................... 49

FY 2014 Issues of Merit Newsletter Topics.............................................................................................. 49

Updating the Merit Systems Studies Research Agenda for FY 2015 - 2018..................................... 50

2015 Merit Principles Survey.................................................................................................................... 50

MSPB Cloud-based Survey Platform...................................................................................................... 50

Significant Actions of the U.S. Office of Personnel Management in FY 2014 ........... 51

Financial Summary............................................................................................... 57
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1 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

U.S. MERIT SYSTEMS PROTECTION BOARD

FISCAL YEAR 2014 ANNUAL REPORT

MESSAGE FROM THE CHAIRMAN

I am pleased to submit this Annual Report of the significant actions of the U.S. Merit 

Systems Protection Board (MSPB) in FY 2014. As an independent, quasi-judicial agency, 

MSPB’s mission is to protect the Federal Merit Systems Principles, and ensure a workforce 

free of Prohibited Personnel Practices (PPPs). 

As a third party adjudicator of appeals, MSPB reviews appeals based on law and legal 

precedent and ensures fairness and due process in a more efficient manner than can be 

accomplished separately by every Federal agency. In FY 2014, MSPB issued a record-setting 

17, 466 decisions, an unprecedented 130 percent increase in the number of appeals issued in 

FY 2013. The significant increase in the number of decisions issued was a direct result of the 

filing of over 30,000 furlough appeals in FY 2013. I also am proud to report that by the end 

of April 2015, MSPB had issued decisions in almost 70 percent of initial furlough appeals, 

and in over 43 percent of the petitions for review (PFRs) of furlough appeals filed with the 

Board at headquarters. 

In addition to adjudicating appeals, MSPB completed a multi-year effort to revise and update 

its adjudication regulations. We also continued to provide alternative dispute resolution 

services that give the parties a more active role in reaching a mutually acceptable resolution 

of their differences than what may be achievable through adjudication on the merits. For 

example, our mediation appeals program (MAP) maintained its settlement rate of over 60%, 

even though fewer MAP cases closed in FY 2014 due to the resources needed to process 

furlough cases. 

MSPB’s merit systems studies provide recommendations based on objective scientific 

research that improve the practice of merit in the workplace, reduce PPPs, and improve 

employee engagement. In FY 2014, MSPB issued study reports on topics including the role 

of training and experience in hiring, understanding perceptions of favoritism, sexual 

orientation in the workplace, and practices and perceptions in veteran hiring. In addition, 

MPSB made significant progress on completing its studies research agenda for FY 2015-

2018. Summaries of these reports, two reports issued in early FY 2015 on veterans’ 

employment redress laws and fair and open competition, and other studies activities are 

included in this Annual Report. 

Implementation of the Veterans Access, Choice, and Accountability Act of 2014 has already 

affected MSPB. This law gives the Secretary of the Department of Veterans Affairs (VA) 

more flexibility in removing or demoting VA senior executives (SES) and changes the way 

MSPB processes VA SES appeals. The law stipulates that the MSPB Administrative Judge 

(AJ) must issue a decision on a VA SES case within 21 days of the filing of the appeal with 

MSPB. In addition, the decision issued by the AJ is final, with no additional appeal or review 

permitted by the full MSPB Board at headquarters, or by the Courts, a review right afforded 
2 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

to other Federal executives and employees guaranteed by Federal statute and legal precedent. 

In our experience, the MSPB AJs assigned to the VA SES appeals we have received so far, 

and a team of other MSPB legal staff members, have had to delay other adjudication work in 

order to meet the 21-day deadline.

Despite our successful year, MSPB faces external challenges including smaller Federal 

budgets, the return of sequestration, and increasing Federal retirements that may increase the 

number of appeals we receive in FY 2016 and beyond. These factors also emphasize the 

importance of our merit systems studies and OPM review functions in order to ensure that 

the workforce continues to be managed under the merit principles and free from PPPs. 

Internally, 20 percent of MSPB employees and 30 percent of our AJs are eligible to retire in 

the next two years. We are thankful that Congress recognized our need for additional 

resources in FY 2014 and FY 2015 with an increase in our appropriations, which allowed us 

to increase the number of on-board employees at the end of FY 2014 by 12 percent. These

resources were essential to our ability to adjudicate furlough and non-furlough cases in an 

efficient manner, and simultaneously perform our other statutory and support functions. In 

addition, we bid a fond farewell to Vice Chairman Anne Wagner in February 2015, and the 

President has not announced a nominee for the third Board Member.

The overwhelming influx of furlough appeals required considerable changes to our 

processes, our IT systems and infrastructure, and made it clear that we need to shift from 

paper to electronic adjudication and records management. This shift will provide significant 

efficiencies in the long-run, but will require initial and sustained investment to ensure a 

successful transition. We also need a secure, cloud-based survey platform to support our 

merit systems studies and customer service survey needs effectively and efficiently. MSPB 

must be able to sustain its human and budgetary resources in order to perform its work in 

the future.

Our success in FY 2014 required the combined efforts of every MSPB office and employee. 

Their expertise and dedication is without equal and my fellow Board Members and I are 

proud to work with them to achieve our mission.

Susan Tsui Grundmann,

Chairman
3 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

INTRODUCTION

This U.S. Merit Systems Protection Board (MSPB) Annual Report for FY 2014 includes summaries 

of the most significant Board decisions and relevant Court opinions, case processing statistics, 

summaries of MSPB’s merit systems study reports and Issues of Merit (IoM) newsletter topics, and 

summaries of the significant actions of the Office of Personnel Management (OPM).

1 The report 

also contains summaries of the Board’s financial status, outreach and merit systems education 

activities, legislative and congressional relations activities, international activities, internal 

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

significant activities or events since the end of FY 2014, the report includes updated information as 

a service to MSPB’s stakeholders. 

About MSPB

MSPB was created by the Civil Service Reform Act of 1978 (CSRA) to carry on the function of the 

Civil Service Commission to adjudicate employee appeals thus providing due process to employees 

and agencies. The CSRA authorized MSPB to develop its adjudicatory processes and procedures, 

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

granted broad new authority to conduct independent, objective studies of the Federal merit systems 

and Federal human capital management issues. In addition, MSPB was given the authority and 

responsibility to review and act on OPM’s regulations and review and report on OPM’s significant 

actions.2 The CSRA also codified for the first time the values of the Federal merit systems as the 

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

personnel practices (PPPs) that were proscribed because they were contrary to merit system values.3

Since the CSRA, Congress has given MSPB jurisdiction to hear cases and complaints filed under a 

variety of other laws.4

MSPB’s Mission and Vision

Mission: 

To Protect the Merit System Principles and promote an effective Federal workforce

free of Prohibited Personnel Practices.

Vision:

A highly qualified, diverse Federal workforce that is fairly and effectively managed, 

providing excellent service to the American people.

 

1 The review of OPM significant actions conducted under 5 U.S.C § 1206 is not, and should not be construed as, an 

advisory opinion (which is prohibited under 5 U.S.C. § 1204(h)).

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

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

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

and reporting on OPM’s significant actions.

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

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

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

Law. No. 101-12, 103 Stat. 16; The Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. Law 112-199; 

The Veterans Access, Choice and Accountability Act of 2014, Pub. Law 113-146; 5 U.S.C. § 4304; 5 U.S.C. § 7513; and 

those set out at 5 C.F.R. § 1201.3.
4 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Board Members

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

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

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

SUSAN TSUI GRUNDMANN

Chairman

November 2009 to Present

Susan Tsui Grundmann was nominated by President Barack 

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

Systems Protection Board on July 31, 2009. She was confirmed by 

the U.S. Senate on November 5, 2009, and sworn in on November 

12, 2009. Chairman Grundmann’s term expires on March 1, 2016. 

Previously, Ms. Grundmann served as General Counsel to the National 

Federation of Federal Employees (NFFE), which represents 100,000 

Federal workers nationwide and is affiliated with the International 

Association of Machinist and Aerospace Workers. At NFFE, she 

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

of Appeals for the District of Columbia. In 2004, Ms. Grundmann represented NFFE and other labor 

unions in the statutory “meet and confer” process with officials from the Department of Homeland 

Security (DHS) and OPM, which sought agreement on how to proceed with new DHS personnel 

regulations. She represented NFFE and the United Department of Defense Workers Coalition, 

consisting of 36 labor unions, and served on the Coalition’s litigation team in a coordinated response 

to proposed personnel changes at the Department of Defense (DoD). In addition to DoD employees, 

Ms. Grundmann represented employees in the Forest Service, Department of Agriculture, Passport 

Service, Veterans Administration, General Services Administration, and some 25 additional Federal

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

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

Ms. Grundmann served as General Counsel to the National Air Traffic Controllers Association. She 

began her legal career as a law clerk to the judges of the Nineteenth Judicial Circuit of Virginia, and 

later worked in both private practice and at the Sheet Metal Workers National Pension Fund. 

Chairman Grundmann earned her undergraduate degree at American University and her law degree at 

Georgetown University Law Center.

ANNE M. WAGNER

Vice Chairman

November 2009 to February 28, 2015

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

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

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

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

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

March 1, 2014, she continued to serve in her position until March 1, 

2015 in accordance with MSPB’s governing statute, which specifies 

that a member may remain on the Board for a period of one additional 

year, or until a successor is confirmed, whichever occurs first.
5 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

MARK A. ROBBINS

Member 

May 2012 to Present

Mark A. Robbins was nominated by President Barack Obama to 

serve as a Member of the Merit Systems Protection Board on 

December 5, 2011. He was confirmed by the U.S. Senate on April 

26, 2012. Mr. Robbins' term expires on March 1, 2018.

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

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

capacity, Mr. Robbins worked to certify elections systems and 

maintain information on the best practices of conducting elections. 

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

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

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

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

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

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

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

issues, he covered the Federal civil service and human resources management. Mr. Robbins earned 

both his undergraduate and law degrees from George Washington University. He is a member of the 

California and District of Columbia bars. In 2013, in recognition of his extensive professional 

involvement and continued leadership in public administration, Mr. Robbins was elected as a Fellow 

of the National Academy of Public Administration.

MSPB Offices and Their Functions

MSPB is headquartered in Washington, D.C. and has eight regional and field offices located 

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

Equivalents (FTEs) to conduct and support its statutory duties. Of note, MSPB appropriations 

supported in increase in the number of positions on-board at the end of FY 2014 to 219, a 12

percent increase over the 196 positions on-board at the end of FY 2013.
6 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

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

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

Executive Director.

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

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

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

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

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

Environmental Protection Agency (EPA).

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

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

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

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

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

advice on legal issues to the Board.

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

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

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

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

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

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

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

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

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

MSPB’s managers and supervisors.

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

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

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

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

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

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

services, and USDA’s Animal and Plant Health Inspection Service for human resources services.

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

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

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

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

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

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

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

plans and directs audits and investigations. 

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

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

out its administrative and research responsibilities.
7 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

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

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

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

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

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

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

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

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

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

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

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

issuing fair, well-reasoned, and timely initial decisions.
8 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

MSPB Organizational Chart
9 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

FISCAL YEAR 2014 IN REVIEW

Adjudication

FY 2014 was another significant year for MSPB. Still 

reeling from over 32,000 appeals filed in FY 2013 by 

employees furloughed due to budget sequestration,

MSPB issued 17,466 decisions in FY 2014, more than a 

130% increase over the total number of decisions issued 

in FY 2013. MSPB’s AJs issued 16,354 initial decisions, 

including 11,109 initial decisions on individual furlough 

appeals. To put this into context, Figure 1.1 shows the 

number of initial appeals received in FY 2013, and the 

number of initial decisions issued in FY 2014 compared 

to the averages for 2008-2012, respectively. MSPB’s 

Board Members issued 1,101 decisions including 876 

decisions on PFRs of initial decisions.5 

After docketing all of the furlough appeals in FY 2013, 

MSPB began adjudicating initial furlough appeals in

early FY 2014. By the end of FY 2014, MSPB had 

adjudicated just over 11,100 initial furlough appeals, approximately 34 percent of the total received. 

MSPB is proud to report that through the end of April 2015, MSPB has issued decisions in over 

22,500 initial furlough appeals, nearly 70 percent of the total. Of those processed through April 2015

about 20 percent were dismissed for a variety of reasons including for lack of jurisdiction or 

timeliness, withdrawn, cancelled, or dismissed without prejudice. Of those dismissed, about 70

percent were withdrawn by appellants or cancelled due to failure to prosecute. Of the appeals not 

dismissed, over 99 percent were adjudicated on the merits—meaning that less that 1 percent of 

furlough appeals were settled—a far smaller portion than is normally resolved through settlement. 

Of the appeals adjudicated on the merits, 99.5 percent of the initial decisions affirmed the furlough 

action taken by the agency and 0.5 percent were reversed on the merits.

As of the end of April 2015, over 2,200 PFRs of individual furlough initial decisions had been filed 

with MSPB HQ, and almost 950 decisions had been issued on PFRs of furlough cases. Processing 

furlough PFRs present a unique set of challenges in that there can be multiple permutations in their 

forms. For example, a designated representative may file a single PFR on behalf of all or some 

appellants from a particular consolidation. Conversely, only 1 or 2 pro se appellants from a 

consolidation may file a PFR immediately after the issuance of the initial decision. Initial processing 

of furlough PFRs takes considerable legal review to resolve these issues and determine the best 

strategy for efficient and effective processing.

Statistical information on MSPB’s case processing activity is contained later in this report in the 

section entitled “Case Processing Statistics for FY 2014,” starting on page 17. For initial appeals 

decisions, overall data are presented both including and not including furlough appeals. Summaries 

of significant MSPB decisions, and opinions issued by the Court of Appeals for the Federal Circuit 

 

5 As a result of the Government Shutdown in October 2013, MSPB was closed for business, and the majority of MSPB 

employees were furloughed, with the exception of the three Board Members and very limited emergency staff. This 

Government Shutdown, on the heels of receiving tens of thousands of furlough appeals, delayed the final resolution of 

cases filed with MSPB. 

Figure 1.1: Comparative Data on Number of 

Initial Appeals Received and Processed

(Not including addendum appeals.)

38,208

6,247

15,925

6228

0

5,000

10,000

15,000

20,000

25,000

30,000

35,000

40,000

45,000

2013 Initial

Appeals

Received

Average

Appeals

Received 2008-

2012

2014 Initial

Decisions

Issued

Average

Decicions

Issued 2008-

2012
10 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

and the U.S. Supreme Court are included in the section entitles “Significant Board Decisions and 

Court Opinions Issued in FY 2014,” starting on page 35. This section also includes summaries of 

selected significant Board decisions and Court opinions issued in early FY 2015 for the convenience 

of MSPB’s stakeholders.

MSPB continued to provide alternative dispute resolution options to its customers including the 

Mediation Appeals Program (MAP). This program, a description of which is provided on MSPB’s 

website, was started as a pilot program in 2002 and has 

grown to include several hundred cases per year. The 

program provides an opportunity for the parties, with 

the assistance of a mediator who will not be involved 

in the adjudicating the case, to craft a resolution of

their dispute that best meets their needs and that may 

encompass outcomes beyond the limits of possible 

outcomes available to the AJ under statute. Although 

fewer mediation cases were closed in FY 2014 due to 

the resources needed to process furlough cases, the 

success rate of the program continues to be strong. 

Figure 1.2 shows the number of closed mediation 

cases settled and not settled each year, as well as the 

mediation success rate (settlement reached as an 

immediate result of mediation, or settled after the case 

returns to adjudication.

For the first time since 2005, the Board participated in a Special Panel with the EEOC to adjudicate 

a mixed case involving both merit system and equal employment opportunity issues.

6 The decision 

issued by the Special Panel, Alvara v. Department of Homeland Security, is summarized in the section on 

Significant Board Decisions. 

MSPB Regulations

In November 2013, MSPB gave public notice that began the formal rule-making process to revise its 

regulations related to how jurisdiction is established over Board appeals. On April 3, 2014, after 

notice and comment, MSPB published a proposed rule to amend its jurisdiction regulations. The 

final regulations covering our jurisdiction were published on January 28, 2015. The publication of 

this final regulation concerning MSPB’s jurisdiction concludes a process of overhauling MSPB’s 

regulations that began in 2011.

Merit Systems Studies

In FY 2014, MSPB approved and published four new merit system study reports, issued three editions 

of its Issues of Merit (IoM) newsletter, and made considerable progress in updating its research agenda 

for FY 2015-2018. Summaries of FY 2014 MSPB merit systems study reports, IoM newsletter topics, 

and the process used to develop the new research agenda are included in this report in the section 

 

6

 In a case appealable to the Board that involves an allegation of discrimination (a "mixed case"), an appellant may ask 

the EEOC to review the Board's final decision on the discrimination issue. If the EEOC disagrees with the Board's 

decision on the discrimination issue, the case is returned to Board. If the Board does not adopt the EEOC decision, then 

the case is referred to a Special Panel made up of a Chairman, who is appointed by the President, one member of the 

Board, and one EEOC commissioner. The Special Panel issues the final decision in the case, which then may be 

appealed to an appropriate U.S. district court. See 5 U.S.C. 7702; 5 C.F.R. 1201.171-.175.

Figure 1.2. Mediation Cases Settled and 

Not Settled 

166

230

174

106

140

109

0

50

100

150

200

250

300

350

400

2012 (65%) 2013 (62%) 2014 (61%)

Settled Not Settled

(Percent settled for each year in parentheses.)
11 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

entitled “Summary of Merit Systems Studies Activity in FY 2014” beginning on page 47. For the 

convenience of our stakeholders, that section also includes summaries of two merit systems study 

reports approved and issued in early FY 2015. 

The Significant Actions of the Office of Personnel Management

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

OPM to ensure that these actions conform with MSPs and do not result in PPPs. In FY 2014, 

MSPB reviewed OPM’s new significant actions including implementation of the Hatch Act 

Modernization Act and phased retirement, Governmentwide strategies on gender pay equality and 

veterans recruitment and employment. MSPB updated OPM’s progress on significant actions 

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

actions is included in that section of this report, beginning on page 51.

Outreach and Merit Systems Education

MSPB’s education and outreach efforts are designed to enhance the understanding of merit, ensure 

that MSPs are applied consistently throughout the Government, reduce the likelihood of PPPs, 

promote better management practices, and strengthen employee engagement. This in turn helps to 

improve employee and organizational performance, improve service to the American people, and 

provide value to the taxpayer.

In FY 2014, MSPB staff conducted over 100 outreach events with customers, stakeholders, and 

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

its studies’ findings and recommendations. For example, MSPB staff presented on MSPB 

procedures and legal precedent at the Federal Dispute Resolution Conference and to the Society of 

Federal Labor and Employee Relations Professionals. MSPB staff also presented merit systems 

study findings and recommendations to the Society for Industrial and Organizational Psychology 

and the American Psychological Association. Presentations were also made to over 12 law schools 

and Bar Associations, nine good government, management, union, and affinity groups, and over 25 

Federal agencies. Several presentations by MSPB staff resulted in continued education credits for 

participants. MSPB staff, including the Chairman, were also part of nine (9) interviews with Federal 

News Radio on issues ranging from legal issues to results from MSPB studies.

MSPB posted several educational documents on its website including information about the new 

VA SES legislation (see below), guidance on pro bono representation, the merit systems studies 

research agenda, updating MSPB’s jurisdiction regulations, and furlough appeals. In FY 2014, MSPB 

had over 634,000 visits to web pages related to training and education. The MSP and PPP of the 

month continue to be among the most visited webpages and the most accessed documents on 

MSPB’s website. 

International Activities

During FY 2014, MSPB hosted visitors from other countries to educate them on the organization of 

the Federal civil service, MSPB’s structure and functions, and its role in fostering adherence to the 

MSPs and protecting employees and applicants from PPPs. MSPB staff met with a delegation from 

Indonesia to discuss that country’s efforts at government reform, a delegation from China to discuss 

performance management, promotion, supervision, and discipline, and a delegation from Japan to 

discuss the employment and advancement of women in the Federal workforce. MSPB staff also 

provided information to researchers in the Philippines and Korea to assist them in their work.
12 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Legislative and Congressional Relations Activity

Veterans Access, Choice, and Accountability Act of 2014. MSPB was impacted by significant 

legislation in FY 2014. The Veterans Access, Choice, and Accountability Act of 2014 (H.R. 3230) 

was signed into law on August 7, 2014 (Public Law No: 113-146). Section 707 of the Act made 

significant changes to existing law by allowing the Secretary of Veterans Affairs greater flexibility in 

terminating or demoting Senior Executive service and changing the manner in which appeals of 

those actions are handled by MSPB.

As it related to MSPB, the new law provides that: (1) removed or demoted SES employees must 

appeal to the MSPB within 7 days of the removal/demotion; (2) MSPB AJs must issue a decision on 

the appeal within 21 days of receipt of the appeal; (3) the Secretary’s removal/demotion decision is 

final if the MSPB AJ fails to issue a decision on the appeal within 21 days; and (4) the decision of the 

MSPB AJ is final and no appeal to the Board Members or Court is permitted.

Notably, MSPB Board Members sent a letter to the President expressing concerns about the 

constitutionality of removing Board Members from the adjudication of appeals under section 707 of 

the new law. On August 21, 2014, MSPB also issued a final rule amending its rules of practice and 

procedure (5 CFR Part 1210) to conform to the changes in the law. Additional information about 

the VA legislation related to managing its SES employees is available on the MSPB website.

Whistleblower Protection Enhancement Act (WPEA) All Circuit Review. The All Circuit 

Review Extension Act (H.R. 4197) was signed into law on September 26, 2014 (Public Law No. 113-

170). This law extends the period (from 2 to 5 years) that appeals of MSPB whistleblower decisions 

can be brought in any Federal circuit court as provided in the WPEA.

MSPB Chairman’s Testimony of Whistleblower Rights. On September 9, 2014, Chairman 

Grundmann testified at a hearing convened by the House Committee on Oversight and 

Government Reform Subcommittee on Federal Workforce, U.S. Postal Service, and the Census 

entitled: Examining the Administration’s Treatment of Whistleblowers. The Chairman’s testimony 

can be accessed at: http://oversight.house.gov/hearings/.

Internal Management Activities and Challenges

Human Capital. In FY 2014, Congress recognized MSPB’s financial needs as it relates to 

adjudicating the historic level of appeals due to the sequestration furloughs from FY 2013. As a 

result, MSPB was able to fill 41 permanent positions, including 35 adjudication positions. Being able 

to fill long-vacant positions has allowed MSPB to more efficiently process and adjudicate the 

massive number of furlough appeals. As such, as of April 2015, MSPB has adjudicated over twothirds of individual furlough initial appeals. 

However, over 20 percent of MSPB employees, including almost 30 percent of MSPB AJs, are 

eligible to retire in the next two years. Inasmuch as it takes 2-3 years for adjudication professionals 

to reach journey-level performance, it is important that MSPB be able to, at a minimum, maintain its 

level of FTE in the adjudication positions. 

During FY 2014 and early FY 2015, the Chairman appointed individuals to fill vacant positions as 

Regional Director/Chief Administrative Judge in three regional offices: Dallas, San Francisco and 

Chicago. Additionally, the Chairman appointed the Director of the Office of Policy and Evaluation. 
13 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

As mentioned earlier in this report, Vice Chairman Anne Wagner’s appointment expired on February 

28, 2015. MSPB HQ will continue to issue PFR and original jurisdiction decisions voted on by 

Chairman Grundmann and Board Member Robbins. President Obama has not announced a nominee 

for the third Board Member. 

MSPB Studies Program and Cloud-based Survey Platform. MSPB made progress in FY 2014 

on obtaining a secure, cloud-based survey platform to conduct research and customer service 

surveys. However, MSPB’s ability to improve the collection of important customer service 

information and to conduct program evaluation currently is competing for fewer existing resources. 

Resource limits also affect MSPB’s ability to maintain its review of OPM rules, regulations, and 

significant actions and to conduct outreach, especially if it involves travel or extensive preparation or 

staff time, which takes the participants away from their other work. 

Information Technology and e-Adjudication. The arrival of tens of thousands of furlough 

appeals at MSPB in FY 2013 and the continued processing/adjudication of these appeals 

throughout FY 2014 and into FY 2015 has highlighted the need to make significant changes and 

improvements to MSPB’s IT infrastructure. Again, in MSPB’s FY 2014, MSPB is grateful that 

Congress recognized the impact the record level of furlough appeals had on our IT system. 

In addition to making major improvements to our IT infrastructure, the furlough appeals also 

highlighted the need for MSPB to shift from paper to electronic processing of appeals (internally 

and externally) and to electronic records management. In FY 2014, MSPB began significant work 

on transitioning to 100 percent electronic adjudication (e-Adjudication) and electronic records 

management. This project will yield important potential improvements in efficiency, but will require 

a significant and sustained initial investment of resources.

Transitioning to 100 percent e-Adjudication will allow MSPB to process cases more efficiently and 

comply with Federal records management directives requiring that agencies convert records to 

electronic format. MSPB needs to identify, procure, and implement additional systems, components, 

and processes and integrate them with our existing systems to convert to e-adjudication as well as 

develop and document that process and related procedures, and provide the necessary training to 

our staff. In FY 2014, MSPB issued a Request for Information (RFI) seeking initial information 

from the vendor community and is currently reviewing the responses received from the RFI. The eAdjudication project will be a multi-year effort and the total costs are unknown at this point. 

2014 Federal Employee Viewpoint Survey. MSPB employees continue to report high levels of 

commitment to the agency’s mission. However, employee ratings from the Federal Employee 

Viewpoint Surveys (FEVS) on having the resources needed to accomplish the mission dropped 

significantly in 2012 and 2013. In FY 2014, the proportion of employees who agreed they had the 

resources they needed rose. However, it was still lower than the proportion who disagreed that they 

had the resources they needed. MSPB will continue to focus on strong internal management, 

communication, and other strategies to mitigate the impact of fewer resources. In fact, results from 

MSPB’s Internal Survey administered in September and October showed improvements in most 

areas of communication and on employee perceptions of inclusion issues. However, absent stable 

funding, these strategies will not be sufficient to address current and anticipated resource issues, 

process the thousands of furlough appeals remaining from FY 2013, and continue to perform its 

other statutory functions effectively and efficiently.
14 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Significant External Trends and Issues 

The most significant external issues affecting MSPB’s ability to carry out its mission to protect the 

Federal merit systems include past budget reductions and the expected return of sequestration in FY 

2016; increasing retirements of Federal employees; and changes in law and jurisdiction. MSPB is 

committed to performing its functions to the best of its ability and to justifying and requesting the 

resources necessary to carry out its responsibilities. Thankfully, recent enacted appropriations for 

MSPB have allowed MSPB to rebuild its workforce, address mission requirements, and prepare for 

the future. Stable and timely resources in future years will be required to allow MSPB to continue to 

perform its statutory functions effectively and efficiently. 

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

Budget sequestration in FY 2013 has had lasting effects on MSPB. In FY 2013, sequestration lead to 

the filing of in over 32,000 furlough appeals with MSPB, a workload that MSPB is still processing in 

FY 2015. Through FY 2014, MSPB made additional improvements and changes to our IT 

infrastructure, IT systems, and adjudication processes to process furlough appeals. In terms of IT 

customer service, the overall number of IT help-desk tickets (from both internal and external users) 

was 30 percent higher in FY 2014. 

If Governmentwide sequestration is implemented as expected in FY 2016 and beyond, agencies may 

again use furloughs to manage their reduced resources. Agencies also may begin to use reductions in 

force (RIFs) to permanently decrease or restructure their workforces. Taken together, furloughs and 

RIFs could lead to significantly more appeals filed with MSPB in FY 2016 and beyond. Notably, RIF 

appeals are typically much more complicated to adjudicate than furlough appeals.

In addition to preparing for a larger number of appeals, continued emphasis on merit systems 

studies is important to ensure adherence to MSPs and avoidance of PPPs by Federal agencies. It also 

is important to promote merit and educate the workforce, especially managers and leaders, about 

how to adhere to MSPs and to avoid PPPs when making management decisions such as those 

related to reducing the workforce.

Increasing retirements of Federal employees. According to a 2014 report by the Government 

Accountability Office, the proportion of retirement-eligible Federal employees is increasing and by 

September 2017, nearly 600,000 (about 31 percent) will be eligible to retire Governmentwide.7

However, according to a representative from the Thrift Savings Board, the average age at which 

Federal are eligible to retire is about 55 years old, but the average retirement age of Federal 

employees is about 61 years old.8 Although Federal employees do not usually retire immediately 

when they become eligible, data indicate that Federal retirements are increasing. OPM data indicate 

that an average of over 118,000 new annuitants (CSRS and FERS retirees only, not including postal 

service employees or military members) were added to the Annuity Roll Processing Systems each 

year between 2012-2014.9 This is over 35,000 annuitants on average added per year than the average 

number added in the preceding three year period (2009-2011), and at least 24,000 more added on 

average per year than the average added for any other earlier sequential three-year period beginning 

in 2000. 

 

7 Government Accountability Office, Federal Workforce: Recent Trends in Federal Civilian Employment and 

Compensation (GAO-14-215), January 2014.

8 Federal News Radio, Feds ride the money, benefits wave longer than expected, April 29, 2015; 

www.federalnewsradio.com/?nid=38&query=benefits+wave+longer&x=11&y=5

9 Office of Personnel Management, Retirement Statistics, (for 2000-2013), at www.opm.gov/retirementservice/retirement-statistics, and data by email for 2014.
15 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

As retirements increase, we expect to see an increase in retirement appeals. Indeed, MSPB has had 

slight increases each year in the number of retirement initial appeals received beginning in 2011. 

OPM’s backlog of retirement claims varies considerably, but it has generally gone down since 2012, 

thus increasing the number of retirement decisions that may be appealable to MSPB. 10

Sequestration and repeated furloughs may add to the number of retirements as employees retire 

rather than work under conditions of persistent resource uncertainty. Several recent statutory

changes in Federal retirement programs also may affect the rate of Federal retirements. For example, 

the opportunity for employees covered by FERS to claim service credit toward retirement for their 

sick leave balance,

11 and the authority to allow full-time Federal employees to phase their retirements 

or work in part-time status,

12 may alter retirement rates and thus may affect the number of 

retirement appeals. Proposed legislation to base annuities on the average high-five instead of the 

average high-three salary years,

13 especially if applied to current retirement-eligible employees, could 

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

Changes in law and jurisdiction. In FY 2014, Congress enacted the Veterans Access, Choice, and 

Accountability Act of 2014, which, among other things, changes the appeal rights of members of the 

Senior Executive Service (SES) at the Department of Veterans Affairs (VA) and the manner in 

which MSPB adjudicates those appeals. In particular, the Act stipulates that VA SES appeals must 

be adjudicated by MSPB AJs within 21 days, without subsequent review by the full MSPB Board. In 

our experience, to meet this timeline and to ensure each party is afforded due process and full and 

fair adjudication, the MSPB AJ assigned to the case, as well as a team of other MSPB legal staff 

members, have had to suspend processing of almost all other adjudicatory work. This has effectively 

slowed the processing of other cases in the regional and field offices adjudicating the VA cases. The 

FY 2014 increase in adjudicatory staff in the regional and field offices and at HQ was fortuitous as 

these additional staff contributed, at least indirectly, to the resources necessary for MSPB to comply 

with the 21-day statutory requirement. In compliance with the new VA law, MSPB provided 

information to Congress about how MSPB is implementing changes required in the VA law. This 

information is available on MSPB’s website at www.mspb.gov. 

Although enacted in early FY 2013, the WPEA continues to affect how MSPB processes cases. The 

WPEA provides additional rights to whistleblowers and those who engage in other protected activity 

in the Federal Government. The law expands the scope of protected disclosures, MSPB’s 

whistleblower jurisdiction, and the options for granting corrective action. The law also permits 

review of MSPB decisions in whistleblower cases by multiple appellate courts. These changes have 

increased the complexity of MSPB’s processing of whistleblower claims. Expanded jurisdiction and 

increased complexity are likely to lead to more and lengthier hearings on whistleblower cases. MSPB 

has observed an increase in the number of whistleblower individual right of action (IRA) appeals 

filed with MSPB, and the law may lead to more addendum appeals (e.g., claims for compensatory 

and other damages or for attorney’s fees) for whistleblower cases. The WPEA also requires MSPB 

to track and report more detailed information about whistleblower cases in its performance reports. 

MSPB needs additional permanent resources to enable it to meet the requirements of the WPEA. 

Information about FY 2014 whistleblower appeals is contained in MSPB’s Annual Performance 

Report (APR-APP) for FY 2014 - 2016. 

 

10 See current retirement claims processing statistics at www.opm.gov/about-us/budget-performance/strategicplans/retirement-processing-status.pdf

11 www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/sick-leave-general-information/

12 www.opm.gov/retirement-services/phased-retirement/

13 Government Employee Pension Reform Act of 2015, at www.congress.gov/bill/114th-congress/house-bill/1230
16 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

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17 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

CASE PROCESSING STATISTICS FOR FY 2014

Summary of Cases Decided by MSPB

Table 1: FY 2014 Summary of Cases Decided By MSPB

Cases Decided in MSPB Regional and Field Offices

 Appeals115,925

 Addendum Cases2389

 Stay Requests340

TOTAL Cases Decided in RO/FOs 16,354

Cases Decided by Administrative Law Judges (ALJs) - Original 

Jurisdiction4 11

 Cases Decided by the Board

 Appellate Jurisdiction:

 Petitions for Review (PFRs) - Appeals 876

 Petitions for review (PFRs) - Addendum Cases 131

 Reviews of Stay Request Rulings 0

 Requests for Stay of Board Order 1

 Reopenings55

 Court Remands 6

 Compliance Referrals 46

 EEOC Non-concurrence Cases 3

 Arbitration Cases 14

 Subtotal - Appellate Jurisdiction 1,082

 Original Jurisdiction610

 Interlocutory Appeals 9

 TOTAL Cases Decided by the Board 1,101

 TOTAL Decisions (Board, ALJs, RO/FOs) 17,466

1 Includes 11,109 decisions issued on furlough appeals.

2

Includes 80 requests for attorney fees, 112 Board remand cases, 185 petitions for enforcement, 8 court remand cases, 2 

requests for compensatory damages (discrimination cases only), and 2 requests for consequential damages.

3

Includes 32 stay requests in whistleblower cases and 8 in nonwhistleblower cases.

4

Initial Decisions by ALJ. Case type breakdown: 2 Disciplinary Action – Non-Hatch Act, 1 Hatch Act case, 2 Action Against 

SES, and 6 Actions Against ALJs.

5

Includes 4 cases reopened by the Board on its own motion and 1 request for reconsideration by OPM.

6

Final Board Decisions. Case Type Breakdown: 3 OSC stay requests, 1 Petition for Rulemaking, 1 PFR of a Hatch Act case, 2 

PFRs of Actions Against ALJs, and 3 requests for regulation review.
18 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Cases Processed in the Regional and Field Offices

Note regarding furlough appeals and case processing statistics. Because of the large numbers of furlough initial 

appeals processed in FY 2014, we are including charts displaying initial appeals outcomes both with 

and without furlough cases. Pie charts without furlough appeal data are more comparable to similar 

charts from previous Annual Reports. Additional information may be foot-noted in the charts.

Table 2: Disposition of Appeals Decided in the Regional and 

Field Offices, by Type of Case

Decided Dismissed1 Not DIsmissed1 Settled2 Adjudicated2

Type of Case # # % # % # % # %

Adverse Action by Agency313,127 3,277 24.96 9,850 75.04 692 7.03 9,158 92.97

Termination of Probationers 268 242 90.30 26 9.70 25 96.15 1 3.85

Reduction in Force 36 22 61.11 14 38.89 7 50.00 7 50.00

Performance 147 41 27.89 106 72.11 80 75.47 26 24.53

Acceptable Level of Competence 

(WIGI) 33 23 69.70 10 30.30 8 80.00 2 20.00

Suitability 53 26 49.06 27 50.94 14 51.85 13 48.15

CSRS Retirement: Legal 321 198 61.68 123 38.32 4 3.25 119 96.75

CSRS Retirement: Disability 18 15 83.33 3 16.67 0 0.00 3 100.00

CSRS Retirement: Overpayment 71 36 50.70 35 49.30 22 62.86 13 37.14

FERS Retirement: Legal 132 93 70.45 39 29.55 1 2.56 38 97.44

FERS Retirement: Disability 155 124 80.00 31 20.00 0 0.00 31 100.00

FERS Retirement: Overpayment 164 70 42.68 94 57.32 68 72.34 26 27.66

FERCCA 18 12 66.67 6 33.33 0 0.00 6 100.00

Individual Right of Action 318 211 66.35 107 33.65 65 60.75 42 39.25

USERRA 133 57 42.86 76 57.14 60 78.95 16 21.05

VEOA 129 81 62.79 48 37.21 6 12.50 42 87.50

Other4802 755 94.14 47 5.86 41 87.23 6 12.77

Total515,925 5,283 33.17 10,642 66.83 1,093 10.27 9,549 89.73

1

Percent Dismissed and Not Dismissed are of the number Decided.

2

Percent Settled and Adjudicated are of the number Not Dismissed.

3 Not counting furlough appeals, the number of adverse action cases decided is 2,018, the number dismissed is 1,025, the 

number not dismissed is 993, the number of cases settled is 668, and the number of cases adjudicated on the merits is 325.

4

“Other” appeals include Restoration to Duty (131), Miscellaneous (511), and additional types such as Reemployment Priority, 

Employment Practices, and others.

5 Not counting furlough appeals the total number of cases decided is 4,816, the number dismissed is 3,031, the number not 

dismissed is 1,785, the number settled is 1,069, and the number adjudicated on the merits is 716.
19 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Figure 3.1: Type of Appeals Decided in the Regional and Field Offices

Total Number of Appeals: 15,925

Termination of 

Probationers (268) 2%

Reduction in Force (36) 

0%

Performance (147) 1%

Acceptable Level of 

Competence (33) 0%

Suitability (53) 0%

CSRS Retirement: Legal 

(321) 2%

CSRS Retirement: 

Disability (18) 0%

CSRS Retirement: 

Overpayment (71) 0%

FERS Retirement: Legal 

(132) 1%

FERS Retirement: 

Disability (155) 1%

FERS Retirement: 

Overpayment (164) 1%

FERCCA (18) 0%

Individual Right of 

Action (318) 2%

USERRA (133) 1%

VEOA (129) 1%

Other (802) 5%

Adverse Actions (13127) 

82%
20 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Figure 3.1a: Type of Appeals Decided in the Regional and Field Offices

(Not including furlough appeals)

Total Number of Appeals: 4,816

Termination of 

Probationers (268) 6%

Reduction in Force (36) 

1%

Performance (147) 3%

Acceptable Level of 

Competence (33) 1%

Suitability (53) 1%

CSRS Retirement: Legal 

(321) 7% CSRS Retirement: 

Disability (18) 0%

CSRS Retirement: 

Overpayment (71) 1%

FERS Retirement: Legal 

(132) 3%

FERS Retirement: 

Disability (155) 3%

FERS Retirement: 

Overpayment (164) 3%

FERCCA (18) 0%

Individual Right of 

Action (318) 7%

USERRA (133) 3%

VEOA (129) 3%

Other (802) 17%

Adverse Actions (2018) 

42%
21 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Figure 3.2: Dispositions: Initial Appeals Not Dismissed 

by Regional/Field Offices

Total Number of Appeals that were Not Dismissed: 10,642

Figure 3.2a: Dispositions: Initial Appeals Not Dismissed 

by Regional/Field Offices (Not including furlough appeals)

Total Number of Appeals that were Not Dismissed: 1,785

Appeal Settled 

(1093) 10%

Action or Decision 

Upheld or Left 

Undisturbed (9348) 

88%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (169) 2%

Mitigated (21) 0%

Other (11) 0%

Appeal Settled 

(1069) 60%

Action or Decision 

Upheld or Left 

Undisturbed (559) 

31%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (125) 7%

Mitigated (21) 1%

Other (11) 1%
22 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Figure 3: Dispositions: Initial Appeals Not Dismissed or Settled 

by Regional/Field Office

Based on 919 Appeals Adjudicated on the Merits

Figure 3.3: Dispositions: Initial Appeals Not Dismissed or Settled 

by Regional/Field Office

Based on 9,549 Appeals Adjudicated on the Merits

Figure 3.3a: Dispositions: Initial Appeals Not Dismissed or Settled 

by Regional/Field Office

(Not including furlough appeals)

Based on 716 Appeals Adjudicated on the Merits

Action or Decision 

Upheld or Left 

Undisturbed (9348) 

98%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (169) 2%

Mitigated (21) 0%

Other (11) 0%

Action or Decision 

Upheld or Left 

Undisturbed (559) 

78%

Action or Decision 

Overturned or 

Corrective Action 

Ordered (125) 17%

Mitigated (21) 3%

Other (11) 2%
23 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Table 3: Disposition of Appeals by Agency 1

Decided Dismissed2 Not Dismissed2 Settled3 Adjudicated3

Agency # # % # % # % # %

Department of the Navy 5,134 726 14.1 4,408 85.9 89 2.0 4,319 98.0

Department of the Army 4,929 1,297 26.3 3,632 73.7 144 4.0 3,488 96.0

Department of the Air Force 1,067 362 33.9 705 66.1 85 12.1 620 87.9

Department of Defense 1,030 514 49.9 516 50.1 56 10.9 460 89.1

Office of Personnel Management4875 531 60.7 344 39.3 106 30.8 238 69.2

Department of Veterans Affairs 697 449 64.4 248 35.6 175 70.6 73 29.4

United States Postal Service 621 447 72.0 174 28.0 124 71.3 50 28.7

Department of Homeland Security 291 171 58.8 120 41.2 62 51.7 58 48.3

Department of the Treasury 148 81 54.7 67 45.3 35 52.2 32 47.8

Department of Housing and Urban 

Development 145 65 44.8 80 55.2 6 7.5 74 92.5

Department of Justice 139 102 73.4 37 26.6 17 45.9 20 54.1

Department of Agriculture 126 68 54.0 58 46.0 42 72.4 16 27.6

Department of the Interior 114 68 59.6 46 40.4 33 71.7 13 28.3

Department of Health and Human 

Services 112 81 72.3 31 27.7 20 64.5 11 35.5

Department of Transportation 90 49 54.4 41 45.6 23 56.1 18 43.9

Social Security Administration 55 39 70.9 16 29.1 8 50.0 8 50.0

Department of Commerce 50 30 60.0 20 40.0 15 75.0 5 25.0

Department of Labor 49 37 75.5 12 24.5 5 41.7 7 58.3

Department of State 38 25 65.8 13 34.2 10 76.9 3 23.1

Department of Energy 35 21 60.0 14 40.0 10 71.4 4 28.6

General Services Administration 18 9 50.0 9 50.0 5 55.6 4 44.4

Equal Employment Opportunity 

Commission 16 5 31.3 11 68.8 0 0.0 11 100.0

Environmental Protection Agency 13 6 46.2 7 53.8 3 42.9 4 57.1

Small Business Administration 13 9 69.2 4 30.8 2 50.0 2 50.0

Tennessee Valley Authority 11 8 72.7 3 27.3 1 33.3 2 66.7

National Aeronautics and Space 

Administration 10 9 90.0 1 10.0 1 100.0 0 0.0

National Archives and Records 

Administration 7 5 71.4 2 28.6 1 50.0 1 50.0

Securities and Exchange 

Commission 7 6 85.7 1 14.3 1 100.0 0 0.0

Agency for International 

Development 6 4 66.7 2 33.3 0 0.0 2 100.0

Smithsonian Institution 5 3 60.0 2 40.0 2 100.0 0 0.0

National Credit Union 

Administration 4 4 100.0 0 0.0 0 0.0 0 0.0
24 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Table 3: Disposition of Appeals by Agency (Cont.)

Decided Dismissed1 Not DIsmissed1 Settled2 Adjudicated2

Agency # # % # % # % # %

National Labor Relations Board 4 3 75.0 1 25.0 0 0.0 1 100.0

National Science Foundation 4 1 25.0 3 75.0 2 66.7 1 33.3

Broadcasting Board of Governors 3 2 66.7 1 33.3 1 100.0 0 0.0

Federal Communications Commission 3 2 66.7 1 33.3 1 100.0 0 0.0

Federal Reserve System 3 3 100.0 0 0.0 0 0.0 0 0.0

Government Printing Office 3 2 66.7 1 33.3 1 100.0 0 0.0

Judicial Branch 3 3 100.0 0 0.0 0 0.0 0 0.0

Nuclear Regulatory Commission 3 2 66.7 1 33.3 0 0.0 1 100.0

Pension Benefit Guaranty 

Corporation 3 3 100.0 0 0.0 0 0.0 0 0.0

Armed Forces Retirement Home 2 1 50.0 1 50.0 1 100.0 0 0.0

Corporation for National and 

Community Service 2 2 100.0 0 0.0 0 0.0 0 0.0

Merit Systems Protection Board 2 1 50.0 1 50.0 1 100.0 0 0.0

Office of Special Counsel 2 2 100.0 0 0.0 0 0.0 0 0.0

Selective Service System 2 1 50.0 1 50.0 1 100.0 0 0.0

Administrative Office of the U.S. 

Courts 1 1 100.0 0 0.0 0 0.0 0 0.0

Architect of the Capitol 1 1 100.0 0 0.0 0 0.0 0 0.0

Central Intelligence Agency 1 1 100.0 0 0.0 0 0.0 0 0.0

Committee for Purchase from People 

Who Are Blind and Severe 

Handicapped

1 1 100.0 0 0.0 0 0.0 0 0.0

Consumer Product Safety 

Commission 1 0 0.0 1 100.0 0 0.0 1 100.0

Court Services and Offender 

Supervision Agency for DC 1 0 0.0 1 100.0 1 100.0 0 0.0

Federal Election Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

Inter-American Foundation 1 1 100.0 0 0.0 0 0.0 0 0.0

M. K. Udall Scholarship & Excellence 

in National Environ. Policy 

Foundation

1 0 0.0 1 100.0 1 100.0 0 0.0
25 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Table 3: Disposition of Appeals by Agency (Cont.)

Decided Dismissed1 Not DIsmissed1Settled2Adjudicated2

Agency # # % # % # % # %

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

Occupational Safety and Health 

Review Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

Office of National Drug Control 

Policy 1 1 100.0 0 0.0 0 0.0 0 0.0

Other 1 1 100.0 0 0.0 0 0.0 0 0.0

Railroad Retirement Board 1 1 100.0 0 0.0 0 0.0 0 0.0

TOTAL 15,925 5,283 33.2 10,642 66.8 1,093 10.3 9,549 89.7

1 This table includes all appeals, both furlough and nonfurlough cases.

2

Percent Dismissed and Not Dismissed are of the number Decided.

3

Percent Settled and Adjudicated are of the number Not Dismissed.

4 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the administrator of the 

Civil Service Retirement System and the Federal Employees Retirement System.
26 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

By Agency1

Adjudicated2Affirmed Reversed Mitigated 

Modified Other

Agency # # % # % # % # %

Department of the Navy 4,319 4,298 99.5 17 0.4 4 0.1 0 0.0

Department of the Army 3,488 3,436 98.5 51 1.5 1 0.0 0 0.0

Department of the Air Force 620 609 98.2 9 1.5 2 0.3 0 0.0

Department of Defense 460 457 99.3 3 0.7 0 0.0 0 0.0

Office of Personnel Management3238 179 75.2 46 19.3 2 0.8 11 4.6

Department of Housing and Urban 

Development 74 74 100.0 0 0.0 0 0.0 0 0.0

Department of Veterans Affairs 73 60 82.2 10 13.7 3 4.1 0 0.0

Department of Homeland Security 58 49 84.5 6 10.3 3 5.2 0 0.0

United States Postal Service 50 37 74.0 11 22.0 2 4.0 0 0.0

Department of the Treasury 32 31 96.9 1 3.1 0 0.0 0 0.0

Department of Justice 20 17 85.0 1 5.0 2 10.0 0 0.0

Department of Transportation 18 17 94.4 1 5.6 0 0.0 0 0.0

Department of Agriculture 16 14 87.5 2 12.5 0 0.0 0 0.0

Department of the Interior 13 12 92.3 1 7.7 0 0.0 0 0.0

Department of Health and Human 

Services 11 9 81.8 1 9.1 1 9.1 0 0.0

Equal Employment Opportunity 

Commission 11 10 90.9 1 9.1 0 0.0 0 0.0

Social Security Administration 8 7 87.5 1 12.5 0 0.0 0 0.0

Department of Labor 7 6 85.7 1 14.3 0 0.0 0 0.0

Department of Commerce 5 4 80.0 1 20.0 0 0.0 0 0.0

Department of Energy 4 4 100.0 0 0.0 0 0.0 0 0.0

Environmental Protection Agency 4 3 75.0 1 25.0 0 0.0 0 0.0

General Services Administration 4 3 75.0 1 25.0 0 0.0 0 0.0

Department of State 3 3 100.0 0 0.0 0 0.0 0 0.0

Agency for International 

Development 2 2 100.0 0 0.0 0 0.0 0 0.0

Small Business Administration 2 1 50.0 0 0.0 1 50.0 0 0.0

Consumer Product Safety 

Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

Federal Deposit Insurance 

Corporation 1 0 0.0 1 100.0 0 0.0 0 0.0

National Archives and Records 

Admin 1 0 0.0 1 100.0 0 0.0 0 0.0
27 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Table 4: Disposition of Initial Appeals Adjudicated on the Merits

By Agency (Cont.)

Adjudicated2Affirmed Reversed Mitigated 

Modified Other

Agency # # % # % # % # %

National Labor Relations Board 1 0 0.0 1 100.0 0 0.0 0 0.0

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

Nuclear Regulatory Commission 1 1 100.0 0 0.0 0 0.0 0 0.0

TOTAL 9,549 9,348 97.9 169 1.8 21 0.2 11 0.1

1

This table contains all appeals, both furlough and nonfurlough cases.

2

Adjudicated on the Merits, i.e., not dismissed or settled.

3 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the administrator of the 

Civil Service Retirement System and the Federal Employees Retirement System. 

Percentages may not total 100 because of rounding. 
28 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Cases Processed at Headquarters

The case processing data for PFR decisions may include a few furlough cases. 

Table 5: Disposition of Petitions for Review (PFR) of Initial Decisions 

by Type of Case

Decided Dismissed Settled Denied Denied; Further 

Analysis1 Granted

Type of Case # # % # % # % # % # %

Adverse Action by Agency 409 29 7.09 5 1.22 283 69.19 14 3.42 78 19.07

Termination of 

Probationers 38 4 10.53 0 0.00 29 76.32 0 0.00 5 13.16

Reduction in Force 5 3 60.00 0 0.00 1 20.00 1 20.00 0 0.00

Performance 22 3 13.64 0 0.00 15 68.18 1 4.55 3 13.64

Acceptable Level of 

Competence (WIGI) 3 0 0.00 0 0.00 3 100.00 0 0.00 0 0.00

Suitability 6 2 33.33 0 0.00 4 66.67 0 0.00 0 0.00

CSRS Retirement: Legal 57 1 1.75 0 0.00 47 82.46 1 1.75 8 14.04

CSRS Retirement: Disability 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

CSRS Retirement: 

Overpayment 5 0 0.00 0 0.00 5 100.00 0 0.00 0 0.00

FERS Retirement: Legal 18 0 0.00 0 0.00 13 72.22 2 11.11 3 16.67

FERS Retirement: Disability 28 0 0.00 0 0.00 21 75.00 0 0.00 7 25.00

FERS Retirement: 

Overpayment 12 0 0.00 0 0.00 11 91.67 0 0.00 1 8.33

FERCCA 4 0 0.00 0 0.00 2 50.00 0 0.00 2 50.00

Individual Right of Action 83 2 2.41 2 2.41 55 66.27 1 1.20 23 27.71

USERRA 23 0 0.00 0 0.00 10 43.48 2 8.70 11 47.83

VEOA 44 2 4.55 0 0.00 36 81.82 2 4.55 4 9.09

Other 118 1 0.85 0 0.00 91 77.12 1 0.85 25 21.19

Total 876 47 5.37 7 0.80 627 71.58 25 2.85 170 19.41

1

“Denied; Further Analysis” includes cases denied on the basis of the issues raised in the PFR, but in which the Board has 

considered an issue sua sponte, i.e., of the Board’s own accord (5 C.F.R. § 1201.117(a)). This definition applies also to Table 6, 

Figure 5 and Figure 7. Historically, when the Board denied a party’s PFR, but upon review of a case, chose to analyze additional 

issues, this was described as “reopening the appeal on its own motion under 5 C.F.R. § 1201.118,” and the description used in 

the Annual Report was “Denied But Reopened.” In 2012, the Board amended its regulation at 5 C.F.R. § 1201.118 to state that 

“reopening” only applies to instances in which the Board has already issued a final order or the initial decision has become the 

Board’s final decision by operation of law. The Board refrains from using the term “reopening” in adjudicating a petition for 

review unless it is taking action to reopen a closed matter. Accordingly, the Board will continue to report dispositions of cases 

that are Denied, but in which the Board considers other issues of its own accord as “Denied; Further Analysis.”
29 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Figure 3.4: Types of Petitions for Review (PFRs)

Total Number of Petitions for Review (PFR): 876

Adverse Actions 

(409) 47%

Termination of 

Probationers (38) 4%

Reduction In Force 

(5) 1%

Performance (22) 3%

Acceptable Level of 

Competence (3) 0%

Suitability (6) 1%

CSRA Retirement: 

Legal (57) 7%

CSRA Retirement: 

Disability (1) 0%

CSRA Retirement: 

Overpayment (5) 1%

FERS Retirement: 

Legal (18) 2%

FERS Retirement: 

Disability (28) 3%

FERS Retirement: 

Overpayment (12) 

1%

FERCCA (4) 0%

Individual Right of 

USERRA (23) 3% Action (83) 9%

VEOA (44) 5%

Other (118) 13%
30 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Figure 3.5: Disposition of Petitions for Review of Initial Decisions

Based on 876 Total PFRs

Figure 3.6: Disposition of Petitions for Review Granted

Based on 170 PFRs Granted

Dismissed (47) 5%

Settled (7) 1%

Denied (627) 72%

Denied; Further 

Analysis (25) 3%

Granted (170) 19%

Initial Decision 

Affirmed (18) 10%

Initial Decision 

Case Remanded Reversed (30) 18%

(112) 66%

Agency Action 

Mitigated (0) 0%

Other (10) 6%
31 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Figure 3.7: Disposition of Petitions for Review Denied; Further Analysis

Based on 25 PFRs Denied; Further Analysis

Initial Decision 

Affirmed (16) 64%

Initial Decision 

Reversed (0) 0%

Case Remanded 

(2) 8%

Agency Action 

Mitigated (1) 4%

Other (6) 24%
32 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Table 6: Disposition of Petitions for Review of Initial Decisions, by Agency

Decided Dismissed Settled Denied Denied; Further

Analysis Granted

# # % # % # % # % # %

Office of Personnel 

Management1 126 1 0.79 0 0.00 101 80.16 2 1.59 22 17.46

United States Postal Service 124 4 3.23 2 1.61 94 75.81 4 3.23 20 16.13

Department of Veterans 

Affairs 98 8 8.16 1 1.02 70 71.43 3 3.06 16 16.33

Department of the Army 98 7 7.14 0 0.00 68 69.39 3 3.06 20 20.41

Department of Homeland 

Security 55 2 3.64 0 0.00 40 72.73 3 5.45 10 18.18

Department of Defense 48 4 8.33 1 2.08 27 56.25 2 4.17 14 29.17

Department of the Navy 45 5 11.11 1 2.22 25 55.56 2 4.44 12 26.67

Department of the Air Force 43 5 11.63 0 0.00 25 58.14 2 4.65 11 25.58

Department of Justice 33 1 3.03 0 0.00 19 57.58 2 6.06 11 33.33

Department of the Treasury 25 1 4.00 0 0.00 18 72.00 0 0.00 6 24.00

Department of the Interior 24 0 0.00 0 0.00 22 91.67 0 0.00 2 8.33

Department of Agriculture 21 2 9.52 0 0.00 14 66.67 0 0.00 5 23.81

Social Security 

Administration 20 2 10.00 0 0.00 14 70.00 0 0.00 4 20.00

Department of 

Transportation 18 1 5.56 1 5.56 13 72.22 0 0.00 3 16.67

Department of Health and 

Human Services 17 0 0.00 0 0.00 16 94.12 0 0.00 1 5.88

Department of Commerce 15 0 0.00 0 0.00 11 73.33 0 0.00 4 26.67

Department of Housing and 

Urban Development 11 1 9.09 0 0.00 10 90.91 0 0.00 0 0.00

Department of Labor 10 2 20.00 0 0.00 8 80.00 0 0.00 0 0.00

Department of Energy 7 0 0.00 0 0.00 7 100.00 0 0.00 0 0.00

Department of State 6 0 0.00 0 0.00 4 66.67 0 0.00 2 33.33

Federal Deposit Insurance 

Corporation 4 0 0.00 0 0.00 3 75.00 1 25.00 0 0.00

Environmental Protection 

Agency 3 0 0.00 1 33.33 1 33.33 0 0.00 1 33.33

Department of Education 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

General Services 

Administration 2 0 0.00 0 0.00 1 50.00 0 0.00 1 50.00

Government of the District 

of Columbia 2 0 0.00 0 0.00 1 50.00 0 0.00 1 50.00

National Aeronautics and 

Space Admin 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00

National Credit Union 

Administration 2 0 0.00 0 0.00 2 100.00 0 0.00 0 0.00
33 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Table 6: Disposition of Petitions for Review of Initial Decisions, by Agency (Cont.)

Dismissed Settled Denied Denied; Further

Analysis Granted

# # % # % # % # % # %

Small Business 

Administration 2 0 0.00 0 0.00 0 0.00 1 50.00 1 50.00

Agency for International 

Development 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Corporation for National 

and Community Service 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Equal Employment 

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

Federal Mediation and 

Conciliation Service 1 0 0.00 0 0.00 0 0.00 0 0.00 1 100.00

Federal Trade Commission 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Inter-American Foundation 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

National Archives and 

Records Administration 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

National Council on 

Disability 1 0 0.00 0 0.00 0 0.00 0 0.00 1 100.00

National Science 

Foundation 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

Nuclear Regulatory 

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

Office of National Drug 

Control Policy 1 0 0.00 0 0.00 0 0.00 0 0.00 1 100.00

Pension Benefit Guaranty 

Corporation 1 0 0.00 0 0.00 1 100.00 0 0.00 0 0.00

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

TOTAL 876 47 5.37 7 0.80 627 71.58 25 2.85 170 19.41

1 Most appeals in which OPM is the agency are retirement cases involving decisions made by OPM as the administrator of the 

Civil Service Retirement System and the Federal Employees Retirement System.

Percentages may not total 100 because of rounding.
34 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

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35 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

SIGNIFICANT BOARD DECISIONS AND COURT OPINIONS ISSUED IN FY 2014

Several of the Board’s noteworthy decisions issued in FY 2014 are summarized below. As a service to 

our stakeholders, we also have provided brief summaries of selected significant opinions issued by the 

U.S. Court of Appeals for the Federal Circuit. This section also includes summaries of selected 

significant Board decisions and Court Opinions issued in early FY 2015.

Significant Board Decisions Issued in Fiscal Year 2014

Due Process

Massey v. Department of the Army, 2013 MSPB 80, 120 M.S.P.R. 226 (2013): The agency removed the 

appellant for medical inability to perform the duties of her position. On appeal, the Board reversed 

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

The appellant submitted a timely request to present an oral reply to the proposed removal, but the 

deciding official issued the decision removing the appellant without responding to her request. 

Under Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985), due process requires that an 

employee have the “opportunity to present reasons, either in person or in writing, why [a] proposed 

action should not be taken.” 

Jurisdiction

Boudreault v. Department of Homeland Security, 2013 MSPB 91, 120 M.S.P.R. 372 (2013): At issue in this 

interlocutory appeal was whether the Board has jurisdiction over an appeal by an appellant who 

unknowingly lost his Board appeal rights as a result of accepting a new appointment within the same 

agency. In Yeressian v. Department of the Army, 112 M.S.P.R. 21 (2009), and Exum v. Department of 

Veterans Affairs, 62 M.S.P.R. 344 (1994), the Board held that, if the appellant would not have 

accepted the new appointment had he been properly informed of the loss of appeal rights, he is 

deemed not to have accepted the new appointment and to have retained the rights incident to his 

former appointment. In Carrow v. Merit Systems Protection Board, 626 F.3d 1348 (Fed. Cir. 2010), in 

which an individual lost his Board appeal rights as a result of accepting a new position with a 

different Federal agency, the Federal Circuit held that the individual lacked appeal rights to the 

Board because he was not an “employee” within the meaning of 5 U.S.C. § 7511, regardless of 

whether he knew and consented to the loss of appeal rights. A majority of the Board, with Member 

Robbins dissenting, affirmed the continuing validity of the Exum/Yeressian line of cases, finding that 

the Federal Circuit’s decision in Carrow did not disturb the Board’s holdings in Exum and Yeressian. 

Jonson v. Federal Deposit Insurance Corporation, 2014 MSPB 22, 121 M.S.P.R. 56 (2014): At issue before 

the Board on interlocutory appeal were several rulings in the removal appeal of an agency employee 

charged with defalcation of obligations that he owed to FDIC-insured institutions. The agency 

removed the appellant pursuant to 12 C.F.R. part 336, subpart B for failure to meet the minimum 

standards for employment with the FDIC. A majority of the Board, with Member Robbins 

dissenting, held that the agency had the authority to promulgate regulations governing employee 

conduct; the agency was required to obtain the approval of the U.S. Office of Government Ethics 

(OGE) before promulgating these regulations but failed to do so; and the Board has jurisdiction to 

review the appellant’s removal. (Member Robbins agreed with the majority of the Board regarding 

the latter ruling.) The Board reversed the appellant’s removal because it was based on regulations 

that were promulgated without OGE approval.
36 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Jones v. Department of Energy, 2013 MSPB 102, 120 M.S.P.R. 430 (2013): The appellant filed a request 

for review of an arbitration decision affirming her removal and raised an equal employment 

opportunity retaliation claim for the first time with the Board. Under 5 C.F.R. § 1201.155(c) of the 

Board’s revised regulations that became effective November 13, 2012, the Board does not have 

jurisdiction over a request for review of an arbitrator’s decision in which the appellant raises, for the 

first time with the Board, a claim of discrimination in connection with the underlying action if such 

allegations could have been raised in the negotiated grievance procedure. The Board found that the 

governing collective bargaining agreement allowed for discrimination claims to be raised in the 

course of a grievance proceeding. Because the appellant did not do so, the Board dismissed her 

request for review of the arbitrator’s decision for lack of jurisdiction. 

Okello v. Office of Personnel Management, 2014 MSPB 2, 120 M.S.P.R. 498 (2014): For several years, the 

appellant unsuccessfully attempted to obtain a final decision from OPM regarding his alleged 

Federal Employees’ Retirement System (FERS) annuity overpayment. The appellant filed a Board 

appeal regarding the matter after receiving an OPM letter stating that the amount of his annuity was 

incorrect and that he would soon receive another letter with the correct annuity amount. OPM 

moved to dismiss the appeal for lack of jurisdiction on the basis that its letter was not a final, 

appealable decision and indicated that such a decision would be forthcoming. The AJ dismissed the 

appeal for lack of jurisdiction, finding that OPM’s letter was not a final decision and that OPM still 

intended to issue such a decision. On review, the Board noted that, under 5 U.S.C. § 8461(e)(1), it 

has jurisdiction to review an administrative action or order affecting an individual’s under FERS. 

The Board found that, under the totality of the circumstances, OPM’s failure to act on this matter 

constitutes an appealable administrative action affecting the appellant’s rights under FERS and that 

it therefore has jurisdiction over this appeal. The Board found that OPM’s representation that it still 

intended to issue a further decision in this matter would normally weigh significantly against the 

Board taking jurisdiction over the appeal; however, in light of the facts of the case, the Board had 

little confidence that OPM would follow through with its stated intention. Accordingly, the Board 

remanded the appeal for adjudication on the merits.

Adverse Action Charges

Fox v. Department of the Army, 2014 MSPB 6, 120 M.S.P.R. 529 (2014): The appellant sought Board 

review of an initial decision that sustained her removal for inability to perform the duties of her 

position and work a regular schedule. In her analysis of the inability to perform charge, the AJ cited 

Slater v. Department of Homeland Security, 108 M.S.P.R. 419 (2008), for the proposition that, in order to 

remove an employee for physical inability to perform, the agency must show that the disabling 

condition is disqualifying, its recurrence cannot be ruled out, and the position’s duties are such that a 

recurrence would pose a reasonable probability of substantial harm. The Board held that Slater does 

not govern this appeal because the appellant did not occupy a position with medical standards or 

physical requirements or subject to medical evaluation programs. To establish a charge of physical 

inability to perform in such circumstances, the agency must establish that the appellant’s medical 

condition prevents her from being able to safely and efficiently perform the core duties of her 

position, i.e., the fundamental job duties of the position. Applying this standard, the Board found 

that the agency proved that the appellant’s medical condition rendered her unable to safely and 

efficiently perform all of the core duties of her position.

Clemens v. Department of the Army, 2014 MSPB 14, 120 M.S.P.R. 616 (2014): The appellant filed a 

Board appeal challenging his removal for physical inability to perform the essential duties of his 

position. The AJ, in an initial decision issued before the Board issued its decision in Fox, applied the 

analysis set forth in Slater and reversed the appellant’s removal. The AJ found that the agency did not 
37 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

prove that the appellant was medically disqualified from performing his duties or that there was a 

reasonable probability of substantial harm. The Board reversed the initial decision and sustained the 

removal, finding that the Slater analysis does not apply because the appellant did not hold a position 

with medical standards or physical requirements subject to medical evaluation programs. Applying 

the Fox analysis, the Board found that the appellant was unable to perform the core duty of verbal 

communication as a result of injuries from a stroke and, therefore, the agency proved the charge.

Hollingsworth v. Department of the Air Force, 2014 MSPB 56, 121 M.S.P.R. 397 (2014): The agency 

removed the appellant on a charge of tardiness, based on several instances of absence without 

official leave (AWOL). The Board analogized the tardiness charge with an AWOL charge and found 

to prove a charge of tardiness, the agency must show that: (1) the employee was scheduled for duty; 

(2) the employee was late for duty for the time charged; and (3) either the employee’s absence was 

not authorized or his leave request was properly denied. Applying this test, the Board did not sustain 

the removal. 

Constructive Suspension

Bean v. U.S. Postal Service, 2013 MSPB 96, 120 M.S.P.R. 397 (2013): For more than two years, the 

agency accommodated the appellant’s medical condition by scheduling him to work the day shift. 

After the agency reassigned the appellant to the swing shift, which required him to work into the 

night in contravention of his physician’s recommendations, the appellant began taking a large 

amount of leave. The AJ dismissed the appellant’s constructive suspension appeal for lack of 

jurisdiction without a hearing, finding that the appellant’s choice between working after dark and 

taking leave was perhaps unpleasant but nevertheless voluntary. In making this finding, the AJ relied 

on Johnson v. U.S. Postal Service, 110 M.S.P.R. 679 (2009), in which the Board held that an appellant’s 

continued absence was voluntary where he was faced with the choice between taking leave and 

returning to work outside of his medical restrictions. On review, the Board overruled Johnson and 

held that, assuming that the jurisdictional requirements of 5 U.S.C. Chapter 75 are met, proof of the 

following establishes Board jurisdiction over involuntary leave constructive suspension claims: (1) 

the appellant lacked a meaningful choice, and (2) this was because of the agency’s improper actions. 

Applying this standard, the Board found that the appellant had made a nonfrivolous allegation that 

he was subjected to an appealable constructive suspension because he alleged that (1) he was 

compelled to take leave because his only alternative was to work after dark, in violation of his 

doctor’s orders, and (2) the agency forced him into this untenable position by improperly taking him 

off the day shift and otherwise failing to accommodate his condition; and these allegations, if 

proven, could establish that the appellant lacked a meaningful choice in the matter and that it was 

the agency’s improper actions that deprived him of that choice. Accordingly, the Board remanded 

the appeal for further development of the record and a jurisdictional hearing. 

Abbott v. U.S. Postal Service, 2014 MSPB 47, 121 M.S.P.R. 294 (2014): The agency placed the 

appellant on enforced leave because there was no available work within her medical restrictions. The 

AJ dismissed her appeal for lack of jurisdiction, finding that the appellant failed to show that the 

agency’s action constituted a constructive suspension. On review, the Board clarified that, under 

Pittman v. Merit Systems Protection Board, 832 F.2d 598 (Fed. Cir. 1987), an agency’s placement of an 

employee on enforced leave for more than 14 days constitutes an appealable suspension and is not 

“constructive.” The Board overruled its prior decisions that adjudicated such appeals using the 

jurisdictional framework for constructive suspensions.
38 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Retirement

Resnick v. Office of Personnel Management, 2013 MSPB 89, 120 M.S.P.R. 356 (2013): In this case the 

Board interpreted 5 U.S.C. § 8336(e), which provides that an employee who is separated from 

service after completing 25 years of service as an air traffic controller (ATC) or after becoming 50 

years of age and completing 20 years of service as an ATC is entitled to an annuity. The appellant 

resigned from his position as an ATC at age 45 with more than 23 years of creditable service in that 

position. Shortly before his 50th birthday, the appellant applied for an immediate Civil Service 

Retirement System (CSRS) retirement. OPM denied his application, finding that he was not entitled 

to an immediate annuity under 5 U.S.C. § 8336(e) because he was younger than 50 years of age when 

he separated from service. The appellant argued that he became entitled to an immediate annuity 

under section 8336(e) upon turning 50 years of age, even though he had already separated from 

service, because he had over 20 years of service as an ATC when he resigned. The Board agreed 

with OPM, finding that the plain language of 5 U.S.C. § 8336(e) requires that an employee reach 50 

years of age and complete 20 years of service as an ATC before separating from service in order to 

qualify for an immediate retirement.

Clark v. Office of Personnel Management, 2013 MSPB 95, 120 M.S.P.R. 440 (2013): The appellant, a 

CSRS annuitant, filed a Board appeal challenging OPM’s denial of his wife’s request to waive her 

future entitlement to a survivor annuity pursuant to 5 U.S.C. § 8345(d), which provides that an 

individual entitled to an annuity under CSRS may decline to accept the annuity by a signed waiver 

filed with OPM and that the waiver may be revoked in writing at any time. In Worley v. Office of 

Personnel Management, 86 M.S.P.R. 237 (2000), the Board held that, under section 8345(d), an 

individual who files a waiver of her entitlement to a survivor annuity under CSRS after the death of 

the annuitant could terminate her entitlement to a survivor annuity as long as the waiver expressly 

states that it is irrevocable and is done before she files for a survivor annuity claim. In Mulroy v. Office 

of Personnel Management, 92 M.S.P.R. 404 (2002), and Shelley v. Office of Personnel Management, 88 

M.S.P.R. 224 (2001), the Board extended the Worley holding to apply to cases such as this, in which 

the annuitant, whose annuity was reduced to provide a survivor benefit, is still alive and the waiver’s 

purpose is to permit the restoration of an unreduced annuity payable to the annuitant. In Clark, the 

Board overruled these decisions, agreeing with OPM that section 8345(d) does not authorize an 

individual to make an irrevocable waiver. Based on the legislative history and language of section 

8345(d), the Board concluded that Congress did not intend to authorize an irrevocable waiver in this 

provision. Therefore, the appellant’s wife may not waive her entitlement to a survivor annuity so 

that the appellant can receive an unreduced retirement annuity. 

Conner v. Office of Personnel Management, 2014 MSPB 26, 120 M.S.P.R. 670 (2014): The appellant 

disputed OPM’s calculation of a lump sum credit under 5 U.S.C. § 8342, alleging that her late mother 

was in pay status for the 9 years preceding her retirement, although her Individual Retirement Records 

(IRRs) indicated that she was in a nonpay status due to a compensable injury. Following Lisanti v. Office 

of Personnel Management, 573 F.3d 1334 (Fed. Cir. 2009), and Billinger v. Office of Personnel Management, 206 

F.3d 1404 (Fed. Cir. 2000), the Board overruled its decisions and found that it had authority to 

consider the appellant’s challenge to the accuracy and completeness of the IRR. 

Whistleblower Protection

Nasuti v. Department of State, 2014 MSPB 12, 120 M.S.P.R. 588 (2014): This case was before the Board 

on remand from the Federal Circuit. The appellant contended that the agency terminated his 

employment because he made a protected whistleblowing disclosure alleging that substandard and 

inadequate body armor was being supplied to State Department employees en route to Iraq. The 
39 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Federal Circuit asked the Board to decide whether section 101 of the Whistleblower Protection 

Enhancement Act of 2012 (WPEA), which broadened the scope of protected disclosures under the 

Whistleblower Protection Act (WPA), applies retroactively and, if so, whether the appellant had 

alleged a protected disclosure under the new statute. The Board answered both questions in the 

affirmative, concluding that section 101 of the WPEA applied to this case, and that, under section 101, 

there was no requirement that the employee make a disclosure to a person who is in a position to 

remedy the matter disclosed. The Board further found that, even prior to the enactment of section 101 

of the WPEA, the WPA did not preclude the appellant’s disclosure from being protected. 

Hugenberg v. Department of Commerce, 2013 MSPB 92, 120 M.S.P.R. 381 (2013): The appellant, who 

held a temporary appointment as a Local Census Office Manager, filed an Individual Right of 

Action (IRA) appeal alleging that the agency terminated him in retaliation for protected 

whistleblowing disclosures. One of the appellant’s disclosures was a letter dated three days prior to 

his termination, which he sent to the agency’s Office of Inspector General and Census Bureau 

Director. The AJ found that the letter could not have been a contributing factor in the appellant’s 

termination because he failed to demonstrate that the letter was received and disseminated prior to 

his termination. The Board found that, because there was no evidence showing when the agency 

received the copy of the letter sent to the Director, it was unable to determine whether the letter was 

a contributing factor in the appellant’s termination, and it remanded the appeal for further 

proceedings on this issue.

Mudd v. Department of Veterans Affairs, 2013 MSPB 90, 120 M.S.P.R. 365 (2013): The appellant filed 

an IRA appeal alleging, inter alia, that the agency took personnel actions against her in reprisal for 

filing a grievance. Such reprisal is a prohibited personnel practice under 5 U.S.C. § 2302(b)(9). The 

WPEA expanded the scope of 5 U.S.C. § 2302(b)(9) to include: (A) the exercise of any appeal, 

complaint, or grievance right granted by any law, rule, or regulation: (i) with regard to remedying a 

violation of 5 U.S.C. 2302(b)(8); or (ii) other than with regard to remedying a violation of 5 U.S.C. §

2302(b)(8). The Board held that the WPEA extended its jurisdiction to claims arising under 5 U.S.C. 

§ 2302(b)(9)(i) but not to those arising under 5 U.S.C. § 2302(b)(9)(ii). The Board found that, 

because the appellant’s grievance did not concern remedying an alleged violation of 5 U.S.C. 

§ 2302(b)(8), it lacked jurisdiction to consider the appellant’s claim of reprisal for her grievance in 

the context of this appeal.

Benton-Flores v. Department of Defense, 2014 MSPB 60, 121 M.S.P.R. 429 (2014): The appellant was 

terminated from her position as a teacher during her probationary period, and alleged in an IRA

appeal that she was terminated in reprisal for making protected disclosures under the WPEA. The 

appellant’s protected disclosures related to the safety of the students in her school but did not cite 

the specific law, rule, or regulation that was violated by the disclosed conduct. The Board held that 

protected disclosures covered under 5 U.S.C. 2302(b)(8) do not need to cite to a specific law, rule, or 

regulation being violated, and are covered provided that a disinterested observer with knowledge of 

the essential facts known to and readily ascertainable by the employee could reasonably conclude 

that the disclosed action violated one or more of the 5 categories listed in 5 U.S.C. § 2308(b)(8).

Carney v. Department of Veterans Affairs, 2014 MSPB 62, 121 M.S.P.R. 446 (2014): The appellant filed 

an IRA appeal, claiming that his two suspensions were reprisal for assisting a coworker in a 

grievance. The Board held that the WPEA gave it jurisdiction to hear claims of reprisal for assisting 

coworkers in a grievance proceeding, and overruled its prior cases (Wooten v. Department of Health and 

Human Services, 54 M.S.P.R. 143 (1992), and Rubendall v. Department of Health and Human Services, 101 

M.S.P.R. 599 (2006)) that held the opposite.
40 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Board Procedures

Kavaliauskas v. Department of the Treasury, 2014 MSPB 4, 120 M.S.P.R. 509 (2014): At issue in this 

interlocutory appeal was whether the appellant was prohibited by the doctrines of collateral estoppel 

and judicial estoppel from challenging the charge that formed the basis of his removal because of his 

earlier entry into a pretrial diversion program based on the same charge. One of the requirements for 

the application of collateral estoppel is that the issue raised in the current appeal was actually litigated 

in the prior action. Because the appellant did not plead guilty and he was not convicted in conjunction 

with his entry into the pretrial diversion program, the issue of whether he committed the underlying 

misconduct was not actually litigated. Therefore, collateral estoppel did not apply. As for judicial 

estoppel, the purpose of this doctrine is to preserve the integrity of the judicial process by precluding a 

party from contradicting a tribunal’s determination in another proceeding when the determination was 

based on the position taken by the party in that case. This purpose is not implicated when a prior 

action ends in settlement without a disposition by the court because there is no judicial acceptance of 

the party’s prior position. The Board found that the pretrial diversion agreement is akin to a settlement 

and judicial estoppel therefore did not apply. 

 

USERRA

Beck v. Department of the Navy, 2014 MSPB 3, 120 M.S.P.R. 504 (2014): The appellant filed a Board 

appeal alleging that the agency violated USERRA by not selecting him for a position. In support of his 

claim, he alleged that the selecting official had made derogatory statements to him concerning his 

enlisted status in the U.S. Armed Forces and selected a less qualified civilian candidate. The AJ 

dismissed the appeal for lack of jurisdiction, finding that the appellant’s contention that the selecting 

official had spoken disparagingly of his prior military rank, even if true, could not be reasonably 

interpreted as a nonfrivolous allegation that he had lost a benefit of employment due to his 

membership or performance of services in the uniformed service. The Board reversed the initial 

decision and remanded the case for adjudication on the merits. To establish Board jurisdiction over a 

USERRA discrimination claim, the appellant need only allege that: (1) he served in the military, (2) he 

was denied initial employment, reemployment, retention in employment, promotion, or a benefit of 

employment, and (3) the denial was due to his military service. The relative weakness of the appellant’s 

factual allegations should not serve as the basis for dismissing the appeal for lack of jurisdiction. Here, 

the appellant served in the military, he was not selected for a position, and he alleged that his 

nonselection was due to his prior military service and his qualifications were superior to the selectee, 

who was a nonveteran. These allegations are sufficient to establish jurisdiction under the Board’s 

expansive pleading standard for USERRA claims.

Burroughs v. Department of the Army, 2013 MSPB 93, 120 MSPR 392 (2013): The AJ denied the 

appellant’s request for corrective action in this USERRA appeal, finding that the appellant failed to 

show that his uniformed service was a motivating factor in his nonselection. The Board agreed with 

this finding but determined that, in addition to raising a claim under 38 U.S.C. § 4311(a), the 

appellant also raised a retaliation claim under 38 U.S.C. § 4311(b), which the AJ failed to consider. 

The Board held that the same test that applies to claims involving section 4311(a) also applies to 

claims under section 4311(b), which prohibits activity protected by USERRA. Thus, just as an 

agency violates section 4311(a) if it would not have taken the action at issue but for the appellant’s 

uniformed service, an agency likewise violates section 4311(b) if it would not have taken the action 

but for the appellant’s protected activity. The Board remanded the appeal to afford the appellant the 

opportunity to prove his retaliation claim. 
41 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Rassenfoss v. Department of the Treasury, 2014 MSPB 68, 121 M.S.P.R. 512 (2014): The appellant took 

leave from January 2010 until March 2011 to serve in the military. Accordingly, the agency did not 

give him a performance appraisal for the period from December 2009 through November 2010 but 

instead designated him as “not ratable.” As a result, he did not receive a quality step increase for that 

year, and he filed a request for corrective action under USERRA. In a 2-1 decision, the Board 

overruled its prior decisions in West v. Department of the Air Force, 117 M.S.P.R. 24 (2011), and Leite v. 

Department of the Army, 109 M.S.P.R. 229 (2011), and held that the “escalator principle” may apply to 

discretionary as well as nondiscretionary benefits if the benefit was reasonably certain to have 

accrued absent military service. In his dissenting opinion, Member Robbins questioned whether an 

employee could ever be assumed with reasonable certainty to have achieved a specific level of 

performance but for his absence for an entire rating cycle. 

VEOA

Miller v. Federal Deposit Insurance Corporation, 2014 MSPB 31, 121 M.S.P.R. 88 (2014): The appellant, a 

preference-eligible veteran, alleged that the agency had violated VEOA by failing to give proper 

weight to his valuable experience, including his military experience, in determining that he was not 

qualified for an associate professor position. The Board held that, although a preference-eligible 

veteran is entitled under 5 U.S.C. § 3311(2) to have a broad range of experiences considered when 

applying for a position, the Board is limited to assessing whether the agency considered all of the 

valuable experience material to the position and may not reevaluate the merits of the agency’s 

ultimate determination that the veteran is not qualified. 

Modeste v. Department of Veterans Affairs, 2014 MSPB 44, 121 M.S.P.R. 254 (2014): The AJ found that 

the agency violated the appellant’s right to compete under 5 U.S.C. § 3304(f)(1) when it failed to 

consider his application for a temporary position, not-to-exceed 2 years. On review, the agency 

contended that VEOA applies only when filling permanent, competitive service positions. The 

Board rejected the agency’s argument and clarified that § 3304(f)(1) provides a preference eligible or 

veteran a right to compete for any vacant position for which the agency solicits applications from 

individuals outside its own workforce under merit promotion procedures. 

Penalties

Davis v. U.S. Postal Service, 2013 MSPB 100, 120 M.S.P.R. 457 (2013): The appellant was removed 

based on a charge of unacceptable conduct in violation of the agency’s zero-tolerance policy and 

other rules and regulations. The AJ sustained the appellant’s removal, finding, inter alia, that the 

comparators identified by the appellant were not similarly-situated employees. The Board affirmed 

the initial decision as modified, finding that another employee who had received a letter of warning 

for unacceptable conduct was similarly situated to the appellant for the purpose of establishing 

disparate penalties; however, the agency proved that it had a legitimate reason for the difference in 

treatment between these two employees. The Board explained that, unlike the misconduct of the 

comparator employee, the appellant’s misconduct placed employees in fear for their safety and 

violated the agency’s zero-tolerance policy. In addition, the comparator employee had many more 

years of service than did the appellant. The Board also noted that an agency is not foreclosed from 

proffering evidence that the penalty for a certain offense was too lenient in the past. The Board 

found that the deciding official credibly testified that he was unfamiliar with the comparator 

employee or the circumstances of his discipline but that he would have removed the comparator 

employee if he had been the deciding official in that case. 
42 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Brown v. Department of the Interior, 2014 MSPB 40, 121 M.S.P.R. 205 (2014): The Board held that, 

where an agency removes an employee for physical inability to perform the essential functions of her 

position, the Douglas factors are not relevant in assessing the reasonableness of the penalty because 

the action is nondisciplinary and does not involve any alleged misconduct on the part of the 

appellant.The Board further held that, in determining the reasonableness of the penalty, the agency 

need not consider reassignment as an alternative to removal where the employee refuses to 

cooperate with the agency in its attempts to determine the extent of her physical limitations.

National Security Determinations

Schnedar v. Department of the Air Force, 2014 MSPB 5, 129 M.S.P.R. 516 (2014): The appellant was 

indefinitely suspended pending a decision by the agency’s Personnel Security Appeals Board (PSAB) 

on his appeal of the Central Adjudication Facility (CAF) decision to revoke his security clearance. 

The Board found that, under Department of Defense regulation 5200.2-R, the agency could not take 

an adverse action based on a personnel security determination before providing the appellant certain 

procedural protections, including a statement of the reasons for the unfavorable administrative 

action, the opportunity to respond to the CAF, a written decision from the CAF, the opportunity to 

appeal to the PSAB, and a written decision from the PSAB. Because the appellant had not received 

the final PSAB decision when he was indefinitely suspended, the Board found harmful procedural 

error and reversed the action. In a related case, Ulep v. Department of the Army, 120 M.S.P.R. 579 

(2014), the Board found that the agency committed harmful error when it indefinitely suspended the 

appellant based on the informal suspension of his security clearance without first providing the 

procedures similarly set forth at 32 C.F.R. § 154.56(b).

 

Buelna v. Department of Homeland Security, 2014 MSPB 45, 121 M.S.P.R. 262 (2014): The appellant was 

indefinitely suspended based on the suspension of his security clearance, and the AJ sustained the 

action. On review, the Board considered the effect of the Federal Circuit’s decision in Gargiulo v. 

Department of Homeland Security, 727 F.3d 1181 (Fed. Cir. 2013), on the appellant’s due process claim. 

The Board first reaffirmed that, while an employee has no property interest in a security clearance, the 

Board may review whether the agency provided due process rights as to the adverse action itself. Next, 

the Board considered the factors set forth at Mathews v. Eldridge, 424 U.S. 319 (1976), to determine the 

specific requirements of due process. Modifying its previous decisions in McGriff v. Department of the 

Navy, 118 M.S.P.R. 89 (2012), and similar cases, the Board held that, where an agency provides a 

hearing before indefinitely suspending an employee based on the suspension of his security clearance, 

the Board may rely on Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), in determining 

whether the employee received a meaningful opportunity to respond. In Loudermill, the Court 

explained that the opportunity to respond is important for two reasons: (1) to resolve any factual 

disputes; and (2) “in such cases” where the appropriateness or necessity of the penalty is in doubt, to 

provide the employee “a meaningful opportunity to invoke the discretion of the decision maker.” The 

Board clarified that, for purposes of responding to the charge, due process does not require an 

opportunity to contest the merits of the clearance suspension. Concerning the penalty, the Board held 

that, if there are viable alternatives to the proposed action, due process requires that the employee be 

afforded an opportunity to invoke the discretion of a deciding official with authority to select such 

alternatives. However, the Board explained, due process does not require that the deciding official 

consider alternatives that are prohibited, impracticable, or outside management’s purview. The Board 

majority further held that, whereas 5 U.S.C. § 7513 requires that the employee receive notice of the 

reasons underlying the clearance determination, due process requires such notice only to the extent 

those reasons are considered in determining the penalty. In her concurring opinion, Vice Chairman 

Wagner expressed her view that the notice requirement of due process is no less stringent than the 

notice requirement under 5 U.S.C. § 7513. 
43 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Flores v. Department of the Army, 2014 MSPB 46, 121 M.S.P.R. 287 (2014): The appellant was removed 

based on the loss of his eligibility to occupy a sensitive position. Following Buelna v. Department of 

Homeland Security, 121 M.S.P.R. 262 (2014), the Board held that it had authority to review whether due 

process was provided regarding the removal action. However, the Board determined that the 

appellant had waived his due process right to a meaningful response by declining to respond to the 

proposal notice. The Board further found that a traditional Douglas factors analysis was inappropriate 

because, absent a statute or regulation providing the appellant a substantive right to reassignment, the 

Board lacked authority to review whether reassignment was available as an alternative to removal. 

Munoz v. Department of Homeland Security, 2014 MSPB 66, 121 M.S.P.R. 483 (2014): The agency 

indefinitely suspended the appellant based on the revocation of his security clearance. In affirming 

the action, the Board distinguished Schnedar v. Department of the Air Force, 120 M.S.P.R. 516 (2014), 

finding that Department of Homeland Security procedures did not preclude the agency from taking 

an adverse action prior to the issuance of a final decision by the Security Appeals Board. The Board 

further held that a traditional Douglas factors analysis was inapplicable because the indefinite 

suspension was not a sanction or penalty and also because the Board lacked authority to review 

whether reassignment would have been feasible. 

Brown v. Department of Defense, 2014 MSPB 74, 121 M.S.P.R. 584 (2014): The appellant, an employee 

of the Defense Finance and Accounting Service (DFAS), was removed based on the denial of his 

eligibility to occupy a sensitive position. The AJ reversed the action, finding, inter alia, that the 

appellant was denied due process because the deciding official did not have discretion to weigh the 

Douglas factors or take any action but removal. On review, the Board found that the appellant failed 

to establish a due process violation because he did not identify any viable alternatives to removal. In 

particular, the Board found that, because all DFAS positions are classified as noncritical sensitive, 

and the denial of eligibility was final, any alternative to removal that would have retained the 

appellant in his position, reassigned him to another position within DFAS, or indefinitely assigned 

him to nonsensitive duties, was either prohibited, impracticable, or outside management’s purview. 

 

Furloughs

Gajdos v. Department of the Army, 2014 MSPB 55, 121 M.S.P.R. 361 (2014): The appellant, who was 

furloughed due to the sequester, argued that he was deprived of due process because the deciding 

official did not have authority to reverse the course of the proposed furlough. In a 2-1 decision, the 

Board found that the agency satisfied the requirements of due process. Citing Mathews v. Eldridge, 

424 U.S. 319 (1976), the Board considered the following factors to determine what process was due: 

(1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of the 

private interest through the procedures used, and the probable value, if any, of additional substitute 

procedural safeguards; and (3) the government’s interest. Regarding the first factor, the Board noted 

that a furlough is a temporary deprivation although it is likely to cut off subsistence income and 

prevent one from obtaining other gainful employment. Concerning the second factor, the Board 

found a low risk for an erroneous deprivation given (a) that the agency’s procedures ensured the 

appellant was not within a furlough exception; (b) the nondisciplinary nature of a furlough; and (c) the 

agency’s broad discretion to make policy decisions in conducting furloughs. Finally, the Board found 

that the government’s interest was strong because requiring the Secretary of Defense to consider and 

answer all proposed furloughs, as the appellants suggested, would have added a significant 

administrative burden. In her dissenting opinion, Vice Chairman Wagner disagreed with the majority’s 

view that furloughs are subject to less stringent due process requirements than other adverse actions. 
44 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

In re Tinker AFSC/DP v. Department of the Air Force, 2014 MSPB 51, 121 M.S.P.R. 385 (2014): The 

appellants, who had been furloughed as a result of the sequester, argued on appeal that the agency did 

not treat similar employees with fairness and equity because it had exempted so-called “safe haven” 

employees who had been evacuated due to a natural disaster. The AJ certified for interlocutory review 

her rulings that: (1) the agency’s decision not to furlough the “safe haven” employees should be 

analyzed as part of the agency’s burden of proving that its furlough determinations were made in a fair 

and even manner; and (2) neither 5 U.S.C. § 5523 nor OPM’s implementing regulations precluded the 

inclusion of “safe haven” employees in an agency-wide furlough. The Board affirmed the AJ’s ruling 

as to issue (1) but found that whether a statute or regulation precluded the agency from furloughing 

“safe haven” employees is not determinative of whether the agency treated its employees in a fair and 

even manner. Rather, in deciding whether the agency’s decision not to furlough certain employees was 

based on legitimate management reasons, the question is whether the agency reasonably believed that 

it was precluded from furloughing that group of employees.

Hatch Act

Special Counsel v. Lewis, 2014 MSPB 33, 121 M.S.P.R. 109 (2014): The Board observed that, under the 

Hatch Act Modernization Act of 2012, removal is no longer the presumptive penalty for Hatch Act 

violations. Accordingly, the Board held that it must conduct an independent Douglas factors analysis 

in determining the appropriate penalty for the respondent’s violation. The Board overruled its prior 

decisions in which it held that the respondent bears the burden of establishing why the penalty of 

removal should not be imposed.

Discrimination: Decision Reached by the Special Panel

Alvara v. Department of Homeland Security, 2014 MSPB 77 (Spec. Pan.), WL 2014 823775: The 

appellant was removed from the Customs and Border Protection Officer (CBPO) position on a 

charge of physical inability to meet the conditions of his employment due to his medical condition 

(sleep apnea). He had requested that the agency accommodate his position by exempting him from 

the night shift and overtime, but the agency denied that request because it viewed working 

rotational shifts and overtime as an essential function of the CBPO position. On appeal, the 

appellant contended that the agency committed disability discrimination when it denied his 

accommodation request. Relying on Bouffard v. Department of Homeland Security, EEOC Appeal No. 

0120065257 (EEOC Jan. 16, 2008), the Board found that the ability to work rotating shifts and 

overtime was an essential function of the CBPO position and that the appellant’s inability to 

perform that function meant he was not a qualified individual with a disability. The EEOC then 

reversed the Board’s order, finding that the EEOC’s Bouffard decision was wrongly decided. The 

EEOC reasoned that an employee’s schedule and attendance is not an essential function but merely 

a method by which an essential function is accomplished. The Board reaffirmed its previous 

decision and certified the case to the Special Panel. Alvara v. Department of Homeland Security, 121 

M.S.P.R. 453 (2014). In a 2-1 decision, the Special Panel deferred to the EEOC’s decision. Citing 

Ignacio v. U.S. Postal Service, 30 M.S.P.R. 471 (Spec. Pan. 1986), the Panel found that deference was 

appropriate because the EEOC did not rely on any civil service law, rule, or regulation, and there 

was a reasonable basis for EEOC’s determination that the Board’s interpretation of discrimination 

law was incorrect. In her dissent, Vice Chairman Wagner, as a member of the Special Panel, 

expressed her view that Ignacio was incorrectly decided and that the Special Panel should have 

reached the merits of the dispute even though the EEOC did not explicitly rely on civil service law. 

The Vice Chairman further would have found that EEOC’s decision was contrary to Board 

precedent concerning adverse actions based on physical inability to perform and time and 

attendance deficiencies and that the categorical exclusion of time and attendance requirements as 
45 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

essential functions is contrary to statutory provisions within Title 5 and the CSRA that give 

agencies the primary authority to determine the essential functions of a position. 

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

Misconduct

Nguyen v. Department of Homeland Security, 737 F.3d 711 (Fed. Cir. 2013): The petitioner was 

suspended in 2008 for making false statements during a police investigation. Two years later, the 

United States Attorney’s Office deemed the petitioner impaired – based on the 2008 misconduct –

from testifying in court or swearing out complaints. As a result, the petitioner was demoted to a 

different position. The court held that the petitioner was not subjected to “double punishment” 

based on the same misconduct. 

Adverse Action

Mitchell v. Merit Systems Protection Board, 741 F.3d 81 (Fed. Cir. 2014): The court held that the 

petitioner was deemed an “employee” under 5 U.S.C. § 7511 and therefore had appeal rights to 

the Board. 5 U.S.C. § 7511(a)(1)(C)(ii) defines an “employee” as an “individual in the excepted 

service . . . who has completed 2 years of current continuous service in the same or similar 

positions in an Executive agency under other than a temporary appointment limited to 2 years or less.” 

(emphasis added). Examining that statutory language and the language of 5 C.F.R. § 213.104(a), 

the court determined that the petitioner – who had worked as an Assistant United States Attorney 

for approximately 2 years and 7 months, including the time it took for the agency to complete her 

background check – satisfied the statutory and regulatory requirements of an “employee” and 

therefore had Board appeal rights upon her termination. 

Jurisdiction

Biggers v. Department of the Navy, 745 F.3d 1360 (Fed. Cir 2014): The court held that the Board does 

not have the authority to hear a back pay claim from an employee who was indefinitely suspended 

due to the suspension of his or her security clearance. 

Benefits

Devlin v. Office of Personnel Management, 767 F.3d 1285 (Fed. Cir. 2014): The court held that, although 

the spouse of a federal employee may be entitled to Basic Employee Death Benefits upon the 

federal employee’s death, the spouse’s estate may not apply for those benefits on her behalf. 

Significant Board Decisions and Court Opinions Issued in early FY 2015 

Adverse Action Charges

Prouty and Weller v. General Services Administration, 2014 MSPB 90, 122 M.S.P.R. 117 (2014): The 

appellants appealed their removals from their positions as Regional Commissioners after the 

agency’s Office of the Inspector General issued a report finding excessive spending occurred at the 

agency’s 2010 Western Regional Conference. The Board reversed the removals, holding that while 

the decisions made in planning and carrying out the conference reflected “a level of extravagance 

that [has] no place in government,” the agency failed to prove that either appellant knew, or had 

reason to know, of the planning decisions.
46 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Goeke and Bottini v. Department of Justice, 2015 MSPB 1, 122 M.S.P.R. 69 (2015): The appellants

appealed their suspensions based on allegations that they committed professional misconduct during 

the criminal prosecution of a United States Senator. During the agency’s disciplinary process, the 

agency violated its internal disciplinary rules by substituting a new proposing official for the original 

official. The original official had determined that discipline was not warranted. The Board reversed 

the suspensions, finding that the agency’s decision to change the proposing official was a harmful 

procedural error because it led to discipline harsher than otherwise would have occurred.

Whistleblower Protection

Webb v. Department of the Interior, 2015 MSPB 6 (2015): The appellant alleged that he was subjected to 

several adverse personnel actions because he wrote a position paper advocating for a different 

proposed agency organizational restructuring and because he sent e-mails expressing concern with 

certain proposed agency changes. The Board denied his request for corrective action, holding that he 

did not make any protected disclosures. The Board stated that general philosophical or policy 

disagreements with agency decisions or actions do not constitute protected disclosures unless there 

is a reasonable belief that the disclosure evidences one of the categories of wrongdoing set forth in 5 

U.S.C. § 2302(b)(8)(A).

Department of Homeland Security v. MacLean, 574 S. Ct. 913, (U.S. 2015): The appellant was removed 

from his Federal Air Marshal position after disclosing sensitive security information regarding the 

cancellation of agency missions to an MSNBC reporter. The appellant alleged that his disclosure was 

protected whistleblowing activity, but the Board held that his disclosures were not protected because 

they were specifically prohibited by law. The Federal Circuit reversed, holding that the statute cited 

by the Board did not expressly prohibit employee disclosures. The Supreme Court then affirmed the 

Federal Circuit. The Court held that 5 U.S.C. § 2302(b)(8) only excludes disclosures specifically 

prohibited by law, and not disclosures prohibited by rule or regulation. The Court further held that 

the disclosure was not specifically prohibited by law and instead was prohibited only by regulation. 

The Court then remanded the matter back to the Board, and the appeal is currently pending in the 

Western Regional Office pending further adjudication.

Veterans Employment

Dean v. Department of Labor, 2015 MSPB 22 (2015): The appellant appealed his non-selection for the 

position of “Recent Graduate” wage and hour specialist through the Pathways Recent Graduates 

Program, alleging that it violated his veterans’ preference rights under the Veterans Employment 

Opportunities Act by imposing a minimum requirement of a college degree. The Board held that 

there was ample justification in the record showing a rational basis for establishing a minimum 

education requirement for the position, and thus that the Pathways Recent Graduates Program’s 

minimum educational requirement did not violate Mr. Dean’s preference rights.

Furloughs

Einboden v. Department of the Navy, 2015 MSPB 26 (2015): The appellant appealed his furlough due to 

sequestration, claiming that he should not have been furloughed because his salary was paid out of 

working capital funds, not appropriated funds. The Board affirmed the furlough, holding that the 

furlough was a reasonable management solution to the financial restrictions placed on the agency. 

The Board further stated that it was reasonable for the agency to consider its budget situation 

holistically, rather than to isolate individual departments’ budgets. 
47 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

SUMMARY OF MERIT SYSTEMS STUDIES ACTIVITY IN FY 2014

In addition to adjudicating appeals, MSPB is charged with conducting studies of the civil service 

and merit systems. MSPB’s high-quality, objective merit systems studies provide value by assessing 

current management policies and practices, identifying innovative and effective merit-based 

management policies and practices, and making recommendations for improvements. These factors 

also help reduce the occurrence and costs of PPPs that negatively affect agency and employee 

performance. Overall, this benefits American taxpayers in terms of decreased Governmentwide 

costs and increased confidence that the Government is doing its job and appropriately managing 

the workforce.

MSPB studies continue to be referenced in print and on-line professional literature and the media

such as the International Public Management Association for Human Resources (IPMA-HR) HR 

News, Government Executive, Public Manager, Fed Week, the Washington Post, and several wire 

services. MSPB’s work was also cited in Congressional actions in FY 2014. It is not uncommon for 

MSPB study reports to be cited or have impact long after publication. For example, Congress cited 

MSPB’s 2008 report, The Power of Employee Engagement, in its request for GAO to study Federal 

employee morale and engagement and the House Committee on Oversight and Government 

Reform noted the relevance of MSPB’s 2009 report, Addressing Poor Performers and the Law, to 

improving the management of Federal employees.14

During FY 2014, MSPB staff conducted dozens of outreach presentations and media interviews 

about a variety of MSPB studies. For example, MSPB staff members were invited to present 

research findings before audiences of Federal employees, supervisors, and manager at events 

sponsored by agencies such as the EEOC, OPM and FLRA, as well as by employee affinity groups, 

unions, and professional organizations. Federal News Radio broadcast several interviews with MSPB 

staff regarding recently released reports.

In FY 2014, MSPB approved and published four new merit systems study reports.

 Evaluating Job Applicants: The Role of Training and Experience in Hiring

 Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of 

Favoritism

 Sexual Orientation and the Federal Workplace: Policy & Perception

 Veteran Hiring in the Civil Service: Practices and Perceptions

These four reports are summarized below. This Annual Report also includes summaries of two 

merit systems study reports approved and issued in early FY 2015.

 Veterans' Employment Redress Laws in the Federal Civil Service

 The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs

In addition to studies, MSPB also publishes other materials that help educate Federal leaders about 

the merit systems. These materials are available at www.mspb.gov/studies, and the content of the 

2014 editions of the newsletter is summarized below.

 

14 Record of the Congressional Hearing may be found at, http://oversight.house.gov/hearing/federal-governmentsgeneral-schedule-gs-viable-personnel-system-future/.
48 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

 Issues of Merit (IoM) newsletters – Newsletters inform Federal leaders, employees, and 

stakeholders about merit systems and Federal management issues and practices through 

articles that discuss current MSPB research and reports, noteworthy agency practices, and 

Federal HR policies and initiatives.

 Individual, electronic articles – These articles on selected merit systems or workforce 

management topics are posted on the MSPB website at a time or in a format the IoM does 

not readily accommodate.

 Research Highlights – These are one-page summaries of published MSPB studies. Several 

Research Highlights have also been compiled into a “catalog” of MSPB studies.

 Mini-briefings – Short presentations about selected MSPB studies.

Summaries of Reports Released in FY 2014

Evaluating job Applicants: The Role of Training and Experience in Hiring

This report discusses the advantages and disadvantages of using training and experience (T&E) 

assessments to gauge an individual’s qualifications for a Federal job and provides recommendations 

for the most effective use of such assessments. Insights for this report were obtained from research 

and practice in the field of assessment, and from MSPB survey data. This report synthesizes multiple 

perspectives on the advantages and challenges of T&E assessments, describes the role they can play 

in Federal hiring, and assists Federal agencies and hiring managers in using T&E assessments 

appropriately.

Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing 

Perceptions of Favoritism

This report summarizes the findings of MSPB's research into employee perspectives regarding how 

prevalent they believe that favoritism is within the Federal merit systems, how and when favoritism 

occurs, and the potential impacts on individuals and organizations. Further, this report examines 

potential reasons underlying perceptions of favoritism and outlines steps that Federal agency leaders 

and supervisors can take to ensure that decisions are merit-based and untainted by personal 

favoritism and discusses what Federal employees can do to help them successfully compete for 

advancement and recognition in a merit system.

Sexual Orientation and the Federal Workplace: Policy & Perception

The Office of Personnel Management interprets the tenth PPP, which bars discrimination in 

Federal personnel actions based on conduct that does not adversely affect job performance, to 

prohibit sexual orientation discrimination. As this prohibition has neither been specifically 

expressed in statute nor affirmed in judicial decision, it has been subject to alternate interpretations.

This report examines Federal employees’ perceptions of workplace treatment based on sexual 

orientation, reviews how Federal workplace protections from sexual orientation discrimination have 

evolved, and considers what actions might be taken to communicate or clarify those protections. 

Lesbian, gay, bisexual, and transgender (LGBT) Federal employees’ perceptions of the workplace, as 

measured by OPM’s Federal Employee Viewpoint Survey, are generally less positive than those of 

their colleagues. However, in some agencies for at least some workplace issues, LGBT employees’

perceptions were as positive as those of other employees. This suggests that Federal agencies may be 

able to create more inclusive cultures, supporting the MSPs’ vision of fair and equitable treatment of 

all employees and efficient and effective use of the workforce.
49 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Veteran Hiring in the Civil Service: Practices and Perceptions

This report describes the laws and regulations for hiring veterans into the civil service and 

documents their complexity. The consequences of that complexity include administrative burden, 

opacity for applicants and employees, and the potential for the perception, or reality, of error or 

manipulation. The report also reviews the history and implementation of 5 U.S.C. § 3326, a 

provision designed to oversee the hiring of recently retired service members into civilian positions in 

the Department of Defense (DoD) to promote open competition. That oversight has been absent 

for many years, during which time DoD has hired more than 40,000 retired service members into 

civilian positions with little or no break in service.

Summaries of Reports Released in Early FY 2015

Veterans' Employment Redress Laws in the Federal Civil Service

This report describes the statutes and pertinent case decisions for two laws designed to protect the 

employment rights of veterans in the civil service: (1) the Veterans Employment Opportunities Act 

of 1998 (VEOA); and (2) the Uniformed Services Employment and Reemployment Rights Act of 

1994 (USERRA). VEOA is designed to provide a redress procedure for preference eligibles and 

certain veterans who believe that an agency has not treated them in accord with Federal employment 

laws and regulations designed to reward particular types of military service. USERRA is designed to 

address discrimination based on military service and to ensure service members can resume their 

civilian careers when their military service is completed. The report explains the procedures that a 

veteran, preference eligible, or service member must follow to obtain relief if a Federal agency has 

violated the individual’s employment rights under either of these laws and provides a useful table 

highlighting the similarities and differences between VEOA and USERRA procedures.

The Impact of Recruitment Strategy on Fair and Open Competition for Federal Jobs

The first MSP of fair and open competition for filling jobs in the Federal Government is a 

longstanding and fundamental element of the Federal merit systems. This report examines how 

factors such as a proliferation of hiring authorities and the decentralization of the Federal hiring 

process affect the idea and implementation of this MSP, and how the complexities of Federal civil 

service laws, regulations, and practices make it difficult to define what constitutes "fair and open 

competition."

FY 2014 Issues of Merit Newsletter Topics

MSPB issued three editions of Issue of Merit (IoM) during FY 2014 and posted three articles on selected 

Federal human capital management issues to MSPB’s studies web page. IoM and website articles 

informed readers about published and ongoing MSPB research to support management of the Federal 

workforce in a manner consistent with the s. FY 2014 IoM articles covered topics such as the 

relationship between organizational and individual performance, the implications of hiring authority 

for workforce diversity, employee and employer obligations regarding reasonable accommodation, 

action learning, and employee perceptions of agency receptivity to disclosures of wrongdoing. 

Additionally, FY 2014 IoM articles provided a synopsis of the ongoing revision of the merit systems

studies research agenda and MSPB’s FY 2013 adjudication activities. The wide range of topics 

acknowledges the wide-ranging interests and concerns of IoM readers and MSPB stakeholders. 
50 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Updating the Merit Systems Studies Research Agenda for FY 2015 - 2018

In FY 2014, MSPB reviewed and updated its merit systems studies research agenda. The research 

agenda guides MSPB in conducting objective, nonpartisan studies that assess and evaluate Federal 

merit systems policies, operations, and practices. 5 U.S.C. § 1204(a)(3). The goal of the review was a 

research agenda that addresses both continuing imperatives, such as achieving a workforce free of 

prohibited personnel practices, and contemporary issues, such as making the best possible use of 

advances in technology and the impact of policy changes on the Federal workforce. The updated 

agenda was developed through an open and deliberative process that included a call for ideas and 

input from interested citizens, a public meeting at which the Board Members and key stakeholders 

discussed the proposed agenda, and formal approval by the Board. The final research agenda for 

2015-2018 was approved by the Board Members in January 2015 and published in February 2015.

2015 Merit Principles Survey

In 2015, MSPB is preparing to administer its next Merit Principles Survey (MPS) to obtain Federal 

employees’ perceptions and experiences regarding the health of merit in the workplace, occurrence 

of PPPs, and other topics in support of MSPB’s studies program.

MSPB Cloud-based Survey Platform

MSPB is continuing its efforts to acquire its own secure, cloud-based survey platform. The 

platform will provide two essential capabilities: (1) scientifically sound, technologically 

sophisticated, and timely design and administration of surveys to support merit systems studies; 

and (2) efficient and effective collection of customer service and customer satisfaction feedback to 

support MSPB’s strategic objectives and performance goals. Additional benefits of the survey 

platform include:

 Increased value for the money;

 Reduced Contracting workload, risk, and lead time;

 More efficient use of MSPB program, administrative, and IT staff time;

 Increased Federal agency and Federal employee acceptance; and

 Simplified compliance with Federal IT policies and security requirements.

MSPB studies staff and MSPB’s Performance Improvement Officer (PIO) worked with the 

Department of Interior National Business Center to begin procurement of a cloud-based, secure 

survey platform. These efforts are continuing in FY 2015.
51 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

SIGNIFICANT ACTIONS OF THE U.S. OFFICE OF PERSONNEL MANAGEMENT

IN FY 2014

As required by statute, MSPB reviews and reports on the significant actions of OPM including an 

analysis of whether OPM’s actions are in accord with MSPs (5 U.S.C. § 2301) and free from PPPs

(5 U.S.C. § 2302). OPM’s actions broadly affect the Federal workforce, multiple Federal agencies, or 

applicants for Federal jobs. Almost all of OPM’s actions have the potential to impact the 

effectiveness and efficiency of the Federal workforce (MSP 5) and/or fair and equitable treatment in 

a variety of contexts (MSP 2). Depending on the nature of a particular OPM action, it has the 

potential to affect or involve other specific MSPs and/or PPPs. Brief information about the 

additional MSPs and/or PPPs that may be affected by a particular OPM action is included in the 

‘significance’ section following each action.

15

 

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

Final Rule Implementing the Hatch Act Modernization Act of 2012

The Hatch Act16 was enacted in 1939 to, in part, limit the political activities of Federal employees. 

Employees covered by the Hatch Act may not use their official authority to influence or affect an 

election and may not knowingly help in political fundraising, run for partisan elective office, 

knowingly solicit or discourage political activity by persons with certain business before the agency, 

or engage in political activity on Government time or using Government resources. In addition, 

employees at certain agencies are forbidden from taking any active part in political management or 

political campaigns.17 The eighth MSP states that Federal employees should be protected against 

coercion for partisan political purposes and also prohibits them from using their official authority or 

influence to interfere with or affect the result of an election or a nomination for election.18

The Office of Special Counsel (OSC) investigates violations of the Hatch Act and may bring 

charges of violations before MSPB, which decides whether a violation has occurred and, if so, 

determines the penalty. The Hatch Act Modernization Act of 201219 was signed into law by 

President Obama on December 28, 2012. OPM issued a final rule in May 2014 to incorporate into 

its regulations regarding political activity the amendments to the Hatch Act added by the Hatch Act 

Modernization Act of 2012.

20

 

15 This summary of OPM’s most significant actions or initiatives focuses on those actions that have the most potential to 

affect one or more of the MSPs or PPPs, rather than serving as a comprehensive digest of OPM activities. In addition to 

its Federal human capital management policymaking role, OPM also is assigned functions that do not relate to MSPs or 

PPPs (such as its responsibilities under the Patient Protection and Affordable Care Act). OPM also provides services to 

Federal agencies that are not included in this review (such as conducting employee background investigations and 

processing retirement claims). If a significant OPM action was discussed in a previous MSPB Annual Report, and no 

significant changes have been made to those programs, our previous comments remain applicable. Therefore, this 

summary should be read in conjunction with previous MSPB reports of OPM’s significant actions.

16 Public Law No. 76-252.

17 Senate Report No. 112-211 (2012).

18 5 U.S.C. § 2301(b)(8).

19 Public Law No. 112-230.

20 Political Activity—State or Local Officers or Employees; Federal Employees Residing in Designated Localities; 

Federal Employees (Final Rule), 79 Fed. Reg. 25,483 (May 5, 2014).
52 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

Significance

In part, the Hatch Act Modernization Act of 2012 modified the penalty structure for violations of 

the Hatch Act to mirror the range of penalties authorized for other disciplinary actions. Prior to the 

Hatch Act Modernization Act of 2012, Federal employees who were found to have violated the 

Hatch Act were removed from office unless MSPB unanimously found that the violations did not 

warrant termination. In those cases, the employees were suspended for at least 30 days without pay. 

Under the modified penalty structure enacted in 2012, a Federal employee who violates the Hatch 

Act is subject to a range of disciplinary actions. These actions include removal from Federal service, 

reduction in grade, debarment from Federal employment for a period not to exceed five years, 

suspension, reprimand, or a civil penalty not to exceed $1,000.

According to Special Counsel Carolyn Lerner, the previous penalty structure was overly restrictive 

and may have deterred agencies from referring potential violations of the Hatch Act to OSC. 

Pursuant to these regulations, in adjudicating Hatch Act violations, the Board will be able to 

consider the severity of the violation and other aggravating or mitigating factors, as it does with 

other disciplinary matters.21

Final Rule Implementing Phased Retirement

In August 2014, OPM issued regulations to implement the phased retirement program, 22 as required 

by the Moving Ahead for Progress in the 21st Century Act of 2012.23 Phased retirement allows an 

employee to work 50 percent of the time (part-time) and receive 50 percent of his or her annuity as a 

precursor to full retirement.24 The main purpose of phased retirement is to enhance the mentoring 

and training of employees who will be replacing more experienced retiring employees.25 The ability 

to participate in a phased retirement program will undoubtedly persuade some retirement-eligible 

Federal employees to remain on the job longer than they otherwise would have, reducing the impact 

of the loss of their expertise on agency operations. Phased retirement is related to the fifth and 

seventh MSPs, which require the Federal workforce be used efficiently and effectively, and that 

Federal employees be provided effective education and training where such education and training

will result in better individual and organizational performance, respectively.

26

Significance

According to the Government Accountability Office (GAO), 14 percent of permanent career 

Federal employees were eligible to retire at the end of FY 2012. By the end of FY 2017, GAO 

estimates that that percentage will increase to 31 percent.27 As the number of Federal employees 

who are eligible to retire continues to grow, it will become increasingly important to find effective 

ways to facilitate the transfer of their institutional knowledge to less experienced workers. Phased 

retirement is one tool that may be useful in accomplishing this goal. However, nothing has 

prevented agencies in the past from establishing robust mentoring programs that involve 

 

21 Office of Special Counsel’s website (osc.gov) and Senate Report No. 112-211 (2012).

22 Phased Retirement (Final Rule), 79 Fed. Reg. 46,608 (August 8, 2014).

23 Public Law No. 112-141 § 100121(d).

24 Katherine Archuleta Memorandum for Heads of Executive Departments and Agencies, “Phased Retirement 

Guidance,” August 7, 2014 (www.chcoc.gov/transmittals).

25 Phased Retirement (Final Rule), 79 Fed. Reg. 46,608 (August 8, 2014).

26 5 U.S.C. § 2301(b)(5) and (b)(7).

27 U.S. Government Accountability Office, “Recent Trends in Federal Civilian Employment and Compensation,” GAO14-215, January 2014.
53 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

experienced employees, or those nearing retirement, to facilitate knowledge transfer or assist less 

experienced workers as they advance in their careers.

OPM’s regulations require that “phased retirees” must spend at least 20 percent of their working 

hours in mentoring activities; OPM’s accompanying guidance states that agencies should consider an 

employee’s willingness and ability to meet this mentoring requirement when approving an 

employee’s request to enter phased retirement. However, an authorized agency official defines 

exactly what “mentoring activities” are and has the power to waive the mentoring requirement in the 

event of an “emergency or unusual circumstance.”28

OPM intends to release a substantial amount of guidance designed to assist agencies with 

implementing phased retirement.29 Such guidance should highlight the main purpose of phased 

retirement, which is to assist agencies with knowledge management and preparing the next 

generation of Federal employees for success.30 Agencies should institute proper controls to ensure 

that purpose is fulfilled.

Governmentwide Strategy on Gender Pay Equality

In May 2013, the President issued a memorandum to advance pay equality in the Federal 

Government.31 The memorandum directed OPM to develop a Governmentwide strategy to address 

any gender pay gap that may exist in the Federal workforce. Among the steps that OPM was to 

undertake were to: (1) Analyze whether changes to the General Schedule (GS) pay system would 

assist in addressing any gender pay gap; (2) propose guidance to agencies to promote greater 

transparency regarding starting salaries; and (3) recommend additional actions that should be 

undertaken to narrow any gender pay gap. The memorandum also instructed Federal agencies to 

provide OPM a range of information and analyses on their specific pay-setting policies and practices 

to facilitate the development of the Governmentwide strategy.

In April 2014, OPM issued the Governmentwide Strategy on Advancing Pay Equality in the Federal 

Government, finding that while many of the Government’s policies and practices already support 

gender pay equality, there is more work to be done.32 OPM found no evidence in its analysis that 

changes to the GS pay system would assist in narrowing any gender pay gap. It pledged to work with 

agencies to ensure that agency-specific GS equivalent-level salary tables or rate ranges are made 

available to job candidates on its website and to promote greater transparency regarding starting 

salaries. OPM already posts other pay tables for pay systems that it administers.

OPM proposed the following actions to address the gender pay gap:

1. Work with agencies to clarify the range of GS pay-setting flexibilities and share best practices 

on setting starting salaries in gender-neutral ways;

 

28 Phased Retirement (Final Rule), 79 Fed. Reg. 46,625 (August 8, 2014) and Katherine Archuleta Memorandum for 

Heads of Executive Departments and Agencies, “Phased Retirement Guidance,” August 7, 2014, Attachment: 

Employment as a Phased Retiree (Guidance), p. 4 (www.chcoc.gov/transmittals).

29 OPM statement in response to an MSPB query regarding fiscal year 2014 OPM significant actions.

30 Katherine Archuleta Memorandum for Heads of Executive Departments and Agencies, “Phased Retirement 

Guidance,” August 7, 2014, Attachment: Employment as a Phased Retiree (Guidance), (www.chcoc.gov/transmittals).

31 Memorandum of May 10, 2013, Advancing Pay Equality in the Federal Government and Learning from Successful 

Practices, 78 Fed. Reg. 28,717 (May 15, 2013).

32 Katherine Archuleta Memorandum for Heads of Executive Departments and Agencies, “Governmentwide Strategy 

on Gender Pay Equality in the Federal Government,” April 10, 2014 (www.chcoc.gov/transmittals).
54 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

2. Develop guidance for agencies to use to conduct analyses of pay by gender and review their 

starting salary trends, pay-setting flexibilities, and promotion data;

3. Explore the need to conduct Governmentwide statistical analyses to better understand 

gender-based pay trends;

4. Share best practices with agencies and develop recruiting and outreach strategies for 

increasing female populations in occupations where they are currently underrepresented; and

5. Develop guidance for agencies on the possibility of changing the work schedule of positions, 

including the feasibility of establishing more positions as part-time job sharing positions.

Significance

As the Presidential memorandum stated, unjust pay disparities are not only detrimental to women, 

families, and the economy, but providing equal pay for work of equal value is stated as the third 

MSP.

33 OPM found that the gender pay gap has shrunk dramatically over the past 30 years. Much of 

the remaining pay gap can be explained by differences in the distribution of males and females 

across occupational categories. However, OPM could not rule out the possibility that discriminatory 

influences played a role in this occupational distribution.

MSPB’s 2011 report, Women in the Federal Government: Ambitions and Achievements, noted that although 

the Federal Government has made considerable progress in its employment of women, progress 

toward full equality is not yet complete. That report found that women remained less likely than 

men to be employed in high-paying occupations and supervisory positions. This is partially due to 

continuing occupational differences between women and men in the Federal workplace as well as in 

the broader civilian labor force. OPM’s plan for sharing best practices and developing recruiting and 

outreach strategies for increasing female populations in occupations where they are currently 

underrepresented (science, technology, engineering, mathematics, and other nontraditional jobs) can 

help increase female representation with these important occupations.

As noted in our 2011 report, the existence of a gender pay gap is not purely, or even primarily, a 

women’s issue. Effective, merit-based human resources practices -- including outreach and 

recruitment, workplace fairness, and effective supervision -- matter to everyone and can yield 

positive dividends in workforce quality and organizational performance. All employees and all 

segments of the American public benefit from workplaces that are representative of all segments of 

society and fully utilize and recognize the talents of every employee.

Governmentwide Veterans Recruitment and Employment Strategic Plan

Executive Order 13518 assigned OPM a leadership role in efforts to improve recruitment and 

employment of veterans in the executive branch.34 Among other responsibilities, the executive order 

directed OPM to develop a Governmentwide Veterans Recruitment and Employment Strategic Plan that was 

to be updated every three years. In April 2014, OPM released the latest strategic plan covering fiscal 

years 2014 through 2017.35 The strategic plan emphasizes five focus areas to improve the 

1. Ensure Federal leaders advocate the value and importance of hiring veterans;

2. Assist veterans to better align their skills with Federal employment opportunities;

 

33 5 U.S.C. § 2301(b)(3).

34 Executive Order 13518, “Employment of Veterans in the Federal Government,” 74 Fed. Reg. 58,533 (Nov. 13, 2009).

35 OPM News Release, “Veterans Employment Council Discusses Strategy to Increase Employment and Retention of 

Veterans in Federal Government,” April 29, 2014 (www.opm.gov/news/releases/).
55 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

3. Improve the opportunity for veterans to successfully find Federal employment;

4. Ensure hiring officials are keenly aware of the value veterans bring in meeting mission 

objectives and that veterans view the Federal Government as an employer of choice; and

5. Ensure that all interested parties receive accurate and consistent information regarding the 

Federal employment of veterans.

Significance

Executive Order 13518 sets Administration policy for promoting employment opportunities for 

veterans within the executive branch consistent with MSPs. As the focus on employing veterans 

increases, so does the importance of agencies properly balancing that important public policy with 

the competing MSP of making selections for Federal employment after fair and open competition 

while assuring all receive equal opportunity.36 The focus placed on hiring veterans has helped 

increase the proportion of the Government’s new hires who are veterans; in 2009, 24 percent of 

new hires were veterans, and by 2013, 31 percent of new hires were veterans.37 The importance of 

the policy of granting veterans’ preference in Federal employment is reflected in the fact that it is a 

PPP for a Federal official to violate a veterans’ preference requirement.38

The Governmentwide Veterans Recruitment and Employment Strategic Plan also attempts to ensure that all 

agency practices and policies promote a zero tolerance of violations of the Uniformed Services 

Employment and Reemployment Rights Act of 1994 (USERRA). USERRA is a Federal law 

designed to ensure that those who have served in uniform are not disadvantaged in their civilian 

careers because of their service; promptly reemployed in their civilian jobs upon their return from 

duty; and not discriminated against in employment based on past, present, or future military 

service.39 Under USERRA, Federal employees may file appeals with MSPB regarding certain agency 

actions that involve reemployment, discrimination, and reprisal claims.

As noted in MSPB’s 2014 report, Veteran Hiring in the Civil Service: Practices and Perceptions, laws and 

regulations granting preference to veterans in Federal hiring have grown complex and may invite 

opportunities for misperceptions, confusion, or intentional abuses. Any effort aimed at educating 

agencies on the requirements of veterans’ preference laws and at educating veterans regarding their 

rights based on those laws is welcome.

OPM Significant Actions Underway or Completed

This section lists selected OPM significant actions discussed in previous MSPB Annual Reports that 

were completed or underway in FY 2014. This year’s report does not discuss these actions in detail 

because: (1) Further action or results are pending; or (2) the intent and significance of the final 

action is essentially unchanged from the (previously reviewed) proposed action. The table below lists 

the action, its current status, and the previous MSPB Annual Report(s) which discussed the action. 

MSPB intends to monitor actions in progress and will discuss those, as appropriate, in future Annual 

Reports or merit systems studies.

 

36 5 U.S.C. § 2301(b)(1).

37 U.S. Office of Personnel Management, Governmentwide Veterans Recruitment and Employment Strategic Plan FY 2014—FY 

2017, April 2014, p. 2; and OPM News Release, “Veterans Employment Council Discusses Strategy to Increase 

Employment and Retention of Veterans in Federal Government,” April 29, 2014 (www.opm.gov/news/releases/).

38 5 U.S.C. § 2302(b)(11).

39 38 U.S.C. § 4301. 
56 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

OPM Action 2014 Status Year(s) 

Discussed

Nondiscrimination 

Provisions Final regulations issued in July 2014.40 2013

Extension of Certain 

Benefits to Same-Sex 

Spouses of Federal 

Employees and Their 

Families

OPM continued to extend Federal benefits in response to the 

June 2013 Supreme Court ruling that portions of the Defense 

of Marriage Act were unconstitutional.41

2012, 2013

Proposed Rules for 

Designation of National 

Security Positions

Further action (e.g., final rule or withdrawal) is pending as of 

November 2014. 2013

Pathways Programs

Many agencies have established Pathways Programs; several 

have expressed concerns about program effectiveness.

42 OPM 

has not publicly proposed any changes to the program in 

response to these concerns.

2011, 2012

Goals-EngagementAccountability-Results 

(GEAR) Pilot

Pilot programs at five agencies continue in anticipation of 

Governmentwide adoption. In response to a GAO evaluation

of the GEAR framework, OPM has stated its intent to work 

with the CHCO Council to identify tools and measures to 

assess GEAR’s implementation.43

2012

 

40 Nondiscrimination Provisions (Final Rule), 79 Fed. Reg. 43,919 (July 29, 2014).

41 Elaine Kaplan Memorandum for Heads of Executive Departments and Agencies, “Family and Medical Leave Act 

(FMLA) Coverage of Same-Sex Spouses,” October 21, 2013 (www.chcoc.gov/transmittals); Federal Employees Health 

Benefits Program and Federal Employees Dental and Vision Insurance Program: Expanding Coverage of Children; 

Federal Flexible Benefits Plan: Pre-Tax Payment of Health Benefits Premiums: Conforming Amendments (final rule), 

78 Fed. Reg. 64,873 (October 30, 2013); Family and Medical Leave Act; Definition of Spouse (Proposed rule), 79 Fed. 

Reg. 35,497 (June 23, 2014); and Civil Service Retirement System and Federal Employees Retirement System; Notice to 

Surviving Same-Sex Spouses of Deceased Federal Annuitants, Employees, or Former Employees Who Died Prior to 

June 26, 2013 (Notice), 79 Fed. Reg. 57,589 (September 25, 2014).

42 Partnership for Public Service, Embracing Change: CHCOs Rising to the Challenge of an Altered Landscape (2014), pp. 2, 16-

17.

43 U.S. Government Accountability Office, Federal Employees: Opportunities Exist to Strengthen Performance Management Pilot, 

GAO-13-755, November 2013, pp. 11-14.
57 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

FINANCIAL SUMMARY

Fiscal Year 2014 Financial Summary44

as of

September 30, 2014

(dollars in thousands)

FY 14 Appropriations

FY 2014 Appropriation $ 42,740

Civil Service Retirement and Disability Trust Fund 2,345

Total $ 45,085

Obligations Charged to FY 2014 Funds

Personnel Compensation $ 22,211

Personnel Benefits 6,194

Travel of Things 87

Travel of Persons 322

Rents, Communications and Utilities 4,364

Printing and Reproduction 114

Other Services 2,122

Supplies and Materials 190

Equipment/Lease Improvements 926

Reimbursable Obligations 2,345

Total $ 38,875

 

44 This summary shows financial activity (appropriations and obligations by category) for FY 2014. Additional Financial 

Information in available in the FY 2014 Annual Financial Report available on our website.
58 Merit Systems Protection Board Annual Report for FY 2014 May 29, 2015

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